Research › Search › Judgment

Gauhati High Court · body

2008 DIGILAW 173 (GAU)

New India Assurance Co. Ltd. v. Biman Prasad Barkakati

2008-02-28

T.NANDAKUMAR SINGH

body2008
JUDGMENT T. Nandakumar Singh, J. 1. These MAC appeals 39 in number filed by the appellant Insurance Company (M/s New India Assurance Company Ltd.) against the impugned judgment and award passed by the learned Member, Motor Accident Claims Tribunal for the same motor accident involving the same offending vehicle i.e. Oil Tanker bearing registration No. NLW-337 admittedly insured with the appellant insurance company are taken up for joint hearing for disposal by common judgment and order. 2. Accordingly these appeals 39 in numbers are being disposed of by this common judgment and order. 3. Heard Mr. B.C. Das, learned Senior Counsel assisted by Mr. A. Ahmed, learned Counsel appearing for the appellant insurance company as well as Mr. B.B. Narzary, learned Senior Advocate assisted by baterry of lawyers. 4. The gas tanker having registration No. NLW-337 was insured with the appellant Insurance Company i.e. the New India Assurance Company limited. The accident took place on 1.11.98 at about 11 PM at Khanapara when said gas tanker having registration No. NLW-337, loaded with the inflammable materials suddenly burst and the inflammable splinters spreader from the offending gas tanker flew towards the veterinary college hostel campus and struck the students who were in the hostel campus and others resulting in burning injuries and some of the victims succumbed to their burning injuries. The claimants filed the claim cases claiming compensation under Sections 166 and140 of the Motor Vehicle Act, 1988 before the Motor Accident Claim Tribunal, Kamrup, Guwahati against the appellant insurance company and the owner of the offending vehicle i.e. the gas tanker having registration No. NLW-337. The learned tribunal passed order dated 12.7.2000 holding that the benefit of no fault liability shall be available to the claimants and accordingly directed to make payment of no fault liability of Rs. 50,000/- in the case of the death of the victim and no order was passed for payment in the case of injuries. Against the said order dated 12.7.2000 passed in MAC No. 450/99, MAC No. 12/99, MAC No. 827/99, MAC No. 693/99, MAC No. 339/99 and 400/2000, the appellant insurance company filed different civil revision petitions being CRP No. 369/2000, CRP No. 370/2000, CRP No. 371/2000, CRP No. 372/2000, CRP No. 373/2000 and CRP No. 362/2000 before this Court. Against the said order dated 12.7.2000 passed in MAC No. 450/99, MAC No. 12/99, MAC No. 827/99, MAC No. 693/99, MAC No. 339/99 and 400/2000, the appellant insurance company filed different civil revision petitions being CRP No. 369/2000, CRP No. 370/2000, CRP No. 371/2000, CRP No. 372/2000, CRP No. 373/2000 and CRP No. 362/2000 before this Court. The said revision petitions were filed by the appellant insurance company challenging the said judgment and order dated 12.7.2000 passed by the learned Member, Motor Accident Claims Tribunal on the inter alia grounds that the claim under motor vehicle act is not maintainable in view of Public Liability Insurance Act, 1991 and also that the said motor accident was not the result of the use of offending Gas tanker inasmuch as explosion in the said offending gas tanker was occurred when offending vehicle was stationary and that the said accident was not an accident arising out of the use of the offending gas tanker. 5. This Court by passing common judgment and order dated 7.5.2001 had dismissed the said Civil Revision Petitions and in clear term held that the said accident was an accident arising out of the use of the offending gas tanker and also that the Public Liability Insurance Act, 1991 has no bar to file a claim petition under the Motor Vehicle Act, 1988. Para 8 and 9 of the common judgment of this Court dated 7.5.2001 (New India Assurance Co. Ltd. and Ors. v. Nalini Boro and Ors. 2001 (2) GLT 484) read as follows: Para 8: In the case of M.C. Mehra v. Union of India, the Supreme Court has gone much further than Rylands v. Fletcher in imposing strict liability. The Court observed, "if the enterprise is permitted to carry on any hazardous or inherently dangerous activity for its profit the law must presume that such permission is conditional on the enterprise absorbing the cost of any accident arising on account of such hazardous or inherently dangerous activity as an appropriate item of its overheads." The court observed that this strict liability is not subject to any of the ex-captions to the rule in Rylands v. Fletcher 1868 LR 3 3. The Court observed that the respondents No. 2 and 3 may in addition to the amount awarded to them by the impugned award may also institute any other proceedings whether by means of a suit or otherwise, before the appropriate forum for claiming further relief, and if they do so the said proceeding shall be decided within six months of the institution of the same in accordance with law. 9. On the basis of this authority it is urged that this Act has no bar to avail a claim petition if otherwise maintainable. I respectfully agree with this decision of the Allahabad High Court and I reject the contention of Shri Sarma with regard to the first point. 