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2019 DIGILAW 2724 (RAJ)

Oriental Insurance Co. Ltd. v. Netram

2019-10-21

NARENDRA SINGH DHADDHA

body2019
ORDER : Narendra Singh Dhaddha, J. 1. Claimant petitioner Netram has filed a claim petition before the learned Motor Accident Claims Tribunal, Jaipur City, Jaipur from where it transferred to the learned Additional District (Fast Track) No. 6, Jaipur City, Jaipur (for short "the ADJ") for disposal. 2. Brief facts of the appeal are that on 7.3.2004, when claimant respondent Netram was coming from Kukas to Shahpura in loading Tempo No. RJ-1 G-8872. At about 12:00 PM, the tempo was turned upside down driven by its driver rashly and negligent and as a result of which the claimant received injuries on his body. The claimant filed a claim petition for compensation of Rs. 14,58,000/- from the non-applicants. 3. In reply, the Insurance Company stated that the vehicle in question was being driven by its owner for the purpose of passenger and the Insurance Company is not liable for the compensation as the driver did not have a valid license also. So, the Insurance Company is not liable to pay the compensation under Section 64 of the M.V. Act. The Insurance Company prayed to reject the claim application. 4. On the pleadings of the parties, the learned ADJ framed the following Issues:- 1- vk;k Á’uxr okgu la- vkj-ts-14&1th&8872 ds pkyd foi{kh la[;k&1 ds }kjk fnukad 07-03-2004 dks lka; 5-30 cts ubZ iqfy;k ds vkxs ru lkyMokl] ij mDr okgu dks mis{kk@mrkoysiu ls pykdj dh xbZ nq?kZVuk esa vkbZ pksaVks ds ifj.kkeLo#i usrjke ds pksVsa vk;h\ 2- vk;k mDr okgu pkyd rc mDr okgu Lokeh foi{kh la[;k&1 ds fu;kstu esa gksdj mlh ds fgrkFkZs ,oa ykHkkFkZ dk;Z dj jgk Fkk\ 3- vk;k foi{kh la[;k&2 chek dEiuh }kjk vius fyf[kr dFku dh ÁkjafHkd vkifRr;ksa ,oa fo’ks”k dFku ds en~nsutj chek da0 vius nkf;Ro ls eqDr gks ldrh gS] ugha rks bldk ÁHkko\ 4- vk;k nkosnkj vius nkok esa vafdr] Á’uxr jkf’k ;k vU; dksbZ U;k;lEer jkf’k ik ldrk gS] gkWa rks fdruh jkf’k fdl&fdl foi{kh ls ,oaf dl Ádkj ik ldrk gS 5- vuqrks”k 5. The claimant himself examined as AW-1 and exhibited 132 documents. 6. On the other hand, the Insurance Company examined Om Prakash as NA-1 and submitted Insurance Policy. 7. After hearing the learned counsel for the parties and on perusal of the documents, the learned ADJ was decided all the Issues in favour of claimant and against the non-claimants. 8. The claimant himself examined as AW-1 and exhibited 132 documents. 6. On the other hand, the Insurance Company examined Om Prakash as NA-1 and submitted Insurance Policy. 7. After hearing the learned counsel for the parties and on perusal of the documents, the learned ADJ was decided all the Issues in favour of claimant and against the non-claimants. 8. The learned ADJ after hearing both the parties, awarded a sum of Rs. 1,18,700/- jointly and severely. The claimant had received Rs. 25,000/- as an interim relief which would be adjusted. It was further directed that Rs. 35,000/- may be deposited in Fixed Deposit account and the balance amount along with interest was directed to be deposited by the non-claimants in the SB account of the claimant. Due to non-compliance of the terms and conditions of the Insurance Policy, the claimant was entitled to receive the whole compensation from owner and driver of the vehicle in question. 9. Learned counsel for the appellant submitted that the impugned award is perverse, arbitrary, illegal and against the provisions of law. Learned counsel for the appellant submitted that the vehicle in question was in the category of L.T.V. and it was insured with the appellant-Insurance Company as goods carrying commercial vehicle and the Insurance Company had not charged any premium to cover the risk of passenger/s. It is submitted that there was no place for the passenger to travel in the vehicle. He submitted that Section 147 of the Motor Vehicles Act, the appellant-Insurance Company could not be made liable to indemnify the risk of passenger being carried in goods vehicle. 10. Learned counsel for the appellant submitted that a bare perusal of Section 149 of the Act provides that if there was a breach of any condition as provided u/s. 149(2), then the Insurance Company statutory liable to pay the compensation and recover the same from the owner insured. He submitted that the learned ADJ though observed that claimant was traveling in the goods vehicle but fastened the liability upon Insurance Company hence committed illegality. Learned counsel for the appellant submitted that the appellant-Insurance Company could not be held liable as neither statutorily the risk can be fastened upon the appellant nor there was any consideration paid by the owner insured to cover the risk of passenger. Learned counsel for the appellant submitted that the appellant-Insurance Company could not be held liable as neither statutorily the risk can be fastened upon the appellant nor there was any consideration paid by the owner insured to cover the risk of passenger. Learned counsel for the appellant submitted that the vehicle was being used to carry 4-5 passengers on hire as such the appellant could not be burdened to satisfy the award u/s. 149 of the Act. Learned counsel for the appellant submitted that the claimant had sustained permanent disability to the extent of 24.29% and the compensation awarded for Rs. 1,18,700/- is on higher side. So, the appeal be allowed and set aside the impugned award. 