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Gauhati High Court · body

2018 DIGILAW 925 (GAU)

New India Assurance Company Ltd. v. Urasipayeng

2018-06-13

KALYAN RAI SURANA

body2018
JUDGMENT AND ORDER 1. Heard Mr. R. Goswami, the learned counsel for the appellant as well as Mr. K. Bhattacharjee, the learned counsel appearing for the respondent No. 1/Claimant and Mr. R. Baruah, the learned counsel appearing for respondent No. 2, i.e., owner-cum-driver of the offending vehicle. 2. This appeal under section 173 of the Motor Vehicles Act, 1988 is directed against the judgment and award dated 29.8.2015 passed by the learned Member, Motor Accident Claims Tribunal, Jorhat in MAC Case No. 41/2008. 3. The respondent No. 1 had lost her husband in a motor accident which took place at about 8:00 a.m. on 10.12.2007 at Bengena Ati PWD Road under Majuli P.S. in the district of Jorhat. While the deceased was on way from Kamlabari to his residence on his bicycle, the offending bus bearing registration No. AS-07-A-6858 came at a high speed, being driven in a rash and negligent manner and hit the deceased from back side. As a result of the accident, the deceased died on spot. The deceased was an employee of Irrigation Department. The respondent No. 2, who is the owner-cum-driver of the offending vehicle, had contested the suit by his filing written statement and denied that he was driving the vehicle in a rash and negligent manner. The appellant also contested the claim. By taking usual plea of denial, they took a plea that the vehicle was not insured for liability under Motor Vehicles Act, but the respondent No. 2 had taken a policy of “Rasta Apatti Kavach” policy. 4. Upon pleadings, following issues were framed for trial: (i) Whether the driver of the offending vehicle No. AS-07 A/6858 (bus)? (ii) Whether the insurance policy No. 530108/48/06/60/00000477 was a motor legal liability policy? (iii) Whether the claim of the claimant is excessive? (iv) Whether the claimant is entitled to get any compensation? And, if so, to what extent and by whom it shall be paid? 5. In support of the claim, the claimant had examined herself as PW-1. She had also examined two eye witnesses of the accident, Shri Arun Bora (PW-2) and Shri Bipul Payeng (PW-3), and exhibited the following documents, viz., Police report in Form No. 54 (Ext. 1), Certified copy of post mortem report (Ext.2), Certificate copy of ejahar (Ext.3), Certified copy of seizure-list (Ext.4) Salary certificate (Ext.5) and Salary certificate of deceased (Ext.6). 6. She had also examined two eye witnesses of the accident, Shri Arun Bora (PW-2) and Shri Bipul Payeng (PW-3), and exhibited the following documents, viz., Police report in Form No. 54 (Ext. 1), Certified copy of post mortem report (Ext.2), Certificate copy of ejahar (Ext.3), Certified copy of seizure-list (Ext.4) Salary certificate (Ext.5) and Salary certificate of deceased (Ext.6). 6. The appellant had examined Shri John Kenedy Sanat, Administrative Officer as DW-1 and had exhibited the policy document as Ext.A. 7. In respect of issue No. 1, the learned Tribunal, relied on the evidence of PW-2 and PW-3, who were eye witnesses to the accident and also relied on the accident information report (Ext.1), which revealed that charge sheet was filed against the respondent No. 2 in connection with Majuli P.S. Case No. 46/2007 under section 279/304A/427, IPC, and it was held that the death in the accident had taken place due to rash and negligent driving of the offending vehicle by the respondent No. 2. In respect of issue No. 2, based on the evidence of DW-1 as well as Ext.A, the learned tribunal held that in his deposition, DW-1 neither explain the terms and conditions of policy nor could give any explanation as to why the policy in question does not cover the instant case of death of the deceased in road traffic accident and accordingly, it was presumed that the testimony divulged that the appellant had issued the policy which was a “Motor Legal Liability Policy”. Accordingly, the issue was decided in favour of the respondent No. 1. In respect of issue Nos. 3 and 4, the compensation of Rs. 8,33,200 was awarded against the appellant as follows: Loss of dependency Rs. 8,11,200 Carriage of dead body Rs. 2,000 Head of funeral expenses Rs. 10,000 Loss of consortium Rs. 10,000 Total Rs. 8,33,200 8. Challenging the award, the learned counsel for the appellant had submitted that the “Rasta Apatti Kavach” was not an insurance policy valid for covering liability under the Motor Vehicles Act, 1988. It is submitted that every insurance policy cannot be an “Act Liability Policy” because under the provisions of section 147(3) of the Motor Vehicles Act, the requirement of law was that the motor vehicle plying on road must be holding a valid “Certificate of Insurance”, which is also envisaged under section 149(1) of the Motor Vehicles Act. It is submitted that every insurance policy cannot be an “Act Liability Policy” because under the provisions of section 147(3) of the Motor Vehicles Act, the requirement of law was that the motor vehicle plying on road must be holding a valid “Certificate of Insurance”, which is also envisaged under section 