6. The said common judgment and order dated 7.5.2001 of this Court had attained finality inasmuch as the appellant Insurance Company did not challenge the said common judgment and order by filing appeal before the Apex Court nor by filing review petitions. 7. After rejecting the said civil revision petitions by this Court by passing the said common judgment and order dated 7.5.2001, the claim cases filed by the claimants under the Motor Vehicle Act, 1988 for the said accident had been proceeded and finally allowed vide the impugned judgment and orders passed by the learned Member, Motor Accident Claims Tribunal for awarding compensation to the claimants. 8. The appellant Insurance Company filed these appeals challenging the impugned judgment and awards of the learned Member, Motor Accident Claims Tribunal only on two grounds:- (i) As the accident took place on 1/11/1998 at 11 pm at Khanapara when the offending gas tanker having registration No. NLW-337 was parked in the private garage premises of the owner of the offending gas tanker, the appellant Insurance Company was/is not liable to indemnify the damages inasmuch as under Sections 146 and 147 of the Motor Vehicle Act, a Policy of Insurance must be a policy in respect of the motor accident caused by or arising out of the use of the insured vehicle in a public place, (ii) As the offending gas tanker having registration No. NLW-337 was not having a policy of insurance under the Public Liability Insurance Act, 1991 the appellant Insurance Company was/is not liable to indemnify the damages of the said motor accident caused by or arising out of the use of the offending gas tanked. 9. Mr. 9. Mr. B.C. Das, learned Senior Counsel very forcefully put up a very illuminating submission in respect of the ground No. 1 mentioned above. In order to substantiate his submission Mr. B.C. Das, learned Senior Counsel has taken this Court to the provisions of Sections 146 and 147 of the Motor Vehicle Act, 1988. On perusal of Sections 146 and 147 of the Motor Vehicle Act it is crystal clear that the policy of insurance of the offending gas tanker with the appellant Insurance Company would cover only the motor accident caused by or arising out of the use of the offending gas tanker in a public place. The words 'Public place' are predominantly used in qualifying the accident caused by or arising out of the use of the vehicles insured with the insurance company in Sections 146 and 147 of the Motor Vehicle Act, 1988. 10. The words "public place" are defined in Section 2(34) of the Motor Vehicle Act, 1988 which reads as follows: Section 2(34) : "public place" means a road, street, way or other place, whether a thoroughfare or not, to which the public have a right of access, and includes any place or stand at which passengers are picked up or set down by a stage carriage. 11. The learned senior counsel urged that while defining the words "public place" in Section 2(34) of the motor vehicle act the word "means" is used and followed by the word "includes" and as such it is the clear indicative of the legislative intent to make the definition of the words "public place" exhaustive. In order to strengthen his submission Mr. B.C. Das, learned senior counsel referred to the decision of the Apex Court in Bharat Co-operative Bank (Mumbai) Ltd. v. Co-op. Bank Employees Union reads as follows: 23. Section 2(bb) of the ID Act as initially introduced by Act 54 of 1949 used the words "means" and "includes" and was confined to a "banking company" as defined in Section 5 of the Banking Companies Act, 1949, having branches or other establishments in more than one province and includes Imperial Bank of India. Section 2(bb) of the ID Act as initially introduced by Act 54 of 1949 used the words "means" and "includes" and was confined to a "banking company" as defined in Section 5 of the Banking Companies Act, 1949, having branches or other establishments in more than one province and includes Imperial Bank of India. Similarly, Section 2(kk), which was also introduced by Act 54 of 1949, defines Insurance Company as "an Insurance Company as defined in Section 2 of the Insurance Act, 1938 (4 of 1938), having branches or other establishments in more than one province." It is trite to say that when in the definition clause