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Himachal Pradesh High Court · body

2004 DIGILAW 115 (HP)

ORIENTAL INSURANCE CO. LTD. v. SUNITA DEVI

2004-06-02

A.K.GOEL

body2004
JUDGMENT Arun Kumar Goel, J.—Learned counsel for the appellant at the time of hearing of this appeal urged that admitting all the facts as set out in the Claim Petition below to be correct, still the impugned award against his client cannot be sustained in any circumstance whatsoever. 2. Vehicle Bearing Registration No. HIB-1947 being insured with the appellant-Insurance Company under a valid insurance policy, is admitted. It met with an accident on 26.4.2000, Jagat Ram was its driver. Deceased Subhash Chand being the husband of respondent No. 1, father of respondents No.2 and 3 and son of respondents No. 4 and 5 respectively, is also another fact on which learned counsel for the parties were not at variance. 3. He was travelling in the ill-fated truck at the time of its accident on 26.4.2000. As a result of this accident, he died. A claim petition demanding compensation of Rs. 10,00,000/- was filed against the present appellant, i.e., Insurance Company; Gopal Chand, i.e., owner of the ill-fated truck and Jagat Ram its driver. Accident was caused due to rash and negligent driving on the part of Jagat Ram, driver, as per respondents No. 1 to 5-claimants. 4. When put to notice, appellant-Insurance Company, as well as owner and driver of the truck contested and resisted the claim of respondents No.1 to 5 while admitting the accident. It was attributed to mechanical defect by respondents No. 6 and 7 in their written statement. Defence of the appellant before the Tribunal below was that, the driver of the truck was not having a valid driving licence and deceased was an unauthorized passenger. Therefore, on both these counts, it cannot be held liable for payment of any compensation. 5. Trial Court on the pleading of the parties, framed the following issues :— "1. Whether deceased Shri Subhash Chand had died due to the rash and negligent driving of Shri Jagat Ram, driver of truck No. HIB-1947, as alleged ? OPP. 2. If issue No. 1 supra is proved, to what amount of compensation, the petitioners are entitled to and from which of the respondents? OPP. 3. Whether the truck driver did not have valid driving licence on the date of accident, as alleged, if so, its effect ? OPR-3. 4. Whether the deceased was travelling as unauthorized passenger in the truck, in question, at the time of accident, as alleged ? OPR-3. 5. OPP. 3. Whether the truck driver did not have valid driving licence on the date of accident, as alleged, if so, its effect ? OPR-3. 4. Whether the deceased was travelling as unauthorized passenger in the truck, in question, at the time of accident, as alleged ? OPR-3. 5. Relief." 6. Appellant-Insurance Company was held liable for payment of compensation to the tune of Rs. 5,80,400/-. Interest was allowed at the rate of 9% per annum from the date of filing petition, i.e., 10.8.2000. Interest was made payable till the compensation is paid or deposited by the appellant. 7. Mr. Sharma, learned counsel for the appellant-Insurance Company, submitted that the impugned award deserves to be set aside. According to him, decision relied upon by learned Tribunal below, i.e., New India Assurance Company Limited v. Satpal Singh and others, (2001) 1 Supreme Court Cases 237, stands overruled. 8. By referring to the evidence on record, particularly the statement of PW-1, Sunita Devi, respondent No. 1, as per Mr. Sharma, it is clear that her husband was the driver of another truck and was employed by one Amar Nath. She has stated that on 26.4.2000 when deceased was travelling from Barmana to Jukhala, accident took place near Beri. There is nothing in cross-examination of this witness on behalf of the owner, as well as the driver to suggest that this part of the statement was ever challenged by both of them. As such, this is an unchallenged, as well as uncontroverted fact, so far respondents No. 6 and 7 in this appeal are concerned. No evidence has been led on behalf of respondents No. 6 and 7, except for tendering Ext. R-l, copy of driving licence, Ext. R-2, copy of registration certificate and Ext. R-3, copy of insurance policy. 9. As such, in my view, this case is squarely covered by the decision of the Supreme Court in National Insurance Company Ltd. v. Baljit Kaur and others, (2004) 2 Supreme Court Cases 1. Thus, on the basis of the statement of respondent No. 1, as also there being no evidence on record worth the name having been produced by respondent No. 6, it can safely be held that the amount in the first instance is payable by the appellant to respondents No.1 to 5. Thus, on the basis of the statement of respondent No. 1, as also there being no evidence on record worth the name having been produced by respondent No. 6, it can safely be held that the amount in the first instance is payable by the appellant to respondents No.1 to 5. Then without any further litigation, it (the appellant) will be entitled to recover this amount from Gopal Chand, respondent No. 6 on the strength of this order by levying execution against him. 10. This direction is in consonance with the observation of the Supreme Court in Baljit Kaurs case, supra, relevant Paragraphs of which are extracted hereinbelow :— "18. The observations made in this connection by the Court in Asha Rani case to which one of us, Sinha, J., was a party, however, bear repetition : (SCC p. 235, para 26). "26. In view of the changes in the relevant provisions in the 1988 Act vis-a-vis the 1939 Act, we are of the opinion that the meaning of the words any person7 must also be attributed having regard to the context in which they have been used, i.e., a third party. Keeping in view the provisions of the 1988 Act, we are of the opinion that as the provisions thereof do not enjoin any statutory liability on the owner of a vehicle to get his vehicle insured for any passenger travelling in a goods vehicle, the insurers would not be liable therefor/ 19. In Asha Rani, it has been noticed that sub-clause (i) of clause (b) of sub-section (1) of Section 147 of the 1988 Act speaks of liability which may be incurred by the owner of a vehicle in respect of death of or bodily injury to any person or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place. Furthermore, an owner of a passenger-carrying vehicle must pay premium for covering the risks of the passengers travelling in the vehicle. The premium in view of the 1994 amendment would only cover a third party as also the owner of the goods or his authorized representative and not any passenger carried in a goods vehicle whether for hire or reward or otherwise. 