Research › Search › Judgment

Madhya Pradesh High Court · body

2019 DIGILAW 661 (MP)

IFFCO-TOKIO GENERAL INS CO LTD v. RAMWATI BAI

2019-09-12

SUBODH ABHYANKAR

body2019
JUDGMENT Subodh Abhyankar, J. 1. Heard. This appeal has been filed by the appellant insurance company under section 173 (1) of the Motor Vehicles Act, being aggrieved by the award dated 11.4.2012 passed in Claim Case No. 31 of 2011 by the MACT, Khandwa, whereby in an application filed under section 166 of the Motor Vehicles Act for compensation in respect of death of one Balram Bakoriya, the learned Member of MACT, Khandwa has awarded a sum of Rs. 9,10,500 to the claimants-respondent Nos. 1 and 2 herein. 2. Brief facts of the case are that the deceased Balram Bakoriya, an Assistant Grade-III employee of Election Office, Khandwa was travelling in a Mahindra Bolero jeep on the date of incident, i.e., on 30.11.2010 and was going on an election training, at that time, due to rash and negligent driving, the vehicle in question, i.e., jeep bearing registration No. MP 12-DA 0104 turned turtle and fell into a river, which resulted in immediate death of the said Balram Bakoriya on the spot. The wife and son of the deceased filed the claim case with the aforesaid averments in which except the insurance company, all the other respondents remained ex parte. 3. The contention of the insurance company in the written statement was that the vehicle was acquired by the State Government for election duty when it met with an accident, hence, the insurance company is not liable for the payment of any compensation. The aforesaid contention was however raised specifically by way of an amendment on 17.1.2012. 4. Counsel for the appellant has submitted that the Member of MACT has erred in imposing the liability on the insurance company despite the fact that the vehicle in question was being plied after the same was acquired by the State Government for election purpose. Counsel has already drawn attention of this court to the application under section 166 of the Motor Vehicles Act, 1988 filed by the claimants, whereby it is stated that deceased Balram was going on election duty. Counsel has further submitted that although the appellant in support of the contention has not produced any documents, but their written statement has remained unrebutted, as claimants have not led any evidence to rebut the written statement. Counsel has further submitted that although the appellant in support of the contention has not produced any documents, but their written statement has remained unrebutted, as claimants have not led any evidence to rebut the written statement. Learned counsel has further submitted that even in the documents filed by the claimants, it is specifically mentioned that vehicle in which the deceased was travelling was used by the State Government and was on election duty. 5. In support of his contention, learned counsel for the appellant has also relied upon the judgment rendered by the Apex Court in the case of National Insurance Co. Ltd. v. Deepa Devi, (2008) ACJ 705 (SC). The relevant paras 16, 17 and 18 of the said judgment read as under: "(16) In National Insurance Co. Ltd. v. Durdadahya Kumar Samal, (1988) ACJ 540 (Orissa), where the vehicle was requisitioned by the Collector for election duty, the High Court of Orissa held: '(7) ...In a vehicle requisitioned, the driver remains under the control of the Collector and by such driving the vehicle he can be accepted to have been employed by the Collector. Thus the Collector would be vicariously liable for the act of the driver in the present case.' [See also New India Assurance Co. Ltd. v. S. Ramulamma, (1989) ACJ 596 (AP)]. (17) In Chief Officer, Bhavnagar Municipality v. Bachubhai Arjanbhai, (1996) ACJ 1229 (Gujarat), the High Court of Gujarat held: '(7) The facts on record clearly indicate that the vehicle in question which belonged to the State of Gujarat was entrusted to the Municipality for distribution of water to the citizens. It was implicit in allowing the vehicle being used for such purpose that the State of Gujarat which owned the vehicle also caused or allowed any driver of the Municipality who was engaged in the work of distribution of water to the citizens, to use motor vehicle for the purpose. Therefore, when the vehicle was driven by the driver of the Municipality and the accident resulted due to his negligence, the insurer of the vehicle became liable to pay the compensation under the provisions of the Act. Therefore, when the vehicle was driven by the driver of the Municipality and the accident resulted due to his negligence, the insurer of the vehicle became liable to pay the compensation under the provisions of the Act. It is, therefore, held that the State as the owner of the vehicle and the respondent insurance company as its insurer were also liable to pay the compensation awarded by the Tribunal...' (18) We, therefore, are of the opinion that the State shall be liable to pay the amount of compensation to the claimants and not the registered owner of the vehicle and consequently the appellant herein." Reliance is also placed on the case of Purnya Kala Devi v. State of Assam, (2014) ACJ 1269 (SC) and latest judgment of the Apex Court in the case of Naveen Kumar v. Vijay Kumar, (2018) ACJ 677 (SC). Relevant paras of Naveen Kumar (supra) read as under: "(9) The decision of a three-Judge Bench of this court in Purnya Kala Devi, (2014) ACJ 1269 (SC), involved a situation where the registered owner of a vehicle involved in