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2016 DIGILAW 1793 (HP)

Vijay Kumar v. Shakila Khatun

2016-08-26

MANSOOR AHMAD MIR

body2016
JUDGMENT : Mansoor Ahmad Mir, Chief Justice, (Oral) This appeal is directed against the judgment and award dated 16.6.2011, made by the Motor Accident Claims Tribunal, Una, H.P. in MAC Case No. 27 of 2010, titled Shakila Khatun and others versus Vijay Kumar and another, for short ?the Tribunal?, whereby compensation to the tune of Rs.4,95,200/- alongwith interest @ 8% came to be awarded in favour of the claimants and owner was saddled with the liability, hereinafter referred to as ?the impugned award?, for short. 2. Claimants and insurer have not questioned the impugned award on any ground. Thus, the same has attained the finality so far as it relates to them. 3. The insured-appellant has questioned the impugned award on the ground that the Tribunal has fallen into an error in saddling him with the liability. 4. The claimants have specifically pleaded in the claim petition that deceased Mohammad Firoz had hired the offending vehicle for loading the sand but before it reached at the destination, it met with an accident and he sustained the injuries and succumbed to the same. The accident was outcome of rash and negligent driving of driver-cum-owner Vijay Kumar, appellant herein. 5. Driver-cum-owner and insurer have resisted and contested by the respondents and following issues came to be framed by the Tribunal. ?(i) Whether the accident was result of rash or negligent driving of respondent No.1 Vijay Kumar and due to the accident deceased Mohammad Firoz died as a result of the same? OPP (ii) If issue No. 1 is proved, to what amount of compensation the petitioners are entitled to and from whom? OPP (iii) Whether driver of vehicle No. HP-36-0405 was not holding a valid and effective driving licence? OPR2. (iv) Whether the vehicle was being driven in violation of the terms and conditions of the insurance Policy OPR2. (v) Whether the deceased was a gratuitous passenger and thereby vehicle was being plied in contravention of the terms and conditions of the insurance policy? OPR2. (vi) Whether vehicle No. HP-36-0405 was being plied without valid route permit OPR-2. (vii) Relief. 6. Claimants have examined HHC Vijay Kumar as PW1, Dr. D.K. Sharma, PW2, Sikander PW4 and one of the claimants Mohamad Ijrish stepped into the witness-box as PW 4. Owner-cum-driver Vijay Kumar has also stepped into the witness-box as RW1. 7. The insurer has not examined any witness. (vii) Relief. 6. Claimants have examined HHC Vijay Kumar as PW1, Dr. D.K. Sharma, PW2, Sikander PW4 and one of the claimants Mohamad Ijrish stepped into the witness-box as PW 4. Owner-cum-driver Vijay Kumar has also stepped into the witness-box as RW1. 7. The insurer has not examined any witness. Thus, evidence led by the claimants and driver-cumowner have remained un-rebutted. 8. The Tribunal, after scanning the evidence and record, held that there is sufficient proof on the file to the effect that the driver, namely Vijay Kumar has driven the offending vehicle rashly and negligently and caused the accident. 9. Before I deal with issue No. 2, I deem it proper to deal with issues No. 3 to 6 at the first instance. 10. The insurer had to discharge the onus on these issues, has not led any evidence, thus, the Tribunal has rightly decided issues No. 3 and 6 against the insurer. However, issues No. 4 and 5 came to be decided in favour of the insurer while keeping view the pleadings of the parties and the evidence on record. 11. The claimants have specifically pleaded that the deceased had hired the offending vehicle for loading the sand but have not led any evidence and there is not any iota of evidence on the record to this effect. The owner-cum-driver Vijay Kumar has specifically denied that the deceased was travelling in the offending vehicle, has stated that the deceased tried to climb forcibly in the =Tempo' to take lift and fell down. He has denied the negligent driving on his part. 12. Thus, the pleadings and the proof are at variance. 13. It appears that the deceased was travelling in the tool of the vehicle as is evident from para 13 of the impugned award. It is apt to reproduce para 13 of the impugned award herein. ?13.Ld. counsels for respondents have argued that PW Sikandar cannot be believed for the reason that as per FIR lodged by him deceased was travelling ion the tool (roof of the truck) but before the Tribunal he has stated about deceased travelling the cabin. It is apt to reproduce para 13 of the impugned award herein. ?13.Ld. counsels for respondents have argued that PW Sikandar cannot be believed for the reason that as per FIR lodged by him deceased was travelling ion the tool (roof of the truck) but before the Tribunal he has stated about deceased travelling the cabin. Though it is mentioned in the FIR that the deceased was travelling in the tool box but again the fact of the matter is that informer Sikandar who has lodged FIR while stepping into the witness box as PW4 has categorically denied that he has stated before the police that deceased was travelling into the tool. In such circumstances no infirmity is found in the plea of petitioners and even if there is variation in the statement of facts between the FIR and the facts proved before the Tribunal they are hardly of any consequence in absence of examination of person who had recorded the FIR.? 14. Mr. Ramakant Sharma, learned Senior Advocate has made available the copy of judgment made by the Chief Judicial Magistrate, Court No. 1 Amb District Una, H.P. dated 27.7.2015 in case No. 76-II-2010 across the Board, whereby accused Vijay Kumar stands acquitted of the offences punishable under Sections 279, 304-A of the Indian Penal Code. It is profitable to reproduce relevant portion of para 19 of the said judgment herein. ?19.There is no dispute that accused was driving tempo No. HP-36-0405 on 13.2.2010 at around 4: 00 P.M and at that time Mohammad Firoz was sitting on the tool of the tempo,……………? 