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2017 DIGILAW 398 (TRI)

United India Insurance Co. Ltd. v. Kanchan Laskar

2017-11-07

T.VAIPHEI

body2017
JUDGMENT & ORDER : The appellant-insurer in this appeal is questioning the legality of the judgment dated 24-4-2015 passed by the Motor Accident Claims Tribunal, Court No. 2, West Tripura, Agartala in TS (MAC) No. 412 of 2013 awarding a compensation of Rs.26,98,024/- in favour of the claimant-respondents. 2. The facts giving rise to this appeal are that in the morning of 4-6-2012 while the deceased Nirmal Ch. Laskar was riding in a Maruti Van bearing registration No. TR-01-F-0397 belonging to his relative/friend, the driver of the Van, while taking a turn, lost his control of the van and dashed against a big tree. Due to the jerking, the left door of the said vehicle opened whereupon the deceased (Nirmal Ch. Laskar) fell down on the road and came to sustain grievous injuries on his person. The deceased was immediately shifted to the BRAM Hospital, Hapania by the local people. Ultimately, he succumbed to his injuries on 12-8-2012 at Peerless Hospital, Kolkata where he was last referred to for better treatment. The deceased is survived by his wife and his two sons, who are the claimant-respondents No. 1, 3 and 4 respectively. The claimants through the respondent No. 1 filed the claim petition claiming a compensation of Rs.50,34,456/-. The deceased was 55 years old and was serving as Inspector in the Agricultural Department, Government of Tripura earning a sum of Rs.27,974/- per month at the time of his death. 3. The claim petition was contested by the owner of the Maruti Van and the appellant-insurer by filing their respective written statements. The owner of the vehicle (respondent No. 2 herein) in his written statement took the stance that there was no rash and negligent driving of the vehicle, but even if there is any liability to pay the compensation, it is the appellant-insurer, with which the vehicle was insured, which is liable to satisfy the award. In any case, the respondent No. 2 contended that the compensation so claimed is excessive and without any legal basis. He, however, admitted that the deceased died in the vehicular accident as alleged by the claimant-respondents. 4. The appellant-insurer in its written statement denied any liability to satisfy the award and also denied the claim made by the respondent- claimants with respect to the age, occupation and income of the deceased. He, however, admitted that the deceased died in the vehicular accident as alleged by the claimant-respondents. 4. The appellant-insurer in its written statement denied any liability to satisfy the award and also denied the claim made by the respondent- claimants with respect to the age, occupation and income of the deceased. Without making any foundational fact, it merely stated that its liability would be guided by the conditions laid down U/s 147 of the Motor Vehicles Act, 1988 (“the Act”), for which it reserved its right to file the amended written statement. No such amended written statement was ever filed. 5. On the pleadings of the parties, the Tribunal framed the following issues for considerations: 1. Whether the deceased Nirmal Ch. Laskar, S/O Ananda Charan Laskar, aged about 55 years died in a vehicular accident occurred on 04-06-2012 at about 10 AM at Indira Nagar Colony (Grantali) on Melaghar-Agartala Road under Sonamura P.S. due to rash and negligent driving of the vehicle bearing No. TR-01-F-0397 (Maruti Van) by its driver? 2. Whether the claimant petitioner is entitled to get any compensation due to the said death, if so, what would be the quantum of compensation and who shall be held liable for payment of the same? 3. What other relief/reliefs are the parties entitled to? 6. The claimant-respondent No. 1 submitted her examination-in-chief by affidavit and produced some documents which are marked as Exbts. 1 to 26. No evidence was, however, adduced on behalf of the respondent No. 2 or the appellant. At the conclusion of the trial, the impugned judgment of award was passed by the Tribunal. 7. The only contention of Mr. P. Gautam, the learned counsel for the appellant, is that the Tribunal has completely overlooked the glaring fact that the Maruti Van involved in the accident was a private car, for which the insurer had issued Act Only policy or Liability Only policy of insurance, and no additional premium was paid by the respondent No. 2 to cover the risk of gratuitous passenger like the deceased; the Tribunal has in the process committed grave illegality by fastening the liability to satisfy the award upon the insurer. It is thus his contention that the impugned judgment suffers from grave infirmity warranting the interference of this Court; if there is any liability to satisfy the award, it is the owner of the vehicle and not the appellant, which should satisfy the award. Refuting the contention of the learned counsel for the appellant, Mr. P.K. Ghosh, the learned counsel for the owner of the Maruti van, submits that the appellant-insurer has miserably failed to prove that the owner of the van did not pay any additional premium; it is the duty of the insurer to take a plea that no additional premium was paid by the insured and thence adduce evidence in support of such plea before the Tribunal, which it did not do. In this way, contends the learned counsel for the owner/insured, the Tribunal had no alternative but to fasten the liability to satisfy the award upon the appellant-insurer, more so, when it did not even show as to how Section 147 of the Act was violated by the insured. He places reliance upon Ramchandra v. United India Insurance Co. Ltd., (2013) 12 SCC 84 to fortify his contentions. 