given in any stature the word "means" is used, what follows is intended to speak exhaustively. When the word "means" is used in the definition, to borrow the words of Lord Esher, M.R. in Gough v. Gough 11 it is a "hard-and -fast" definition and no meaning other than that which is put in the definition can be assigned to the same. (Also see P. Kasilingam v. P.S.G. College of Technology.). On the other hand, when the word "includes" is used in the definition, the legislature does not intend to restrict the definition: it makes the definition enumerative but not exhaustive. That is to say, the term defined will retain its ordinary meaning but its scope would be extended to bring within it matters, which in its ordinary meaning may or may not comprise. Therefore, the use of the word "means" followed by the word "includes" in Section 2("bb) of the ID Act is clearly indicative of the legislative intent to make the definition exhaustive and would cover only those banking companies which fall within the purview of the definition and no other. 12. This Court is fully endorsing the said illuminating submission of the learned Senior counsel that under the insurance policy of the said offending gas tanker having registered No. NLW-337 with the appellant Insurance company, the appellant Insurance Company would be liable to indemnify the damages arising out of the motor accident of the offending gas tanker caused by or arising out of the use of the offending gas tanker in a 'public place'. But the question is whether the said accident of the offending gas tanker on 1/11/98 at 11 pm at Khanapara took place at the public place or at the private place. But the question is whether the said accident of the offending gas tanker on 1/11/98 at 11 pm at Khanapara took place at the public place or at the private place. For deciding this question of fact this Court took up the MAC Appeal No. 71/05 and the MAC Appeal No. 10/07 as leading cases. 13. In MAC Case No. 71/1999, it is clear that the only one DW namely Shri Arun Ch. Sarma, an officer of the appellant Insurance Company was examined in support of the case of the appellant Insurance Company. DW No. 1 Sri Arun Ch. Sarma deposed that accident happened when the vehicle was parked on the road side. The appellant Insurance Company examined only one DW namely Smti. Geetashree Bhattacharjee, an administrative officer of the appellant Insurance Company in support of the case of the appellant Insurance Company in MAC Appeal No. 10/07. The DW-1 Smti Geetashree Bhattacharjee, deposed that as an officer of the Insurance Company she did not visit the place of accident. From the statement of the lone DW examined by the appellant Insurance Company in the motor accident cases arising out of the said motor accident of the offending gas tanker having registration No. NLW-337 on 1.11.98 at about 11 pm at Khanapara it is clear that the said motor accident of the offending gas tanker took place when the offending gas tanker was parked at the roadside. Therefore, an irreversible conclusion would be that the said motor accident of the offending gas tanker having registration No. NLW-337 on 1.11.98 at about 11 p.m. at Khanapara took place when the offending gas tanker was parked at the road side which is undisputedly a public place. Therefore, this Court has no hesitation to come to the conclusion that the said first ground for challenging the impugned judgment and award of the learned Member, Motor Accident Claims Tribunal is not sustainable in the eye of law. 14. The second ground forming this appeal is squarely covered by the decision of this Court in common judgment and order dated 7.5.2001 dismissing the said civil revision petition (New India Assurance Co. Ltd. and Ors. v. Nalini Bow and Ors. 2001 (2) GLT 484). But this Court is taking the opportunity of supplementing the said earlier common judgment and order of this Court dated 7.5.01. Ltd. and Ors. v. Nalini Bow and Ors. 2001 (2) GLT 484). But this Court is taking the opportunity of supplementing the said earlier common judgment and order of this Court dated 7.5.01. The Public Liability Insurance bill was introduced in the Parliament and both the houses of the Parliament had passed the bill and received ascent of the President on 2nd January, 1991. It came on the statute book as "Public Liability Insurance Act, 1991, (6 of 1991). The statement of object and reasons for introducing the public liability insurance bill before house read as follows: Statement of objects and reasons:- The growth of hazardous industries, processes and operations in India has been accompanied by the growing risks from accidents, not only to the workman employed in such undertakings, but also innocent members of the public who may be in the vicinity. Such accidents lead to death and