Research › Search › Judgment

Himachal Pradesh High Court · body

2016 DIGILAW 2334 (HP)

Kashmiri Lal v. Rajni Devi

2016-11-04

MANSOOR AHMAD MIR

body2016
JUDGMENT : Mansoor Ahmad Mir, J. This appeal is directed against the award, dated 21st November, 2011, passed by Motor Accident Claims Tribunal-II, Mandi, District Mandi, H.P., (for short, the Tribunal), whereby compensation to the tune of Rs.7,40,000/-, with interest at the rate of 7.5% per annum from the date of filing of the petition till deposit, came to be awarded in favour of the claimants, and the insured and the driver were saddled with the liability, (for short, the impugned award). 2. The claimants, the driver and the insurer have not questioned the impugned award on any count, thus, the same has attained finality so far as it relates to them. 3. Feeling aggrieved, the insured has challenged the impugned award by way of instant appeal, on the grounds taken in the memo of appeal. 4. Learned counsel for the appellant/insured argued that the Tribunal has fallen into an error in determining issues No.1A, 2A and 3A and has wrongly saddled the owner with the liability. Thus, the controversy in the instant appeal revolves around issues No.1A, 2A and 3A, framed by the Tribunal, which are reproduced below:- “1A. Whether the driver was not holding a valid driving license at the time of accident, if so its effect? OPR 2A. Whether Devinder Kumar was sitting as a gratuitous passenger in the vehicle bearing registration No.PB-32-8826, if so its effect? OPR 3A. Whether the driver was driving the vehicle in violation of terms and conditions of insurance policy and Motor Vehicle Act, if so its effect? OPR” 5. Heard learned counsel for the parties and gone through the record. A perusal of the record shows that the driver of the offending vehicle was having a valid and effective driving licence to drive a light motor vehicle. The offending vehicle, in the instant case, was a tempo, which, admittedly, falls within the definition of Light Motor Vehicle. The Tribunal has fallen into an error in holding that the driver of the offending vehicle was not having a valid and effective driving licence. Accordingly, the findings returned by the Tribunal on issue No.1A are set aside and it is held that the driver of the offending vehicle was having a valid and effective driving licence at the time of accident. 6. Accordingly, the findings returned by the Tribunal on issue No.1A are set aside and it is held that the driver of the offending vehicle was having a valid and effective driving licence at the time of accident. 6. Coming to issue No.2A, the claimants, in paragraph 24 of the Claim Petition, have specifically pleaded that the deceased was a photographer by profession and, on the fateful day, had gone to Dussehra festival, and while returning, came back in the offending vehicle, met with the accident and succumbed to the injuries. The offending vehicle was a goods vehicle. Thus, the Tribunal has rightly determined issue No.2A and held that the deceased was traveling in the offending vehicle as gratuitous passenger. Accordingly, findings on issue No.2A are upheld. 7. As far as issue No.3A is concerned, admittedly, the offending vehicle was a goods vehicle, was being driven in violation of the terms and conditions contained in the insurance policy, as discussed above. Thus, the findings on issue No.3A are also upheld. 8. However, the Tribunal has fallen into an error in not directing the insurer to satisfy the award at the first instance, with right of recovery. 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, so that, claim of third parties cannot be defeated. 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 SCC 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. 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." 10. The same principle has been laid down by this Court in a series of cases. 11. In view of the above, the claimants, who are third party, cannot be left in lurch and cannot be dragged from pillar to post and post to pillar in order to get compensation. Thus, it is the duty of the Court to ensure that the compensation is paid to the claimants by directing the insurer to satisfy the award with right of recovery. 12. 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. 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.” 13. 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. 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, therefore, are of the opinion that the interest of justice will be sub-served 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. 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. 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. 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. 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).” 14. 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. 15. Having said so, the impugned award is modified to the extent that the insurer has to satisfy the impugned award at the first instance with right of recovery. The insurer is directed to deposit the amount, alongwith interest, as awarded by the Tribunal, within eight weeks from today, in the Registry of this Court, and the Registry is directed to release the same in favour of the claimants through their respective bank accounts, strictly in terms of the impugned award. The insurer is at liberty to lay motion for recovery before the Tribunal. 16. The appeal stands disposed of accordingly, alongwtih pending CMPs, if any.