Research › Search › Judgment

Madhya Pradesh High Court · body

2015 DIGILAW 1094 (MP)

Oriental Insurance Co. Ltd. v. Subbaro Talashila

2015-10-14

N.K.GUPTA

body2015
ORDER 1. Both the appeals are preferred against the common award dated 16.11.2006 passed by the 2nd Additional Motor Accident Claims Tribunal Maihar, District Satna in C.T. Nos.86/06 and 87/06 and therefore, these appeals are hereby decided by the present common order. 2. The appellant/Insurance Company (non-applicant No.6 before the Tribunal), who was insurer of light motor vehicle No. MP17/A-3057 has preferred the present appeals against the aforesaid award being aggrieved with its result that the appellant/Insurance Company was also found jointly and severally liable for payment of compensation to the various claimants of C.T. Nos.86/06 and 87/06. 3. On the other hand, the respondent Insurance Company (non-applicant No.3) has preferred a cross-objection in the matter along with the application under section 5 of the Limitation Act that a delay in filing the cross-objection may be condoned and looking to the facts and circumstances of the case, the liability of driver Sokhilal, the respondent be assessed at the most upto 25% and liability of the respondent Insurance Company be reduced. Also, the respondent Insurance Company be exonerated from its liability because accident was caused due to the sole negligence of driver, who was driving the jeep. 4. Facts of the case in short are that on 18.7.2003 near Narota culvert between Amarpatan and Maihar of National Highway No.7, the accident took place between the vehicles truck bearing registration No. MP19/A- 7306 driven by the respondent Sokhilal (non-applicant No.1 before the Tribunal) and jeep No. MP17/A-3057, which was driven by the respondent Dinesh Kumar (non-applicant No.4 before the Tribunal). In that accident, 2-3 persons travelling in the jeep had expired and few others were injured. Various claim cases were filed before the claims Tribunal, Maihar. However, three Claim Cases No.46/03, 59/03 and 63/03 were decided vide award dated 24.7.2004 and the present two cases were decided on 16.1.2006 by a separate award. The claimants/respondents in the present appeals have preferred applications under section 166 of the Motor Vehicle Act and Tribunal found that all the respondents were jointly and severally liable for the accident and awarded the claim applications of various claimants accordingly. 5. Since no appeal has been filed by any of the claimants against the award and quantum of compensation is not under challenge therefore, in the present appeals, the quantum of compensation is not mentioned specifically. 5. Since no appeal has been filed by any of the claimants against the award and quantum of compensation is not under challenge therefore, in the present appeals, the quantum of compensation is not mentioned specifically. In the present cases, both the Insurance Company and the respondents driver and owner of the jeep are represented 6. I have heard the learned counsel for the parties at length. 7. Before considering the plea of the appellants, it would be necessary to consider the cross-objection filed by the respondent the New India Assurance Company. Learned counsel for the respondent Insurance Company has placed his reliance upon the judgment passed by the apex Court in the case of Harishankar Rastogi v. Shyam Manohar and others [ 2005(3) MPLJ 1 ], to show that if cross-objections are filed then, even if the appeal is dismissed or withdrawn, the cross-objection should be heard and decided. Since appeal under consideration is to be decided on merits and the point raised by the respondent Insurance Company may also be considered therefore, application under section 5 of the Limitation Act filed by the respondent Insurance Company is liberally allowed and delay in filing of crossobjections is hereby condoned. Hence, the cross-objections filed by the respondent Insurance Company may also be considered. 8. The respondent Insurance Company took mainly two objections. Firstly that, the jeep driver was sole negligent and therefore, the respondent Insurance Company was not at all liable for payment of any compensation and secondly that, as per award in previous cases, the driver Sokhilal was found to be 25% negligent and hence, his liability and respondent Insurance Company’s liability be reduced upto that percentage. After considering the evidence given by various eyewitnesses including Arun Kumar (AW1), Dinesh Pal (NA4W1) and Sokhilal (NA1W1), it is apparent that the accident was a head on collision. But, the truck dashed the jeep on its one side and therefore, it appears that driver Dinesh Pal tried to save his vehicle and passengers, but due to fault of the respondent Sokhilal, the accident took place. Hence, the police had prepared a criminal case against the respondent Sokhilal. The respondent could not file a single document to show that a parallel case was also registered against the respondent Dinesh Pal. Hence, the police had prepared a criminal case against the respondent Sokhilal. The respondent could not file a single document to show that a parallel case was also registered against the respondent Dinesh Pal. However, evidence given by Arun Kumar and Dinesh Pal was not such, that the Tribunal could fix the liability of a particular driver and therefore, the Tribunal has found that it was a composite negligence of both the drivers. Looking to the evidence laid before the Tribunal, where the evidence of previous case could not be read, the Tribunal has rightly found that there was a composite negligence of both the drivers and, therefore, if the Tribunal has passed an award against the non-applicants by making them jointly and severally liable then, no illegality or perversity has been done by the Tribunal. 