injury to human beings and other living beings and damage private and public properties. Very often, the majority of the people affected are from the economically weaker sections and suffer great hardships because of delayed relief and compensation. While workers and employees of hazardous installations are protected under separate laws, members of the public are not assured of any relief except through long legal processes. Industrial units seldom have the willingness to readily compensate the victims of accidents and the only remedy now available for the victims is to go through prolonged litigation in a court of law. Some units may not have the financial resources to provide even minimum relief. It is felt essential therefore, to provide for mandatory public liability insurance for installations handling hazardous substances to provide minimum relief to the victim. Such an insurance, apart from safeguarding the interests of the victim of accidents, would also provide cover and enable the industry to discharge its liability to settle large claims arising out of major accidents. If the objective of providing immediate relief is to be achieved, the mandatory public liability insurance should be on the principle of "no fault" liability as it is limited to only relief on a limited scale. However, availability of immediate relief would not prevent the victims to go to courts for claiming larger compensation. The Bill seeks to achieve the above objects. 15. However, availability of immediate relief would not prevent the victims to go to courts for claiming larger compensation. The Bill seeks to achieve the above objects. 15. On bare perusal of the statement and object and reasons for the Public Liability Insurance bill, it is clear that the legislative intent to make the Public Liability Insurance Act was to achieve that the mandatory public liability insurance should be on the principle of "no fault" liability as it is limited to only relief on a limited scale. However, availability of immediate relief would not prevent the victims to go to courts for claiming larger compensation. 16. Mr. B.C. Das, learned Senior Counsel urged that in compliance of proviso to Section 146(1) of the Motor Vehicle Act, in the case of a vehicle carrying or meant to carry, dangerous or hazardous goods, there shall also be a policy of insurance under the Public Liability Insurance Act, 1991. Therefore, it was the submission of the learned senior counsel Mr. B.C. Das that as the offending gas tanker was not having a policy of insurance under the Public Liability Insurance Act, 1991, the appellant Insurance Company was not liable to indemnify the damages arising out of the said motor accident of the offending gas tanker. On bare perusal of Sections 146 and 147 of the Motor Vehicle Act, 1988 it is clear that there is no provision under the said two sections, that the requirement of policies and the limit of liability of the insurer under the Motor Vehicle Act, 1988 will subject to the conditions that the vehicle insured by the Insurance Company shall have a policy of insurance under the Public Insurance Liability Act, 1991 in the event of the insured vehicle carries dangerous or hazardous goods. 17. It is fairly well settled principles of interpretation of rules that the Court must proceed on the assumption that the legislature did not make a mistake and that it did what it intended to do. The court must, as far as possible, adopt a construction which will carry out the obvious intention of the legislature. The court cannot add words to a stature or read words into in which are not there, especially when the literal reading produces an intelligible result. The court would not go to its aid to correct the legislature's defective phrasing of an Act. The court cannot add words to a stature or read words into in which are not there, especially when the literal reading produces an intelligible result. The court would not go to its aid to correct the legislature's defective phrasing of an Act. Para-13 of the SCC in Dadi Jagannadham v. Jammulu Rammulu and Ors. reads as follows: 13. We have considered the submissions made by the parties. The settled principles of interpretation are that the Court must proceed on the assumption that the legislature did not make a mistake and that it did what it intended to do. The court must, as far possible, adopt a construction which will carry out the obvious intention of the legislature. Undoubtedly if there is a defect or an omission in the words used by the legislature, the court would not go to its aid to correct or make up the deficiency. The court could not add words to a statute or read words into it which are not there, especially when the literal reading produces an intelligible result. The court cannot add the legislature's defective phrasing of an Act, or add and mend, and, by construction, make up deficiencies which are there. 