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2018 DIGILAW 26 (UTT)

National Insurance Company Ltd. v. Radha Bhatt

2018-01-10

LOK PAL SINGH

body2018
JUDGMENT : Lok Pal Singh, J. 1. Present appeal has been preferred by the appellant against the judgment and award dated 23.04.2008 passed by the Motor Accident Claim Tribunal/Additional District Judge, Haldwani, District Nainital in M.A.C.P. No. 209 of 2006, Smt. Radha Bhatt vs. Banshidhar and others, whereby the tribunal has awarded a sum of Rs. 12,05,025/- in favour of the claimant along with interest thereon @ 7% per annum against the National Insurance Company and the owner of the tractor. 2. Brief facts of the case are that the claimant (respondent No.1 herein) filed a claim petition before the Motor Accident Claim Tribunal, Haldwani, District Nainital with the averments that on 16.06.2006 at about 7:00 P.M., the driver of the tractor No. UA-06-E 9188, who was driving the tractor rashly and negligently near Chorgalia, Gurdwara T-point, dashed the motorcycle No. UA03-1854 of deceased Lalit Mohan Bhatt as a result of which the motorcyclist fell down and was crushed under the wheel of tractor. He was taken to hospital, but he was declared ‘dead’. It is contended that he was doing property business and was running P.C.O. at the time of incident. The annual income of deceased was Rs. 1,25,000/- and due to untimely death, his wife has suffered loss of consortium and the minor children have suffered love and affection of deceased and in this manner a sum of Rs. 20,00,000/- was claimed. The owner and driver of the tractor have admitted the accident but stated that the tractor was insured on the date of incident with the National Insurance Company and the accident did not occur due to rash and negligent driving of the tractor. The compensation is liable to be paid by the insurer of the tractor. 3. The Insurance Company/appellant also denied the averments of claim petition and stated that the claim has been sought on a higher side. The insurance company of motorcycle has not been impleaded as party. The owner of the vehicle has not given any information to the insurance company about the incident and, at the time of incident, the owner of the tractor was not having a valid paper and the driver was not having a valid driving licence. 4. On the basis of the rival pleadings of the parties, learned tribunal framed the following issues:- 1. 4. On the basis of the rival pleadings of the parties, learned tribunal framed the following issues:- 1. Whether on 16.06.2006 at about 7:00 PM near Chorgalia, Gurdwara T-point, the tractor No. UA-06-E 9188 coming from Chorgalia side dashed the motorcycle No. UA03-1854, due to rash and negligent driving of the driver of tractor and whether Lalit Mohan Bhatt was crushed by the wheel of tractor and died? 2. Whether the claim petition is bad for non-joinder of insurance company of motorcycle? 3. What amount of compensation should be awarded to the claimant? 5. Claimant Smt. Radha Bhatt PW-1 and eye witness Baljeet Singh PW-2 were examined for the claimant. 6. None was examined for the appellant, owner and driver of the vehicle. 7. The Tribunal, after considering the documentary and oral evidence of the claimant, decided the issue No. 1 in favour of the claimant and held that the accident occurred due to rash and negligent driving of driver of the tractor. 8. The Tribunal has also recorded the findings that since the claimant has not claim any amount against the insurer of motorcycle, therefore insurer of motorcycle was not a necessary party and decided issue no. 2 in favour of the claimant. While recording the findings on issue No. 3, the learned Tribunal has held that the claimant has proved the annual income of the deceased Rs. 1,25,000/- and in case he would alive, he would spent 1/3rd of his income on himself. After deducting 1/3rd of the amount for personal expenses of the deceased, the dependency of the deceased comes to Rs. 83,335/- and considering the age of deceased as 44 years, applied the multiplier of ‘15’ and calculated the total amount of compensation at Rs. 12,50,025/- (Rs. 83,335 X 15) and passed an award in favour of the claimant alongwith 7 % interest from the date of filing of the claim petition. 9. While recording the findings on issue No. 3, the learned Tribunal has held that at the time of incident, the driver of tractor was not having a valid driving licence and since the tractor was insured with the National Insurance Company, therefore the Tribunal has directed the Insurance Company i.e. appellant to pay the amount of compensation to the claimant and recover the same from the owner of the tractor. 10. 10. The Hon’ble Apex Court in the case of Munuara Khatun and Others vs. Rajesh Kr. Singh and Others reported in 2017 (2) TAC 5 (S.C.) has held that when the vehicle was insured and the claim petition was filed, but the tribunal has recorded the findings that the vehicle was driven against the terms and conditions of the policy, in such contingency the liability fastened upon the owner of the vehicle, with recoverable right and issued directions to the insurance company to pay the awarded sum to the claimants and then to recover the amount from the insured. The relevant paragraphs in this regard are reproduced herein under:- “16. This question also fell for consideration recently in Manager, National Insurance Company Limited vs. Saju P. Paul & Anr., (supra) wherein this Court took note of entire previous case law on the subject mentioned above and examined the question in the context of Section 147 of the Act. While allowing the appeal filed by the Insurance Company by reversing the judgment of the High Court, it was held on facts that since the victim was travelling in offending vehicle as "gratuitous passenger" and hence, the Insurance Company cannot be held liable to suffer the liability arising out of accident on the strength of the insurance policy. However, this Court keeping in view the benevolent object of the Act and other relevant factors arising in the case, issued the directions against the Insurance Company to pay the awarded sum to the claimants and then to recover the said sum from the insured in the same proceedings by applying the principle of "pay and recover". 17. Justice R.M. Lodha (as His Lordship then was and later became CJI) speaking for the Bench held in paras 20 and 26 as under: "20. 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 2 herein). 26. 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) 2 SCC 1 and Challa Upendra Rao, (2004) 8 SCC 517 should not be followed, more so in a peculiar fact situation of this case. 26. 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) 2 SCC 1 and Challa Upendra Rao, (2004) 8 SCC 517 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, the 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 the 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 1-8-2011 (National Insurance Co. Ltd. vs. Saju P. Paul, SLP (C) No. 20127 of 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 1) may be allowed to withdraw the amount deposited by the Insurance Company before this Court along with accrued interest. The Insurance Company (the appellant) thereafter may recover the amount so paid from the owner (Respondent 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 Challa Upendra Rao (supra)." 18. The facts of the case at hand are somewhat identical to the facts of the case mentioned supra because here also we find that the deceased were found travelling as "gratuitous passengers" in the offending vehicle and it was for this reason, the insurance companies were exonerated. In Saju P. Paul's case (supra) also having held that the victim was "gratuitous passenger", this Court issued directions against the Insurer of the offending vehicle to first satisfy the awarded sum and then to recover the same from the Insured in the same proceedings.” 11. Since the controversy involved in the present appeal is no longer res-integra, in view of the judgment (supra) of Hon’ble Apex Court, the appeal has no force and is liable to be dismissed. The same is dismissed. No order as to costs. 12. Since the controversy involved in the present appeal is no longer res-integra, in view of the judgment (supra) of Hon’ble Apex Court, the appeal has no force and is liable to be dismissed. The same is dismissed. No order as to costs. 12. Statutory amount deposited before this Court be remitted to the Tribunal concerns along with interest if any. 13. Let the LCR be sent back to the concerned Tribunal.