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2018 DIGILAW 498 (GAU)

National Insurance Company Limited v. Lalawmpuii

2018-03-22

PRASANTA KUMAR DEKA

body2018
JUDGMENT & ORDER : 1. This is an appeal under Section 173 of the Motor Vehicles Act, 1988 against the Judgment & Award dated 21.06.2017 passed by the learned Member-cum-Presiding Officer of the Motor Accident Claims Tribunal, Aizawl in MACT Case No. 29/2016. 2. Heard Ms. Vanhmingliani, learned counsel appearing on behalf of the appellant Insurance Company. Also heard Mr. Lalchhanliana Khiangte, learned counsel appearing on behalf of the respondent Nos. 1 to 6. So far as the respondent No. 7 is concerned, vide Order dated 23.01.2018, this Court has presumed service on the respondent No. 7 as deemed served under Order 5 Rule 9 of the CPC. 3. The present appeal is taken for hearing. 4. The predecessor-in-interest of the respondent Nos. 1 to 6 died in a vehicular accident which took place on 10.03.2014. One vehicle Truck (407) bearing registration No. MZ 03-4096, owned by the respondent No. 7 was coming from Tuipang village towards Siatlai village and met with an accident on the outskirt of Tuipang near Tourist Lodge by running down a cliff. The driver and the handyman succumbed to their injuries on the spot and the predecessor-in-interest of the present respondent Nos. 1 to 6 was injured severely and later on died in the Civil Hospital, Siaha. In this regard, Tuipang P.S Case No. 1/2014 dated 11.03.2014 was registered under Section 204A/338/337/336/279 IPC read with 182 (1) 196 M.V Act 1988 and investigated into. The predecessor-in-interest of the respondent Nos. 1 to 6, one S. Setha was a self employed person with an income of Rs. 3,300/- p.m. The truck involved in the accident was validly insured with present appellant with a valid policy covering the period from 23.08.2013 to 22.08.2014. The respondent No. 7 who was impleaded as opposite party No. 1 filed his written statement, admitted the death of the predecessor-in-interest of the respondent Nos. 1 to 6 and in addition to that he pleaded that the vehicle was duly insured with the appellant, National Insurance Company Limited and as such, all the liability to pay compensation, if any, are to be shifted to the said Insurance Company. 5. The present appellant as opposite party No. 2 in MACT Case No. 29/2016 contested the claim of the respondent Nos. 1 to 6 by filing its written statement denying each and every contents of the claim petition of the respondent Nos. 1 to 6. 5. The present appellant as opposite party No. 2 in MACT Case No. 29/2016 contested the claim of the respondent Nos. 1 to 6 by filing its written statement denying each and every contents of the claim petition of the respondent Nos. 1 to 6. The Insurance Company pleaded that it has no liability towards payment of compensation and the claimants/respondent Nos. 1 to 6 were put to strict proof against their claim made in the claim petition. Disputing the claimants/respondent Nos. 1 to 6 as not the legal heirs of the deceased S. Setae, the appellant Insurance Company pleaded that any liability, if any, is limited to the scope of the Insurance Company and the validity of the vehicular documents, including Driving License which the driver possessed at the time of driving the vehicle. 6. On the basis of the pleadings, the learned Member-cum-Presiding Officer of the Tribunal framed the following issues: (i) Whether the claim application is maintainable in its present form and style? (ii) Whether the Claimant is entitled to get compensation, if so, who is liable to pay and to what extent? 7. During the proceeding, the respondent No. 1 deposed as the only witness on behalf of the claimants/respondents. The Insurance Company except filing the written statement and the cross-examination of the witness of the claimants side did not adduce any evidence nor produced the policy. The learned Tribunal vide the Judgment and Award dated 21.06.2017, passed in MACT Case No. 29/2016 allowed the claim of the respondent Nos. 1 to 6 thereby, awarding the total compensation of Rs. 12,76,500/- only. Without discussing further with regard to the liability for satisfying the award, the learned Tribunal held the present appellant to be liable to satisfy the award, which is reproduced below: "12. As such the O.P. No. 2 National Insurance Co. Ltd. is directed to deposit Rs. 12,76,500/- (Rupees twelve lakhs seventy six thousand five hundred) only along with 9% p.a. interest from the date of filing i.e. 19.7.2016 within one month from the date of Judgment to this Tribunal in form of account payee cheque or in cash or demand draft in favour of the Presiding Officer, Motor Accident Claims Tribunal for onward disbursement to the Claimant." 8. Being aggrieved against the finding of the learned Tribunal with regard to liability put on the appellant Insurance Company, it has come up with this appeal under Section 173 of the M.V Act, 1988 against the Judgment and Award dated 21.06.2017, passed by the learned Member-cum-Presiding Officer of the MACT, Aizawl in MACT Case No. 29/2016. 