20. The premium in view of the 1994 amendment would only cover a third party as also the owner of the goods or his authorized representative and not any passenger carried in a goods vehicle whether for hire or reward or otherwise. 20. It is, therefore, manifest that in spite of the amendment of 1994, the effect of the provision contained in Section 147 with respect to persons other than the owner of the goods or his authorized representative remains the same. Although the owner of the goods or his authorized representative would now be covered by the policy of insurance in respect of a goods vehicle, it was not the intention of the legislature to provide for the liability of the insurer with respect to passengers, especially gratuitous passengers, who were neither contemplated at the time the contract of insurance was entered into, nor was any premium paid to the extent of the benefit of insurance to such category of people. 21. The upshot of the aforementioned discussions is that instead and in place of the insurer the owner of the vehicle shall be liable to satisfy the decree. The question, however, would be as to whether keeping in view the fact that the law was not clear so long such a direction would be fair and equitable. We do not think so. We, therefore, clarify the legal position which shall have prospective effect. The Tribunal as also the High Court had proceeded in terms of the decision of this Court in Satpal Singh. The said decision has been overruled only in Asha Rani. We, therefore, are of the opinion that the interest of justice will be subserved if the appellant herein is directed to satisfy the awarded amount in favour of the claimant, if not already satisfied, and recover the same from the owner of the vehicle. For the purpose of such recovery, it would not be necessary for the insurer to file a separate suit but it may initiate a proceeding before the executing court as if the dispute between the insurer and the owner was the subject-matter of determination before the Tribunal and the issue is decided against the owner and in favour of the insurers. We have issued the aforementioned directions having regard to the scope and purport of Section 168 of the Motor Vehicles Act, 1988, in terms whereof, it is not only entitled to determine the amount of claim as put forth by the claimant for recovery thereof from the insurer, owner or driver of the vehicle jointly or severally but also the dispute between the insurer on the one hand and the owner or driver of the vehicle involved in the accident inasmuch as can be resolved by the Tribunal in such a proceeding. 22. For the aforementioned reasons, the appeals are partly allowed to the aforementioned extent and subject to the directions aforementioned. But there shall be no order as to costs." 11. To similar effect is the recent decision of the Supreme Court in National Insurance Company v. Swam Singh, 2004 AIR SCW 663. 12. Faced with this decision, Mr. Thakur, learned counsel for respondent No. 6, the owner of the truck, placed reliance on Division Bench decision of this court in Oriental Insurance Company Limited v. Gian Chand and others connected cases 2002 (2) Shimla Law Cases 451, and of Supreme Court in New India Insurance Company v. Satpal Singh and others, (2000) 1 Supreme Court Cases 237. 13. So far decision of the Supreme Court in Satpal Singhs case, supra is concerned, it stands overruled by a three Judge Bench of the Supreme Court in the case of New India Assurance Company Limited v. Asha Rani and others, 2003 ACJ 1, wherein it was held by the Supreme Court that the Court in Satpal Singhs case had not laid down the law correctly and the same should be overruled. So far Division Bench judgment of this Court in Gian Chands case, supra, is concerned, it being based on the judgment of the Supreme Court in Satpal Singhs case, supra, does not advance the submission of Mr. Thakur, on behalf of respondent No. 6. Therefore, submission of Mr. Thakur to uphold the impugned award and thus to exonerate his client, is misconceived in the face of the latter three Judge Bench decisions in the case of National Insurance Company Ltd. v. Baljit Kaur and others and National Insurance Company v. Swam Singh (supra). 14. No other point is urged. 15. Therefore, submission of Mr. Thakur to uphold the impugned award and thus to exonerate his client, is misconceived in the face of the latter three Judge Bench decisions in the case of National Insurance Company Ltd. v. Baljit Kaur and others and National Insurance Company v. Swam Singh (supra). 14. No other point is urged. 15. In view of the aforesaid discussion, as also taking note of the evidence produced by the parties in this case, while upholding the award passed by learned Motor Accident Claims Tribunal below, it is ordered that the amount in terms of the said award shall be paid by the appellant-Insurance Company to respondents No. 1 to 5. And on the basis of this judgment, as well as on the basis of ratio of the latter decisions of the Supreme Court (supra), it shall be entitled to recover the amount from Gopal Chand, respondent No. 6 by levying execution without being dragged to another round of litigation. 16. Appeal stands disposed of, in these terms. Parties are left to bear their own costs.