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2018 DIGILAW 713 (GAU)

Oriental Insurance Co. Ltd. v. Alok Saikia

2018-04-26

KALYAN RAI SURANA

body2018
JUDGMENT : Kalyan Rai Surana, J. 1. Heard Mr. S. Dutta, learned senior counsel, assisted by Ms. N. Modi, learned counsel appearing for the appellant. 2. None appears on call for respondent although notices have been duly served. Hence, the appeal is heard ex-parte against the respondent. 3. By this appeal under Section 173 of the Motor Vehicles Act, 1988, the appellant has challenged the judgment and award dated 03.06.2009 passed by the learned Member, Motor Accident Claims Tribunal, Jorhat in MAC Case No. 10 of 2007, thereby awarding compensation of Rs. 25,000/- against the appellant, to be paid along with interest @ 9% per annum. 4. The case of the respondent as projected in the claim petition is that on 21.08.2006 at 7.30 PM, the respondent was going towards Jorhat on NH-37, riding his motorcycle bearing Registration No. AS-03/E-512. At a place near Bongaon under Dergaon Police Station, suddenly a Thela (pushcart) came in front of the motorcycle. The respondent had applied brakes, however, the motor cycle fell down on the road and as a result of which the motor cycle got damaged and he also suffered grievous injuries in his left leg. It was projected that after availing initial treatment at Jorhat Civil Hospital, he was shifted to Down Town Hospital, Guwahati, where his left leg below the knee had to be amputated and the respondent had become permanently disabled. It was projected that because of the accident, his marriage scheduled in November, 2006 was dissolved, for which he had lost his family life and enjoyment and he had also lost his employment of driving an auto rickshaw, which was purchased on finance from a Bank. The respondent had made a claim of Rs. 7,42,401/-. 5. The appellant herein had contested the case by filing their written statement, inter alia, denying the liability. 6. The learned Tribunal, on pleadings framed the following four issues:- i. Whether there is cause of action for the claim? ii. Whether there was valid insurance in respect of the alleged vehicles? iii. Whether the accident occurred due to fault of the driver of the offending vehicle or whether there was contributory negligence on the part of the claimant himself? iv. Whether the claimant is entitled to any compensation? If so, what would be the quantum of compensation and by whom it should be paid? 7. iii. Whether the accident occurred due to fault of the driver of the offending vehicle or whether there was contributory negligence on the part of the claimant himself? iv. Whether the claimant is entitled to any compensation? If so, what would be the quantum of compensation and by whom it should be paid? 7. While the respondent had examined two witnesses including himself, the appellant also examined one witness. The following documents were exhibited by the respondent, viz., Photocopy (illegible)(Ext. 1), Disability Certificate (Ext. 2), Registration of respondent with State Auto rickshaw Sanstha [Ext. 3 to 3(1)], Medical vouchers (Ext. 4 to Ext. 100), Quotation for readymade leg (Ext. 101). 8. It may be mentioned here that the original exhibits are not found on record. However, on a thorough scrutiny of the LCR, it is seen that though there is no order on record, on the body of petition No. 545 dated 12.08.2009, the learned Member, MACT, Jorhat had made an endorsement to return the records and that by signing an acknowledgement the Advocate for the respondent/claimant had taken back all exhibits on 18.12.2009 without keeping a photocopy of those exhibits on record. 9. Considering the evidence on record, in respect of issue No. 1, the learned Tribunal arrived at a finding that there was a cause of action for the claim. In respect of issue No. 2, it was held that the vehicle was insured by the appellant. In respect of issue No. 3, it was held that as the respondent was the owner of one of the vehicles involved in the accident and that he was required to prove that the accident had occurred due to fault of the other vehicle and therefore, by referring to the provisions of Section 140 and Section 163 A of the Motor Vehicles Act, it was held that the total medical expenses cannot exceed Rs. 15,000/-. On the basis of structured formula, it was held that the compensation on account of pain and suffering can be only Rs. 5,000/- and for permanent disablement, the compensation would be Rs. 25,000/- under Section 140 of the Motor Vehicles Act. Hence, learned Tribunal held that the respondent is entitled to get award Rs. 25,000/- only under no fault liability. Accordingly, issue No. 4 was decided by holding that the appellant was liable to pay compensation of Rs. 25,000/- with 9% interest per annum. 10. 25,000/- under Section 140 of the Motor Vehicles Act. Hence, learned Tribunal held that the respondent is entitled to get award Rs. 25,000/- only under no fault liability. Accordingly, issue No. 4 was decided by holding that the appellant was liable to pay compensation of Rs. 25,000/- with 9% interest per annum. 10. The learned senior counsel for the appellant submits that as the respondent was the person insured, being the owner of the motorcycle, the respondent could not have been treated to be a third party and therefore, the claim before the Motor Accident Claims Tribunal was not maintainable. In this regard, the learned senior counsel for the appellant has relied on the case of Bajaj Allianz General Insurance Company Ltd. v. Smrita Saikia and Another, 2011 (5) GLT 563. The relevant paragraphs No. 8, 9, 10 and 13 thereof is quoted below:- (8) In Jahar Deb (supra) this Court considered the provisions of section 165 of motor vehicles act and held that a bare reading of the provisions contained in subsection (1) of section 165 of the MV act makes it clear that a Tribunal, constituted under Section 165, can adjudicate upon the damage caused to the property of a third party. Section 165 does not empower such a Tribunal to adjudicate upon any claim for damage to the property of the insured or of the 1st party. (9) In New India Assurance Co. Ltd. (supra) a Division Bench of this Court while answering the question, inter alia, whether an insurer can be made liable to pay compensation for the injuries sustained by the owner of a vehicle, particularly, when the owner himself was driving the vehicle stated that the answer to this question is no longer res integra that the liability of an insurer is only to indemnify the