ICICI LOMBARD GENERAL INSURANCE COMPANY LTD. v. SANDHIRAM DEBBARMA
2019-02-21
ARINDAM LODH
body2019
DigiLaw.ai
JUDGMENT : 1. The present appeal is directed against the judgment and award dated 08.08.2017, passed by the learned Member, Motor Accident Claims Tribunal, Court No.1, West Tripura, Agartala in connection with case No.Title Suit (MAC) 169 of 2014, wherein the learned Tribunal has passed award to the tune of Rs.55,000/- (rupees fifty five thousand) with 6% interest per annum from the date of presentation of the petition in favour of the injured person who suffered injury out of a motor accident. 2. Heard Mr. Rajib Saha, learned counsel appearing for the appellant. None appeared on behalf of the respondents. 3. The facts, as narrated in the application under Section 166 of the Motor Vehicles Act, are that the claimant-injured person was going from Agartala to Morabari on 15.12.2013 by vehicle bearing No.TR-01-X-1866(TATA Ace Jeep). When the said vehicle reached at Baidya Kobra Para it met with an accident due to rash and negligent driving of the vehicle causing lacerated injury on the right leg of the claimant-respondent No.1. He was admitted in the hospital as an indoor patient and was treated there on and from 15.12.2013 to 28.12.2013. 4. Thereafter, the claimant-respondent No.1 has approached the learned Motor Accident Claims Tribunal by way of filing a claim application under Section 166 of the Motor Vehicles Act claiming Rs.6,50,000/-. 5. Being noticed, the appellant-Insurance Company i.e. ICICI Lombard General Insurance Company Ltd. as well as the owner of the vehicle, i.e. respondent No.2 appeared and contested the suit by filing their respective written statements. 6. The appellant-Insurance Company in their written statement did not deny the accident but has stated that the claim of the claimant-respondent No.1 is highly exorbitant and the claimant is not entitled to such compensation. The owner of the vehicle has stated that the accident was not occurred due to rash and negligent driving of his vehicle. However, he has stated that at the relevant point of time the vehicle was insured with the ICICI Lombard General Insurance Company Ltd. and if any compensation is payable, then it would be paid by the said Insurance Company. 7.
However, he has stated that at the relevant point of time the vehicle was insured with the ICICI Lombard General Insurance Company Ltd. and if any compensation is payable, then it would be paid by the said Insurance Company. 7. The learned Tribunal on the basis of the pleadings and the documents on record filed by the respective parties has framed the following issues: "(a) Whether the claimant-petitioner sustained injuries in a vehicular accident which took place on 15.12.2013 at about 11-00 a.m. on Agartala-Murabari road at Baidya Kobra Para under the jurisdiction of Ranirbazar P.S. due to rash and negligent driving of the driver of the vehicle bearing No.TR-01-X-1866 TATA Ace Jeep. (b) Whether the claimant-petitioner is entitled to have the compensation, if so, to what extent and who should be liable to pay the same." 8. The claimant-petitioner was examined as PW1 and the owner-opposite party was examined as OPW1. The claimant-petitioner has exhibited FIR, ejahar, charge-sheet, discharge certificate, prescription and cash memos to show purchase of medicines. On the other hand, the owner-opposite party has exhibited insurance policy of the vehicle, driving licence of the driver of his vehicle and the registration certificate. 9. While deciding the first issue, the learned Tribunal has held that there was no hesitation to hold that the claimant sustained injuries on 15.12.2013 due to rash and negligent driving of vehicle bearing No.TR-01-X-1866 and was treated in the hospital on and from 15.12.2013 to 28.12.2013. While deciding the second issue the learned Tribunal has held that the claimant-petitioner was entitled to get compensation of Rs.40,000/-(rupees forty thousand) towards medical expenses. The learned Tribunal has further awarded Rs.10,000/-(rupees ten thousand) for bodily pain in favour of the claimant. Considering the period of admission in the hospital and regular visit by the relatives of the claimant to the hospital from their places of residence, the learned Tribunal has awarded Rs.5,000/-(rupees five thousand). In total, the claimant was held to be entitled for a sum of Rs.55,000/-(rupees fifty five thousand) as compensation due to the injury caused out of the said accident. 10. Being aggrieved by and dissatisfied with the said judgment dated 08.08.2017 passed by the learned Tribunal as aforestated the appellant-Insurance Company has preferred this appeal before this Court. 11. Mr.
