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2013 DIGILAW 2163 (ALL)

National Insurance Comp. Ltd. v. Raj Kali

2013-08-26

RAJIV SHARMA, SATISH CHANDRA

body2013
JUDGMENT Dr. Satish Chandra, J. 1. All the present appeals have been filed by the appellants-insurance company under Section 173 of Motor Vehicles Act, 1988, against the judgment and award dated 07.09.2001, passed by the Motor Accident Claims Tribunal, Unnao. All appeals are related to common accident, so, we proceed to decide all these appeals by a common judgment and order. The details of the claim petitions and compensation awarded by the Tribunal are as under The brief facts of the cases are that on 01.03.1998, a jeep bearing number U.P.35A/8197 was plying as passenger vehicle. After paying the fair, 14 persons were travelling in the said jeep. When the jeep reach near village Kanti, Unnao Raebareli Road at about 7.00 p.m., from the opposite direction, a truck bearing number U.P. 32A 4497 was coming, whose driver was driving the vehicle carelessly, rashly and negligently and there was "head on collision" between the vehicles which resulted the death of five passengers and remaining passengers got serious injuries. They were taken to hospital. The Tribunal has examined the entire evidence and source of income, age etc. and awarded the compensation against the insurance companies, namely, National Insurance Company and United Insurance Company. Being aggrieved, the appellants-insurance company has filed the instant appeals, 2. With this background, Km. Pooja Arora, holding brief of Sri S.C. Gulati, learned counsel for the appellants-insurance company submits that the jeep was insured for only seven passengers, but there was over loading of the passengers. So, the liability of the appellants-insurance company is limited to the seven persons. Due to the violation of the breach of policy condition, no compensation is payable. She also submits that the interest @ 12% awarded by the Tribunal is on higher side. For the purpose, she relied on the ratio laid down in the case of Smt. Kaushnuma Begum & others v. The New India Assurance Co. Ltd. & others, 2001(1) Sup. 5 : (2001 All LJ 166). 3. Sri R.C. Sharma and Sri Tarun Kumar Mishra, learned counsel for the respondents-United Insurance Company submit that the evidence is against the jeep driver. So, the entire liability will have to be paid by the jeep. Thus, the appellants-insurance company is liable to pay the entire compensation as there was no fault on the part of the truck which was insured by the United Insurance Company. So, the entire liability will have to be paid by the jeep. Thus, the appellants-insurance company is liable to pay the entire compensation as there was no fault on the part of the truck which was insured by the United Insurance Company. The Tribunal has wrongly fixed the liability in the ratio of 50-50. 4. On the other hand, Sri P.V. Chaudhary, learned counsel for the respondents-claimant has justified the impugned orders. 5. Sri Shakeel Ahmad Ansari, learned counsel for the appellant of Appeal No. 263 of 2004 makes a request for enhancement of the compensation. 6. We have heard all the parties at length and perused the material available on record. 7. The accident is undisputed. By looking the site plan and other evidence, it was observed by the Tribunal that the accident was "head on collision". In the absence of any adverse material, there is no reason to deviate from the finding observed by the Tribunal regarding "head on collision". The jeep was insured by the National Insurance Company and truck was insured by the United Insurance Company. At the time of accident, policy of each vehicle was alive and each driver was holding a valid driving licence. 8. During the course of arguments, learned counsel for the appellants-insurance company has relied on the ratio laid down by the Hon'ble High Court in the case of Shiv Prasad Hamsahay Vishwakarma & another v. Smt. Shyamabai and others, 1999 (1) TAC 264 (MP), where it was observed that: From the pleadings and evidence, the clear inference is that the vehicle was being used for carrying passengers. They were carrying their own goods which were not to be carried in the goods vehicle. The main purpose was not carrying of the goods, but was carrying of the passengers. It is only when the goods are carried that the hirer of the vehicle may travel in the goods vehicle or his employee may so travel and be still covered by risk under the policy. When the main purpose is carrying the passengers, the mere fact that the passenger