18. The Apex Court in Bhavnagar University v. Palitana Sugar Mill (P) Ltd. and Ors. held that it is the basic principle of construction of stature that statutory enactment must ordinarily be construed according to their plain meaning and no words should be added, altered or modified unless it is plainly necessary to do so to prevent a provision from being unintelligible, absurd, unreasonable, unworkable or totally irreconcilable with the rest of the stature. Paras 24, 25 and 26 of the Bhavnagar University v. Palitana Sugar Mill(P) Ltd. and Ors. (supra) read as follows: 24. The meaning of a provision of law has to be determined on the basis of what it provides by its clear language, with due regard the scheme of law. 25. Scope of the legislation on the intention of the legislature cannot be enlarged when the language of the provision is plain and unambiguous. In other words statutory enactments must ordinarily be construed according to its plain meaning and no words shall be added, altered or modified unless it is plainly necessary to do so to prevent a provision from being unintelligible, absurd, unreasonable, Unworkable or totally irreconcilable with the rest of the statute. 26. In other words statutory enactments must ordinarily be construed according to its plain meaning and no words shall be added, altered or modified unless it is plainly necessary to do so to prevent a provision from being unintelligible, absurd, unreasonable, Unworkable or totally irreconcilable with the rest of the statute. 26. It is also well settled that a beneficent provision of legislation must be liberally construed so as to fulfill the statutory purpose and not to frustrate it. 19. It is cardinal rule of construction that no word should be construed redundant or surplus in interpreting the provision of a statute or rule (Ref: Dinesh Chandra Sangma v. State of Assam and Ors.). The Apex Court in State of Maharashtra and Ors. v. Santosh Shankar Acharya held that it is too well known principle of construction of statute that the legislature engrafted every part of the statute for a purpose. The legislative intention is that every part of the statute should be given effect. Legislature is deemed not to waste its words or to say anything in vain and a construction which attributes redundancy to the legislature will not be accepted except for compelling reasons. 20. It is also equally well settled that law/regulation is made not be to broken but to be obeyed according to the decisions of the Apex Court in a catena of cases, one of which is the decision of the Apex Court, i.e. a Constitution Bench in Kartar Singh v. State of Punjab reported in in Kartar Singh (supra) reads as follows-- 36. Law is made not to be broken but to be obeyed and the respect for law is not retained by demonstration of strength but by better appreciation of the reasons. Better understanding of its reality and implicit obedience. It goes without saying that the achievements of law in the past are considerable, its protection in the present is imperative and its potential for the future is immense. It is very unfortunate that on account of lack of respect, lack of understanding, lack of effectiveness, lack of vision and lack of proper application in the present day affairs, law sometimes fails in crises. 21. From the above discussions this Court is of the considered view that the second ground in this appeals for challenging the impugned judgment and award of the learned Member, Motor Accident Claims Tribunal is not tenable under the law. 21. From the above discussions this Court is of the considered view that the second ground in this appeals for challenging the impugned judgment and award of the learned Member, Motor Accident Claims Tribunal is not tenable under the law. 22. This Court also held that the requirement of policies and limit of liability under a policy of insurance of the vehicle under Section 147 of the Motor Vehicle Act shall not subject to a policy of insurance under the Public Liability Insurance Act, 1991 even in the case of a vehicle carrying or meant to carry dangerous or hazardous goods and also that it is a requirement for the vehicle carrying or meant to carry dangerous and hazardous goods to have a policy of insurance under the Public Liability Insurance Act, 1991. In the case of failure on the part of the vehicle carrying or meant to carry dangerous and hazardous goods to have a policy under the Public Liability Insurance Act, 1991, there are provisions under the Public Liability Insurance Act, 1991 to meet such situation. 23. For the reasons discussed above, these appeals are devoid of merit and accordingly dismissed. Appeal dismissed