Research › Search › Judgment

Rajasthan High Court · body

2014 DIGILAW 715 (RAJ)

United India Insurance Co. Ltd. v. Mool Singh

2014-03-14

ARUN BHANSALI

body2014
JUDGMENT 1. - This appeal is directed against the judgment and award dated 10.4.2013 passed by Motor Accident Claims Tribunal, Balotra ('the Tribunal'), whereby the Tribunal has awarded a sum of Rs. 1,79,760/- as compensation to the claimant-owner of the vehicle. 2. The facts in brief may be noticed thus : the claimant Mool Singh filed an application under Section 166 of the Motor Vehicles Act, 1988 ('the Act') before the Tribunal, inter-alia, with the averments that on 22.4.2011 his vehicle Tanker No.RJ-19- 1G-2757 was being driven by the driver Dama Ram rashly and negligently, which resulted in the same turning turtle and consequently, claimant suffering damages and therefore, the driver and the insurance company was liable for making payment of the amount of damages i.e. Rs. 2,65,236/- and both are jointly and severally liable. 3. A reply was filed by the driver Dama Ram and the Insurance Company disputing the averments made in the application. The Insurance Company raised preliminary objections regarding maintainability of the application before the Tribunal. It was also contended that the driver was not in possession of a valid and effective driving licence and the vehicle was being driven without valid permit and in violation of the policy conditions and, therefore, the Insurance Company was not liable. 4. The Tribunal framed four issues. On behalf of the claimant, he himself appeared as AW-1 and Mishri Lal appeared as AW-2 and exhibited 31 documents. 5. On behalf of the Insurance Company, NAW-1 Sudheer Bhandari was examined and two documents were exhibited. 6. The trial court after hearing the parties came to the conclusion that the vehicle was being driven rashly and negligently by the driver and the claimant was entitled to compensation to the extent of Rs. 1,79,760/-. 7. While deciding issue No.2, which pertained to its jurisdiction to deal with the application, the Tribunal came to the conclusion that several letters were written by the claimant to the Insurance Company seeking compensation and ultimately, the application was filed for own damages, to which reply has been filed by the Insurance Company and without further dwelling on the issue decided the issue in favour of the claimantand against the insurance Company and ultimately, passed the award as noticed hereinbefore. 8. 8. It is contended by learned counsel for the appellant that the claim application at the instance of the claimant Mool Singh - owner of the vehicle was not maintainable, Reference was made to Section 165 and 166 of the Act and reliance was placed on the judgment of the Hon'ble Supreme Court in National Insurance Co. Ltd. v. Laxmi Narain Dhut, MACD 2007 (1)(SC) 472 and Oriental Insurance Co.Ltd. v. Rajni Devi & Ors., MACD 2008 (SC) 272. 9. Learned counsel for the respondents submitted that the claim was maintainable before the Tribunal only as the jurisdiction of civil courts is barred under Section 175 of the Act and the Tribunal was, therefore, justified in accepting the application. Reliance was placed on the judgment of the Hon'ble Supreme Court in Chimairao Kanhojirao Shirke & Anr. v. Oriental Fire & General Ins. Co. Ltd., 2001 ACJ 8 10. I have considered the rival submissions. 11. Sections 165, 166(1) and 175 of the Act reads as under:- "Section 165. Claims Tribunals. - (1) A State Government may, by notification in the Official Gazette, constitute one or more Motor Accidents Claims Tribunals (hereafter in this Chapter referred to as Claims Tribunal) for such area as may be specified in the notification for the purpose of adjudicating upon claims for compensation in respect of accidents involving the death of, or bodily injury to, persons arising out of the use of motor vehicles, or damages to any property of a third party so arising, or both. Explanation.- For the removal of doubts, it is hereby declared that the expression "claims for compensation in respect of accidents involving the death of or bodily injury to persons arising out of the use of motor vehicles" includes claims for compensation under section 140 [and section 163A]. (2)- A Claims Tribunal shall consist of such number of members as the State Government may think fit to appoint and where it consists of two or more members, one of them shall be appointed as the Chairman thereof. (3)- A person shall not be qualified for appointment as a member of a Claims Tribunal unless he - (a) is, or has been, a Judge of a High Court, or (b) is, or has been a District Judge, or (c) is qualified for appointment as a High Court Judge [or as a District Judge]. (3)- A person shall not be qualified for appointment as a member of a Claims Tribunal unless he - (a) is, or has been, a Judge of a High Court, or (b) is, or has been a District Judge, or (c) is qualified for appointment as a High Court Judge [or as a District Judge]. (4)- Where two or more Claim Tribunals are constituted for any area, the State Government, may by general or special order, regulate the distribution of business among them." "Section 166. Application for compensation.