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2016 DIGILAW 315 (GAU)

National Insurance Company v. Jayashree Sarma

2016-04-22

MANOJIT BHUYAN

body2016
JUDGMENT AND ORDER : Manojit Bhuyan, J. Heard Mr. B.K. Purkayastha, learned Counsel for the appellant Insurance Company as well as Mr. J. Roy, learned Counsel representing the respondent nos. 1 and 2/claimants. The respondent no. 3, who is the owner of the offending vehicle, has been duly served with the notice of this case. 2. Challenge is made to the Judgment and Award dated 03.10.2008 passed by the learned Member, Motor Accident Claims Tribunal, Kamrup, Guwahati in MAC Case No. 381 of 2001. Claim was filed by Smti Jayashree Shamra seeking compensation for the death of her husband Nalin Kumar Sharma arising out of a vehicular accident that had taken place on 09.08.2000 near Balbala Bridge, on the National Highway No. 37 under Agia Out Post of Goalpara District. 3. The National Insurance Company Ltd. duly made appearance before the Tribunal and had also filed its written statement. The respondent no. 3 i.e. the owner abstained from participating in the proceeding before the Tribunal as a result of which, the case proceeded ex parte against him. Two issues were framed and three witnesses were examined on behalf of the claimants. The Insurance Company declined to adduce any evidence nor brought on record the Insurance Policy in question. 4. The learned Tribunal after considering the materials on-record as well as the evidence of the witnesses, assessed the compensation to an amount of Rs.16,20,000/-. The Award was passed accordingly together with interest @ 7% per annum w.e.f. 30.03.2001 until the date of payment. 5. Being aggrieved, the appellant Insurance Company is before this Court. The primary ground of challenge is that no liability whatsoever could have been imposed on it, inasmuch as, on the date of the accident, the offending vehicle was plied in violation of the terms and conditions of the Policy. 6. Mr. B.K. Purkayastha submits that the Insurance Policy in question pertains to a private car and in so far as limitation to use is concerned, the said Policy did not cover the use of the private car for hire or rent. Mr. Purkayastha submits that a categorical plea was taken in the written statement of the Insurance Company denying its liability on the premises that the offending vehicle at the relevant time was used as a passenger carrying vehicle (taxi), which was in clear violation of the policy conditions. 7. Mr. Purkayastha submits that a categorical plea was taken in the written statement of the Insurance Company denying its liability on the premises that the offending vehicle at the relevant time was used as a passenger carrying vehicle (taxi), which was in clear violation of the policy conditions. 7. A copy of the Insurance Policy and Certificate of Insurance, which has been allowed to be produced as additional evidence by this Court, vindicates the stand taken by the Insurance Company. The Insurance Policy No. 1999/6101690 was valid for the period from 17.08.1999 to the midnight of 16.08.2000. The said Policy was in respect of a TATA Sumo vehicle for private use only. It did not cover the use of the vehicle for hire or rent etc. In this respect, Mr. Purkayastha makes reference to the deposition of PW-1 Smti Jayashree Sharma i.e. the claimant, who in her deposition has clearly stated that on the date of the accident the TATA Sumo vehicle was used for hire and to carry four passengers to Goalpara. According to Mr. Purkayastha, the evidence being clear, the learned Tribunal could not have saddled the Insurance Company with any monetary liability and /or to direct payment of any compensation. 8. Mr. J. Roy, learned Counsel representing the respondent nos. 1 and 2/ claimants, submits that no infirmity can be attributed to the judgment and award in question, inasmuch as, for long nine years when the proceeding was pending before the Tribunal, the Insurance Company neither end-eavored to bring on-record the Insurance Policy in question nor adduced any evidence with regard to the terms and conditions of the Policy to claim immunity from making any compensation. Be that as it may, this Court cannot remain oblivious of the basic document i.e. Insurance Policy, which is the edifice for ascertaining the liability or otherwise of the Insurance Company. 9. Apparently, on the date of the accident, the said TATA Sumo vehicle was being used in violation of the policy condition, in that, the same was used for carrying passengers on hire to Goalpara. In that view of the matter, not the Insurance Company but the Owner was liable to compensate the death of the husband of the claimant resulting from the vehicular accident. 10. In that view of the matter, not the Insurance Company but the Owner was liable to compensate the death of the husband of the claimant resulting from the vehicular accident. 10. Having held that the use of TATA Sumo vehicle for carrying passenger, there was a breach of the policy condition, the question now is to whether the Insurance Company can be made liable to satisfy the Award. In this context, Mr. J. Roy, learned Counsel representing the respondents placed reliance in two decisions of the Apex Court. The first being the National Insurance Co. Ltd. v. Baljit Kaur and Others reported in (2004) 2 SCC 1 and in the case of S. Iyyapan v. United India Insurance Co. Ltd. reported in (2013) 7 SCC 62 . The ratio of the said decisions is that although in certain circumstances the right of the Insurance Company is safeguarded but in any event the Insurer has to pay compensation when a valid certificate of insurance is issued notwithstanding the fact that the Insurer may proceed against the owner/insured for recovery of the amount. The right of the Insurance Company to recover the amount payable to the claimants is judicially recognised by a catena of decisions of the Apex Court. The provisions under the Motor Vehicles Act being a piece of welfare legislation, as such the respondents/claimants cannot be denied the legitimate compensation for breach of conditions of the Policy at the instance of the owner of the vehicle. 11. Having regard to the Apex Court decisions, no interference is made to the judgment and award under appeal and /or with the direction of the Tribunal to the Insurance Company to make payment of compensation in favour of the respondents/claimants. While affirming the judgment and award, it is made clear that this judgment will not come in the way of the Insurance Company to proceed against the Owner and for recovering the amount paid by it to the claimants. It would be open to the Insurance Company to institute any proceeding against the respondent no. 3/ Owner for recovering the amount paid by it on the ground of violation or breach of the conditions of the Insurance Policy. 12. In view of the above, the appeal stands disposed of. It would be open to the Insurance Company to institute any proceeding against the respondent no. 3/ Owner for recovering the amount paid by it on the ground of violation or breach of the conditions of the Insurance Policy. 12. In view of the above, the appeal stands disposed of. Needless to say that the balance amount including interest remaining unpaid to the respondents/claimants shall be forthwith deposited before the learned Tribunal within a period of six weeks from today. On such deposit being made, necessary orders will be passed by the Tribunal allowing the respondents/claimants to withdraw the said amount. While doing so, the learned Tribunal shall ensure that the respondents/claimants are duly identified by the engaged Counsel. The appellant Insurance Company is also allowed to withdraw the statutory deposit made before this Court. Registry shall send down the Lower Court Records forthwith.