In total, the claimant was held to be entitled for a sum of Rs.55,000/-(rupees fifty five thousand) as compensation due to the injury caused out of the said accident. 10. Being aggrieved by and dissatisfied with the said judgment dated 08.08.2017 passed by the learned Tribunal as aforestated the appellant-Insurance Company has preferred this appeal before this Court. 11. Mr. Saha, learned counsel appearing for the appellant submits that the Tribunal has committed a serious error in entertaining the claim application and awarding Rs.55,000/- in favour of the claimant since the Tribunal ought to have considered the admitted fact that the concerned vehicle was plying carrying eighteen numbers of passengers while the said vehicle was only insured to carry two persons including the driver. According to him, the owner of the vehicle has violated the terms and conditions of the policy and, thus, the appellant-Insurance Company should not be saddled with the payment of compensation and it should be the owner of the vehicle who is liable to pay the compensation in favour of the claimant-respondent No.1. 12. In view of the submission made by the Ld. Counsel for the appellant, this Court is to decide the extent of liability of the Insurance Company in respect of payment of compensation to the persons plying in the vehicle in question. 13. To deal with this question, firstly, I may take note of the principle laid down by a three-Judge Bench of the Apex Court in National Insurance Co. Ltd. v. Baljit Kaur & Ors., (2004) 2 SCC 1 which is reproduced here-in-below, for convenience, in extenso: "21. The upshot of the aforementioned discussions is that instead and in place of the insurer the owner of the vehicle shall be liable to satisfy the decree. The question, however, would be as to whether keeping in view the fact that the law was not clear so long such a direction would be fair and equitable. We do not think so. We, therefore, clarify the legal position which shall have prospective effect. The Tribunal as also the High Court had proceeded in terms of the decision of this Court in New India Assurance Co. v. Satpal Singh, (2000) 1 SCC 237 . The said decision has been overruled only in New India Assurance Co. Ltd. v. Asha Rani, (2003) 2 SCC 223 .
The Tribunal as also the High Court had proceeded in terms of the decision of this Court in New India Assurance Co. v. Satpal Singh, (2000) 1 SCC 237 . The said decision has been overruled only in New India Assurance Co. Ltd. v. Asha Rani, (2003) 2 SCC 223 . We, therefore, are of the opinion that the interest of justice will be subserved if the appellant herein is directed to satisfy the awarded amount in favour of the claimant, if not already satisfied, and recover the same from the owner of the vehicle. For the purpose of such recovery, it would not be necessary for the insurer to file a separate suit but it may initiate a proceeding before the executing court as if the dispute between the insurer and the owner was the subject-matter of determination before the Tribunal and the issue is decided against the owner and in favour of the insurer. We have issued the aforementioned directions having regard to the scope and purport of Section 168 of the Motor Vehicles Act, 1988, in terms whereof, it is not only entitled to determine the amount of claim as put forth by the claimant for recovery thereof from the insurer, owner or driver of the vehicle jointly or severally but also the dispute between the insurer on the one hand and the owner or driver of the vehicle involved in the accident inasmuch as can be resolved by the Tribunal in such a proceeding." 14. In the case at hand, only 2(two) persons including the driver were brought under the coverage of the insurance policy by the owner of the vehicle, but, at the time of accident it was plying with altogether 18(Eighteen) persons. Similar issue came up for consideration before the Apex Court in National Insurance Co. Ltd. v. Anjana Shyam & Ors., (2007) 7 SCC 445 when the same was decided in the manner as delineated here-in-below: "19. It is true that the provisions in Chapter XI of the Act are intended for the benefit of third parties with a view to ensure that they receive the fruits of the awards obtained by them straightaway with an element of certainty and not to make them wait for a prolonged recovery proceeding as against the owner of the vehicle.
