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2007 DIGILAW 488 (ALL)

Harish Padalia v. Kaneej Begum

2007-03-01

RAJESH TANDON

body2007
RAJESH TANDON, J. Heard Sri M. C. Kandpal. Sr. Advocate Counsel for the appellant and Sri K. K. Sah and Sri B. D. Upadhyay Counsel for the respondents. 2. The present appeal has been filed against the judgment and award dated 31st July, 1998 passed by the Motor Accident Claims Tribunal, Almora. 3. The claimants preferred a claim petition under Section 166 of the Motor Vehicles Act, for the grant of compensation on account of the death of Sri Abdul Sattar in a motor vehicle accident. According to the claimants on the fateful day on 16th June, 1992 the deceased was travelling by taxi Jeep No. UP 01- 0591. An accident had taken place in between Gania Deoli and Tarikhet at about 10. 00 a. m. The deceased sustained injuries when the jeep fell down in the valley. He was admitted in the Civil Hospital Ranikhet, where he died on 16th August, 1992 at 7. 45 p. m. According to the claimants at the time of accident the deceased was working as Kabari and was earning Rs. 1,000/- per month. The claimants have claimed Rs. 3,00,000/- as compensation. 4. The respondent No. 1 filed written statement and submitted that at the time of accident he was being driven cautiously at a moderate speed. The accident took place due to mechanical defect in the vehicle and compensation claimed is excessive. 5. Respondent No. 2 the National Insurance Company has denied the allegations made in the claim petition. The respondent No. 2 has alleged that the owner of the bus has violated the terms and conditions of the insurance policy as such the Insurance Company is not liable to pay compensation to the claimants. 6. The claimants examined P. W. 1 Kanij Begum and P. W. 2 Abdul Parvej. The respondents have examined Vinod Kumar as D. W. 1. Than Singh Bisht as D. W. 2 and Harish Chandra Padalia as D. W. 3. The claimants filed post-mortem report, death certificate, copy of F. I. R. The opposite parties have filed insurance cover note, registration certificate of the vehicle etc. 7. On the basis of the evidence adduced by the claimants, the Claims Tribunal has held that the accident had taken place due to the rash and negligent driving of the taxi driver. The claimants filed post-mortem report, death certificate, copy of F. I. R. The opposite parties have filed insurance cover note, registration certificate of the vehicle etc. 7. On the basis of the evidence adduced by the claimants, the Claims Tribunal has held that the accident had taken place due to the rash and negligent driving of the taxi driver. The taxi was over-loaded at the time of accident and the driver-cum-owner of the taxi has flouted the terms and conditions of the insurance policy. 8. So far as the compensation is concerned the Tribunal has recorded the finding that at the time of accident the age of the deceased was 40 years, he was working as Kabari. The Claims Tribunal has held the income of the deceased as Rs. 1,000/- per month and after deducting Rs. 500/- for the own expenses of the deceased, the annual dependency of Rs. 6,000/- was assessed. Considering the age of the deceased as 40 years a multiplier of 12 was selected and thus a compensation of 6,000 x 12 = Rs. 72,000/- has been worked out by the Tribunal. The Claims Tribunal also awarded Rs. 3,000/- for the last rites. Thus, a total compensation of Rs. 75,000/- was awarded to the claimants. The Claims Tribunal has also awarded 12% interest from the date of institution of claim petition till actual payment. 9. The Tribunal has given finding that as the driver-cum-owner of the vehicle has flouted the terms and conditions of the insurance policy, therefore, the entire amount of compensation shall be payable by the owner of the vehicle. 10. Feeling aggrieved the owner/driver of the vehicle has preferred the present appeal. 11. In the present case it has been held by the Claims Tribunal that at the time of accident the taxi was overloaded. It has been held that there were 11 persons travelling by the taxi, whereas it was insured for seven persons only. 12. It is an admitted fact that deceased Abdul Sattar was a passenger on the vehicle met with accident. The claimants are the third party and they have no connection with the alleged infringement or violation of the terms and conditions of the insurance policy. The copy of insurance cover note has been filed. The insured paid insurance premium for seven persons and the liability of the Insurance Company is comprehensive. The claimants are the third party and they have no connection with the alleged infringement or violation of the terms and conditions of the insurance policy. The copy of insurance cover note has been filed. The insured paid insurance premium for seven persons and the liability of the Insurance Company is comprehensive. The Insurance Company has not come with the defence that he had already paid compensation to seven persons. 13. The whole concept of getting the vehicle insured by an Insurance Company is to provide an easy mode of getting compensation by the claimants, otherwise in normal course they had to pursue their claim against the owner from one forum to the other and ultimately to execute the order of the Accident Claims Tribunal for realisation of such amount by sale of properties of the owner of the vehicle. 