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2014 DIGILAW 391 (CHH)

Oriental Insurance Co. Ltd. v. Gotru Ram Gond

2014-11-13

P.SAM KOSHY

body2014
ORDER : P. Sam Koshy, J. 1. Since both these Appeals arise out of the same impugned Award dated 21.3.2003 passed in respect of the same accident by the First Motor Accident Claims Tribunal (hereinafter referred to as the Claims Tribunal) in Claim Cases bearing No. 97/2002 (Gotru Ram Gond & Others v. Yashwant & Others) and No. 100/2002 (Chandra Prakash Sahu & Another v. Yashwant & Others), the same are being decided by this common order. 2. Facts in brief leading to the filing of the instant Appeals are that on the date of accident i.e. on 16.5.1999 Devdas, Jeevrakhan, Shobharam, Chhagan, Daran Bai, Maina Bai and Arun Kumar were traveling in a Truck, bearing Registration No. MPT-9493, as labourers and were going to village -Murumgaon for the purpose of plucking the Tendu Pattas. It is said that at the relevant point of time the said Truck was being driven by Yashwant (Non- applicant No. l before the Claims Tribunal) rashly and negligently on account of which on the main road in village-Kohka the said Truck turned turtle resulting in death of the afore-mentioned persons who were traveling in it, on account of the injuries sustained by them in the accident. The said Truck was registered in the name of M/s. Jayanti Lal & Co. (Non-applicant No. 2 before the Claims Tribunal), however, it is said that the said Truck was sold to Mohd. Irshad (Non-applicant No. 3 before the Claims Tribunal) and the Truck was in possession of Mohd. Irshad at the time of accident and was insured with the Oriental Insurance Co. Ltd. (Non-applicant No. 4 before the Claims Tribunal and the Appellants herein). The Claimants, namely, Gotru Ram, Mahendra Kumar, Mahendri and Jalendra, in Claim Case No. 97/2002, being the husband and children of the deceased Maina Bai and the Claimants, namely, Chandra Prakash and Chandrakunwar Bai, in Claim Case No. 100/2002, being the father and mother of the deceased Arun Kumar, filed their respective claim petition before the Claims Tribunal claiming compensation to the tune of Rs. 7,64,000/- and Rs. 17,70,000/- respectively, against the Non-applicants, jointly and severally. 3. 7,64,000/- and Rs. 17,70,000/- respectively, against the Non-applicants, jointly and severally. 3. The Claims Tribunal, after considering the submissions of the parties and after close scrutiny of evidences which have come before it, finally vide impugned Award dated 21.3.2003 held that the accident arose on account of rash and negligent driving of Non-applicant No. 1/driver of the offending Truck which was owned by Non-applicant No. 3/owner and insured with Non-applicant No. 4/Insurance Company. The Claims Tribunal further held that from the facts and circumstances of the case it is evidently clear that the owner of the offending Truck had breached the conditions attached to the insurance policy inasmuch as the vehicle involved in the accident was a goods vehicle wherein passengers were not permitted to be transported. However, in the instant case, the categorical finding of the Claims Tribunal and which has not been challenged by any of the Claimants is that at the time of accident the offending Truck was carrying a large number of passengers which otherwise was not permitted. It was also the finding of the Claims Tribunal that the policy which has been taken by the owner of the vehicle does not cover the risk of the passengers who were travelling in the said vehicle at the relevant point of time. Accordingly, the Claims Tribunal vide impugned award awarded a total compensation of Rs. 1,57,000/- in favour of the Claimants in Claim Case No. 97/2002 and a total compensation of Rs. 1,52,000/- in favour of the Claimants in Claim Case No. 100/2002, with simple interest thereon at the rate of 9% per annum from the date of filing of the claim petitions, fastening the liability upon Non-applicant No. I/driver, Non-applicant No. 3/owner and Non-applicant No. 4/insurer of the offending Truck to pay the said amount of compensation to the Claimants, jointly and severally. However, it was held by the Claims Tribunal that Non-applicant No. 4 - Insurance Company shall be liable to recover the payment of compensation from Non-applicant No. 3 - owner of the offending Truck. Hence these Appeals by the Insurance Company. 4. However, it was held by the Claims Tribunal that Non-applicant No. 4 - Insurance Company shall be liable to recover the payment of compensation from Non-applicant No. 3 - owner of the offending Truck. Hence these Appeals by the Insurance Company. 4. The sole contention raised by the learned Counsel for the Appellant-Insurance Company is that since the accident arose out of a vehicle which was a goods vehicle and the same was being used for transportation of about 100 passengers, there is an apparent violation of the terms of policy conditions and as such the Insurance Company is not liable to first indemnify the owner of the vehicle for the compensation part and subsequently realize the same by initiating recovery proceedings. Learned Counsel for the Appellant-Insurance Company further contended that the finding of the Claims Tribunal is bad in law to the extent that once the Claims Tribunal has reached to the conclusion that the Insurance Company is not liable for payment of compensation in view of the fact that there is admitted position of breach of policy conditions, the direction given by the Claims Tribunal to the Insurance Company to first deposit the compensation and subsequently recover the same from the owner of the vehicle is perverse finding and is contrary to law and, therefore, it deserves to be set aside. Learned Counsel for the Appellant-Insurance Company also contended that the impugned Award passed by the Claims Tribunal was in direct conflict with the judgements passed by the Hon'ble Supreme Court in the case of New India Assurance Co. Ltd. v. Asha Rani and Others 2003 (2) SCC 223 also in the matter of Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy and others 2003(2) SCC 339 . 