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2014 DIGILAW 1105 (HP)

Yash Pal v. Baldev Raj

2014-08-21

TARLOK SINGH CHAUHAN

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Judgment : Tarlok Singh Chauhan, Judge (Oral) This petition, under Article 227 of the constitution of India, is directed against the order dated 2.12.2013 passed by the Motor Accident Claims Tribunal, Ghumarwin, District Bilaspur in M.A.C. No. 172/6 of 2013, whereby the learned Tribunal has directed the petitioner, who is the owner of the vehicle to deposit a sum of Rs. 50,000/-on account of no fault liability. 2. The facts in brief may be noticed. The claimants who are respondents No.1 to 3 in this petition preferred a claim petition before the learned Tribunal along with which an application under Section 140 of the Motor Vehicles Act for award of interim compensation was preferred. It is pleaded that on 26.11.2009 at about 6:30 p.m., the mother of the claimants had died in a motor vehicle accident on account of the rash and negligent driving of the petitioner, who was coming on a scooter in a very high speed and hit their mother, who after prolong treatment unfortunately succumbed to her injuries. The petitioner who was arrayed as respondent No.2 before the learned Tribunal below filed his reply, wherein the respondent No.2 denied his liability and claimed that his scooter was not involved in the accident. 3. The learned Tribunal below has held the present petitioner to be liable for payment of no fault liability by according the following reasoning:- “As per the reply filed by the respondent No.1 to the main petition it was asserted that the vehicle was being driven by unauthorized person who was not having a valid driving licence and in violation of the condition of the policy. No policy of insurance insuring or contract to indemnify the respondent No.2, owner of the scooter was issued. Thus, the Insurance Company has taken a specific plea in the main petition that the vehicle was being driven in contravention of the provisions of Motor Vehicles Act and condition of the insurance policy. The said plea is yet to be adjudicated. It was laid down by the Hon’ble Supreme Court of India in Yallawa vs. National Insurance Company 2007 (7) SCC 607 that Insurance Company cannot be asked to make the payment under Section 140 of the Act without the determination of the defences available under Section 147 of M.V. Act. It was observed. “10. It was laid down by the Hon’ble Supreme Court of India in Yallawa vs. National Insurance Company 2007 (7) SCC 607 that Insurance Company cannot be asked to make the payment under Section 140 of the Act without the determination of the defences available under Section 147 of M.V. Act. It was observed. “10. The said provision, therefore, makes the owners of the vehicles liable but not the insurer per se. Irrespective of the fact whether a claim petition is required to be adjudicated under Chapter X or Chapter XII of the Act, it is permissible to raise a defence in terms of sub-section (2) of Section 149 of the Act. Even it is possible for the owner of the vehicle to raise a contention that his vehicle being not involved in the accident, he is not liable to pay any amount in terms of Section 140 of the Act. 11. One of the defences available to the insurer is breach of conditions specified in the policy. When such a defence is raised, the Tribunal is required to go into the said question. Section 140 of the Act does not contemplate that an insurance company shall also be liable to deposit the amount while it has no fault whatsoever in terms of sub-section (2) of Section 147 of the Act.” (Emphasis supplied) 4. I have heard the learned counsel for the parties and have gone through the records of the case. 5. This Court while adjudicating a similar claim arising out of the similar set of circumstances in CMPMO No. 129 of 2014 titled Satish Kumar Vs. Promila Kumar and others has held as follows:- “x x x x x x x x x 5. The learned counsel for the petitioner has strenuously argued that the order passed by the learned Tribunal is not sustainable in the eyes of law, particularly when the petitioner has annexed the insurance policy to prima facie establish that there was a valid contract of insurance between the petitioner and the insurance company. 6. The learned counsel for the petitioner has strenuously argued that the order passed by the learned Tribunal is not sustainable in the eyes of law, particularly when the petitioner has annexed the insurance policy to prima facie establish that there was a valid contract of insurance between the petitioner and the insurance company. 6. Now it may be noticed that the insurance company in its reply to the application under section 140 of the Act had specifically asserted that there was no contract of insurance between the petitioner and the insurance company on the date of accident, which the petitioner on the other hand had relied upon the policy of insurance and claimed indemnification from the insurance company, but this plea of the petitioner has been negated on the ground that insurance company had taken a specific plea in the main petition that vehicle was being driven in contravention of the provisions of Motor Vehicle Act and that too without any valid documents. 