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2011 DIGILAW 1322 (RAJ)

United India Insurance Co. Ltd. v. Gayatra Bai

2011-07-07

N.K.MODY

body2011
Hon'ble MODY, J.—This Order shall also govern the disposal of MA Nos.1648/2009, 1649/2009, 1650/2009, 1651/2009, 1652/2009, 1653/2009, 1654/2009, 1656/2009, 1659/2009, 1660/2009, 1661/2009, 1662/2009, 1663/2009, 1664/2009, CR Nos.124/2009 and 125/2009 as all the appeals and revisions are arising out of one accident and also of one award dated 17/04/2009 passed by MACT, Sonkutch, District-Dewas in different, different claim cases. 2. Short facts in all the cases are that the claimants and deceased/Dayaram and Kailash were travelling in a Mini Truck bearing registration No.M.P.-13/E/1526 on 12/06/2005. It was alleged that offending vehicle was being driven by Prakash who is respondent No.7 herein, owned by respondent No.8-M/s Kiran Packaging and was insured with the appellant. It was alleged that because of rash and negligent driving of respondent No.7/Prakash the offending vehicle was turtled down with the result Kailash and Dayaram died on spot and other passengers sustained grievous injuries. It was prayed that claim case be allowed and compensation be awarded. The claim case was contested by the appellant and also by the respondents No.7 and 8. The defence of respondent No.7 was that no accident took place by the offending vehicle while defence of respondent No.8 was that the claimants were standing alongwith goats on the road side and respondent No.7 refused the claimants to board in the offending vehicle. Further case of the respondent No.8 was that upon insistence respondent No.8 started the offending vehicle with the result accident occurred in which the claimants sustained injuries. It was alleged that since offending vehicle was insured with the appellant, therefore, appellant is liable for payment of compensation. The defence of appellant before the learned tribunal was that the respondent No.7 was not possessing the valid driving license and respondents No.7 and 8 have violated the terms of the policy and also the permit, therefore, appellant is not liable for payment of compensation. It was prayed that claim petition be dismissed. After framing of issues and recording of evidence learned tribunal allowed the claim case filed by the respondents No.1 to 6 and other claimants holding that appellant is liable for payment of compensation against which the present appeal has been filed. 3. Full particulars of each of the claim case are as under :- Sl. No. M.A. No. Claim Case No. Name of inju-red/Deceased Amt. Awarded (1) 1647/2009 68/2005 Dayaram Rs. 5,62,500/- (1) 1648/2009 07/2006 Mangila Rs. 3. Full particulars of each of the claim case are as under :- Sl. No. M.A. No. Claim Case No. Name of inju-red/Deceased Amt. Awarded (1) 1647/2009 68/2005 Dayaram Rs. 5,62,500/- (1) 1648/2009 07/2006 Mangila Rs. 55,500/- (2) 1649/2009 67/2005 Kailash Rs. 5,63,500/- (3) 1650/2009 79/2005 Pratap Singh Rs. 68,657/- (4) 1651/2009 75/2005 Bheru Singh Rs. 14,410/- (5) 1652/2009 12/2006 Bandulal Rs. 27,168/- (6) 1653/2009 78/2005 Sitaram Rs. 70,287/- (7) 1654/2009 11/2006 Gokul Rs. 86,093/- (8) 1656/2009 10/2006 Prabhulal Rs. 11,649/- (9) 1659/2009 88/2005 Lalsingh Rs. 1,56,715/- (10) 1660/2009 04/2006 Rajaram Rs. 1,03,151/- (11) 1661/2009 19/2006 Prahlad Rs. 15,877/- (12) 1662/2009 76/2005 Manohar Rs. 10,211/- (13) 1663/2009 77/2005 Dariyao Rs. 14,849/- (14) 1664/2009 13/2006 Ramchand Rs. 69,846/- (15) CR 124/2009 94/2005 Ranjeet Rs. 1,700/- (16) CR 125/2009 74/2005 Gokul Rs. 9,737/- 4. Learned counsel for the appellant argued at length and submits that the impugned award passed by learned tribunal whereby appellant held liable is illegal, incorrect and deserves to be set-aside. It is submitted that learned tribunal has come to the conclusion that the offending truck was goods vehicle and respondents/claimants were travelling as passengers. It is submitted that from the evidence adduced by the appellant, it is proved that offending vehicle was insured for the purpose of carrying goods and not for the purpose of carrying passengers. It is submitted that in the circumstance, there was no justification on the part of learned tribunal to direct the appellant to pay and recover the amount. Learned counsel placed reliance on a decision in the matter of Raj Bai vs. New India Assurance Co. Ltd. 2008 ACJ 2017 wherein in a case of death passenger travelling in a truck when the vehicle turned