an accident denied his liability to compensate the legal heirs of the deceased victim on the ground that the State Government had requisitioned the vehicle. On the date of the accident, the vehicle stood requisitioned under the Assam Requisition and Control of Vehicles Act, 1968 ('the Assam Act'). The State failed to establish that the vehicle was released from requisition after service of a notice in writing to the owner, to take delivery, as required by section 5 (1) of the Assam Act. Under the Assam Act, it was only upon the service of a notice to that effect that no liability for compensation would lie with the requisitioning authority. The High Court absolved the State Government on the basis of the definition of the expression 'owner' in section 2 (30) of the Motor Vehicles Act, 1988. Reversing the judgment, this court held thus: '(13)...the High Court, without adverting to section 5 of the Assam Act, merely on the basis of the definition of 'owner' as contained in section 2 (30) of the 1988 Act, mulcted the award payable by the owner of the vehicle. The High Court failed to appreciate that at the relevant time the offending vehicle was under the requisition of respondent No. 1, State of Assam, under the provisions of the Assam Act. The High Court failed to appreciate that at the relevant time the offending vehicle was under the requisition of respondent No. 1, State of Assam, under the provisions of the Assam Act. Therefore, respondent No. 1 was squarely covered under the definition of 'owner' as contained in section 2 (30) of the 1988 Act. The High Court failed to appreciate the underlying legislative intention in including in the definition of 'owner' a person in possession of a vehicle either under an agreement of lease or agreement of hypothecation or under a hire-purchase agreement to the effect that a person in control and possession of the vehicle should be construed as the 'owner' and not alone the registered owner. The High Court further failed to appreciate the legislative intention that the registered owner of the vehicle should not be held liable if the vehicle was not in his possession and control. The High Court also failed to appreciate that section 146 of the 1988 Act requires that no person shall use or cause or allow any other person to use a motor vehicle in a public place without an insurance policy meeting the requirements of Chapter XI of the 1988 Act and the State Government has violated the statutory provisions of the 1988 Act. The Tribunal also erred in accepting the allegation of respondent No. 2 that the vehicle was released on the date of accident at 10.30 a.m. and the accident occurred at 10.30 a.m. without any evidence even though in the claim petition it was stated that the accident had occurred at 10.15 a.m.' (10) The above observations would indicate that a combination of circumstances cumulatively weighed with this court. Significantly, for the purposes of the present discussion, what emerges from the above judgment is the circumstance that the motor vehicle was on the date of accident requisitioned by the State Government. Requisitioning by its very nature is involuntary insofar as the person whose property is requisitioned is concerned. This court observed that it is the person in control and possession of a vehicle which is under an agreement of lease, hypothecation or hire-purchase who is construed as the owner and not the registered owner. Requisitioning by its very nature is involuntary insofar as the person whose property is requisitioned is concerned. This court observed that it is the person in control and possession of a vehicle which is under an agreement of lease, hypothecation or hire-purchase who is construed as the owner and not the registered owner. The same analogy was drawn to hold that where the vehicle had been requisitioned, it was the State and not the registered owner who had possession and control and would hence be held liable to compensate. Purnya Kala Devi, (2014) ACJ 1269 (SC), does not hold that a person who transfers the vehicle to another but continues to be the registered owner under section 2 (30) in the records of the Registering Authority is absolved of liability. The situation which arose before the court in that case must be borne in mind because it was in the context of a compulsory act of requisitioning by the State that this court held, by analogy of reasoning, that the registered owner was not liable." (Emphasis added) 6. It is submitted by Mr. Aditya Narayan Sharma, learned counsel for the appellant, that in the aforesaid cases also similar situation arose where the vehicle was acquired by the State Government and the Apex Court, taking note of the earlier decision rendered in this behalf, has accepted the contention that when the vehicle is acquired by the State Government for any purpose, neither the insurance company, nor the owner of the vehicle would be liable for payment of compensation and only Government would be held liable. Thus, it is submitted that the impugned award fixing the liability on the insurance company being bad in law is liable to be set aside. 