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2001 DIGILAW 242 (JK)

United India Insurance Co. Ltd. v. Rafiqa Begum

2001-10-06

MUZAFFAR JAN

body2001
Admit. 1. The appeal has been submitted to set aside the award passed by the Motor Accidents Claims Tribunal, Srinagar dated 12-11-1998 in Claim Petition No. 15/98 titled Rafiqa Begum and others Vs. Gh. Nabi Wani and others. 2. The record reveals that the deceased Farooq Ahmad was travelling in a tipper bearing registration No. 571 JKO-1C on 08-01 -1998. The tipper met with an accident due to the front tyre burst resulting in grave injury to Farooq Ahmad and his subsequent death. The claim petition was filed in the Motor Accident Claims Tribunal, Srinagar which was considered on merits and allowed vide order dated 121-11-1998. 3. The main grounds taken in the memorandum of appeal are that respondents No. 8 & 9, driver and owner did not participate in the proceedings, therefore, the appellants have right to contest the appeal on all available grounds. The quantum of compensation has been calculated on wrong multiplier and the amount which has been awarded by the Tribunal is excessive on account of the fact that the deceased was a labourer and not a passenger. The claimants-respondents had right to claim compensation under the Workmens Compensation Act and not before the Motor Accidents Claims Tribunal. 4. Heard the learned counsel for the parties and perused the entire record. 5. In order to ascertain whether merely by absence of respondents No. 8 & 9 before the Tribunal, the appellant has right to file appeal on the wider grounds as provided under section 170 of the Motor Vehicles Act......to be perused. Section 170 of the Act reads as under: 170. "Impleading insurer in certain cases-Where in the course of any inquiry, the claims Tribunal is satisfied that- (a) there is collusion between the person making the claim and the person against whom the claim is made, or (b) the person against whom the claim is made has failed to contest the claim, it may, for reasons to be recorded in writing direct that the insurer who may be liable in respect of such claim shall be impleaded as a party to the proceedings and the insurer so, impleaded shall there upon have without prejudice to the provisions contained in sub-section (2) of Section 149, the right to contest the claim on all or any of the grounds that are available to the person against whom the claim has been made." 6. From a bare perusal of the above section, it is manifestly clear that only on proof of collusion the insurer gets a right to file appeal on wider grounds. From perusal of the record of the Tribunal, it is manifestly clear that there is no evidence to subtantiate and establish the existence of any collusion between the insured and the claimants. On the failure of the owner or the driver to contest the claim as in the present case unless the Tribunal for reasons to be recorded in writing accords permission as prescribed under the provisions of the Motor Vehicles Act, the Insurance Company cannot have a wider defence on merits than what is available to appellant by way of statutory defence. In the case in hand no permission has been sought and as such, the appellant does not have a wider defence available in the appeal. 7. The submission that, since the deceased Farooq Ahmad was a labourer, and not a passenger and is not covered by the terms and conditions of the insurance policy, cannot be sustained in view of the law laid down in 1996 SLJ 247. The relevant portion of the judgment is reproduced as under: "The contention of the appellant that the policy of insurance in respect of the vehicle in question did not cover the liability of the labourer for want of payment of additional premium within the meaning of section 147 of the Motor Vehicles Act, 1986, has hardly any substance in view of the object and intendment of amended section 147 of the Motor Vehicles Act, 1988 statutorily covering all kind of persons travelling by the vehicle without payment of additional premium. A bare meaning. It has to be given wider, effective and practical meaning so that the object of the legislature which was faced with divergent views of various courts of the country giving different interpretation to the provisions of section 95 (old) causing immense hard to many categories of persons by disentitling them from claiming compensation either from the insurer or the insured or both, in the facts and circumstances of the case: New provision, therefore covers such kind of cases as well. The decision referred to by the learned counsel for the appellant, turn on their own facts and have hardly any application under the amended section 149 of the Motor Vehicles Act, 1988 which applies to the resent case since the accident took place after this Act had come into force." The authority provides that the insurer is bound to indemnify all persons travelling in the vehicle in question. 8. The learned counsel for the appellant has submitted that the appellant has a statutory right to file appeal and is not liable to pay any compensation on account of violation of section 149 Clause (2) (b) (II) of the Motor Vehicles Act. Submission of the learned counsel for the appellant that he has a statutory right to file the appeal in view of the breach of section 149 Clause (2) (b) (II), which constitute violations of the terms and conditions of the Insurance Policy does not seem to be made out in the present case. 9. Insurance Company has denied the liability to pay the compensation on the grounds that since the owner had employed the driver without a valid driving licence thereby committing breach of the conditions of the Insurance Policy within his knowledge, therefore, the appellant is not liable to pay any compensation. This objection cannot be allowed for multiple reasons. 