It is true that the provisions in Chapter XI of the Act are intended for the benefit of third parties with a view to ensure that they receive the fruits of the awards obtained by them straightaway with an element of certainty and not to make them wait for a prolonged recovery proceeding as against the owner of the vehicle. But from that, it would not be possible to take the next step and find that the Insurance Company is bound to cover liabilities not covered by the contract of insurance itself. The Act only imposes an obligation to take out insurance to cover third-party risks and in the case of stage carriages, the passengers to be carried in the vehicle and the passengers to be carried in the vehicle can be understood only as passengers authorised or permitted to be carried in the vehicle. 20. In spite of the relevant provisions of the statute, insurance still remains a contract between the owner and the insurer and the parties are governed by the terms of their contract. The statute has made insurance obligatory in public interest and by way of social security and it has also provided that the insurer would be obliged to fulfil his obligations as imposed by the contract and as overseen by the statute notwithstanding any claim he may have against the other contracting party, the owner, and meet the claims of third parties subject to the exceptions provided in Section 149(2) of the Act. But that does not mean that an insurer is bound to pay amounts outside the contract of insurance itself or in respect of persons not covered by the contract at all. In other words, the insured is covered only to the extent of the passengers permitted to be insured or directed to be insured by the statute and actually covered by the contract. 21. The High Court has considered only the aspect whether by overloading the vehicle, the owner had put the vehicle to a use not allowed by the permit under which the vehicle is used. This aspect is different from the aspect of determining the extent of the liability of the Insurance Company in respect of the passengers of a stage carriage insured in terms of Section 147(1)(b)(ii) of the Act.
This aspect is different from the aspect of determining the extent of the liability of the Insurance Company in respect of the passengers of a stage carriage insured in terms of Section 147(1)(b)(ii) of the Act. We are of the view that the Insurance Company can be made liable only in respect of the number of passengers for whom insurance can be taken under the Act and for whom insurance has been taken as a fact and not in respect of the other passengers involved in the accident in a case of overloading. 22. Then arises the question, how to determine the compensation payable or how to quantify the compensation since there is no means of ascertaining who out of the overloaded passengers constitute the passengers covered by the insurance policy as permitted to be carried by the permit itself. As this Court has indicated, the purpose of the Act is to bring benefit to the third parties who are either injured or dead in an accident. It serves a social purpose. Keeping that in mind, we think that the practical and proper course would be to hold that the Insurance Company, in such a case, would be bound to cover the higher of the various awards and will be compelled to deposit the higher of the amounts of compensation awarded to the extent of the number of passengers covered by the insurance policy." (emphasis supplied) 23. Illustratively, we may put it like this. In the case on hand, 42 passengers were the permitted passengers and they are the ones who have been insured by the Insurance Company. 90 persons have either died or got injured in the accident. Awards have been passed for varied sums. The Tribunal should take into account the higher of the 42 awards made, add them up and direct the Insurance Company to deposit that lump sum. Thus, the liability of the Insurance Company would be to pay the compensation awarded to 42 out of the 90 passengers. It is to ensure that the maximum benefit is derived by the insurance taken for the passengers of the vehicle, that we hold that the 42 awards to be satisfied by the Insurance Company would be the 42 awards in the descending order starting from the highest of the awards.
It is to ensure that the maximum benefit is derived by the insurance taken for the passengers of the vehicle, that we hold that the 42 awards to be satisfied by the Insurance Company would be the 42 awards in the descending order starting from the highest of the awards. In other words, the higher of the 42 awards will be taken into account and it would be the sum total of those higher 42 awards that would be the amount that the Insurance Company would be liable to deposit. It will be for the Tribunal thereafter to direct distribution of the money so deposited by the Insurance Company proportionately to all the claimants, here all the 90, and leave all the claimants to recover the balance from the owner of the vehicle. In such cases, it will be necessary for the Tribunal, even at the initial stage, to make appropriate orders to ensure that the amount could be recovered from the owner by ordering attachment or by passing other restrictive orders against the owner so as to ensure the satisfaction in full of the awards that may be passed ultimately." 15. Having situated thus, the identical issue once again surfaced in the case of United India Insurance Co. Ltd. v. K.M. Poonam & Ors., 2011 AIR SCW 2802 where the Apex Court re-iterated the relevant provisions of the Motor Vehicles Act and after taking note of its various earlier decisions including Baljit Kaur (supra) and Anjana Shyam (supra) has resolved and settled the issue thus: "19. While the aforesaid judgment was delivered on 5th January, 2004, on the very next day, another three- Judge Bench of this Court rendered a decision in National Insurance Co. Ltd. v. Baljit Kaur [ (2004) 2 SCC 1 ] : ( AIR 2004 SC 1340 : 2004 AIR SCW 212), in the context of the provisions of Section 147(1)(b) of the 1988 Act after its amendment in 1994. While referring to the earlier decision in the reference decided in Asha Rani's case (supra), their Lordships held that in spite of the amendment effected to Section 147(1)(b) in 1994, the position remained the same in respect of persons other than the owner of the goods and his authorized representative being carried in the goods vehicle.