8. On hearing the learned counsel for the rival parties and after perusing the impugned judgment and other materials on record, I am of the firm view that there is no merit in the submission of the learned counsel for the appellant. There is rather force in the contention of the learned counsel for the respondent No. 2 (the insured) that the insurer had neither produced the policy of insurance nor adduced any evidence to establish that as per the terms and conditions of policy, no extra premium had been paid by the insured. In any case, the entitlement of the claimant-respondents to the awarded amount under the Act cannot be affected due to the dispute between the insured and the insurer-appellant. In that view of the matter, there is no infirmity in the impugned judgment. At this stage, it will be beneficial to refer to the observations of the Apex Court in Ramchandra case (supra), which read thus: “28. At this stage, we deem it appropriate to take note of an important step which the insurance companies generally fail to take and that is related to non-appearance of the owner of the vehicle in spite of service of notice. At this stage, we deem it appropriate to take note of an important step which the insurance companies generally fail to take and that is related to non-appearance of the owner of the vehicle in spite of service of notice. The insurance companies although contend before the Motor Accidents Claims Tribunal and even at the appeal stage that it is the owner of the vehicle which is liable to bear a part or the entire liability of making the payment of compensation to the claimant in view of the nature of policy, or even due to invalid licence by the driver of the owner of the vehicle, the insurance company fails to lead any evidence to establish as to how the owner and not the insurance company is liable to pay the compensation and even submits to non-appearance of the owner of the vehicle whose appearance is vital in view of inter se contest between the owner of the vehicle and the insurance company. 29. In absence of the owner of the vehicle, when the Motor Accidents Claims Tribunal or the High Court leaves it open to the insurance company subsequently to realise the amount from the owner of the vehicle by instituting a fresh proceeding in view of the ratio of Kerala SRTC v. Susamma Thomas, (1994) 2 SCC 176 it gives rise to a fresh proceeding between the owner and the insurance company putting unnecessary burden on the Motor Accidents Claims Tribunal to try the issue all over again. In fact, if the insurance company were to succeed in establishing by leading cogent evidence at the initial stage itself before the Tribunal that it is the owner of the vehicle which is liable to pay even if the evidence is ex parte in nature, it would at least facilitate the issue in the subsequent proceeding when the insurer initiates proceeding for realising the amount from the owner/insured. But in absence of such evidence, the insurer/companies are a loser and enures advantage to the owner who happens to gain by choosing not to appear. The insurance companies would fare better if they were to address this issue before the Tribunal itself instead of becoming wiser at the stage of appeal. But in absence of such evidence, the insurer/companies are a loser and enures advantage to the owner who happens to gain by choosing not to appear. The insurance companies would fare better if they were to address this issue before the Tribunal itself instead of becoming wiser at the stage of appeal. What is wished to be emphasised is that if the owner chooses not to appear before the Tribunal although his appearance is necessary in a given case, the insurance company would do well instead of acquiescing with their absence to their detriment giving an upper edge to the owner at their own peril.” 9. The offshoot of the foregoing discussion is that, there is no merit in this appeal, which is hereby dismissed. The appellant is directed to deposit the amount so awarded before the Tribunal with the accrued interest within a period of two months from the date of receipt of this judgment for payment to the claimant-respondents. As and when the amount is deposited, the same will be paid to the claimant-respondents in accordance with the principles laid down by the Tribunal. Needless to say, any amount already deposited or paid to the claimant-respondents shall stand adjusted. It will, however, be open to the appellant to recover the compensation paid to the claimant respondents from the respondent No. 2 (insured) in accordance with the procedure laid down by the Apex Court. Transmit the LC record.