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2013 DIGILAW 280 (MP)

Oriental Insurance Company Limited v. Manorama

2013-03-01

U.C.MAHESHWARI

body2013
JUDGMENT : 1. The appellant/Insurance Company has filed this appeal being aggrieved by the award dated 6-2-2008 passed by Motor Accidents Claims Tribunal, Gwalior in Claim Case No. 58/2007, whereby the claim of the respondent No. 1 regarding death of her husband in a vehicular accident by exonerating the appellant-insurer of offending vehicle, has been awarded against the predecessor of the respondent No. 3 for the sum of Rs. 3 lacs along with interest at the rate of 8% per annum from the date of filing the claim petition with a direction to the appellant to pay such sum to the respondent No. I/claimant first and recover the same from the respondent No. 3. As such the appellant has come with this appeal to exonerate the condition to pay the awarded sum to the claimant and then recover from the respondent No. 3. 2. The facts regarding death of the husband of the respondent No. 1 in the alleged vehicular accident and the aforesaid quantum of compensation decided by the Tribunal, is not under dispute between the parties in the appeal so, mentioning the entire facts of the case in this order is not necessary, hence this order is being passed only by stating the facts necessary for adjudication of this appeal. 3. Besides the aforesaid factual matrix according to the claim petition of respondent No. 1, on the date of the incident the offending vehicle bearing registration No. MP06-B-6122 registered in the name of the predecessor in title of the respondent No. 3 namely; Haricharan Lal Gupta, was duly insured with the appellant. 4. In reply of the respondent No. 3 it was stated that he being registered owner of said vehicle was duly insured with the appellant hence, in any case, such liability be saddled against the appellant. 5. In reply of the appellant besides the other averments, it is specifically stated that the above mentioned vehicle was insured with it covering the risk of 36 to 60 passengers, along with the risk of driver for which the additional premium of Rs. 25/- was taken from the respondent No. 3. 5. In reply of the appellant besides the other averments, it is specifically stated that the above mentioned vehicle was insured with it covering the risk of 36 to 60 passengers, along with the risk of driver for which the additional premium of Rs. 25/- was taken from the respondent No. 3. It is also stated that the deceased-Ramjilal, the husband of the respondent No. 1 was not travelling as passenger in the bus, in fact he was cleaner of the bus, whose risk was not covered under the Insurance Policy, therefore, the liability of the impugned claim could not be saddled on the appellant/Insurance Company. 6. After framing the issues and recording the evidence on appreciation of the same the claim of the respondent No. 1 was awarded against the respondent No. 3 Haricharan Lal Gupta, the predecessor in title of respondent No. 3 with a direction to the appellant/Insurance Company to pay the awarded sum to the respondent No. I/claimant and recover the same from the respondent No. 3. The same is under challenge in this appeal at the instance of appellant. 7. After service of the notice of this appeal on behalf of the respondent No. 3 under Order 41 Rule 22 of CPC, the cross-objection/appeal for saddling the liability of the impugned award against the appellant was also filed and the same is pending for adjudication. In that respect, Court has to consider first whether without depositing the requisite sum of Rs. 25,000/- as per requirement of Section 173 of the Act, such cross-objection could be entertained in the present appeal and subject to answer of this question, the Court has to answer whether the liability of the impugned award could be saddled jointly and severally against the respondent No. 3 as well as the Insurance Company. 8. Appellant's Counsel after taking me through record of the Tribunal including the Insurance Policy (Exh. D-1) and the deposition of Shankarlal (NAW 1), the witness of the Insurance Company argued that as per policy, the offending bus was duly insured with the appellant for covering the risk of 36 to 60 passengers along with one driver, for which Rs. 25/- additional premium was taken and the risk of third party, in continuance he said that, risk of cleaner was neither covered nor any premium in this regard was taken. 