- (1)- An application for compensation arising out of an accident of the nature specified in sub-section (1) of section 165 may be made- (a) by the person who has sustained the injury; or (b) by the owner of the property; or (c) where death has resulted from the accident, by all or any of the legal representatives of the deceased; or (d) by any agent duly authorised by the person injured or all or any of the legal representatives of the deceased, as the case may be: Provided that where all the legal representatives of the deceased have not joined in any such application for compensation, the application shall be made on behalf of or for the benefit of all the legal representatives of the deceased and the legal representatives who have not so joined, shall be impleaded as respondents to the application. [(2)- Every application under sub-section (1) shall be made, at the option of the claimant, either to the Claims Tribunal having jurisdiction over the area in which the accident occurred, or to the Claims Tribunal within the local limits of whose jurisdiction the claimant resides or carries on business or within the local limits of whose jurisdiction the defendant resides, and shall be in such form and contain such particulars as may be prescribed. Provided that where no claim for compensation under section 140 is made in such application, the application shall contain a separate statement to that effect immediately before the signature of the applicant.] [***] [(4)- The Claims Tribunal shall treat any report of accidents forwarded to it under sub-section (6) of section 158 as an application for compensation under this Act.]" "Section 175. Bar on jurisdiction of Civil Courts.- Where any Claims Tribunal has been constituted for any area, no Civil Court shall have jurisdiction to entertain any question relating to any claim for compensation which may be adjudicated upon by the Claims Tribunal for that area, and no injunction in respect of any action taken or to be taken by or before the Claims Tribunal in respect of the claim for compensation shall be granted by the Civil Court." 12. A comprehensive analysis of the above provisions would reveal that a Tribunal can be constituted by the State Government for adjudicating claims for compensation in respect of accidents involving the death of, or bodily injury to, persons arising out of the use of motor vehicles, or damages to any property of a third party so arising, or both. Further Section 166 (1) provides that application for compensation arising out of an accident of the nature specified under sub-section (1) of Section 165 may be made by the person, who has sustained the injury; by the owner of the property; where death has resulted from the accident or by any of the legal representatives of the deceased or by any agent duly authorised by injured person. The person entitled to file application under Section 166(1)(d) i.e. the owner of the property, has to be read in the context of Section 165(1) where the damages to any property of a third party is the requirement, for which a Tribunal can be constituted and therefore, the application before the Tribunal under Section 166 can only be preferred by a third party. 13. Admittedly, the owner of the vehicle is not a third party and therefore, the application filed by him seeking compensation under Section 166 of the Act for damage of a own insured vehicle was not maintainable before the Tribunal. 14. So far as provisions of Section 175 of the Act are concerned, the said provision provides that where any Claims Tribunal have been constituted for any area, no civil court shall have jurisdiction to entertain any question relating to any claim for compensation which may be adjudicated upon by the Claims Tribunal. The necessary requirement for barring the jurisdiction of the civil court is that the Tribunal should have power / jurisdiction to entertain the question which is sought to be raised before the civil court. The necessary requirement for barring the jurisdiction of the civil court is that the Tribunal should have power / jurisdiction to entertain the question which is sought to be raised before the civil court. If the Tribunal does not have jurisdiction to deal with the question which is raised before the civil court, it cannot be said that the suit would be barred in that case. 15. As noticed here-in-before for own damage, a claim petition under Section 166 of the Act is not maintainable before the Claims Tribunal and therefore, it cannot be said that the suit for recovery of own damage against the insurance company, would be barred before the civil courts. 