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2015 DIGILAW 360 (HP)

Oriental Insurance Company Ltd. v. Champi Devi

2015-04-17

MANSOOR AHMAD MIR

body2015
Judgment : Mansoor Ahmad Mir, J. Mr. Ramesh Thakur, Advocate, had appeared in this appeal on behalf of respondents No. 7 and 8. Today, there is no representation on behalf of respondents No. 7 and 8. Hence, they are set ex-parte. 2. This appeal is directed against the award, dated 30th November, 2007, made by the Motor Accident Claims Tribunal, Kullu, H.P. (for short “the Tribunal”) in Claim Petition No. 73/2006, titled as Smt. Champi Devi and others versus Shri Jagar Nath and others, whereby compensation to the tune of Rs. 2,55,000/- with interest @ 7% per annum from the date of filing of the claim petition till its realization came to be awarded in favour of the claimants and the appellant-insurer was directed to satisfy the award at the first instance with right to recover the same from the owner-insured ( for short “the impugned award), on the grounds taken in the memo of appeal. 3. The appellant-insurer has questioned the impugned award only on the ground that the Tribunal has fallen in error in directing the appellant-insurer to satisfy the award with right of recovery. 4. I am of the considered view that the Tribunal has not committed any error in directing the appellant-insurer to satisfy the award at the first instance and to recover the same from the owner-insured. The Tribunal has rightly made discussion in paras 17 to 19 of the impugned award. 5. Admittedly, the deceased was a third party and the claimant No. 1 is the widow, claimants No. 2 to 5 are the minor daughters & sons and claimant No. 6 is the mother of the deceased. 6. It is beaten law of land that right of third party cannot be defeated and even if the owner-insured has committed breach, the insurer has to satisfy the award. 7. In order to ensure that victim of vehicular accident, i.e. third party, receives compensation and his/her rights are not defeated, the Motor Vehicles Act, 1988 (for short "The MV Act") has undergone a sea change and Section 146 was introduced. The mandate of Sections 146, 147 and 149 of the MV Act is to protect the rights of third parties and that is why, compulsory duty has been imposed on the owners to get the vehicles insured and claim of third parties cannot be defeated. 8. The mandate of Sections 146, 147 and 149 of the MV Act is to protect the rights of third parties and that is why, compulsory duty has been imposed on the owners to get the vehicles insured and claim of third parties cannot be defeated. 8. It is apt to reproduce Section 146 of the MV Act herein: “146. Necessity for insurance against third party risk. - (1) No person shall use, except as a passenger, or cause or allow any other person to use, a motor vehicle in a public place, unless there is in force in relation to the use of the vehicle by that person or that other person, as the case may be, a policy of insurance complying with the requirements of this Chapter : Provided that in the case of a vehicle carrying, or meant to carry, dangerous or hazardous goods, there shall also be a policy of insurance under the Public Liability Insurance Act, 1991 (6 of 1991). Explanation. - A person driving a motor vehicle merely as a paid employee, while there is in force in relation t the use of the vehicle no such policy as is required by this sub-section, shall not be deemed to act in contravention of the sub-section unless he knows or has reason to believe that there is no such policy in force. (2) Sub-section (1) shall not apply to any vehicle owned by the Central Government or a State Government and used for Government purposes unconnected with any commercial enterprise. (3) The appropriate Government may, by order, exempt from the operation of sub-section (1) any vehicle owned by any of the following authorities, namely:- (a) the Central Government or a State Government, if the vehicle is used for Government purposes connected with any commercial enterprise; (b) any local authority; (c) any State transport undertaking: Provided that no such order shall be made in relation to any such authority unless a fund has been established and is maintained by that authority in accordance with the rules made in that behalf under this Act for meeting any liability arising out of the use of any vehicle of that authority which that authority or any person in its employment may incur to third parties. Explanation. Explanation. - For the purposes of this subsection, "appropriate Government" means the Central Government or a State Government, as the case may be, and - (i) in relation to any corporation or company owned by the Central Government or any State Government, means the Central Government or that State Government; (ii) in relation to any corporation or company owned by the Central Government and one or more State Governments, means the Central Government; (iii) in relation to any other State transport undertaking or any local authority, means that Government which has control over that undertaking or authority." 9. The Apex Court has also discussed this aspect in a case titled as S. Iyyapan versus United India Insurance Company Limited and another, reported in (2013) 7 Supreme Court Cases 62. It is apt to reproduce para 16 of the judgment herein: "16. The heading "Insurance of Motor Vehicles against Third Party Risks" given in Chapter XI of the Motor Vehicles Act, 1988 (Chapter VIII of 1939 Act) itself shows the intention of the legislature to make third party insurance compulsory and to ensure that the victims of accident arising out of use of motor vehicles would be able to get compensation for the death or injuries suffered. The provision has been inserted in order to protect the persons traveling in vehicles or using the road from the risk attendant upon the user of the motor vehicles on the road. To overcome this ugly situation, the legislature has made it obligatory that no motor vehicle shall be used unless a third party insurance is in force." 10. Viewed thus, the Tribunal has rightly held that the owner-insured has committed breach and directed the appellant-insurer to satisfy the award with right of recovery. 11. Having glance of the above discussions, the appeal merits to be dismissed and the impugned award is to be upheld. Accordingly, the appeal is dismissed and the impugned award is upheld. 12. Registry is directed to release the awarded amount in favour of the claimants strictly as per the terms and conditions contained in the impugned award after proper identification. 13. Send down the record after placing copy of the judgment on Tribunal's file.