carries some goods, belongings as some personal effects, it does not mean that he has hired the vehicle for carrying the goods. He would not be covered within the ambit of 'covered risk'. This had been specifically prohibited. When the main purpose is carrying the passengers, the mere fact that the passenger carries some goods, belongings as some personal effects, it does not mean that he has hired the vehicle for carrying the goods. He would not be covered within the ambit of 'covered risk'. This had been specifically prohibited. It is not a case where the owner of the truck had done everything in his power to abide by the terms of the policy. It appears that he was earning profits from the breach of the terms. It is not a case where it can be said that he must be deemed to have directed his driver not to take any passengers. So there was breach of terms of policy committed by the insured in this case. This breach is within the scope of being 'fundamental'. 9. But fact remains that Hon'ble High Court of Uttaranchal in the case of National Insurance Co; Ltd. v. Raghuvir Singh and others, 2005 (3) TAC 318 : (2005 All LJ 1658) (Uttaran.), observed that the carrying excess passenger than permitted not a fundamental breach of policy. So, the insurer is liable to pay the compensation. 10. Further, it may be mentioned that Hon'ble Supreme Court in the case of B.V. Nagaraju v. Oriental Insurance Co. Ltd., (1996 (2) TAC 429: AIR 1996 SC 2054 ) (SC) observed that: It is plain from the terms of the Insurance Policy that the insured vehicle was entitled to carry 6 workmen, excluding the driver. If those 6 workmen when travelling in the vehicle, are assumed not to have increased any risk from the point of view of the Insurance Company on occurring of an accident, how could those added persons be said to have contributed to the causing of it is the poser, keeping apart the load it was carrying. Here, it is nobody's case that the driver of the insured vehicle was responsible for the accident. In fact, it was not disputed that the oncoming vehicle had collided head-on against the insured vehicle, which resulted in the damage. Merely by lifting a person or two, or even three, by the driver or the cleaner of the vehicle, without the knowledge of owner, cannot be said to be such a fundamental breach that the owner should, in all events, be denied indemnification. Merely by lifting a person or two, or even three, by the driver or the cleaner of the vehicle, without the knowledge of owner, cannot be said to be such a fundamental breach that the owner should, in all events, be denied indemnification. The misuse of the vehicle was somewhat irregular though, but not so fundamental in nature so as to put an end to the contract, unless some factors existed which, by themselves, had gone to contribute to the causing of the accident. In the instant case, however, we find no such contributory factor. The reasoning that the extra passengers being carried in the goods vehicle could not have contributed, in any manner, to the occurring of the accident, was barely notice and rejected sans any plausible account; even when the claim confining the damage to the vehicle only was limited in nature. 11. Recently Hon'ble Supreme Court in the case of S. Iyyapan v. M/s. United India Insurance Company Ltd. and another, JT 2013 (1) SC 85 : ( AIR 2013 SC 2262 ) observed that on policy breach, the insurer cannot disown its liability. 12. In the light of above discussions, we are of the view that both the insurance company are liable to pay the compensation as rightly observed by the Tribunal. By looking the meagre amount and other peculiar facts and circumstances of the case, the same appears reasonable. Hence, the impugned order passed by the Tribunal in each appeal is hereby sustained along with the reasons mentioned therein. F.A.F.O. No. 263 of 2004 13. This appeal has been filed by claimant-appellant for enhancement of the award for the reasons that it is meagre one. But in the peculiar facts and circumstances, the compensation of Rs. 35,000/- awarded by the Tribunal appears reasonable, so, we find no reasons to interfere with the impugned award passed by the Tribunal and the same is hereby sustained along with the reasons mentioned therein. 14. Needless to mention that in the case of Helen C. Rebellow v. Maharashtra State Road Transport Corporation ( AIR 1998 SC 3191 ), the Hon'ble Apex Court observed that compensation is not a source of profit or earning. In the result, all the appeals filed by the appellants-insurance company are hereby dismissed.