16. The Hon'ble Supreme Court in Complete Insulations (P) Ltd. v. New India Assurance Co. Ltd., (1996) 1 SCC 221 held and observed as under:- "10. There can be no doubt that the said chapter provides for compulsory insurance of vehicles to cover third-party risks. Section 146 forbids the use of a vehicle in a public place unless there is in force in relation to the use of that vehicle a policy of insurance complying with the requirements of that chapter. Any breach of this provision may attract penal action. In the case of property, the coverage extends to property of a third party i.e. a person other than the insured. This is clear from Section 147(1)(b)(i) which clearly refers to "damages to any property of a third party" and not damage to the property of the 'insured' himself. And the limit of liability fixed for damage to property of a third party is Rupees six thousand only as pointed out earlier. That is why even the Claims Tribunal constituted under Section 165 is invested with jurisdiction to adjudicate upon claims for compensation in respect of accidents involving death of or bodily injury to persons arising out of the use of motor vehicles, or damage to any property of a third party so arising, or both. Here also it is restricted to damage to third party property and not the property of the insured. Thus, the entire Chapter XI of the new Act concerns third-party risks only. Here also it is restricted to damage to third party property and not the property of the insured. Thus, the entire Chapter XI of the new Act concerns third-party risks only. It is, therefore, obvious that insurance is compulsory only in respect of third party risks since Section 146 prohibits the use of a motor vehicle in a public place unless there is in relation thereto a policy of insurance complying with the requirements of Chapter XI. Thus, the requirements of that chapter are in relation to third party risks only and hence the fiction of Section 157 of the new Act must be limited thereto. The certificate of insurance to be issued in the prescribed form (See Form 51 prescribed under Rule 141 of the Central Motor Vehicles Rules, 1989) must, therefore, relate to third party risks. Since the provisions under the New Act and the Old Act in this behalf are substantially the same in relation to liability in regard to third parties, the National Consumer Disputes Redressal Commission was right in the view it took based on the decision in Kondaiah case because the transferee-insured could not be said to be a third party qua the vehicle in question. It is only in respect of third party risks that Section 157 of the New Act provides that the certificate of insurance together with the policy of insurance described therein "shall be deemed to have been transferred in favour of the person to whom the motor vehicle is transferred". If the policy of insurance covers other risks as well, e.g., damage caused to the vehicle of the insured himself, that would be a matter falling outside Chapter XI of the New Act and in the realm of contract for which there must be an agreement between the insurer and the transferee, the former undertaking to cover the risk or damage to the vehicle. In the present case since there was no such agreement and since the insurer had not transferred the policy of insurance in relation thereto to the transferee, the insurer was not liable to make good the damage to the vehicle. The view taken by the National Commission is, therefore, correct." 17. The said judgment in the case of Complete Insulations (P) Ltd. (supra) has been followed in the case of National Insurance Co. Ltd. v. Laxmi Narain (supra). 18. The view taken by the National Commission is, therefore, correct." 17. The said judgment in the case of Complete Insulations (P) Ltd. (supra) has been followed in the case of National Insurance Co. Ltd. v. Laxmi Narain (supra). 18. So far as judgment cited by learned counsel for the respondents in the case of Chimairao Kanhojirao Shirke & Anr. v. Oriental Fire & General Ins. Co. Ltd. (supra) is concerned, from the said judgment it cannot be deciphered whether the claim was filed before the Tribunal as in the said judgment, the Hon'ble Supreme Court has indicated the adjudicating forum as 'trial court' and nowhere in the judgment, the word 'Tribunal' has been used. Besides the above, the Hon'ble Supreme Court has not dealt with the issue of jurisdiction under the Act. The judgment of the Hon'ble Supreme Court can only be used as a precedent on a issue which has been raised and decided and not what necessary follows from the said judgment. 19. The claimant -respondent would be free to approach the Court of competent jurisdiction and would also be entitled to invoke provisions of Section 14 of the Limitation Act, 1963. 20. Consequently, the appeal is allowed. The impugned judgment and award dated 10.4.2013 passed by the Tribunal is set-aside. If the amount deposited under Section 173 of the Act has not been disbursed to the respondent No.1 herein, the same may be refunded back to the appellant-Insurance Company. The stay application also stands disposed of.No costs.Appeal allowed. *******