While referring to the earlier decision in the reference decided in Asha Rani's case (supra), their Lordships held that in spite of the amendment effected to Section 147(1)(b) in 1994, the position remained the same in respect of persons other than the owner of the goods and his authorized representative being carried in the goods vehicle. It was held that it was not the intention of the legislature to provide for the liability of the insurer with respect to passengers, especially gratuitous passengers who were neither contemplated at the time the contract of insurance was entered into, nor was any premium paid to the extent of the benefit of insurance to such category of people. It was, therefore, felt that the interest of justice would be subserved if the Insurance Company satisfied the awarded amount and recovered the same from the owner of the vehicle and for the said purpose it would not be necessary for the Insurance Company to file a separate suit, but to initiate a proceeding before the executing Court as if the dispute between insurer and the owner was the subject-matter of the determination before the Tribunal which had decided in favour of the insurer and against the owner of the vehicle. 20. The law as regards the liability of insurers towards third parties killed or injured in accidents involving different types of motor vehicles, has been crystallized in the several decisions of this court referred to hereinabove. The kind of third party risk that we are concerned with in this case involves purported breach of the conditions contained in the insurance agreement executed by and between the insurer and the insured. 21. From the decision in Baljit Kaur's case, ( AIR 2004 SC 1340 ) (supra), which was later also articulated in Anjana Shyam's case, ( AIR 2007 SC 2870 ) (supra) what emerges is that a policy of insurance, in order to be valid, would have to comply with the requirements of Chapter XI of the Motor Vehicles Act, 1988, which deals with insurance of motor vehicles against third party risks.
Section 146 of the Act stipulates that no person shall use, except as a passenger, or cause or allow any other person to use, a motor vehicle in a public place, unless there is a valid policy of insurance in relation to the use of the vehicle complying with the requirements of the said Chapter. Section 147 of the Act is an extension of the provisions of Section 146 and sets out the requirements of policies and the limit of their liability. Section 147(1)(a) provides that a policy of insurance must be issued by a person who is an authorized insurer. Section 147(1)(b) provides that a policy of insurance must be a policy which insures the person or class of persons specified in the policy to the extent specified in subsection (2). Sub-section (2) of Section 147 indicates that subject to the proviso to sub-section (1) which excludes the liability of the insurer in certain specific cases, a policy of insurance referred to therein must cover any liability incurred in respect of any accident, inter alia, for the amount of liability incurred. 22. However, in order to fix the liability of the insurer, the provisions of Section 147 have to be read with Section 149 of the Act which deals with the duty of the insurer to satisfy judgments and awards against persons insured in respect of third party risks. Although, on behalf of the Insurance Company it has been sought to be contended that no third party risks were involved in the accident and that the persons travelling in the ill-fated vehicle were gratuitous passengers, the Insurance Company cannot get away from the fact that the vehicle was insured for carrying six persons and the liability of the Insurance Company was to pay compensation to the extent of at least six of the occupants of the vehicle, including the driver. 24. The liability of the insurer, therefore, is confined to the number of persons covered by the insurance policy and not beyond the same. In other words, as in the present case, since the insurance policy of the owner of the vehicle covered six occupants of the vehicle in question, including the driver, the liability of the insurer would be confined to six persons only, notwithstanding the larger number of persons carried in the vehicle.
In other words, as in the present case, since the insurance policy of the owner of the vehicle covered six occupants of the vehicle in question, including the driver, the liability of the insurer would be confined to six persons only, notwithstanding the larger number of persons carried in the vehicle. Such excess number of persons would have to be treated as third parties, but since no premium had been paid in the policy for them, the insurer would not be liable to make payment of the compensation amount as far as they are concerned. However, the liability of the Insurance Company to make payment even in respect of persons not covered by the insurance policy continues under the provisions of sub-section (1) of Section 149 of the Act, as it would be entitled to recover the same if it could prove that one of the conditions of the policy had been breached by the owner of the vehicle. In the instant case, any of the persons travelling in the vehicle in excess of the permitted number of six passengers, though entitled to be compensated by the owner of the vehicle, would still be entitled to receive the compensation amount from the insurer, who could then recover it from the insured owner of the vehicle. 25. As mentioned hereinbefore, in the instant case, the insurance policy taken out by the owner of the vehicle was in respect of six passengers, including the driver, travelling in the vehicle in question. The liability for payment of the other passengers in excess of six passengers would be that of the owner of the vehicle who would be required to compensate the injured or the family of the deceased to the extent of compensation awarded by the Tribunal. 26. Having arrived at the conclusion that the liability of the Insurance Company to pay compensation was limited to six persons travelling inside the vehicle only and that the liability to pay the others was that of the owner, we, in this case, are faced with the same problem as had surfaced in Anjana Shyam's case, ( AIR 2007 SC 2870 ) (supra). The number of persons to be compensated being in excess of the number of persons who could validly be carried in the vehicle, the question which arises is one of apportionment of the amounts to be paid.
