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Rajasthan High Court · body

2012 DIGILAW 577 (RAJ)

Sanjeev Kumar v. Amar Singh

2012-03-02

A.M.SAPRE

body2012
Hon'ble SAPRE, J.—This is an appeal, filed by the claimants, who are legal representatives of the deceased under Section 173 of the Motor Vehicles Act (for short called "the Act") against an award, dated 18.1.2002, passed by Motor Accident Claims Tribunal, Dholpur in Claim Case No.176/1998. 2. By impugned award, the Tribunal partly allowed the claim petition filed by the claimants (respondents no. 1 to 7) filed under Section 166 of the Motor Vehicles Act and awarded to the claimant a total sum of Rs.3,61,790/- with interest to the claimants for the death of one Than Singh, who died in vehicular accident. However, the Tribunal apportioned the liability between the insurer and insured of the offending vehicle "and directed that appellant i.e. owner of the offending vehicle would be liable to pay a sum of Rs. 1,50,000/-along with interest and the balance will be payable by the Insurance Company (respondent no. 8). 3. It is this award, which is impugned by the owner of the offending vehicle in this appeal. 4. In the light of short question involved in the appeal it is not necessary to mention the entire facts in detail except those which are necessary for the disposal of this appeal. 5. It is a death case arising out of a vehicular accident wherein one Than Singh expired on 8.6.1998 while travelling in the Truck No. URT-9512. This gave rise to filing of a claim petition by his legal representatives under Sec. 166 of the Motor Vehicles Act claiming compensation for his death. It was alleged that Than Singh was driver of the offending vehicle and was earning around Rs.3,000/- per month as driver by way of salary. The defendants/non-applicants contested the claim petition and denied their liability. Parties adduced evidence. It was alleged that the offending vehicle was owned by non-appli-cant no. 1 and insured with non-applicant no. 2 (respondent no. 8 herein). 6. The Tribunal partly allowed the claim petition filed by the claimants by invoking the provisions of Workmen Compensation Act for determining the compensation payable to claimants and accordingly proceeded to apportion the liability between the insured and the insurer of the offending vehicle. In the opinion of the Tribunal, the claimants were entitled to recover a sum of Rs. 6. The Tribunal partly allowed the claim petition filed by the claimants by invoking the provisions of Workmen Compensation Act for determining the compensation payable to claimants and accordingly proceeded to apportion the liability between the insured and the insurer of the offending vehicle. In the opinion of the Tribunal, the claimants were entitled to recover a sum of Rs. 1,50,000/- out of total awarded sum i.e. 3,61,790/-from the owner of the offending vehicle-insured whereas balance amount was recoverable from the insurer i.e. Insurance Company respondent no. 8. This is how the award for Rs. 3,61,790/- was passed against both Insurer and Insured of offending vehicle. 7. As stated supra, it is this apportionment and the manner in which the liability was determined, the owner i.e. insured has felt aggrieved and filed this appeal. 8. The contention of the learned counsel for the appellant is that the Tribunal erred in apportioning the liability of the awarded sum between the insurer and the insured. He submits that once it is held that insurer is liable to indemnify the risk of the insured on the strength of the policy, then in such event, the Tribunal ought to have passed an award jointly and severally against the insured and insurer thereby making Insurance Company liable to pay the entire sum awarded by the Tribunal. Learned counsel submits that there was no question of bifurcating or apportioning the liability between the insurer and the insured and that too by invoking the provisions of Workmen Compensation Act when the issue involved in the claim petition is governed by the provisions of the Motor Vehicles Act. 9. In reply learned counsel for the respondent i.e. Insurance Company and claimants have contended that no interference is called for in the impugned award. 10. Having heard the learned counsel for the parties and on perusal of the record of the case, I am inclined to allow the appeal and accordingly modify the award impugned herein. 11. In my opinion, the Tribunal was not right in apportioning the liability between the owner and the insurer of the offending vehicle. The manner in which the Tribunal decided the claim by invoking the provisions of Workmen Compensation Act while deciding the claim petition under Section 166 of the Act and then bifurcated the liability between the two viz. Insurance Company and the insured and that too confining to Rs. The manner in which the Tribunal decided the claim by invoking the provisions of Workmen Compensation Act while deciding the claim petition under Section 166 of the Act and then bifurcated the liability between the two viz. Insurance Company and the insured and that too confining to Rs. 1,50,000/- for the insured and the balance for the insurer is perse illegal and deserves to be set aside. It is for the simple reason that it is not supportable by any principle of law. 12. By no stretch of imagination it can be held that liability arising out of Motor Vehicles Act can be apportioned in such a manner. Even in a case of contributory negligence, liability is always apportioned between the driver of offending vehicle and the victim who either died or suffered injury in the accident but not inter se insurer and insured. The rights of insurer and insured are governed by policy, which is a contract between them for indemnification of the liability in relation to insured vehicle. Once Che policy is held to be proved and further that there was no breach of any condition of policy qua insured, then it is for the insurer to indemnify the entire risk of the insured and pay amount awarded by the Tribunal. In such case there can be then no question of any apportionment between the insured and the insurer in respect of awarded sum. 13. In my opinion, therefore, Tribunal committed error of law in bifurcating/apportioning the liability between the insurer and the insured while passing the impugned award. 14. Accordingly and in the light of foregoing discussion, the appeal succeeds and is hereby allowed. The impugned award in so far as it relates to holding appellant who is the owner of offending vehicle liable to pay a sum of Rs. 1,50,000/- along with interest thereon @ 9% is concerned, the same is set aside and it is held that the entire awarded sum together with interest awarded will be payable jointly and severally by appellant and respondent no.8. In other words, liability in question will be joint and several of appellant (owner of offending vehicle) and respondent No.8 (insurer). No cost.