7. What probably has been lost sight by the learned Tribunal is the fact that insurance company invariably in all cases adopts a stereo type defence wherein all possible objections as may be available under the sun are raised in the reply filed. That does not mean that all these objections are to be taken note of or deemed to have been proved particularly when these objections are totally unsubstantiated and have been raised for the sake of objection. The raising of the objections is required to be evaluated and weighed with other surrounding facts and circumstances and the Tribunals are not to be guided or impressed by the mere fact that objection has been raised by the insurance company. What is the basis of those objections, how the same have been verified, and affirmed on affidavit. How and in what manner the provisions of the Motor Vehicles Act have been violated, how and in what manner the vehicle was being driven in contravention of the Act, what were those valid documents which were not available with the owner at the relevant time have to be specifically spelt out. 8. In order to fasten the liability of no fault upon the owner the insurance company was required to take a specific plea with respect to the violation of the policy or the driver not being possessed of a valid and effective driving licence. 8. In order to fasten the liability of no fault upon the owner the insurance company was required to take a specific plea with respect to the violation of the policy or the driver not being possessed of a valid and effective driving licence. It is only when a specific defence is raised against the employer or the dependants of the deceased that the employer or the dependants as the case may be can come into the witness box and depose regarding the issue. The insurance company cannot be permitted to take a defence which is far too general and omnibus without spelling out specifically its objection and also the basis for such objection. The same will have to be spelt out not only in the pleadings alone, but also in the affidavit sworn to this effect. The defence that there was no valid licence or that the vehicle was being driven in violation of the policy can have many -many connotation and many-many aspects. Without specific pleadings with regard to the validity of the licence or the alleged violation of the insurance policy, neither the applicant-claimant nor the owner of the vehicle can be taken by surprise. 9. The whole object of the pleadings is to bring the parties to an issue and the party of such pleadings was to prevent the issue being enlarged, which would prevent either party from knowing when the cause came on for trial, what the main point to be discussed and decided was. To attain this end, the petitioner has to state all the facts which constitute cause of action without no amount of proof and substitute pleadings, which are the foundation of claim of the litigating party. At the same time, the respondent has also to state in his reply the material facts on which he relies for his defence when the result of pleadings of both sides is that the material facts, is affirmed on one side and denied on the other, question thus raised between the parties is called on “issue of fact”., when one party is answered upon its pleadings by stating the objection in point of law, the legal question thus raised between the parties, is called on “issue of law”. 10. 10. Explaining the object and purpose of pleadings and issue, the Hon’ble Supreme Court in Bachhaj Nahar vs. Nilima Mandal and another (2008) 17 SCC 491 , has held as follows:- “10. The High Court, in this case, in its obvious zeal to cut delay and hardship that may ensue by relegating the plaintiffs to one more round of litigation, has rendered a judgment which violates several fundamental rules of civil procedure. The rules breached are : (i) No amount of evidence can be looked into, upon a plea which was never put forward in the pleadings. A question which did arise from the pleadings and which was not the subject matter of an issue, cannot be decided by the court. (ii) A Court cannot make out a case not pleaded. The court should confine its decision to the question raised in pleadings. Nor can it grant a relief which is not claimed and which does not flow from the facts and the cause of action alleged in the plaint. (iii) A factual issue cannot be raised or considered for the first time in a second appeal. 11. The Civil Procedure Code is an elaborate codification of the principles of natural justice to be applied to civil litigation. The provisions are so elaborate that many a time, fulfillment of the procedural requirements of the Code may itself contribute to delay. But any anxiety to cut the delay or further litigation, should not be a ground to float the settled fundamental rules of civil procedure. Be that as it may. We will briefly set out the reasons for the aforesaid conclusions. 