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2016 DIGILAW 571 (RAJ)

National Insurance Co. Ltd. v. Hira

2016-04-23

MAHESH CHANDRA SHARMA

body2016
JUDGMENT : Mahesh Chandra Sharma, J. All these misc. appeals arise out of common judgment and award dated 24.4.2012 passed by the learned Judge, Motor Accident Claims Tribunal and Addl. District Judge, Kekri ('the learned Tribunal' for short hereinafter), hence same are being decided by the common Judgment. 2. Brief facts of the case are that the legal representatives of deceased filed a claim petitions before the learned Tribunal mentioning therein that when the deceased Pratap, Sharwan, Mahaveer and Ratan were going as a pedestrian then a tractor bearing Registration No. RJ-01-RA-2248 attached with trolly came with high speed and due to rash and negligence of tractor driver, the tractor was over turned in which Mahaveer died on the spot and other persons namely; Pratap, Sharwan and Ratan sustained injuries. However, during the course of treatment they also died. 3. The learned Tribunal issued notices, The non-claimants No. 1, 2 and 3 therein filed reply to the claim petitions. Defences were also taken. On the basis of the pleadings of the parties, the learned Tribunal framed four issues. 4. The learned Tribunal after hearing passed the impugned Judgment and Award. 5. The Insurance Company and the claimants aggrieved with the impugned judgment and award have preferred instant misc. appeals before this Court. 6. Counsel appearing for the Insurance Company has submitted that the learned Tribunal has erred in deciding issue No. 2 in favour of the claimants by holding that the Insurance Company should pay to the claimants and then recover the amount so paid from the owner/insured. Counsel has further submitted that the learned Tribunal while passing the impugned Judgment and Award has failed to take into consideration the following judgments: 1. National Insurance Co. Ltd. v. Parvasthneni, Special Appeal (Civil) No. 10993/2009; 2. National Insurance Co. Ltd. v. Yellamma & Anr. (2008) 7 SCC 526 ; 3. Samundra Devi v. Narendra Kaur (2008) 9 SCC 100 ; 4. Oriental Insurance Co. v. Brij Mohan, (2007) 7 SCC 56 ; 5. New India Insurance Co. Ltd. v. Darshan Devi (2008) 7 SCC 416 , and 6. United Indian Insurance Company Ltd. v. Tara Devi & Ors., 2010 ACC Part 1 page 78. 7. Samundra Devi v. Narendra Kaur (2008) 9 SCC 100 ; 4. Oriental Insurance Co. v. Brij Mohan, (2007) 7 SCC 56 ; 5. New India Insurance Co. Ltd. v. Darshan Devi (2008) 7 SCC 416 , and 6. United Indian Insurance Company Ltd. v. Tara Devi & Ors., 2010 ACC Part 1 page 78. 7. Counsel has further submitted that the learned Tribunal has exceeded the jurisdiction vested in it under law and exercised constitutional powers which lenders the impugned judgment and award null and void so far as the "pay and recover" order are concerned. Thus, the impugned Judgment and Award passed by the learned Tribunal be quashed and set aside. 8. On the other hand learned Counsel appearing for the claimants in the misc. appeals has submitted that while deciding the issue No. 1 the learned Tribunal wrongly held that deceased was travelling in the tractor-trolly. Counsel has submitted that the deceased was a pedestrian and came in the definition of third party. Counsel has further submitted that provisions of Section 173 of the Motor [hides Act, 1988 are fully applicable to the facts of the present case, which is produced hereunder: "49. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.- (1) If, after a certificate of insurance has been issued under sub-section (3) of Section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as is required to be covered by a policy under clause (b) of sub-section (1) of Section 147 (being a liability covered by the terms of the policy) is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall, subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if he were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments. (2) No sum shall be payable by an insurer under sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment or award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:- a. That there has been a breach of a specified condition of the policy, being one of the following conditions, namely i. a condition excluding the use of the vehicle- a. For hire or reward, where the vehicle is on the date of the contract of insurance a vehicle not covered by a permit to ply for hire or reward, or b. For organised racing and speed testing, or c. For a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a Transport vehicle, or d. Without side-car being attached where the vehicle is a motor cycle; or ii. a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or iii. A condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or