insured against the liabilities, which the insured may incur towards a third person or in respect of damage to property. In New Insurance Assurance Co. Ltd. (supra) the Division Bench also considered the decision of the Apex Court in Dhanraj v. New India Assurance Co. Ltd. and Anr., (2004) 8 SCC 553 wherein the Apex Court has observed and held as follows:- "8. In New Insurance Assurance Co. Ltd. (supra) the Division Bench also considered the decision of the Apex Court in Dhanraj v. New India Assurance Co. Ltd. and Anr., (2004) 8 SCC 553 wherein the Apex Court has observed and held as follows:- "8. Thus, an insurance policy covers the liability incurred by the insured in respect of death of or bodily injury to any person (including an owner of the goods or his authorized representative) carried in the vehicle or damage to any property of a third party caused by or arising out of the use of the vehicle. Section 147 does not require an insurance company to assume risk for death or bodily injury to the owner of the vehicle. 9. In the case of Oriental Insurance Co. Ltd. v. Sunita Rathi it has been held that the liability of an insurance company is only for the purpose of indemnifying the insured against liabilities incurred towards a third person or in respect of damages to property. Thus, where the insured i. e. an owner of the vehicle has no liability to a third party the insurance company has no liability also." (10) In view of the above position, according to this Court, the learned Tribunal committed an error in passing the impugned judgment directing the petitioner-Insurance Company to make payment of the contractual amount to the claimant at the earliest along with interest @ 9% per month from the date of filing of the case till payment. It is settled by this time that when a Court or tribunal is established for a particular purpose that has to act only for the said purpose and not for any other purpose. (13) As the learned Tribunal acted beyond its jurisdiction there is no other alternative before this Court except to set aside the impugned judgment dated 08.04.2011. Accordingly, the same is set aside and in the result the instant revision petition is allowed." 11. It is submitted that as the learned Tribunal had acted beyond its jurisdiction, there is no other alternative before this Court except to set aside the impugned judgment dated 08.04.2011. 12. The learned senior counsel for the appellant has also placed reliance on the case of United India Insurance Co. Ltd. v. Prajesh Sharma, MFA 74/2001, decided on 25.01.2018. The relevant paragraph 13 is quoted below:- "13. 12. The learned senior counsel for the appellant has also placed reliance on the case of United India Insurance Co. Ltd. v. Prajesh Sharma, MFA 74/2001, decided on 25.01.2018. The relevant paragraph 13 is quoted below:- "13. In view of the aforesaid position, this Court has no hesitation to hold that the liability of the respondent No. 1 was neither covered under the contract of policy nor such liability was covered within the meaning of 'Third Party' under Section 147 of the Motor Vehicles Act. Hence, the liability of paying compensation to the owner-driver cannot be imposed on the appellant herein. Accordingly, the first substantial question of law No. 1 is answered in the negative and in favour of the appellant. It is held by the Hon'ble Supreme Court as well as by the Bombay High Court in the above referred cases that the insurer is not liable to indemnify the owner-driver for his claim in respect of personal injuries." 13. Therefore, the only point of determination which arise for decision in this appeal is -Whether the appellant insurer could be made liable in injury suffered by the owner - driver of the motorcycle? 14. Having heard the learned senior counsel for the appellant, the materials available on record has been perused. In this regard, this Court is constrained to hold that the owner driver of a motorcycle is not a third party within the meaning of Section 147 of the Motor Vehicles Act, 1988 and, as such, the consequences that would follow is that the liability of paying compensation to the owner-driver cannot be imposed on the insurer for which the case of Bajaj Alliance General Insurance Company Ltd. v. Smrita Saikia (supra) can be referred to. 15. In view of the law settled by this Court, this Court is constrained to hold that the learned Motor Accident Claims Tribunal does not have the jurisdiction to adjudicate upon the claim made by the owner-driver of a motorcycle for injuries which he had suffered of his own accord. In the present case in hand, the specific finding of fact by the learned Tribunal was that the accident had occurred by the use of motor cycle driven by the respondent himself. Therefore, there is no material available on record to take a different view against the well considered decision of the learned Tribunal. In the present case in hand, the specific finding of fact by the learned Tribunal was that the accident had occurred by the use of motor cycle driven by the respondent himself. Therefore, there is no material available on record to take a different view against the well considered decision of the learned Tribunal. Hence, it is held that as the respondent was himself responsible for the accident, his claim before the learned Motor Accident Claim Tribunal for injury suffered by him was not maintainable. Accordingly, the impugned judgment and award dated 03.06.2009 is hereby set aside. 16. The appeal stands allowed. 17. The dismissal of the claim by allowing of this appeal shall not stand as a bar for the respondent to make his claim before the appellant for seeking compensation under the Personal Accident Policy, which is found to exist as per the terms of the Insurance policy (Ex. A) on record. Hence, it is provided that if any such claim is preferred by the respondent herein, the appellant by taking note of the grievous nature of the injury suffered by the respondent leading to amputation of his leg, the claim so made by the respondent may be considered sympathetically and should be disposed of by the appellant within the outer limit of two months from the date of lodgement such claim. 18. Let the LCR be returned back. 19. The learned Member, Motor Accident Claims Tribunal, Jorhat shall take a note that if the exhibited documents are returned back, as was done in this case, the Tribunal shall ensure that compared photocopy of all exhibits must be kept in record. 20. The Registry may refund the statutory deposit back to the appellant.