15. In the given circumstances, it can be said that the Tribunal has rightly held that the owner has committed willful breach of the terms and conditions of the insurance policy and insurer was rightly exonerated. 16. It is apt to record herein that it was for the insurer to discharge the onus, has failed to do so. But pleadings are such which can be made basis for holding that the owner has committed willful breach for the reasons owner/insured was driving the vehicle. 17. The deceased was a third party. 16. It is apt to record herein that it was for the insurer to discharge the onus, has failed to do so. But pleadings are such which can be made basis for holding that the owner has committed willful breach for the reasons owner/insured was driving the vehicle. 17. The deceased was a third party. It is the mandate of Sections 146, 147 and 149 of the MV Act to protect the rights of third parties and that is why, compulsory duty has been imposed on the owners to get the vehicles insured, so that, claim of third parties cannot be defeated. 18. 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 travelling 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." 19. The same principle has been laid down by this Court in a series of cases. 20. In view of the above, the claimants, who are third party, cannot be left in lurch. Thus, it is the duty of the Tribunal/Courts to ensure that the compensation is paid to the claimants by directing the insurer to satisfy the award with right of recovery. 21. My this view is fortified by the judgment rendered by the Apex Court in the case titled as United India Insurance Co. Ltd. Versus K.M. Poonam and others, reported in 2011 ACJ 917 . It is apt to reproduce paras 24 and 26 of the judgment herein: ?24. 21. My this view is fortified by the judgment rendered by the Apex Court in the case titled as United India Insurance Co. Ltd. Versus K.M. Poonam and others, reported in 2011 ACJ 917 . It is apt to reproduce paras 24 and 26 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. 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. 25. ….......... 26. Having arrived at the conclusion that the liability of the Insurance Company to pay compensation was limited to six persons travelling inside the vehicle only and that the liability to pay the others was that of the owner, we, in this case, are faced with the same problem as had surfaced in Anjana Shyam's case (supra). The number of persons to be compensated being in excess of the number of persons who could validly be carried in the vehicle, the question which arises is one of apportionment of the amounts to be paid. The number of persons to be compensated being in excess of the number of persons who could validly be carried in the vehicle, the question which arises is one of apportionment of the amounts to be paid. Since there can be no pick and choose method to identify the five passengers, excluding the driver, in respect of whom compensation would be payable by the Insurance Company, to meet the ends of justice we may apply the procedure adopted in Baljit Kaur's case (supra) and direct that the Insurance Company should deposit the total amount of compensation awarded to all the claimants and the amounts so deposited be disbursed to the claimants in respect to their claims, with liberty to the Insurance Company to recover the amounts paid by it over and above the compensation amounts payable in respect of the persons covered by the Insurance Policy from the owner of the vehicle, as was directed in Baljit Kaur's case.? 22. It would also be profitable to reproduce paras 19 to 21 and 25 of the judgment rendered by the Apex Court in the case titled as Manager, National Insurance Co. Ltd. versus Saju P. Paul and another, reported in 2013 ACJ 554 , herein: ?19. The next question that arises for consideration is whether in the peculiar facts of this case a direction could be issued to the insurance company to first satisfy the awarded amount in favour of the claimant and recover the same from the owner of the vehicle (respondent no. 2 herein). 20. In National Insurance Co. Ltd. v. Baljit Kaur and others, 2004 ACJ 428 (SC), this Court was confronted with a similar situation. A three-Judge Bench of this Court in paragraph 21 of the Report held as under : "(21) The upshot of the aforementioned discussions is that instead and in place of the insurer the owner of the vehicle shall be liable to satisfy the decree. The question, however, would be as to whether keeping in view the fact that the law was not clear so long such a direction would be fair and equitable. We do not think so. We, therefore, clarify the legal position which shall have prospective effect. The Tribunal as also the High Court had proceeded in terms of the decision of this Court in Satpal Singh. The said decision has been overruled only in Asha Rani. We do not think so. We, therefore, clarify the legal position which shall have prospective effect. The Tribunal as also the High Court had proceeded in terms of the decision of this Court in Satpal Singh. The said decision has been overruled only in Asha Rani. We, therefore, are of the opinion that the interest of justice will be subserved if the appellant herein is directed to satisfy the