9. The respondent Insurance Company has placed its reliance upon the judgment passed by the apex Court in the case of T.O. Anthony v. Karvarnan and others [MACD 2008 (SC) 246], in which, it is held that the Insurance Company may be proportionately held liable according to the liability of the driver of concerned vehicle. In that case, it was found that the driver of a private bus brought the vehicle to the wrong side and driver of corporation bus was on its correct side therefore, the Tribunal found them equally liable (50% liable) of negligence, but the Supreme Court modified the liability to be 75:25 between private bus driver and corporation bus driver. However, factual position of the present case is not such that the negligence of drivers may be clearly established and hence, looking to the factual position of the case, the Tribunal has rightly found that both the drivers were jointly and severally liable for their composite negligence. Learned counsel for the appellants has also placed his reliance upon the judgment passed by the Full Bench of this Court in the case of Sushila Bhadoriya and others v. M.P. State Road Transport Corporation and another [ 2005(1) JLJ 15 (FB)=2005(1) MPLJ 373], in which, it is held that if the accident was caused as a result of negligence of two joint tort-feasors then, it is not necessary to apportion the claim when it is not possible to determine the ratio of negligence of joint tort-feasors. In the present case, no sufficient evidence is available on record so that the percentage of negligence done by the driver of the jeep may be ascertained and therefore, the Tribunal has rightly found all the non-applicants to be liable jointly and severally. On the basis of aforesaid discussion, there is no reason to accept the cross-objection filed by the respondent Insurance Company. 10. The appellant/Insurance Company has filed the present appeal mainly on the ground that the jeep was being driven against the policy conditions and therefore, the appellant/Insurance Company was not responsible for payment of any compensation. The appellant/Insurance Company took three grounds relating to violation of policy conditions. Firstly that, the respondent driver Dinesh Pal did not have any valid driving licence, secondly that the vehicle was overloaded and more passengers were taken against the capacity of the vehicle and thirdly that, the passengers were carried on hire or reward. The plea taken by the appellants was to be proved by the appellant, but no evidence was produced before the Tribunal to show that the respondent driver Dinesh Pal had no valid driving licence and therefore, the Tribunal has rightly found that such objection could not be proved by the appellants. 11. The appellant has tried to establish that so many persons were loaded in the jeep. In this context, if the statement of Arun Kumar (PW1) has been examined then, it appears that, to make the Insurance Company liable, he has stated that only 5-7 persons sat in the jeep, whereas according to the FIR Ex.P-18 lodged by the driver Dinesh Pal and various medical reports and final report Ex.P-21, three persons have expired in the accident, who were travelling in the jeep, whereas 3-4 persons have sustained the injuries. In this context, though, Dinesh Pal (NA4W1) has stated that owner of the jeep Khurshid Alam was also sitting in the jeep alongwith two persons and there was no allegation that Khurshid or his companions had sustained any injury therefore, according to the documents, 11 persons including the driver were travelling in the jeep, whereas according to the policy, the sitting capacity of the jeep was of 1+8=9 persons only, and if the version of driver Dinesh Pal is accepted as such then, the jeep was overloaded at the time of accident. Also, if the witness’s list and list of injured persons is examined from the charge-sheet Ex.P-21 then, it would be apparent that more than 9 persons were travelling in the jeep at the time of accident. Hence, the Insurance Company has clearly proved that the jeep was driven by driver Dinesh Pal in overloaded condition and it was a violation of policy conditions. 12. The Insurance Company has tried to show that 15-16 persons were travelling in the jeep on payment basis. To show such a position, copy of award Exs.D-45 to D-48 were filed in the case to show that in the previous cases awards were passed and it was held that 15-16 passengers were taken by the respondent Dinesh Pal and those were taken on payment of charges. However, previous award passed by the Tribunal was not binding upon the Tribunal in a subsequent case, because evidence laid in the previous set of cases was different and evidence laid in the present case was different. That award was passed on the basis of evidence laid in those cases and such evidence was not available to the Tribunal while passing the present award. Parties in the cases were not the same and therefore, no doctrine of res judicata can be applied in the case. It was for the appellant/Insurance Company to examine the witnesses, who gave such a statement in the previous cases. By mere filing of copy of the award, findings given by the Tribunal in the previous cases is not sufficient to prove the objection raised by the Insurance Company. 