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Orissa High Court · body

2008 DIGILAW 1059 (ORI)

National Insurance Co. Ltd. v. Baby Tabbassum

2008-11-26

A.S.NAIDU

body2008
JUDGMENT A.S. NAIDU, J. — As both the appeals involve same facts and points of law, the same are heard together with consent of learned counsel for the parties and this common judgment disposes of both the Writ Petitions. 2. The appellant-National Insurance Company Ltd., has filed M.A. Nos.260 and 261 of 2002 under Section 173 of the Motor Vehicles Act, 1988 challenging the common award dated 04.12.2001 passed by the learned Second Motor Accident Claims Tribunal, Northern Division, Sambalpur in Misc. (A) Case Nos.99 of 1990 (SN) and 100 of 1990 (SN) respectively. 3. The scenario of facts reveals that on 27.2.1990 Istak Ansari and Md. Iqbal Ansari were travelling in a truck (dumper) bearing registration No.ORJ-7297 along with their goods after closure of the Hat. The said truck, it was alleged, was driven in a rash and negligent manner. Consequently it met with an accident and capsized. Istak Ansari died at the spot whereas Md. Iqbal Ansari sustained fatal injuries and inspite of best treatment his life could not be saved. The wife, son and daughter of Istak Ansari filed a petition under Section 166 of M.V. Act which was registered as Misc. (A) Case No.99 of 1990 (SN) whereas the petition filed by mother of Md. Iqbal Ansari was registered as Misc. (A) Case No.100 of 1990 (SN). After receiving notice the owner of the offending vehicle filed a written statement denying the accident but then took the stand that the vehicle was duly insured with the appellant-Insurance Company and the insurance policy was valid. The appellant-Insurance Company in its written statement vaguely denied the averments made in the claim peti¬tion. It took the stand that the driver of the offending vehicle was not possessing a valid driving licence and as the vehicle was not authorized to carry passengers the Insurance Company was not liable to pay any compensation. 4. On the basis of the pleadings three issues were framed. In order to substantiate their case the claimants got one witness examined and exhibited three documents. On the other hand the Insurance Company for the reasons best known neither adduced any oral evidence nor any documentary evidence. After discussing the evidence in extenso the Tribunal came to the conclusion that the accident had occurred due to rash and negligent driving of the driver thereby causing death of two persons. On the other hand the Insurance Company for the reasons best known neither adduced any oral evidence nor any documentary evidence. After discussing the evidence in extenso the Tribunal came to the conclusion that the accident had occurred due to rash and negligent driving of the driver thereby causing death of two persons. It was also held that both the deceased persons were travelling in the truck (dumper) along with their goods. On the basis of such finding a sum of Rs.75,000/- with interest @ 9% per annum from the date of filing of the claim application i.e. 28.8.1990 in Misc. (A) Case No.99 of 1990 (SN) and a sum of Rs.1,00,000/- with interest @ 9% per annum from the date of filing of the claim application i.e. 28.8.1990 in Misc. (A) Case No.100 of 1990 (SN) was awarded towards compensation. The said award is assailed in both the appeals mainly on the ground that the deceased persons being passengers in a goods vehicle the Tribunal committed manifest error in holding that the Insurance Company was liable to pay the compensation and the insurance Policy was not valid. 5. Mr. Choudhury, learned counsel for the claimants on the other hand submitted that no evidence whatsoever was adduced by the Insurance Company in support of its stand that the offending vehicle was not insured. Neither any witness was examined nor was any document produced. Thus the allegation made, which was sup¬ported by both oral and documentary evidence remained unchal¬lenged and has been rightly accepted. Relying upon Ext.3 copy of insurance policy of the truck (dumper) he submitted that in absence of any rebuttal evidence the Tribunal has rightly arrived at a conclusion that the vehicle was insured with the Insurance Company and the insurance policy was valid on the date of acci¬dent. So far as the main contention of the Insurance Company that the deceased persons being passengers in a goods vehicle were not entitled to any compensation is concerned, there is no dispute that the accident had occurred in the year 1990 and the law as on that date expressly stipulated that a passenger in a goods vehi¬cle travelling with his goods was not entitled to any compensa¬tion. But then in the case of National Insurance Company Ltd. v. Balijeet Kaur and others reported in 2004 AIR SCW 212 the Supreme Court observed that the law was in a fluid stage between 1989 to 1994. In view of divergent observations made by the Supreme Court in the cases of New Assurance Co. Ltd. v. Satpal Singh reported in AIR 2006 SC 235 and New India Assurance Co. Ltd. v. Asha Rani reported in AIR 2003 SC 607 it would be just and proper for the Insurance Company to pay compensation to persons who were travel¬ling in a goods vehicle with their goods in between 1989 to 1994 met with an accident, sustained grievous injuries and/or suc¬cumbed to the same. In the case of National Insurance Company Ltd. v. Balijeet Kaur the Supreme Court in paragraph-21 of the judgment has observed as follows : “The upshot of the aforementioned discussions is that in¬stead 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 (supra). The said decision has been overruled only in Asha Rani (supra). 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 neces¬sary 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 insurer. We have issued the aforementioned direc¬tions having regard to the scope and purport of Section 168 of the Motor Vehicle 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 vehi¬cle involved in the accident inasmuch as can be resolved by the Tribunal in such a proceeding.” 6. The view expressed by the Supreme Court in the case of Baljit Kaur and others (supra) was taken note of by the Supreme Court in the case of United India Insurance Co. Ltd. v. Suresh K.K. and another reported in 2008 (3) T.A.C. 385 (SC). In view of the clear conclusions arrived at by the Supreme Court in the case of Baljit Kaur and others (supra) this Court feels that the Tribunal rightly arrived at a conclusion that the appellant-Insurance Company was liable to pay the compensation and recover the same. This Court therefore while not interfering with the impugned award in both the appeals reduces the rate of interest from 9% per annum to 7.5% per annum. 7. So far as not possessing valid driving licence by the driver of the offending vehicle is concerned, the same being a breach of policy condition as has been held by the Supreme Court in the case of New India Assurance Co. Ltd., Shimla v. Kamla reported in AIR 2001 SC 1419 , for such breach, the poor claimants should not suffer. In consonance with the ratio of the said decision vis-a-vis Section 149 of the Motor Vehicles Act, this Court directs the Insurance Company to first pay the compensation awarded to the poor claimants and initiate appropriate proceeding for realization of the amount from the owner in accordance with law. 8. The entire amount as per this judgment shall be deposited before the Tribunal within six weeks from the date of communication of this order to the Tribunal. After the amount is deposited by the Insurance Company the same shall be disbursed in favour of the claimants proportionately as per the stipulations made in the impugned award. 9. 8. The entire amount as per this judgment shall be deposited before the Tribunal within six weeks from the date of communication of this order to the Tribunal. After the amount is deposited by the Insurance Company the same shall be disbursed in favour of the claimants proportionately as per the stipulations made in the impugned award. 9. The statutory deposit made before this Court in both the appeals along with interest accrued thereon be returned to the Insurance Company on proper application by a crossed cheque/draft. Both the Misc. Appeals are accordingly disposed of. Misc. Appeals disposed of.