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Madhya Pradesh High Court · body

2016 DIGILAW 934 (MP)

Shankar Lal v. Sanjay Kumar

2016-10-19

NANDITA DUBEY

body2016
ORDER 1. This appeal is filed by the claimant being aggrieved by the award dated 18.11.2009, passed in Claim Case No.78/2008, whereby the liability to pay the compensation has been saddled on the respondents No.1 and 2 and the Insurance Company has been exonerated on the ground of breach of term of policy. 2. It is grievance of the appellant that the amount so awarded under all the heads by the Tribunal is inadequate. According to the appellant, the rate of interest applied is also on the lower side and prayed for enhancement of the compensation to Rs.4,20,000/- and to shift the liability of payment of compensation on the Insurance Company. 3. In support of his contention, the learned counsel for the appellant/claimant has relied on 1998(1) Vidhi Bhasvar 79 (United India Insurance co. Ltd. v. Mohd. Ashique and others) and AIR 2003 SC 1292 (United India Insurance co. Ltd. v. Lehru and others), wherein it is held that the liability of the Insurance company towards third party does not get avoided on the ground that driver of the vehicle was not holding a valid licence. 4. Learned counsel for the respondent/Insurance Company, on the other hand had supported the award passed by the Tribunal. She has vehemently contended that if the insurance company has no liability to pay the compensation, it cannot be compelled to pay and recover the same later on from the owner. She has placed reliance on (2009)8 SCC 785 , 2014 (III) ACJ 1792, 2006 (I) ACJ 671 and 2012 (IV) ACJ 2196. 5. I have heard the rival contentions and perused the record. The learned Tribunal had recorded a finding that there was a breach of policy conditions as the driver of the offending vehicle was not holding a valid licence, thus, the Insurance Company was exonerated. 6. In the case of National Insurance Company Limited v. Parvathneni and another (2009)8 SCC 785 the apex Court has held : “3. Prima facie, we are of the opinion, if the Insurance company proves that it has not liability to pay the compensation to the claimants, the Insurance company cannot be compelled to make payment and later on recover if from the owner of the vehicle. 4. Prima facie, we are of the opinion, if the Insurance company proves that it has not liability to pay the compensation to the claimants, the Insurance company cannot be compelled to make payment and later on recover if from the owner of the vehicle. 4. No doubt, there are some decisions which have taken the view that even if the insurance company has no liability, yet it must pay and later on recover it from the owner of the vehicle. [See for example National Insurance Co. Ltd. v. Yellamma and another [ (2008)7 SCC 526 ]; Samundra Devi v. Narendra Kaur [ 2009(2) JLJ 135 = (2008)9 SCC 100 (vide para 16)]; Oriental Insurance Co. v. Brij Mohan [ (2007)7 SCC 56 (vide para 13)], New India Insurance Co. v. Darshan Devi [ (2008)7 SCC 416 (vide para 21), etc.]. We have some reservations about the correctness of the aforesaid decisions of this Court. 5. If the Insurance company has no liability to pay at all, then in our opinion, it cannot be compelled by order of the Court in exercise of its jurisdiction under Article 142 of the Constitution of India to pay the compensation amount and later on recover it from the owner of the vehicle. In our view, Article 142 of the Constitution of India does not cover such type of cases. 6. When a person has no liability to pay at all how can it be compelled to pay? It may take years for the insurance company to recover the amount from the owner of the vehicle, and it is also possible that for some reason the recovery may not be possible at all.” 7. I am in respectful agreement with the view taken by the Hon'ble apex Court in Parvathneni (supra). In view of the aforediscussed law, the first contention of the appellant stands rejected. 8. As regard the inadequacy of the compensation amount, it is evident from the record that the claimant had received grievous injuries and there is a disability of 16% with regard to his left leg due to muscle loss. The learned Tribunal after considering the disability and the future of loss of earning and the medical bills produced by him had awarded Rs.1,30,000/- with interest at the rate of 6%. 9. The learned Tribunal after considering the disability and the future of loss of earning and the medical bills produced by him had awarded Rs.1,30,000/- with interest at the rate of 6%. 9. Considering that claimant is a labourer and due to loss of muscle would not be able to work like before, the compensation awarded is on the lower side and enhanced in lumpsum to Rs. 2,00,000/- with interest at the rate of 6% per annum. 10. In view of the forgoing discussions, the appeal succeeds and is hereby allowed in part. The appellant is entitled to receive the enhanced amount of Rs.70,000/- in addition to the amount of compensation already awarded by the Claims Tribunal (Rs.1,30,000/-) making the total compensation Rs.2,00,000/-. The enhanced amount shall carry interest @ 6% per annum from the date of filing of claim petition till its realization. The said amount be paid within a period of three moths from the date of the award otherwise the interest @ 7.5% shall be leviable. No order as to costs.