25/- additional premium was taken and the risk of third party, in continuance he said that, risk of cleaner was neither covered nor any premium in this regard was taken. In such premises, prayed that if the risk of cleaner was not covered under the Policy, then after exonerating the appellant from the liability of the impugned award, the Tribunal has committed grave error in directing it to pay the sum of the award to the respondent No. 1 first and recover the same from the respondent No. 3, and by placing his reliance on the decided cases in the matter of Ramashmy Singh Vs. New India Assurance Co. Ltd. and others, reported in 2003 ACJ Volume 3 1550, so also on a decision in the matter of Chandrakanta Bhandari (Smt.) w/o Nageen Lal Bhandari Vs. Manohar Lal, reported in MACD 2010 (2) (MP) 820 and of this Court in the matter of Mangal Vs. Manusukhrani, reported in 2009ILR Volume 1806 and in the matter of Oriental Insurance Company Ltd. Vs. Joseph and others, reported in MACD 2012 (2) 1182 (Full Bench) (Kerala High Court), and prayed for setting aside the condition imposed by the Tribunal with a further prayer to dismiss the cross-objection of the respondent No. 3 on account of non-depositing the requisite sum as per requirement of Section 173 of the Act for entertaining the cross appeal. 9. The Counsel of the respondent No. I/claimant made his limited submission for saddling the liability of the awarded sum jointly and severally against the appellant and respondent No. 3. 10. The Counsel of the respondent No. 3 by referring the Insurance Policy (Exh. D-l) said that according to it, besides the premium to cover the risk of passengers and third party Rs. 25/- additionally to cover the risk of only driver as well as of employee. In such premises, the Tribunal has committed grave error in exonerating the appellant to afford the liability of the awarded sum. In continuance he said that, the offending vehicle being insured with the appellant in the available circumstances, it could not have been exonerated from the liability of the awarded sum by the Tribunal. In support of his contention, he also placed his reliance on a decision of the Apex Court in the matter of National Insurance Co. Ltd. Vs. In continuance he said that, the offending vehicle being insured with the appellant in the available circumstances, it could not have been exonerated from the liability of the awarded sum by the Tribunal. In support of his contention, he also placed his reliance on a decision of the Apex Court in the matter of National Insurance Co. Ltd. Vs. Prembai Patel and others, reported in AIR 2005 SC 2337 and of this Court Bhav Singh Vs. Smt. Savirani and others, reported in 2007(4) M.P.H.T. 460 (FB) = AIR 2008 MP 1 (Full Bench). So far as the entertain ability of his cross-objection is concerned, he said that after depositing the requisite sum as per requirement of Section 173 of the Act by the Insurance Company, with whom the vehicle of the respondent No. 3 was insured, for entertaining the appeal, then the respondent could not be insisted or directed again to deposit such sum for entertaining his cross-objection and prayed to entertain his cross-objection without depositing any sum under Section 173 of the Act and also prayed for allowing such cross-objection and saddled the liability of the impugned award against the appellant-Insurance Company. 11. Having heard the Counsel, I have carefully gone through the record of the Tribunal along with the impugned award so also the aforesaid case cited by the Counsel of the parties. 12. Before considering the question raised by the appellant's Counsel to exonerate the Insurance Company from the liability to pay the awarded sum and recover the same from the respondent No. 3,1 deem fit to consider and decide the question regarding entertain ability of the cross-appeal/cross-objection of respondent No. 3 filed under Order 41 Rule 22 of the CPC. As per provisions of Section 173 of the Act unless the requisite sum as per requirement of this section is deposited, the appeal against the award allowing claim could not be entertained for setting aside such award of the Tribunal. It is undisputed fact on record that the Insurance Company has filed this appeal after depositing the requisite sum with the Tribunal and, in such premises, its appeal was entertained and admitted for final hearing. But, the respondent No. 3 has filed the cross-objection without depositing such requisite sum in compliance of Section 173 of the Act. It is undisputed fact on record that the Insurance Company has filed this appeal after depositing the requisite sum with the Tribunal and, in such premises, its appeal was entertained and admitted for final hearing. But, the respondent No. 3 has filed the cross-objection without depositing such requisite sum in compliance of Section 173 of the Act. Such