Research › Search › Judgment

Himachal Pradesh High Court · body

2016 DIGILAW 1604 (HP)

Narain Singh v. Neelam

2016-08-05

MANSOOR AHMAD MIR

body2016
JUDGMENT : Mansoor Ahmad Mir, J. These three appeals are outcome of a motor vehicular accident, which was caused by driver, namely, Mukadam Singh, while driving vehicle, i.e. Tata-207 bearing registration No. 30-A-0252, rashly and negligently, on 4.5.2007, at Chambu Nala near Bagshar, Tehsil Karsog, District Mandi, H.P.. 2. In the said accident, three persons sustained injuries and succumbed to the same, constraining the claimants, legal representatives and dependants of the deceased, to file three claim petitions before the Motor Accident Claims Tribunal, (II), Mandi, camp at Karsog (hereinafter referred to as “the Tribunal”) and came to be tried separately, resulting in passing three separate awards dated 09.09.2011 and compensation was awarded in favour of the claimants and against the owner-insured, for short the ‘impugned awards’. 3. The claimants, insurer and driver have not questioned the impugned awards, on any count, have attained finality, so far these relate to them. 4. Appellant/owner-insured has questioned the impugned awards on the ground that the Tribunal has fallen in an error in saddling him with liability and exonerating the insurer. 5. Learned Counsel for the insurer argued that the seating capacity of the offending vehicle was ‘2+1’, i.e. two labourers/employees and driver. The driver has not sustained injuries in the said accident. Thus, the insurer, at the best, could be saddled with liability to satisfy two awards, which are at higher side, as per the mandate of the Motor Vehicles Act, 1988 read with the ratio of the law laid down by Apex Court and this Court in the judgment dated 10.04.2015, delivered in a batch of writ petitions, FAO No. 188 of 2010, being the lead case. 6. Learned Counsel for the appellant/owner-insured argued that the insurer has to satisfy all the impugned awards. The argument is misconceived for the following reasons. 7. Admittedly, the offending vehicle was not a passenger vehicle and as per the Insurance Policy (Ext. RW- 1/A), the risk of 2 + 1 was covered. The Registration Certificate (Ext. RW-1/B) is on the record, in which the seating capacity is also recorded as ‘2+1’. 8. The argument is misconceived for the following reasons. 7. Admittedly, the offending vehicle was not a passenger vehicle and as per the Insurance Policy (Ext. RW- 1/A), the risk of 2 + 1 was covered. The Registration Certificate (Ext. RW-1/B) is on the record, in which the seating capacity is also recorded as ‘2+1’. 8. Thus, the insurer has to satisfy two awards, which are at higher side and the remaining are to be satisfied by the insurer at the first instance with right of recovery, as held by the Apex Court and this Court in the judgment dated 10.04.2015, delivered in a batch of writ petitions, FAO No. 188 of 2010, being the lead case. It is apt to reproduce paras 7 to 14 of the judgment, supra, herein:- “7. As per the insurance policy, Ext. RW- 1/B on the file of MAC Petition No. 110 of 2007, the insurance contract covers only 2 + 1 persons, meaning thereby, the policy covers the risk of the driver and two passengers. The insurer has to satisfy the liability as per the terms and conditions of the insurance contract. 8. My this view is fortified by the judgment of the Apex Court in the case titled as United India Insurance Company Limited versus K.M. Poonam & others, reported in 2011 ACJ 917. It is apt to reproduce relevant portion of para 24 of the judgment herein: “24. The liability of the insurer, therefore, is confined to the number of persons covered by the insurance policy and not beyond the same. In other words, as in the present case, since the insurance policy of the owner of the vehicle covered six occupants of the vehicle in question, including the driver, the liability of the insurer would be confined to six persons only, notwithstanding the larger number of persons carried in the vehicle. Such excess number of persons would have to be treated as third parties, but since no premium had been paid in the policy for them, the insurer would not be liable to make payment of the compensation amount as far as they are concerned. Such excess number of persons would have to be treated as third parties, but since no premium had been paid in the policy for them, the insurer would not be liable to make payment of the compensation amount as far as they are concerned. However, the liability of the Insurance Company to make payment even in respect of persons not covered by the insurance policy continues under the provisions of sub-section (1) of Section 149 of the Act, as it would be entitled to recover the same if it could prove that one of the conditions of the policy had been breached by the owner of the vehicle. In the instant case, any of the persons travelling in the vehicle in excess of the permitted number of six passengers, though entitled to be compensated by the owner of the vehicle, would still be entitled to receive the compensation amount from the insurer, who could then recover it from the insured owner of the vehicle.” 