149(1) of the Motor Vehicles Act. It is submitted that only when a certificate of insurance was issued, there can be a valid contact of insurance between the insurer and insured person as provided under section 156 of the Motor Vehicles Act. In this connection, it is further submitted that sub-section (3) of section 147 of the Motor Vehicles Act provided that a policy shall be of no effect for the purpose of Chapter- XI of the said Act unless and until a certificate of insurance was issued in the prescribed form and containing the prescribed particulars of any condition subject to which the policy is issued. Therefore, it is submitted that as the Rasta Apatti Kavach did not contain a “certificate of insurance” valid for the purposes of sections 147,149,156 and other provisions of the Motor Vehicles Act, no statutory liability for claim under Motor Vehicles Act, can be fastened against the appellant. 9. Per-contra, the learned counsel for respondent No. 1 has submitted that the provisions providing for compensation under the Motor Vehicles Act is a beneficial piece of legislation and, therefore, as the offending vehicle was having a valid policy of insurance issued by the appellant, it was the duty of the appellant to satisfy the award and then to exercise its right to recover such amount from the owner, i.e., respondent No. 2. It is further submitted that the fact that the husband of the respondent No. 1 had died in the road traffic accident, was not disputed, there was no ground to deny just and fair compensation to the respondent No. 1 by the appellant. It is submitted that the learned Tribunal, after due adjudication of the claim had determined the claim of the respondent No. 1 by arriving at a finding that the DW-1 had not been able to prove the terms of policy and he failed to explain why the said policy could not be covered for the said accident. It is submitted that the learned Tribunal, after due adjudication of the claim had determined the claim of the respondent No. 1 by arriving at a finding that the DW-1 had not been able to prove the terms of policy and he failed to explain why the said policy could not be covered for the said accident. Therefore, it would be wholly unjust to deny accident compensation to the respondent No. 1, who had lost her husband and the only source of income for the family. It is submitted that in this case the owner of the vehicle, i.e., respondent No. 2 had submitted his written statement and had disclosed that the vehicle was duly insured, as such, it was the burden of the appellant to disprove that the vehicle was not having a valid insurance, which could not have been done as the offending vehicle was covered by a valid insurance which was proved by the DW-1 as Ext.A. Hence, this was a fit case for invoking the principles of “pay and recovered”. It is also submitted that the policy in question also covered for bye-standers, as such, the compensation due to the respondent No. 1 could not be lawfully denied. In support of his submissions, the learned counsel for the respondent No. 1 had relied on the cases of (i) Shivawwa v. The Branch Manager, National Insurance Co. Ltd., (2018) 0 Supreme (SC) 262, (ii) Mangla Ram v. Oriental Insurance Co. Ltd., (2018) 0 Supreme (SC) 283, (iii) Pappu v. Vinod Kumar Lamba, (2018) 0 Supreme (SC) 42 and (iv) Singh Ram v. Nirmala, (2018) 0 Supreme (SC) 209. 10. Opposing this appeal, the learned counsel for respondent No. 2, i.e., the owner of the offending vehicle has denied its liability by submitting that the vehicle was duly covered by a valid insurance as on the date of accident. Therefore, no liability to satisfy the award can be shifted against the respondent No. 2. By referring to the case of the Branch Manager, New India Assurance Co. Ltd. v. K. Thangam, CMA (MD) No. 672 of 2008 and C.O. No. 23 of 2008, decided on 11.4.2012, it is submitted that as the respondent No. 2 had obtained Rasta Apatti Kavach, either the appellant is required to satisfy the award or the respondent No. 1 could apply before the appellant for payment under the said policy. 11. Ltd. v. K. Thangam, CMA (MD) No. 672 of 2008 and C.O. No. 23 of 2008, decided on 11.4.2012, it is submitted that as the respondent No. 2 had obtained Rasta Apatti Kavach, either the appellant is required to satisfy the award or the respondent No. 1 could apply before the appellant for payment under the said policy. 11. Having examined the pleading and evidence on record, it is seen that the insurance policy in question (Ext.A) was a “Rasta Apatti Kavach”. The special condition mentioned herein is as follows, “THE COVERAGES ARE IN CONNECTION WITH VEH NO. AS-07-A-6858. TATA 709 BUS BEARING ENG. NO. 497D22HSQ797985, CHASS. NO. 386025HSQ727777. THIS IS NOT A MOTOR LEGAL LIABILITY POLICY AND NOT COVERED BY THE MOTOR VEHICLES ACT”. 