10. From the perusal of the written statement submitted by the appellant, it is manifestly clear that the appellant in his written statement merely says that the driver did not have a valid driving licence without asserting that the owner had willfully employed the driver with an invalid driving licence. On such pleadings the onus to prove the knowledge of the owner about the possession of invalid driving licence of the driver of the offending vehicle, was on the Insurance Company, the present appellant. It appears that no resistance has been made, no plea has been taken, no issue has been raised and no evidence has been adduced by the appellant to substantiate this plea. It is settled law that not only the onus to prove this fact was on the appellant-Insurance Company and in the absence of proof as required under law, the Insurance Company cannot be absolved of its liability to pay compensation to the third party. Similar view has been taken in Air 1999 Raj 86. It is settled law that not only the onus to prove this fact was on the appellant-Insurance Company and in the absence of proof as required under law, the Insurance Company cannot be absolved of its liability to pay compensation to the third party. Similar view has been taken in Air 1999 Raj 86. Thus the appellant has not established any cogent and acceptable evidence that the driver of the offending vehicle was without a valid driving licence to the knowledge of the owner and consequently there was breach of section 149 (2) (b) (II) of the Motor Vehicles Act. The appellant, as such, does not seem to have any statutory right on this ground to file the appeal. Learned counsel for the appellant further argued that the quantum of compensation is excessive and has been assessed on method and multiplier, which is not applicable to the present case. 11. In order to enable the appellant to have wider defence in appeal and challenge the multiplier and the quantum of award, the appellant had to seek permission from the Tribunal, which in the present case does not seek to have been sought by the appellant-Company. In the absence of permission to file appeal on all available grounds, the appeal on the plea of quantum is not permissible as held by a Division Bench of this Court in case titled Anand Ram Vs. A.K. Jain, reported in AIR 1999 J&K 29. The relevant portion of the judgment is reproduced as under: "Thus he prayed for upholding the award passed in appeal, which was otherwise, according to him within brackets. However, learned counsel for respondents was not in a position to satisfy this court as to how he could maintain the appeal on quantum, except by reiterating that the judgment of the learned Single Judge needs to be upheld. In the fact of the provisions of section 170 of the Motor Vehicles Act, 1988, this question needs not detain us any further as admittedly no leave was obtained by the Insurance Company from the court to contest the claim of the appellants on all available grounds to the owner." 12. The support, to take this view, has been drawn from the judgment of Apex Court reported in AIR 1998 SC 2968. The support, to take this view, has been drawn from the judgment of Apex Court reported in AIR 1998 SC 2968. Relevant portion of the judgment is reproduced as under: "It clearly shows that the insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in the section are found to be satisfied and for the purpose the Insurance Company has to obtain order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless that procedure is followed the Insurance Company cannot have a wider defence on merits that what is available to it by way of statutory defence. It is true that the claimants themselves had joined respondent No. 1 Insurance Company in the claim petition but that was done with a view to thrust the statutory liability on the insurance company on account of the contract of the Insurance. That was not an order of the court itself permitting the insurance company which was impleaded to avail of a larger defence on merits on being satisfied on the aforesaid two conditions mentioned in section 170. Consequently, it must be held that on the facts of the present case respondent No. 1 Insurance Company was not entitled to file an appeal on merits of the claim which was awarded by the Tribunal." 13. In this view of the settled law and on the firm finding that no permission has been sought to file the appeal on wider grounds, the amount of quantum cannot be challenged in appeal. 14. It may be observed that the insurer has been made statutorily liable to pay compensation to the third party on proof of accident even in case where the dirver of the offending vehicle was found driving the vehicle on a fake driving licence. The Honble Supreme Court while taking this view has held that the liability of the insurer to pay compensation to the third party is not invalidated because of the fake driving licence when the owner is not shown to have committed breach of the conditions of the Insurance Policy. The Honble Supreme Court while taking this view has held that the liability of the insurer to pay compensation to the third party is not invalidated because of the fake driving licence when the owner is not shown to have committed breach of the conditions of the Insurance Policy. It is further held that in case the owner is found to have committed breach of the conditions of Insurance Policy by engaging a driver with a fake driving licence, even in that eventuality the insurer is bound to pay compensation to the third party and recover the same from the owner. See AIR 2001 SC 1419. 15. For the reasons given above, there is no merit in this appeal which is accordingly dismissed. Award impugned is upheld. Record be sent back. The award amount be released in favour of the claimants under rules. No Costs.