13. However, it would be apparent that the Tribunal did not examine the evidence given by the witnesses Sokhilal, Dinesh Pal and Arun Kumar along with the documents and, if FIR lodged by the respondent Dinesh Pal is considered then, the respondent Khurshid Alam has not been shown as eyewitness in that FIR. He was not made a witness in the concerned criminal case, which clearly indicates that the respondent Dinesh Pal has falsely introduced the presence of Khurshid Alam owner of the vehicle. By other documents, it is established that Khurshid Alam was not present in the vehicle alongwith his relatives. He was not made a witness in the concerned criminal case, which clearly indicates that the respondent Dinesh Pal has falsely introduced the presence of Khurshid Alam owner of the vehicle. By other documents, it is established that Khurshid Alam was not present in the vehicle alongwith his relatives. It is true that it was for the Insurance Company to prove that the respondent Dinesh Pal took the passengers after taking payment, however it can be proved by the evidence given by the claimants or by other respondents. The deceased or injured passengers found in the vehicle at the time of accident should be either related to the owner of the vehicle or with his permission, they could have travelled in the vehicle or the passengers were permitted by the driver according to the instruction given by vehicle owner. Driver Dinesh Pal was given a suggestion to show that what was the relation of these passengers with him or owner of the vehicle, who were travelling in the vehicle. In para 6, he has stated that 7-8 persons were travelling in his vehicle, but he did not know the names and residential address of those persons, who were travelling in the vehicle. He could not inform that the persons, who were travelling in the vehicle whether related to the owner of the vehicle or not. According to the para 6 of his statement, it would be apparent that he did not allow any passenger on courtesy. He developed the story that Khurshid Alam was travelling with him and he was taking his friend and relatives in the vehicle but, such statement given by Dinesh Pal was not confirmed by FIR or other document to show that owner of the vehicle Khurshid Alam was travelling in the jeep and therefore, he took various passengers in the vehicle without getting any instruction from owner of the vehicle, whereas he did not accept that any passenger was taken in the vehicle on courtesy. 14. When the vehicle driven by Dinesh Pal was a private four wheeler then, the persons or guests of the owner travelling in the vehicle should have started their journey from the house of its owner. In this connection, the statement of Arun Kumar (AW1) is examined then, he simply stated that he sat in the jeep at Maihar. 14. When the vehicle driven by Dinesh Pal was a private four wheeler then, the persons or guests of the owner travelling in the vehicle should have started their journey from the house of its owner. In this connection, the statement of Arun Kumar (AW1) is examined then, he simply stated that he sat in the jeep at Maihar. He knew that the vehicle was of Khurshid Alam but he did not state that he was permitted to travel in the vehicle by Khurshid Alam. Looking to the different names and residential address of passengers especially who were travelling in the vehicle including the injured and dead passengers, it would be apparent that those were not related to each other and when they did not board from the house of owner Khurshid Alam, an inference would be drawn that the driver Dinesh Pal took the passengers on the vehicle from the bus stand Maihar after taking fare from each passenger. Arun Kumar was telling a falsehood that he did not pay anything to the driver Dinesh Pal so that the liability of the Insurance Company should be established. In the circumstance, if the evidence given by Dinesh Pal and Arun Kumar along with the documents and charge-sheet etc. is considered, the appellant/Insurance Company has validly proved that the vehicle was driven in violation of policy condition and that in a private vehicle, the respondent Dinesh Pal permitted some passengers after taking fare from them. 15. Learned counsel for the appellants has placed his reliance upon the order passed by the Full Bench of this Court in the case of Bhav Singh v. Savirani and others [ 2008 ACJ 1043 ], in which, after considering the rule 97 of the Motor Vehicle Rules 1994, it is held that applicability of rule 97 of M.P. Motor Vehicles Rules is given effect to the provisions of Chapter V of the Motor Vehicles Act, which relates to “Control of transport vehicles” can have a bearing in interpreting the provisions of Chapter XI of the Motor Vehicles Act, which covers ‘Insurance of Motor Vehicles against third party risks’. In this case, the Insurance Company was not found liable for the person who were travelling in the tractor trolley. In this case, the Insurance Company was not found liable for the person who were travelling in the tractor trolley. In the light of aforesaid order, when it is already proved that the persons who claims for compensation were travelling as passengers after payment of fare to the respondent Dinesh Pal and therefore, the vehicle was used in contravention of policy conditions. Hence, the Tribunal has committed an error in making the appellant Insurance Company liable for payment of compensation. 16. However, the law of compensation under section 166 of the Motor Vehicle Act, is a law of social justice and it would not be possible for the claimants to recover the compensation from the owner of Jeep. Hence, it would be judicious to direct the appellant Insurance Company to pay and recover the compensation. 17. On the basis of aforesaid discussion, the cross-objections filed by the respondent Insurance Company are not acceptable and therefore, the same are hereby dismissed, whereas appeals filed by the appellant Insurance Company appears to be acceptable and therefore, award passed by the Tribunal is modified upto the extent that the compensation awarded to the claimants shall be paid by all the non-applicants in the case jointly and severally and claimants would be free to recover the entire amount of award from any of the non-applicants. The New India Assurance Company if pays any amount of compensation to the claimants, it would be entitled to recover the same from the respondent Khurshid Alam. No order as to costs. 18. Copy of the order be sent to the claim Tribunal along with its record for information and compliance. ............