14. The Apex Court in the case United India Insurance Co. Ltd. v. Lehru, (2003) 3 S. C. C. 338, has held that the Insurance Company would continue to be liable to third party. The Apex Court has observed as under : A plain reading of Section 149 would show that an Insurance- Company would continue to be liable to third persons. Section 149 read as follows : "149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third-party risks.- (1) If, after a certificate of insurance has been issued under sub-section (3) or Section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as is required to be covered by a policy under Clause (b) of sub-section 147 (being a liability covered by the terms of the policy) or under the provisions of Section 163-A is obtained against any person insured by the policy then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall, subject to the provisions of this Section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if he were the judgment-debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect or interest on that sum of virtue of any enactment relating to interest on judgments. (2) No sum shall be payable by an insurer under sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment or award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given be entitled to be made a party thereto and to defend the action on any of the following grounds, namely- (a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely - (i) a condition excluding the use of the vehicle - (a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle not covered by a permit to ply for hire or reward, or (b) for organised racing and speed testing, or (c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or (d) without sidecar being attached where the vehicle is a motorcycle; or (ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who had been disqualified for holding or obtaining a driving licence during the period of disqualification; or (iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotion; or (b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular. Where any such judgment as referred to in sub-section (1) is obtained from a Court in a reciprocating country and in the case of a foreign judgment is, by virtue of the provisions of Section 13 of the Code of Civil Procedure, 1908 (5 of 1908) conclusive as to any matter adjudicated upon by it, the insurer (being an insurer registered under the Insurance Act, 1938 (4 of 1938) and whether or not he is registered under the corresponding law of the reciprocating country) shall be liable to the person entitled to the benefit of the decree in the manner and to the extent specified in sub-section (1), as if the judgment were given by a Court in India : Provided that no sum shall be payable by the insurer in respect of any such judgment unless, before the commencement of the proceedings in which the judgment is given/the insurer had notice through the Court concerned of the bringing of the proceedings and the insurer to whom notice is so given entitled under the corresponding law of the reciprocating country, to be made a party to the proceedings and to define the action on grounds similar to those specified in sub-section (2 ). (4) Where a certificate of insurance has been issued under sub- section (3) of Section 147 to the person by whom a policy has been effected, so much of the policy as purports to restrict the insurance of the persons insured thereby by reference to any conditions other than those in Clause (b) of subsection (2) shall, as respects such liabilities as are required to be covered by a policy under Clause (b) of sub-section (1) of Section 147, be of no effect: Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this sub-section shall be recoverable by the insurer from that person. (5) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured by a policy exceeds the amount for which the insurer would apart from the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person. (6) In this section the expressions material fact and material particular means, respectively a fact or particular of such a nature as to influence the judgment of a prudent insurer in determining whether he will take the risk and, if so, at what premium and on what conditions, and the expression liability covered by the terms of the policy means a liability which is covered by the policy or which would be so covered but for the fact that the insurer is entitled to avoid or cancel or has avoided or cancelled the policy. (7) No insurer to whom the notice referred to in sub-section (2) or sub-section (3) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in sub-section (1) or in such judgment as is referred to in sub-section (3) otherwise than in the manner provided for in sub-section (2) or in the corresponding law of the reciprocating country, as the case may be. " 15. No condition mentioned under Section 147 (1) (b) has been violated by the owner/driver of the vehicle. I have perused the insurance policy available on record. There is no condition that if more than seven persons travelling by the vehicle, the Insurance Company is not liable to pay compensation at all. If the premium is paid for seven persons, the Insurance Company is liable to cover the third party risk to the extent of seven persons. 16. The Claims Tribunal while deciding the claim petition has not considered the above aspects of the case and absolved the Insurance Company from making payment of compensation to the claimants. The case is, therefore, remanded to the Claims Tribunal concerned for deciding the case afresh in the light of the observations made above. 17. Accordingly, the appeal is allowed. No order as to costs. Appeal allowed. .