12. The object and purpose of pleadings and issues is to ensure that the litigants come to trial with all issues clearly defined and to prevent cases being expanded or grounds being shifted during trial. Its object is also to ensure that each side is fully alive to the questions that are likely to be raised or considered so that they may have an opportunity of placing the relevant evidence appropriate to the issues before the court for its consideration. Its object is also to ensure that each side is fully alive to the questions that are likely to be raised or considered so that they may have an opportunity of placing the relevant evidence appropriate to the issues before the court for its consideration. This Court has repeatedly held that the pleadings are meant to give to each side intimation of the case of the other so that it may be met, to enable courts to determine what is really at issue between the parties, and to prevent any deviation from the course which litigation on particular causes must take. 13. The object of issues is to identify from the pleadings the questions or points required to be decided by the courts so as to enable parties to let in evidence thereon. When the facts necessary to make out a particular claim, or to seek a particular relief, are not found in the plaint, the court cannot focus the attention of the parties, or its own attention on that claim or relief, by framing an appropriate issue. As a result the defendant does not get an opportunity to place the facts and contentions necessary to repudiate or challenge such a claim or relief. Therefore, the court cannot, on finding that the plaintiff has not made out the case put forth by him, grant some other relief. The question before a court is not whether there is some material on the basis of which some relief can be granted. The question is whether any relief can be granted, when the defendant had no opportunity to show that the relief proposed by the court could not be granted. When there is no prayer for a particular relief and no pleadings to support such a relief, and when defendant has no opportunity to resist or oppose such a relief, if the court considers and grants such a relief, it will lead to miscarriage of justice. Thus it is said that no amount of evidence, on a plea that is not put forward in the pleadings, can be looked into to grant any relief.” 11. Thus it is said that no amount of evidence, on a plea that is not put forward in the pleadings, can be looked into to grant any relief.” 11. Therefore, in absence of any factual foundation and on account of a defence, which was far too general, much importance could not have been accorded by the learned Tribunal to the objection raised by the insurance company with respect to the validity of licence or the vehicle being driven in contravention of the provisions of Motor Vehicles Act or same being driven without any valid document, as alleged. Once the policy of insurance had been produced on record, then prima facie the objection raised by the insurance company fell flat on the ground and therefore at that stage the liability to pay the amount on account of no fault liability ought to have been fastened on the insurance company and not on the owner in view of indemnity clause contained therein. 12. The learned Tribunal has relied upon the judgment of the Hon’ble Supreme Court in Yallwwa (Smt) and others vs. National Insurance Co. Ltd. And another (supra), which ratio whereof to my mind is not applicable to the facts and circumstances of the present case. As already observed earlier, the mere raising of general defence in itself is not sufficient especially when such defence is pitted against a document i.e. insurance policy filed by the petitioner, which prima facie establishes that that there was a valid contract of insurance between the petitioner and the insurance company and therefore the petitioner was required to indemnify against all claims including the claim towards no fault liability. 13. Further, it is settled law that it is neither desirable nor permissible to pick out a word or a sentence from the judgment, divorced from the context of the question under consideration and treat it to be the complete `law’ declared by the Court. The judgment must be read as a whole and the observations from the judgment have to be considered in the light of the questions which were before the Court. The judgment must be read as a whole and the observations from the judgment have to be considered in the light of the questions which were before the Court. A decision of the Court takes its colour from the questions involved in the case in which it is rendered and while applying the decision to a later case, the courts must carefully try to ascertain the true principle laid down by the decision of the Court and not to pick out words or sentences from the judgment, divorced from the context of the questions under consideration by the Court, to support their reasoning. (See: Commissioner of Income Tax vs. Sun Engineering Works (P) Ltd. (1992) 4 SCC 363 . Likewise, it is also to be borne in mind that the observations in the judgment cannot be read like a text of a statute or out of context. (See: Hindustan Steel Works Construction Ltd. Vs. Tarapore & Co. and another (1996) 5 SCC 34 .” 6. I see no reason to take a different view as the facts in the present case in so far they relate to the question of no fault liability are parimateria with those in Satish Kumar’s case, supra. 7. Thus taking into account all the facts and circumstances, the present petition is allowed and the order dated 2.12.2013 passed by the Motor Accident Claims Tribunal, Ghumarwin, District Bilaspur in M.A.C. No. 172/6 of 2013 is set aside and the respondent No.4 is held liable to pay the amount. It is made clear that any observation made here-in-above is solely for the purpose of disposal of this petition and shall not be construed to be an opinion on the merits of the case. CMP No. 9979 of 2014. 8. In view of final order passed in CMPMO No. 183 of 2014, the present application has become infructuous and is dismissed as such.