9. Ms. Vanhmingliani, learned counsel for the appellant submits that the insured vehicle was a goods carrier vehicle having its permit to that effect only. The deceased was a gratuitous passenger in the said vehicle and the learned Court below failed to consider that aspect of the matter and without framing any issue to that effect put the liability for satisfaction of the award on the Insurance Company. It is also submitted that as apparent from the policy, there are 3 sitting capacity. However, the Insurance Company is not liable for the gratuitous passenger, except the owner and the handyman. In the policy, the premium for coverage of the owner/driver is paid and for workmen compensation to one employee. Under such circumstance, there is no point in putting the liability on the Insurance Company to the third gratuitous passenger. Admittedly, the vehicle was goods carrier vehicle and as per Section 147 of the M.V Act, 1988, the Insurance Company is liable to compensate the owner of the goods. There are no materials on record to show that the deceased was the owner of the goods or there was no evidence to show that the vehicle was carrying any goods at that relevant point of time. Under such circumstance, the learned Tribunal was wrong in putting the liability on the Insurance Company. Accordingly, she sought for allowing the appeal. 10. Mr. Lalchhanliana Khiangte, learned counsel for the respondent Nos. 1 to 6 opposed the submission made by the learned counsel for the appellant inasmuch as the policy was a comprehensive package policy and as the vehicle has 3 seats for passenger, they were all clearly covered by the said policy, even if the vehicle be a goods carrier vehicle. It is also submitted that the Insurance Company failed to plead the issue raised before this appellate Court and under such circumstance, there being no such pleading, the learned Tribunal was not wrong in putting the liability on the Insurance Company. In order to support the respective submissions of the learned counsels, Ms. It is also submitted that the Insurance Company failed to plead the issue raised before this appellate Court and under such circumstance, there being no such pleading, the learned Tribunal was not wrong in putting the liability on the Insurance Company. In order to support the respective submissions of the learned counsels, Ms. Vanhmingliani, learned counsel for the appellant relied upon the judgments of the Hon’ble Apex Court in the case of National Insurance Company Limited v. Savitri Devi And Others, reported in (2013) 11 SCC 554 and National Insurance Company Co. Ltd v. Bommithi Subbhayamma And Others, reported in (2005) 12 SCC 243 . Similarly, Mr. Lalchhanliana Khiangte, learned counsel for the respondent Nos. 1 to 6 relied upon the judgments of the Hon’ble Apex Court in the case of Bangalore Metropolitan Transport Corpn v. Padma And Others, reported in (2009) 3 SCC 285 , Union of India v. E.I.D Parry (India) Ltd, reported in (2000) 2 SCC 223 , S. Iyyapan v. M/S United India Insurance Company Ltd. and Another, reported in 2013 (3) TAC 392 (S.C) and one unreported case i.e., MAC Appeal No. 12/2017, passed by the learned Single Bench of this Court. 11. Considered the submissions of the learned counsels for the parties. 12. It is true that the appellant while filing the written statement as the opposite party No. 2 failed to raise the issue which has been raised before this Appellate Court by a specific pleading in the written statement. On the other hand, the Certificate of Insurance-cum-Policy Schedule was exhibited by the claimants/respondent Nos. 1 to 6 and the policy was very much on the record before the Tribunal. The Accident Information Report of the Police also specifies that the deceased was a passenger in the said vehicle. There is no petition under Section 170 of the M.V Act of 1988 on the part of the appellant Insurance Company in order to enlarge the scope of cross-examination of the Insurance Company as against the claim raised by the claimants therein. Under such circumstance, the learned Tribunal straight way held the appellant to be liable to satisfy the award as per the judgment passed by the Tribunal. The point raised in this appeal can very well circumscribed within the ambit and scope of a question of law. Under such circumstance, the learned Tribunal straight way held the appellant to be liable to satisfy the award as per the judgment passed by the Tribunal. The point raised in this appeal can very well circumscribed within the ambit and scope of a question of law. In order to fix the liability, the learned Tribunal ought to have consider the policy, which is very much on record as the same was exhibited by the claimants/respondent Nos. 1 to 6. 