11. Learned counsel for the appellant to support his arguments placed reliance on the following judgments: 1. M.S. Middle High School v/s HDFC Ergo General Insurance Co. Ltd. & Ors. reported in I (2019) ACC 757 (SC), 2. M.V. Jayadevappa and another v. Oriental Fire & Genl. Ins. Co. Ltd. And others reported in 2005 ACJ 1801 and 3. New India Assurance Co. Ltd. V/s Uttara Phukan and others reported in 2013 ACJ 2746 , 12. Per contra, learned counsel for the non-claimants opposed the appeal and submitted that the learned ADJ has rightly passed the award in its right perspective. He submitted that the learned ADJ had not committed any error. So, the appeal be dismissed. 13. Learned counsel for the non-claimants in support of his arguments, placed reliance on the following judgments: 1. Manuara Khatun v/s Rajesh Kr. Singh reported in (2017) 4 SCC 796 and 2. Shamanna and Ors vs. The Divisional Manager, The Oriental Insurance Co. Ltd. and Ors, Civil Appeal No. 8144/2018, decided by Apex Court on 8.8.2018. 14. I have heard the arguments advanced by both the parties, perused the impugned award and the material available on record. 15. It is true that the vehicle in question was in the category of L.T.V. and it was insured with the appellant Insurance Company as a good caring commercial vehicle. The appellant Insurance Company had not charged any premium to cover the risk of the passenger. As per Section 147 of the Act, the appellant Insurance Company could not be made liable to indemnify the risk of the passenger. The learned ADJ has completely ignored this fact and erroneously made appellant Insurance Company liable. The appellant Insurance Company had not charged any premium to cover the risk of the passenger. As per Section 147 of the Act, the appellant Insurance Company could not be made liable to indemnify the risk of the passenger. The learned ADJ has completely ignored this fact and erroneously made appellant Insurance Company liable. As per section 149 of the Act, if there is a breach in any condition as provided under Section 149(2), then Insurance Company would be liable to pay compensation and recovery the same from the owner. That condition does not apply in the present case because there was no contract of Insurance to carry passenger in this vehicle. The claimant, in enquiry before the ADJ, had admitted that he had paid Rs. 10/- as a fare to the owner of the traveling in the vehicle in question. In United India Insurance Co. Ltd. Vs. Sheela CMA (MD) No. 216/2011 and connected matters decided on 22.03.2017, the Madras High Court held as under:- "(i) In National Insurance Company Limited v. Savitri Devi and others reported in (2013) 11 Supreme Court Cases 554, the Honourable Supreme Court has considered the liability of insurer, when the passengers were carried in a goods vehicle in violation of terms of policy and 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 Workmen's Compensation Act. 9. 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 Workmen's Compensation Act. 9. The specific case of the claimants was that the barat was being taken in the said open truck on 12-11-1996 when the accident had taken place. Thus, according to us, it clearly violates the terms and conditions of the policy. 10. Dealing with similar circumstance, this Court has held in National Insurance Co. Ltd. v. Bommithi Subbhayamma (2005) 12 SCC 243 , as under: (SCC p. 246, paras 9-11) "9.... '....20. It is, therefore, manifest that in spite of the amendment of 1994, the effect of the provision contained in Section 147 with respect to persons other than the owner of the goods or his authorised representative remains the same. Although the owner of the goods or his authorised representative would now be covered by the policy of insurance in respect of a goods vehicle, 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.' 10. The same view was reiterated in National Insurance Co. Limited v. Challa Upendra Rao (2004) 8 SCC 517 , Pramod Kumar Agrawal v. Mushtari Begum (2004) 8 SCC 667 and also in National Insurance Co. Limited. v. Chinnamma (2004) 8 SCC 697 ." 16. For the above mentioned reasons, the appeal is allowed and the direction given to the appellant first to pay claim and to recover the same from the owner is set aside. The respondent No. 1 would be at liberty to recover the awarded compensation from the owner of the vehicle. The respondent No. 2 is directed to deposit the awarded sum within a period of two months from today in the learned ADJ and after that, he shall be liable to pay interest @ 9% per annum.