provision of Section 173 of the Act being mandatory, respondent No. 3 was also bound to deposit the requisite sum for entertaining and hearing of his cross-objection in the present appeal. In the lack of such deposit, the aforesaid cross-objection could not be entertained contrary to the mandatory provision of the aforesaid section. My approach is fully fortified by the decision of the Division Bench of this Court in the matter of Chandrakanta Bhandari (Smt.) w/o Nageen Lal Bhandari (supra), in which it was held as under :- "18.......We also find support to out reasoning and conclusion from the decision of Supreme Court reported in (2000) 9 SCC 223 , Trilochan Singh Vs. Kanta Devi. In this case also, the High Court had dismissed the appeal filed by owner of offending vehicle on the ground of non-compliance of Section 173 (1) proviso despite the fact that Insurance Company had paid the full awarded sum to claimants thereby satisfying the award passed in favour of claimants. Feeling aggrieved by this dismissal, the owner filed SLP before the Apex Court. Their Lordship took note of the fact of deposit made by the Insurance Company and yet declined to grant exemption to owner of offending vehicle from making deposit of sum specified in Section 173 (1) ibid. Their Lordships, however, directed the owner to deposit a sum of Rs. 10,000/- as a pre-condition for entertainment of his (owner's) appeal filed under Section 173 (1) ibid and accordingly, remanded the case of the High Court for its disposal on merits. As observed supra, the issue involved in the present case is similar to the one decided by the Apex Court in the case of Trilochan Singh (supra). 19. 10,000/- as a pre-condition for entertainment of his (owner's) appeal filed under Section 173 (1) ibid and accordingly, remanded the case of the High Court for its disposal on merits. As observed supra, the issue involved in the present case is similar to the one decided by the Apex Court in the case of Trilochan Singh (supra). 19. In view of foregoing discussion, we hold that appellant (owner of offending vehicle) cannot take any benefit of deposit made by Insurance Company of the awarded sum in the Tribunal and is required to ensure compliance of the provisions of Section 173 (I) ibid as a pre-condition for entertainment of the appeal filed by her under Section 173 (1) of the Act." 13. In the aforesaid premises, the cross-objection of respondent No. 3 deserves to be and is hereby dismissed on the ground of non-depositing the requisite sum for entertaining the same in compliance of Section 173 of the Act. 14. Coming to consider the question whether in the available scenario of the case the liability to pay the awarded sum to the respondent No. 1/claimant was rightly saddled on the Insurance Company with a direction to recover the same from respondent No. 3 after making the payment of such sum to respondent No. 1. 15. It is undisputed fact on record that the above-mentioned offending vehicle of the predecessor-in-title of respondent No. 3 was duly ensured with the appellant/Insurance Company and as per policy (Exh. D-1), the vehicle was insured covering the risk of 36 to 60 passengers for which the premium of Rs. 8760/- was charged and Rs. 100/- was charged for personal accident. Besides this, the additional premium of Rs. 25/- was charged with respect of the liability of employee/driver and for extra loading, the premium of Rs. 2628/- was charged. In such premises from the policy, it is apparent that besides the passengers, the risk of personal accident, driver and with respect of extra loading was covered and besides this, in any case, the risk of person specified in Section 147 (b) and its proviso was covered. According to the provision of Section 147 in a public service vehicle, the risk of driver, conductor or ticket examiner are covered. Besides the other person like cleaner in the case at hand was not covered. According to the provision of Section 147 in a public service vehicle, the risk of driver, conductor or ticket examiner are covered. Besides the other person like cleaner in the case at hand was not covered. So, in such premises, the Court has to answer the question whether after exonerating the appellant/Insurance Company to bear the liability of the sum of impugned award the direction of the Tribunal to the appellant to pay such sum to the respondent No. 1 and recover the same from the respondent No. 3 is sustainable under the law. 16. Before proceeding further to examine the aforesaid question, I deem fit to reproduce some relevant abstract of the decision of the Apex Court announced in the matter of Ramashroy Singh (supra). The same