12. Therefore, upon a perusal of the said policy, it is seen that it contains the above noted disclaimer that the policy was not a “motor legal liability policy” and “not covered by the Motor Vehicles Act”. Under the circumstances, it would naturally follow that the offending vehicle of the respondent No. 2 did not have a valid “certificate of insurance” as defined under section 145(b) of the Motor Vehicles Act. In this connection, it would be relevant to quote the provisions of sections 145(b), 147(3) and 149(1) of the Motor Vehicles Act: “145. (b) Certificate of insurance” means a certificate issued by an authorised insurer in pursuance of sub-section (3) of section 147 and includes a cover note complying with such requirements as may be prescribed, and where more than one certificate has been issued in connection with a policy, or where a copy of a certificate has been issued, all those certificates or that copy, as the case may be. 147. (3) A policy shall be of no effect for the purposes of this Chapter unless and until there is issued by the insurer in favour of the person by whom the policy is effected a certificate of insurance in the prescribed form and containing the prescribed particulars of any condition subject to which the policy is issued and of any other prescribed matters; and different forms, particulars and matters may be prescribed in different cases. 149. 149. (1) If, after a certificate of insurance has been issued under sub-section (3) of section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as is required to be covered by a policy under clause (b) of sub-section (1) of section 147 (being a liability covered by the terms of the policy) or under the provisions of section 163A is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall, subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if he were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.” 13. In the present case, the undeniable fact is that the husband of the respondent No. 1 had died in the motor vehicle accident, which had occurred at 8:00 a.m. on 10.12.2007. At that time, the offending motor vehicle was being driven without the said vehicle having a valid “certificate of insurance”. Therefore, the vehicle was being driven in contravention of section 146 of the Motor Vehicles Act. It is also seen that the learned Tribunal had held that the policy (Ext.A) covered for “Road side persons”. It was held that it was obligatory on part of the insurance company to prove in accordance with law the contents of the insurance policy to show that there was prohibition in the insurance policy that the same cannot be extended to cover up a case where a cyclist met with death due to use of the vehicle concerned in public road. The learned Tribunal further held that the DW-1 during his deposition neither explain the terms and conditions of the policy nor could give any explanation as to why the policy in question, i.e., Ext.A does not cover the instant case of death of the deceased in a road traffic accident caused by the offending vehicle and accordingly, the learned tribunal presumed that the testimony divulged, the insurance policy (Ext.A) in respect of the policy, was a motor legal liability policy. In this connection, the examination and cross-examination of DW-1 is extracted below: “Examination: I am presently staying at Dibrugarh. I am Administrative Officer, New India Assurance Company Limited, Dibrugarh Office. We have been made party to the instant claim application as OP No. 2. We have filed written statement in connection with the case. We issued a policy (Exhibit-A) in respect of vehicle No. AS-07 A/6858. The aforesaid policy is a non-traditional policy and is only issued at Jorhat Branch Office. According to this policy it is a “Group Janata Personal Accident Coverage”. It is a Rasta Policy Kavach. According to this policy there is a special condition that “this is not a motor legal liability policy and not covered by the Motor Vehicles Act”. As per this policy we have no liability. Cross-examination:— The policy was valid at the time of accident. It is not a fact that Exhibit-A (policy) covers the liability towards the death of deceased. It is a fact that we have not mentioned in our written statement that the policy is also called as “Group Janata Personal Accident Coverage” policy; that the policy is a non-traditional policy.” 14. From the deposition of DW-1 as narrated above, the said DW-1 was not cross-examined on the terms and conditions of policy. His categorical statement was that it was not a “motor legal liability policy” and “not covered by the Motor Vehicles Act”. The said evidence was not dislodged during his cross-examination. The learned Tribunal had not referred to any provision of law under which the DW-1 was required to give any explanation as to why the said insurance did not cover the case of death of the deceased. The said evidence was not dislodged during his cross-examination. The learned Tribunal had not referred to any provision of law under which the DW-1 was required to give any explanation as to why the said insurance did not cover the case of death of the deceased. In the opinion of this court, the learned Tribunal had misdirected itself in assuming that the Rasta Apatti Kavach policy was a “motor legal liability policy”, when on the face of Ext.A, it contains an exclusion and/or disclaimer to the effect that it was not a “motor legal policy: and that “it did not covered the Motor Vehicles Act”. The learned Tribunal had also misdirected itself in not considering that the