9. It is also apt to reproduce para 15 of the judgment of the Apex Court in the case titled as National Insurance Company Limited versus Anjana Shyam & others, reported in 2007 AIR SCW 5237, herein:- “15. In spite of the relevant provisions of the statute, insurance still remains a contract between the owner and the insurer and the parties are governed by the terms of their contract. The statute has made insurance obligatory in public interest and by way of social security and it has also provided that the insurer would be obliged to fulfil his obligations as imposed by the contract and as overseen by the statute notwithstanding any claim he may have against the other contracting party, the owner, and meet the claims of third parties subject to the exceptions provided in Section 149(2) of the Act. But that does not mean that an insurer is bound to pay amounts outside the contract of insurance itself or in respect of persons not covered by the contract at all. In other words, the insured is covered only to the extent of the passengers permitted to be insured or directed to be insured by the statute and actually covered by the contract. In other words, the insured is covered only to the extent of the passengers permitted to be insured or directed to be insured by the statute and actually covered by the contract. The High Court has considered only the aspect whether by overloading the vehicle, the owner had put the vehicle to a use not allowed by the permit under which the vehicle is used. This aspect is different from the aspect of determining the extent of the liability of the insurance company in respect of the passengers of a stage carriage insured in terms of Section 147(1)(b)(ii) of the Act. We are of the view that the insurance company can be made liable only in respect of the number of passengers for whom insurance can be taken under the Act and for whom insurance has been taken as a fact and not in respect of the other passengers involved in the accident in a case of overloading.” 10. Learned Counsel for the appellant-Insurance Company argued that at the best, the appellant-insurer-Insurance Company has to satisfy two awards, which are at higher side and rest of the liability is on the insured-owner. 11. Viewed thus, the total compensation amount of two awards, made in MAC Petition No. 110 of 2007, titled Smt. Chandru Devi & others versus Sh. Mohinder Singh & other and MAC Petition No. 132 of 2007, titled as Devi Singh versus Mohinder Singh & others, is to be satisfied by the insurer-Insurance Company and the compensation amount awarded in other awards, is to be satisfied by the insurer with the right of recovery. The insurer-insurance company is at liberty to move an application for recovery before the Tribunal. 12. The claimants have filed Cross Objections No. 390 of 2010 in FAO No. 188 of 2010 and Cross Objections No. 391 of 2010 in FAO No. 189 of 2010, respectively, for enhancement of the compensation. 13. I have gone through the claim petitions, evidence and the findings recorded by the Tribunal. 14. I am of the considered view that the amount of compensation awarded is just and appropriate, cannot be said to be inadequate. It is also to be kept in mind that the insurance company has to satisfy only two awards, which are at higher side and the rest are to be satisfied by the insurer at the first instance with right of recovery. It is also to be kept in mind that the insurance company has to satisfy only two awards, which are at higher side and the rest are to be satisfied by the insurer at the first instance with right of recovery. Viewed thus, the claimants have not made out a case for enhancement. Accordingly, the cross objections are dismissed.” 9. Accordingly, the insurer is directed to satisfy impugned awards passed in Claim Petitions No. 61 of 2007 and 65 of 2007, subject matters of FAOs No. 412 & 413 of 2011, respectively, being at the higher side and impugned award passed in Claim Petition No. 48 of 2007, subject matter of FAO No. 411 of 2011, is to be satisfied by the insurer at the first instance with right of recovery. 10. In view of the discussion made hereinabove, in other cases, arising out of the same accident, the insurer has to be granted right of recovery. 11. It is apt to record herein that the Tribunal has awarded interest at the rate of 6% from the date of filing of the claim petitions, which is not legally correct for the following reasons. 12. It is a beaten law of the land that the rate of interest should be awarded as per the prevailing rates, in view of the judgments rendered by the Apex Court in cases titled as United India Insurance Co. Ltd. and others versus Patricia Jean Mahajan and others, reported in (2002) 6 SCC 281 ; Santosh Devi versus National Insurance Company Ltd. and others, reported in 2012 AIR SCW 2892; Amrit Bhanu Shali and others versus National Insurance Company Limited and others, reported in (2012) 11 SCC 738 ; Smt. Savita versus Binder Singh & others, reported in 2014 AIR SCW 2053; Kalpanaraj & others versus Tamil Nadu State Transport Corpn., reported in 2014 AIR SCW 2982; Amresh Kumari versus Niranjan Lal Jagdish Pd. Jain and others, reported in (2015) 4 SCC 433 ; and Mohinder Kaur and others versus Hira Nand Sindhi (Ghoriwala) and another, reported in (2015) 4 SCC 434 , and discussed by this Court in a batch of FAOs, FAO No. 256 of 2010, titled as Oriental Insurance Company versus Smt. Indiro and others, being the lead case, decided on 19.06.2015. 13. 13. Having said so, I deem it proper to enhance the rate of interest from 6% per annum to 7.5% per annum from the date of filing of the claim petitions till its realization. 14. The insurer is directed to deposit the award amount before the Registry within 8 weeks from today on deposit, the same be released in favour of the claimants, strictly in terms of the conditions contained in the impugned awards, through payees’ account cheque. 15. It is made clear that the insurer-National Insurance Company Limited is at liberty to move an application for recovery before the Tribunal, so far it relates to FAO No. 411 of 2010. 16. The statutory amount of Rs. 25,000/- each, deposited by owner-insured in all three appeals be paid to the insurer through payees account cheque or by depositing the same in its account and that amount is to be adjusted towards the amount which is to be paid by the owner/insured to the insurer. 17. Send down the records after placing a copy of the judgment on the files of each of the claim petitions.