is read as under :- "10. The appellant's first submission was that Shashi Bhushan Singh was a passenger. The appellant's submission that the phrases 'any person' and 'any passenger' in clauses (i) and (ii) of sub-section (b) of Section 147 (1) are of wide amplitude, is correct. However, the proviso to the sub-section carves out an exception in respect of one class of persons and passengers, namely, employees of the insured. In other words, if the person or passenger is an employee, then the insurer is required under the statute to cover only certain employees. As stated earlier, this would still allow the insured to enter into an agreement to cover other employees, but under proviso to Section 147 (1) (b), it is clear that for the purpose of Section 146 (1), a policy shall not be required to cover liability in respect of the death arising out of and in the course any employment of the person insured unless- first; the liability of the insured arises under Workmen's Compensation Act, 1923 and second; if the employee is engaged in driving the vehicle and if it is a public service vehicle, is engaged as conductor of the vehicle or in examining tickets on the vehicle. If the concerned employee is neither a driver nor conductor nor examiner of tickets, the insured cannot claim that the employee would come under the description 'any person' or 'passenger'. If this was permissible, then there would be no need to make special provisions for employees of the insured. If the concerned employee is neither a driver nor conductor nor examiner of tickets, the insured cannot claim that the employee would come under the description 'any person' or 'passenger'. If this was permissible, then there would be no need to make special provisions for employees of the insured. The mere mention of the word 'cleaner' while describing the sitting capacity of the vehicle does not mean that the cleaner was, therefore, a passenger. Besides the claim of the deceased employee was adjudicated upon by the Workmen's Compensation Court which could have assumed jurisdiction and passed an order directing compensation only on the basis that the deceased was an employee. This order cannot now be enforced on the basis that the deceased was a passenger." In view of the aforesaid dictum of the Apex Court, on examining the case at hand then it is apparent that the deceased Ramjilal the cleaner was travelling in the bus neither as passenger nor driver, conductor or ticket examiner. So, accordingly, the risk of cleaner was not covered under the aforesaid Policy. In such premises, the Tribunal has not committed any error in exonerating the appellant from the liability of the impugned claim. 17. In the aforesaid premises when the risk of the cleaner was neither covered nor additional premium in this regard was charged by the appellant then after exonerating the appellant from the liability of the impugned claim, there was no occasion with the Tribunal to give the direction to pay the awarded sum to the respondent No. I/claimant first and recover the same from the respondent No. 3. So, in such premises, the Tribunal has committed grave error in giving such direction. The same is not sustainable at this stage. Consequently, till this extent, the impugned award of the Tribunal is hereby held to be perverse. 18. In view of the aforesaid discussion, by allowing this appeal, the direction given by the Tribunal to the appellant to pay the awarded sum to the claimant/respondent No. 1 first and recover the same from respondent Nos. 2 and 3 is hereby set aside. Till this extent, the impugned award is modified while the remaining findings of the same are hereby affirmed. In such premises, it is made clear that respondent/claimant shall be entitled to recover the sum of the impugned award from respondent Nos. 2 and 3 by executing the award. 2 and 3 is hereby set aside. Till this extent, the impugned award is modified while the remaining findings of the same are hereby affirmed. In such premises, it is made clear that respondent/claimant shall be entitled to recover the sum of the impugned award from respondent Nos. 2 and 3 by executing the award. It is also made clear that if any amount is paid by the appellant/Insurance Company in compliance of the impugned award or interim award then the appellant/Insurance Company shall be entitled to recover such sum from respondent Nos. 2 and 3 on the basis of this order by filing the executing proceedings before the Tribunal. There shall be no necessity to file any separate proceedings by the Insurance Company in this regard. 19. In the facts and circumstances of the case, there shall be no order as to the cost.