awarded amount in favour of the claimant, if not already satisfied, and recover the same from the owner of the vehicle. For the purpose of such recovery, it would not be necessary for the insurer to file a separate suit but it may initiate a proceeding before the executing court as if the dispute between the insurer and the owner was the subject-matter of determination before the Tribunal and the issue is decided against the owner and in favour of the insurer. We have issued the aforementioned directions having regard to the scope and purport of Section 168 of the Motor Vehicles Act, 1988, in terms whereof, it is not only entitled to determine the amount of claim as put forth by the claimant for recovery thereof from the insurer, owner or driver of the vehicle jointly or severally but also the dispute between the insurer on the one hand and the owner or driver of the vehicle involved in the accident inasmuch as can be resolved by the Tribunal in such a proceeding." 21. The above position has been followed by this Court in National Insurance Co. Ltd. v. Challa Bharathamma, 2004 ACJ 2094 (SC), wherein this Court in para 13 observed as under: "(13) The residual question is what would be the appropriate direction. Considering the beneficial object of the Act, it would be proper for the insurer to satisfy the award, though in law it has no liability. In some cases the insurer has been given the option and liberty to recover the amount from the insured. For the purpose of recovering the amount paid from the owner, the insurer shall not be required to file a suit. It may initiate a proceeding before the executing court concerned as if the dispute between the insurer and the owner was the subject-matter of determination before the Tribunal and the issue is decided against the owner and in favour of the insurer. It may initiate a proceeding before the executing court concerned as if the dispute between the insurer and the owner was the subject-matter of determination before the Tribunal and the issue is decided against the owner and in favour of the insurer. Before release of the amount to the claimants, owner of the offending vehicle shall furnish security for the entire amount which the insurer will pay to the claimants. The offending vehicle shall be attached, as a part of the security. If necessity arises the executing court shall take assistance of the Regional Transport Authority concerned. The executing court shall pass appropriate orders in accordance with law as to the manner in which the owner of the vehicle shall make payment to the insurer. In case there is any default it shall be open to the executing court to direct realisation by disposal of the securities to be furnished or from any other property or properties of the owner of the vehicle i.e. the insured. In the instant case, considering the quantum involved, we leave it to the discretion of the insurer to decide whether it would take steps for recovery of the amount from the insured." 22 to 24. …........ 25. The pendency of consideration of the above questions by a larger Bench does not mean that the course that was followed in Baljit Kaur, 2004 ACJ 428 (SC) and Challa Bharathamma, 2004 ACJ 2094 (SC) should not be followed, more so in a peculiar fact situation of this case. In the present case, the accident occurred in 1993. At that time, claimant was 28 years' old. He is now about 48 years. The claimant was a driver on heavy vehicle and due to the accident he has been rendered permanently disabled. He has not been able to get compensation so far due to stay order passed by this Court. He cannot be compelled to struggle further for recovery of the amount. The insurance company has already deposited the entire awarded amount pursuant to the order of this Court passed on 01.08.2011 and the said amount has been invested in a fixed deposit account. Having regard to these peculiar facts of the case in hand, we are satisfied that the claimant (Respondent No. 1) may be allowed to withdraw the amount deposited by the insurance company before this Court along-with accrued interest. Having regard to these peculiar facts of the case in hand, we are satisfied that the claimant (Respondent No. 1) may be allowed to withdraw the amount deposited by the insurance company before this Court along-with accrued interest. The insurance company (appellant) thereafter may recover the amount so paid from the owner (Respondent No. 2 herein). The recovery of the amount by the insurance company from the owner shall be made by following the procedure as laid down by this Court in the case of Challa Bharathamma, 2004 ACJ 2094 (SC).? 23. The same principle has been laid down by this Court in a batch of FAOs, FAO No. 353 of 2012, titled as Dev Raj versus Shri Krishan Lal and others, being the lead case, decided on 24th June, 2016, and FAO No. 167 of 2011, titled Narender Singh Shekhawat versus Jasbir Singh and others, alongwith connected matter decided on 12.8.2016. 24. Having said so, the impugned award is modified and the insurer is directed to satisfy the impugned award at the first instance with right of recovery from the owner-insured. 25. Accordingly, the impugned award is modified as indicated hereinabove. 26. The insurer is directed to deposit the amount within eight weeks from today. On deposit, the Registry is directed to release the awarded amount in favour of the claimants, through payees' cheque account or by depositing the same in their bank accounts. 27. The insurer is at liberty to lay motion before the Tribunal for recovery from the owner-insured. 28. Send down the record forthwith, after placing a copy of this judgment.