turtle due to rash and negligent driving and Tribunal exempted insurance company from liability Division Bench of this Court has held that insurance company cannot be directed to pay the amount and then to recover from the insured. Reliance is also placed on a decision in the matter of United India Insurance Co. Reliance is also placed on a decision in the matter of United India Insurance Co. Ltd. vs. Bajanti Bai III (2010) ACC 61 wherein this Court after following the law laid down in the matter of Raj Bai and also after taking into consideration the judgments delivered by Hon'ble Apex Court from time to time held that since the vehicle was insured for agricultural purpose and deceased was travelling in the said vehicle at the time of accident, therefore, direction of Tribunal to Insurance Company to make payment and recover same from owner and driver was not proper. It was further held that claimants are entitled to recover the amount from owner and driver. On the strength of aforesaid position of law learned counsel for the appellant submits that in the facts and circumstances of the case appeal filed by the appellant be allowed and the impugned award so far as it relates to direction to pay and recover be quashed. 5. Learned counsel for the respondents No.1 to 6 in this appeal and claimants in other appeals submit that offending vehicle was insured, therefore, learned tribunal after due appreciation of evidence and after protecting the interest of appellant directed to pay and recover. It is submitted that in death cases minor children are also the claimants. Learned counsel placed reliance on a decision in the matter of New India Assurance Co. vs. Kusum (2009) 8 SCC 377 = 2009(2) CCR 1316 (SC) wherein direction by Claims Tribunal to insurer to pay the compensation and recover the amount from driver and owner Hon'ble Apex Court held that such a direction are issued by the Tribunal in exercise of its inherent power. It was further held that it would be a travesty of justice, if insurance company is directed to pay the amount and then face immense difficulties in executing a decree. Hence, executing courts directed to proceed with in the execution and insurer was not required to file a civil suit for recovery of the amount. It is submitted that since interest of appellant is well protected as right of recovery is given to the appellant, therefore, appeal filed by the appellant be dismissed. 6. Undisputedly offending vehicle was the goods vehicle in which the deceased and injuried were travelling was found proved by the learned tribunal. It is submitted that since interest of appellant is well protected as right of recovery is given to the appellant, therefore, appeal filed by the appellant be dismissed. 6. Undisputedly offending vehicle was the goods vehicle in which the deceased and injuried were travelling was found proved by the learned tribunal. So far as the direction to pay and recover is concerned, counsel for the respondents No.1 to 6 has placed reliance on a decision in the matter of United India Insurance Co. Ltd. vs. Manoj 2011 ACJ 1656 wherein a Division Bench of Kerala High Court has directed to pay and recover. This case is quite distinguishable as in this case owner of the goods was allowed to share the seat with the driver as he was allowed to travel for the safety of the goods. In the matter of Marakka vs. Shahid Khan 2011 ACJ 690 Division Bench of Karnataka High Court directed to pay and recover as the driver of the Auto Rickshaw was not holding a valid driving license. In the matter of Somari Devi vs. Ragwar Singh 2011 ACJ 1475 Delhi High Court directed to pay and recover as it was the case of fake license. It is true that in the matter of New India Supra the Hon'ble Apex Court has directed to pay and recover but it was also a case where the driver was not possessing a valid driving license. While in the present case the offending vehicle was the goods vehicle and the passengers were not supposed to travel. In view of this, this Court is of the view that learned tribunal committed error in directing the appellant/Insurance Company to pay and recover. In view of this the appeals and revisions filed by the appellant is allowed and the findings whereby learned tribunal is directed to pay and recover the awarded amount stands set-aside. Claimants shall be entitled to recover the amount from the owner and driver of the offending vehicle. No order as to costs. Copy of the order be placed in all the connected cases.