said policy (Ext.A) did not contain a “certificate of insurance” as envisaged under the provisions of section 145(b), section 147(3) as well as section 149(1) of the Motor Vehicles Act. Therefore, as the appellant had stated in their written statement that the insurance policy was not valid for coverage for liabilities arising under the Motor Vehicles Act, it was the duty cast on the learned Tribunal to answer the question of jurisdiction first after framing preliminary issues and only after answering the question of jurisdiction, the learned Tribunal ought to have proceeded with the trial by allowing the parities to adduce evidence and thereafter to hear the arguments and pass the impugned judgment. However, if the preliminary issue was answered against the maintainability of the claim against the insurer, the claimant could have either proceeded with claim under “Rasta Apatti Kavach”, or would have proceeded only against the respondent No. 2 before the learned Tribunal. 15. In this case, the appellant had raised the issue of jurisdiction that at the initial stage by filing its written statement and stating therein that the insurance policy was not covered by the Motor Vehicles Act and, as such, the question of jurisdiction ought to have been taken up as a preliminary issue. In the considered opinion of this court, the award passed qua the appellant has got no legal force. Therefore, the appellant cannot be saddled with any liability under section 166 of the Motor Vehicles Act against the said insurance policy of “Rasta Apatti Kavach” (Ext.A), which is not a “motor legal liability policy” and “not covered by the Motor Vehicles Act”. 16. Therefore, the appellant cannot be saddled with any liability under section 166 of the Motor Vehicles Act against the said insurance policy of “Rasta Apatti Kavach” (Ext.A), which is not a “motor legal liability policy” and “not covered by the Motor Vehicles Act”. 16. In view of the discussions above, the respondent No. 2, being the owner-cum-driver of the offending motor vehicle is held to have allowed the offending vehicle to ply on the public road without a valid “Certificate of Insurance”, as such, the liability arising out of the judgment and award dated 29.8.2015 passed by the learned Member, Jorhat in MAC Case No. 41/2008 to the extent of Rs. 8,33,200 with interest at the rate of 8% from 12.8.2008 till recovery shall stand shifted against the respondent No. 2, who is required to satisfy the award. 17. Considering the fact that the accident took place on 10.12.2007 and having seen that the “Rasta Apatti Kavach” policy had coverage for personal accident to bye-standers, the respondent No. 1 is directed to examine the claim of the respondent No. 1 within a period of 3 weeks from today and if the respondent No. 1 is found entitled to any insurance claim under the Rasta Apatti Kavach policy, the appellant shall inform the respondent Nos. 1 and 2 about the result of such claim, within a period of 1 week thereafter, with a copy to Mr. K. Bhattacharjee, the learned counsel appearing for the respondent No. 1/claimant through Mr. R. Goswami, the learned counsel appearing for appellant. Moreover, the payment under the said claim is to be made as early as possible, but in any case within the outer period of 2 months from today. Accordingly, the liability of the respondent No. 2 under the award shall stands reduced to the extent borne by the appellant, if any. 18. R. Goswami, the learned counsel appearing for appellant. Moreover, the payment under the said claim is to be made as early as possible, but in any case within the outer period of 2 months from today. Accordingly, the liability of the respondent No. 2 under the award shall stands reduced to the extent borne by the appellant, if any. 18. In view of above, this court is of the considered opinion that as the policy in question being “Rasta Apatti Kavach” policy was not motor legal liability policy and not covered by the Motor Vehicles Act, the learned MACT, Jorhat had no jurisdiction to adjudicate the claim of the respondent No. 2 against the appellant, as such, this court is unable to agree with the submissions made by the learned counsel for the respondent No. 1 to direct the appellant to pay compensation and recover the same from the respondent No. 2 on the principles of “pay and recover”. Hence, the cases cited by the learned counsel for the appellant is distinguishable on facts as in none of the cases, the offending vehicle had no “motor legal liability” policy, as such, the ratio of the said cases cannot be applied in the present case in hand. 19. Accordingly, this appeal stands allowed. The judgment and award dated 29.8.2015 passed by the learned Member, MACT, Jorhat in MAC Case No. 41/2008 stands modified by exonerating the appellant for the liability under the said award and the liability of paying award of Rs. 8,33,200 with interest @ 8% from 12.8.2008 till recovery is shifted on the respondent No. 2 by holding that there was not valid “Certificate of insurance” in respect of the offending vehicle under the Motor Vehicles Act on the date of the accident. 20. The parties are left to bear their own cost. 21. Return back the LCR.