7. Learned counsel for the respondents on the other hand contends that no illegality has been committed by the learned Member of MACT in awarding the compensation and fixing the liability of payment on the insurance company. Learned counsel has further submitted that the insurance company has not led any evidence in support of its claim that vehicle was acquired by the State Government. Learned counsel has further submitted that the insurance company has not led any evidence in support of its claim that vehicle was acquired by the State Government. It is further submitted that even otherwise the learned member of the MACT has also referred to letters issued by the Collector and the Election Officer, Khandwa dated 15.12.2010 and has held that the vehicle which was acquired by the said authority was a different vehicle and it was substituted by the vehicle in question, hence, it cannot be said that the vehicle was actually acquired by the State Government, as the vehicle at the time of accident was under the ownership and possession of the owner of the vehicle only. Counsel has further submitted that even according to section 146 of the Motor Vehicles Act, if the vehicle is transferred to some other person and the ownership changes, then also the insurance company would be liable. 8. Having heard learned counsel for the parties and on perusal of the record this court finds that although the appellant insurance company, by way of amendment, has indeed taken a plea that the vehicle in question was acquired by the State Government at the time when it met with the accident, however no document in support of the said claim has been filed by them on record. 9. Mr. Aditya Narayan, learned counsel for the appellant, has vehemently argued that the claim petition filed by the claimants under section 166 of the Motor Vehicles Act, 1988 is more than sufficient to draw the aforesaid conclusion that the vehicle was acquired by the State Government for election purposes. Learned counsel for the appellant has also drawn the attention of this court to the two photocopies of documents which have also been referred to by the learned Member of MACT in the impugned award where the learned Member of the MACT has held that even assuming that the aforesaid letters were issued by the appropriate authority, it is found that the insurance company is still liable, as in those letters it was stated that the vehicle which was actually acquired was different vehicle and since the said vehicle was not available the owner of the vehicle had sent the vehicle in question for the election purposes which met with the accident. 10. 10. On close scrutiny of the documents on record this court finds that so far as the alleged admission on the part of the claimants, as argued by the counsel for the appellant, that the vehicle was acquired by the State Government for election purpose is concerned, this court does not find it to be a correct statement made by the learned counsel for the appellant, as nowhere in the claim application filed under section 166 of the Motor Vehicles Act, 1988 it is mentioned that the vehicle was acquired by the State Government for any purpose at all. What is stated in the claim application that the deceased Balram Bakoriya was travelling in the said vehicle and was going for some election training programme, the aforesaid averments, in the considered opinion of this court, does not amount to an admission on the part of the claimants that the vehicle was acquired by the State Government for election purposes. 11. So far as the documents which have been referred to by the learned Member of the MACT in the impugned award, this court finds that the aforesaid documents have not been proved by the insurance company in accordance with law and only the photocopies of the said documents have been filed before the MACT which have also not been exhibited by the learned Member of the MACT but despite this fact that the documents have not been proved in accordance with law, the learned Member of the MACT has ventured into considering the aforesaid documents, maybe, in favour of the claimants but this approach, in the considered opinion of this court, was illegal and uncalled for, as the aforesaid photocopies being not admissible in evidence ought not to have been considered by the MACT for any purpose. Thus, the fact remains that despite taking a plea that the vehicle was acquired by the State Government for the election duty, the insurance company has not led any evidence in this behalf. In view of the same, it cannot be said that the vehicle was acquired by the State Government for election duty. The contention of the appellant that the onus to prove otherwise that the vehicle was not being used for election purposes was on the claimants is bereft of any legal sanctity and is an absurd proposition. 12. In view of the same, it cannot be said that the vehicle was acquired by the State Government for election duty. The contention of the appellant that the onus to prove otherwise that the vehicle was not being used for election purposes was on the claimants is bereft of any legal sanctity and is an absurd proposition. 12. So far as the judgments cited by the learned counsel for the appellant are concerned, the same are clearly distinguishable, as in those cases the Hon'ble Apex Court has held that when the vehicle is acquired by the State Government for any purpose, neither the owner of the vehicle nor its insurance company would be held to be liable. It is only the government, which had acquired the vehicle, would be held liable for compensation. But in the present case since the insurance company has miserably failed to prove that the vehicle in question was acquired by the State Government for election duty, it cannot be said that only State Government has liability to pay compensation. 13. As a result, the appeal being devoid of merit is hereby dismissed. No costs.