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Rajasthan High Court · body

2004 DIGILAW 510 (RAJ)

Mehrun v. Samin Akhatar

2004-04-05

P.C.TATIA

body2004
Honble TATIA, J.–Heard learned counsel for the parties. (2). Learned counsel for the appellant submitted that the respondent No. 1, who was owner of the vehicle which was involved in the accident, died long ago. The appellant submitted an application on 19.3.2004 and sought deletion of the name of respondent No. 1, the owner of the vehicle. Learned counsel for the appellant submits that in view of Section 110B of the Motor Vehicles Act, 1939 (hereinafter referred to as `the Act of 1939), the appeals shall not abate and will not have any effect on its maintainability even when the legal representatives of the owner of the vehicle have not been impleaded as party in the appeal and the appeal will survive after deletion of the name of the owner of the vehicle from the array of the parties because Section 110B of the Act of 1939 provides that the Tribunal may award amount which shall be paid by the said three all or by any of them as the case may be. (3). Learned counsel for the appellant relied upon the judgment of this Court delivered in case of the Nainu Ram vs. Bhagwan Singh & Ors. And in the case of National Insurance Co. Ltd. vs. Bhagwan Singh and Ors. (1), wherein Single Bench of this Court, after considering Section 110B of the Act of 1939, as amended by the Act of 1969, observed that even if the driver died during the pendency of the claim petition and his legal representatives have not been brought on record, the claim petition will not fail on that ground in view of the specific provision in Section 110B of the Act of 1939. It was observed that it embodies the principle of liability joint tortfeasors. (4). Learned counsel for the respondent submits that the appeal shall abate as a whole as there cannot be any claim against the Insurance Co. exceeding the amount for which the owner was held liable by the Tribunal because it will result into two conflicting award, one for the owner and his legal representatives and another for the Insurance Co. (5). Learned counsel for the respondent submits that the appeal shall abate as a whole as there cannot be any claim against the Insurance Co. exceeding the amount for which the owner was held liable by the Tribunal because it will result into two conflicting award, one for the owner and his legal representatives and another for the Insurance Co. (5). I considered the submissions of the learned counsel for the parties and perused the provision of Section 110B of the Act of 1939 as the Old Act is applicable in the present case because the accident occurred on 4.4.1987that is before coming into force of the Act of 1988. It will be relevant to quote here Section 110B of the Act of 1969 which runs as under:- ``110-B. Award of the Claims Tribunal.- On receipt of application for compensation made under Section 110-A, the Claims Tribunal shall, after giving the parties an opportunity of being heard, hold an inquiry into the claim or, as the case may be, each of the claims and, subject to the provisions of Section 109- B, may make an award determining the amount of compensation which appears to it to be just and specifying the person or persons to whom compensation shall be paid; and in making the award the Claims Tribunal shall specify the amount which shall be paid by the insurer or owner or driver of the vehicle involved in the accident or by all or any of them, as the case may be. (6). A bare perusal of Section 110B of the Act of 1939 makes it clear that by this provision the Tribunal has been empowered to specify the amount which shall be paid by the (i) insurer or (ii) owner or (iii) driver of the vehicle and further empowers the Tribunal to make the award against all of them or against any of them, as the case may be. This provision only provides for apportionment of the liability, rather distribution of the liability of the compensation. It appears that the said provision has been enacted to give relief to the claimants so that claimant may get the amount of compensation directly from the Insurance Co. and to avoid second round of litigation between owner of the vehicle and insurer of the vehicle to recover compensation amount from the insurer after payment by owner of the vehicle to the claimants. and to avoid second round of litigation between owner of the vehicle and insurer of the vehicle to recover compensation amount from the insurer after payment by owner of the vehicle to the claimants. The apportionment is required because there may be cases of contributory negligence which requires passing of the award against the owners of the different vehicles involved in the accident and there may be cases where the Tribunal may reach to the conclusion that only driver of the vehicle is liable and in peculiar facts, even owner of the vehicle may not be liable, consequentially, there would not be any liability of the insurer. Further, there may be cases where Insurance Co. may claim benefit of statutory limit of the liability as provided under the provisions of Motor Vehicles Act. Therefore, for all these purposes and for many other contingencies, the Tribunal has been empowered to specify the amount which shall be paid by the insurer or owner or driver of the vehicle or by any of them or by all of them which depends upon the facts of the case. (7). The owner is liable to pay the compensation amount for the wrong committed by his driver on the basis of principle of vicarious liability whereas the Insurance co. is liable to reimburse the amount to the insured only on the basis of statutory as well contractual liability basis. This is settled law, in case where owner of the vehicle is not found liable to pay any amount of compensation, the Insurance Co. cannot be held liable to pay compensation to the claimants. Therefore, for determination of amount of compensation so as to make Insurance Co. liable, the owner of the vehicle and on death of owner his legal representatives are necessary party. The compensation awarded against the owner of the vehicle cannot be enhanced in absence of the owner of the vehicle or his legal representatives which may result in two different awards, one for the owner of the vehicle and his legal representatives and other of different amount against the insurer who undertook any liability of the owner of the vehicle and not more than that. (8). (8). In view of the above, the decision given by this Court in the case of Nainu Ram vs. Bhagwan Singh & Ors., referred above, has no application in this case because in that case the driver expired during the pendency of the claim petition and the owner being joint tortfeasors was held liable to pay the compensation amount on the basis of the principle of the liability of joint tortfeasors and on the basis of vicarious liability and not on the basis of any contractual liability only. (9). In the present case, the award was passed by the Tribunal on 20.10.1995 holding that the claimants are entitled for compensation of Rs. 1,00,000/- from the respondent No. 1 who was the owner of the vehicle and exonerated the Insurance Co. from liability to pay the claimed amount. The claimants, in this appeal, has prayed that compensation amount may be enhanced from Rs. 1,00,000/- to Rs. 4,00,000/- and if that relief is granted, there will be two conflicting awards, one against the deceased owner of the vehicle for Rs. 1,00,000/- and another against the Insurance Co. for Rs. 4,00,000/- or may be less than Rs. 4,00,000/- but necessarily more than Rs. 1,00,000/-. The owner of the vehicle as well as his estate is not liable to pay any amount more than Rs. 1,00,000/- then the Insurance Co. cannot be compelled to pay any amount more than Rs. 1,00,000/-. (10). In view of the above, the appeal for enhancement of compensation amount is dismissed as abated. (11). However, since the liability of the Insurance Co. attained finality so far as the quantum is concerned as awarded by the impugned award dated 20.10.1995, therefore, for deciding the issue whether Insurance Co. is liable to pay this amount to the claimants, the abatement of the appeal against respondent No. 1 for enhancing of the claim amount cannot come in way of the appellants. Learned counsel for the appellant seeks time to argue the appeal on merits about the liability of the Insurance Co. Put up this matter on 15.4.2004.