5. Learned Counsel for the Respondents-Claimants opposed the contentions of the learned Counsel for the Appellant-Insurance Company and submitted that the finding of the Claims Tribunal does not warrant any interference and that the Claims Tribunal has passed a well reasoned order taking into consideration the entire facts and circumstances of the case, particularly, the nature of policy, the status of the deceased and the claimants and, thus, the appeals preferred by the Appellant-Insurance Company deserve to be dismissed. 6. 6. Considering the rival contentions put forth by the learned Counsels appearing for either side and also taking into consideration the law laid down by the Hon'ble Supreme Court in the cases of New India Assurance Co. Ltd. v. Asha Rani and Others 2003(2) SCC 223 and Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy and others 2003(2) SCC 339 , this Court is of the view that the decision of the Hon'ble Supreme Court rendered in the case of Ramesh Kumar v. National Insurance Co. Ltd. and others 2001(6) SCC 713 is more relevant as the issue involved in the case was decided specifically in the said judgement of the Hon'ble Supreme Court, and as the facts of the instant cases are in respect of those category of a claimants whose claim has arisen under the new Act and that too after the amendment in the Motor Vehicles Act 54 of 1994. In the said judgement also in Para-7 to 9 it is held that in case if it is recorded by the Tribunal that the claimants were not the owners of the vehicle or its authorized representative, the Insurance Company could not be held liable to,-pay compensation. Relevant portion of the finding of the Hon'ble Supreme Court in Para-9 is reproduced as under:-- "9. Learned counsel appearing for the Insurance Company has submitted that even though the Insurance Company is liable to pay to the legal representatives of the owner or authorized representative, the question is whether those travelling were truly owners of the goods or not. This in our considered opinion is a question of fact which we need not advert to. Only in cases it is recorded by the Tribunal that they were not the owners then only the Insurance Company could succeed that they are not liable to pay." 7. In the light of the decision so rendered by the Hon'ble Supreme Court and which is still holds to be good law and further been relied and reiterated by the Hon'ble Supreme Court in the judgement delivered in Manager, National Insurance Co. In the light of the decision so rendered by the Hon'ble Supreme Court and which is still holds to be good law and further been relied and reiterated by the Hon'ble Supreme Court in the judgement delivered in Manager, National Insurance Co. Ltd. v. Saju P. Paul and Another 2013 (2) SCC 41 , wherein, in very categorical terms, the Hon'ble Supreme Court has held that only persons covered under the proviso (i) to Section147(1) shall be indemnified by the Insurance Company; only persons acting in the course of employment when the accident took place; fastening of liability on insurer to pay injured and then recover the same from the vehicle owner. In the said judgement also the Hon'ble Supreme Court in very categorical terms further reiterated the principles that the Insurance Company is liable to pay compensation only for those employees for whom insurance premium is paid, and not for each and every person who were travelling in the vehicle even if they are gratuitous passengers. 8. In view of the law laid down by the Hon'ble Supreme Court in the said judgement, this Court has no hesitation in reaching to the conclusion that so far as the finding of the Claims Tribunal in respect of liability of the payment of compensation by the Appellant-Insurance Company is concerned, the same is not proper, legal and justified. In clear terms, the Hon'ble Supreme Court right from the case of Ramesh Kumar v. National Insurance Co. Ltd. and others 2001(6) SCC 713 and thereafter in the case of New India Assurance Co. Ltd. v. Asha Rani and Others 2003 (2) SCC 223 and in Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy and others 2003(2) SCC 339 and in the case of Manager, National Insurance Co. Ltd. v. Saju P. Paul and Another 2013 (2) SCC 41 , itself has categorically held that the Insurance Company cannot be made liable in respect of those persons who were not covered under the insurance policy and also would not be liable for making the payment of compensation in the event of breach of conditions of the insurance policy. 9. However, as has been held by the Hon'ble Supreme Court in the case of Manager, National Insurance Co. 9. However, as has been held by the Hon'ble Supreme Court in the case of Manager, National Insurance Co. Ltd. v. Saju P. Paul and Another 2013 (2) SCC 41 , taking into consideration the peculiar facts and circumstances of the case firstly the accident being of the year 1999, the Award having been passed in favour of the Claimants in March 2003 i.e., almost more than a decade ago and that the Insurance Company also having already deposited the entire amount and the Claimants could not withdraw the same by virtue of the interim protection granted by this Court; taking into consideration the observations of the Hon'ble Supreme Court in the case of Manager, National Insurance Co. Ltd. v. Saju P. Paul and Another 2013 (2) SCC 41 , particularly, the observation of the Court in Para-26, the decision which has been rendered taking into consideration the series of the judgements of the Hon'ble Supreme Court, this Court is of the opinion that the finding of the Claims Tribunal so far as it relates to the condition put upon the Insurance Company to pay the amount of compensation first and to recover the same from the owner of the vehicle subsequently does not warrant any interference at this juncture as in the instant case also the accident took place about 15-16 years back and that the Award has been in favour of the Claimants in the year 2003 that too over a decade ago and the Claimants till date have not received any amount of compensation. Hence the finding of the Claims Tribunal in the facts and circumstances of the case is maintained. Let the amount of compensation which has been deposited by the Insurance Company as per the directives of this Court while, granting the interim stay be released to the Claimants forthwith with liberty to the Appellant-Insurance Company to recover the same from the owner of the vehicle. 10. With the aforesaid observation, these Appeals stands disposed of. There shall be no order as to cost.