13. In National Insurance Company Limited v. Savitri Devi And Others (Supra), the Hon’ble Apex Court in a similar situation held as follows: "8. After having gone through the award of the Claims Tribunal and the judgment and order passed by the learned Single Judge of the High Court, we are not able to understand as to how it has been found that the appellant Insurance Company can still be held liable to pay the amount of compensation as there has been a categorical finding by both the courts recording that the vehicle in question was insured only as "goods carrying vehicle". The custom of carrying barat in the village on the said truck will not be sufficient to hold the appellant Insurance Company liable to pay the amount of compensation. Admittedly, the appellant Insurance Company would not know unless the accident takes place as to for what purpose the vehicle in question was being used. The terms and conditions of the insurance policy are very clear and categorical and it creates a specific bar on carrying of any passengers, except the employees other than the driver, not exceeding six (6) in number, who should also come under the purview of the Workmens Compensation Act." 14. In the aforesaid case, there was a specific recording and finding that the vehicle in question was insured only as goods carrying vehicle. The custom of carrying barat in the village on the said truck was not held to be sufficient to hold the Insurance Company liable to pay the amount of compensation. Here in this case, the policy itself shows that the same was a package for (goods carrying) (other than 3 wheeler) Public Carrier. Under such circumstance, the learned Court below ought to have framed an issue to that effect as to whether the Insurance Company is liable for satisfaction of the award. Here in this case, the policy itself shows that the same was a package for (goods carrying) (other than 3 wheeler) Public Carrier. Under such circumstance, the learned Court below ought to have framed an issue to that effect as to whether the Insurance Company is liable for satisfaction of the award. On the other hand, there is no effective pleading in the written statement of the Insurance Company. To that effect, the learned counsel for the respondent Nos. 1 to 6 relied upon the judgment of the Hon’ble Apex Court in the case of Bangalore Metropolitan Transport Corpn v. Padma And Others (Supra) wherein, the vehicle concerned was a BMTC Bus and the point raised therein was that the deceased was in an intoxicated state and therefore, because of his negligence the accident occurred. The same was raised before the High Court and the High Court noticed that there was no averment in the written statement and no evidence was led in that regard. Consequently, the appeal was dismissed. Being aggrieved, appeal was preferred before the Hon’ble Apex Court and while dismissing the appeal, the Hon’ble Apex Court accepted the finding of the High Court that in the absence of any pleading and evidence to substantiate the stand there was no scope for accepting the plea at the appellate stage. 15. Herein also, the appellant Insurance Company did not raise the said issue in their written statement nor any evidence was led to that effect. But in this case, it can be differentiated from the said decision of the Hon’ble Apex Court inasmuch as, the policy was very much on record before the learned Tribunal wherein, it is clearly mentioned that the vehicle and the policy is for goods carrying public carrier. Under such circumstance, non-pleading in the written statement cannot deter the Tribunal from giving its finding with regard to liability more so, when it is apparent on the face of the policy that the vehicle involved was a goods carrying public carrier. 16. The matter involved and raised before this Court is purely a question of law inasmuch as, if there is any violation of the provision under Section 147 of the MV Act, 1988 then the same has its bearing in the findings of the learned Tribunal. 16. The matter involved and raised before this Court is purely a question of law inasmuch as, if there is any violation of the provision under Section 147 of the MV Act, 1988 then the same has its bearing in the findings of the learned Tribunal. Finding no other alternative, I decide that it will be appropriate to set aside the award passed by the learned Member-cum-Presiding Officer, MACT, Aizawl and remand the same for giving its finding after framing appropriate issue on the point of liability. The parties to this appeal shall appear before the learned Tribunal on 26. 04.2018 whereafter an appropriate issue be framed by the learned Tribunal and thereafter allow the parties to adduce evidence to that effect and decide the claim petition, preferably within a period of 2 (two) months from the date of appearance of the parties to this appeal. The appeal succeeds. Appeal is accordingly disposed of and the statutory deposit by the appellant is permitted to be withdrawn.