Civil commotion; or b. That the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular. A condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or Civil commotion; or b. That the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular. (3) Where any such judgment as is referred to in sub-section (1) is obtained from a Court in a reciprocating country and in the case of a foreign judgment is, by virtue of the provisions of Section 13 of the Code of Civil Procedure, 1908 (5 of 1908.) conclusive as to any matter adjudicated upon by it, the insurer (being an insurer registered under the Insurance Act, 1938 (4 of 1938.) and whether or Not he is registered under the corresponding law of the reciprocating country) shall be liable to the person entitled to the benefit of the decree in the manner and to the extent specified in sub-section (1), as if the judgment were given by a Court in India: Provided that no sum shall be payable by the insurer in respect of any such judgment unless, before the commencement of the proceedings in which the judgment is given, the insurer had notice through the Court concerned of the bringing of the proceedings and the insurer to whom notice is so given is entitled under the corresponding law of the reciprocating country, to be made a party to the proceedings and to defend the action on grounds similar to those specified in sub-section (2). (4) Where a certificate of insurance has been issued under sub-section (3) of Section 147 to the person by whom a policy has been effected, so much of the policy as purports to restrict the insurance of the persons insured thereby the reference to any conditions other than those in clause (b) of sub-section (2) shall, as respects such liabilities as are required :o be covered by a policy under clause (b) of sub-section (1) of Section 147 be of no effect: Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this sub-section shall be recoverable by the insurer from that person. (5) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured by a policy exceeds the amount for which the insurer would apart from the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person. (6) In this section the expressions "material fact" and "material particular" means, respectively a fact or particular of such a nature as to influence the judgment of a prudent insurer in determining whether he will take the risk and, if so at what premium and on what conditions and the expression "liability covered by the terms of the policy" means a liability which is covered by the policy or which would be so covered but for the fact that the insurer is entitled to avoid or cancel or has avoided or cancelled the policy. (7) No insurer to whom the notice referred to in sub-section (2) or subsection (3) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in sub-section (1) or in such judgment as is referred to in sub-section (3) otherwise than in the manner provided for in subsection (2) or in the corresponding law of the reciprocating country, as the case may be. Explanation - For the purpose of this section, "Claims Tribunal" means a Claims Tribunal constituted under Section 165 and "award" means an award made by that Tribunal under Section 168. Rights of third patties against insurers on insolvency of the insured." 9. I have heard learned Counsel for the respective parties, carefully scanned the entire material made available to me including the impugned Judgment and Award as also the judgments placed before me. 10. In my considered opinion, the impugned judgment and award passed by the learned Tribunal needs interference of this Court qua issue No. 2. 11. In the result all the civil misc. appeals are allowed and the impugned judgment and award dated 24.4.2012 passed by the learned Judge, Motor Accident Claims Tribunal and Addl. 10. In my considered opinion, the impugned judgment and award passed by the learned Tribunal needs interference of this Court qua issue No. 2. 11. In the result all the civil misc. appeals are allowed and the impugned judgment and award dated 24.4.2012 passed by the learned Judge, Motor Accident Claims Tribunal and Addl. District Judge, Kekri is quashed and set aside qua issue No. 2 and the matter is remanded to the learned Tribunal with the direction to decide the same afresh after hearing both the Counsel appearing for the respective parties as also after taking into consideration the provisions of Section 149 of the Act of 1988 as also other judgments which the learned Counsel appearing for the respective parties may want to place reliance on the same before it, if applicable to the facts of the present case. Both the parties are directed to appear before the learned Tribunal on 1.8.2016. Record, if any, be sent to the Court concerned. Appeal allowed.