The number of persons to be compensated being in excess of the number of persons who could validly be carried in the vehicle, the question which arises is one of apportionment of the amounts to be paid. Since there can be no pick and choose method to identify the five passengers, excluding the driver, in respect of whom compensation would be payable by the Insurance Company, to meet the ends of justice we may apply the procedure adopted in Baljit Kaur's case, ( AIR 2004 SC 1340 )(supra) and direct that the Insurance Company should deposit the total amount of compensation awarded to all the claimants and the amounts so deposited be disbursed to the claimants in respect to their claims, with liberty to the Insurance Company to recover the amounts paid by it over and above the compensation amounts payable in respect of the persons covered by the Insurance Policy from the owner of the vehicle, as was directed in Baljit Kaur's case." 16. This Court in National Insurance Company Ltd. v. Smt. Namita Saha & Ors. [MAC App. No.20 of 2014] at para 13 has observed thus: "13. Having considered the rival contentions as raised by the learned counsel for the parties, this Court is of the view that the fundamental liability of the insurance company is limited to the highest award delivered in the first 39 awards, meaning the first 39 higher awards. It will be further liability of the appellant-insurer to make payment against those claims. If the awards crossed 39, the initial liability would be of the insurance company to pay the same but at the same time they will be entitled to recover the said amount from the owner-respondent by a certificate proceeding under Section 174 of the Motor Vehicles Act without instituting any suit for that purpose." 17. In the case at hand, 2(two) passengers were the permitted passengers, and they are the persons who have been insured by the appellant-Insurance Company. Now, only one person (passenger) out of 18(eighteen) passengers is before this Court and the award passed in favour of him is under challenge by way of the present appeal. Awards, if any, must have been passed for varied sums, if, all the 18(eighteen) passengers suffered injuries to their persons. 18.
Now, only one person (passenger) out of 18(eighteen) passengers is before this Court and the award passed in favour of him is under challenge by way of the present appeal. Awards, if any, must have been passed for varied sums, if, all the 18(eighteen) passengers suffered injuries to their persons. 18. After culmination of the principle enunciated in the afore-mentioned authorities, in my view, in the instant case, the Insurance Company i.e. appellant herein shall take up the first 2(two) awards which are higher of the various awards. It is made clear that if the awards are made in case of all the 18(eighteen) passengers, then, initial liability to make payment against all these claims is fastened with the Insurance company, but, at the same time, insurer has the right to recover those amounts which are beyond the 2(two) higher awards as aforestated from the owner-respondent by way of initiating certificate proceeding under Section 174 of the Motor Vehicles Act without instituting any fresh suit for that purpose. The principle drawn by the Apex Court will be applicable where similar and identical issues are involved. 19. Finally, it is urged by Mr. R. Saha, learned counsel appearing for the appellant that the penal interest awarded by the learned Tribunal is required to be set aside. This question has already been dealt with by this Court in Smt. Namita Saha (supra) wherein at para 15 it is observed thus: "15. This Court has recorded its finding that such award of penal interest is not permissible or within the authority of the provisions of Section 171 of the MV Act. As such that part of award stands interfered with and is set aside." 20. In view of this settled principle, the penal interest as awarded by the learned Tribunal in the case at hand is set aside. 21. So, in the instant appeal, the plea of the appellant- Insurance Company that since there was breach of policy conditions they are not liable to pay compensation to the claimant, deserves no merit, and thus rejected. The appellant-Insurance Company is to pay compensation to the claimant in terms of the directions and observations discussed here-in-above. 22. The appeal is, accordingly, disposed of. 23. Send down the L.C. Records.