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2021 DIGILAW 683 (RAJ)

United India Insurance Co. , Ltd. v. Pepi Devi

2021-03-24

VINIT KUMAR MATHUR

body2021
JUDGMENT 1. With the consent of learned counsel for the parties, the above appeals are finally heard and decided. 2. Both the above appeals arise out of the common judgment passed by the Tribunal in two claim petitions preferred by the respondents-claimants, therefore, the same are being decided by this common judgment. 3. The instant appeals have been preferred against the judgment and award dated 27.07.2001 passed by Motor Accident Claims Tribunal, Jalore in Motor Accident Claim Case Nos.28/1997& 29/1997 whereby the learned Tribunal allowed the claim petitions filed by the respondents-claimants and awarded a sum of Rs. 1,57,000/- and Rs.2,77,000/- respectively in favour of the respondents - claimants. 4. The Tribunal after framing the issues, evaluating the evidence available on record and hearing both the parties, decided the claim petitions filed by the respondents-claimants and awarded the compensation as mentioned hereinabove. 5. Learned counsel for the appellant Insurance Company has assailed the finding recorded by the Tribunal on issue No.3. On the basis of the Judgment rendered by the Hon'ble Supreme Court in the case of National Insurance Company V/s Satpal Singh & ors. reported in AIR 2000 SC 235 , wherein it was held that the occupants of the vehicle whether private or commercial will be construed as third party and therefore, their risk will be covered and the Insurance Company will be liable to pay the compensation. Learned counsel further submits that it has come on record that the Kesa Ram and Rupa Ram were traveling in a Jeep were the passengers and had paid rent for traveling in the Jeep, therefore, their risk is not covered by the insurance company as the insurance policy of the jeep was an "act only policy" which is apparent from the policy produced on record as Ex.A2. He submits that as per the 'Act only' policy, the risk of the passengers traveling in the insured vehicle was not covered and therefore, the insurance company was not liable to pay the compensation. 6. Learned counsel for the insurance company contends that the Hon'ble Supreme Court in the case of Satpal Singh (supra) expressly overruled the subsequent judgment of the Hon'ble Apex court in the case of New India Assurance Co. Ltd. v/s Asha 7. Rani & Ors. 6. Learned counsel for the insurance company contends that the Hon'ble Supreme Court in the case of Satpal Singh (supra) expressly overruled the subsequent judgment of the Hon'ble Apex court in the case of New India Assurance Co. Ltd. v/s Asha 7. Rani & Ors. and the same has been relied by coordinate bench of this court in the case of National Insurance Company Ltd. v/s Smt. Sahidan Bano w/o Shree Kursheed & Ors. The counsel for the appellant insurance company further submits that the Hon'ble Supreme Court in the case of Oriental Insurance Company Limited V/s Meena Variyal & Ors., specifically held that the passengers traveling in a private vehicle will not be construed as third party. Therefore, in view of the submissions made above, the counsel submits that the finding recorded by the learned Tribunal on issue No.3 is absolutely incorrect and the same is, therefore, liable to be quashed and set aside. He further submits that since the risk of the passengers traveling in the jeep was not covered and the policy was only an 'act only policy', therefore, the liability to pay the compensation in the present case cannot be fastened on the appellant insurance company. 8. Per contra, learned counsel for the respondents-claimants submits that the finding recorded by the Tribunal on issue No.3 does not suffer from any infirmity as the law prevailing at the time of passing the judgment was taken note of by the Tribunal while deciding the issue No.3. To make distinction between 'act only policy' and 'comprehensive policy' the counsel has further relied upon the judgment of Hon'ble Punjab and Haryana High Court in the case of Shiv Lochan Singh @ Bhola V/s National Insurance Company Ltd. & Ors. as well as judgment of Hon'ble Karnatka High Court in the case of Pintu V/s Sri Umalu & Anr. Whereby the Punjab & Haryana High Court discussed the matter at a great length and two High Courts have come to the conclusion that the insurance company is under the obligation to satisfy the compensation irrespective of the fact as to whether the insurance policy was act only policy or comprehensive policy. He further submits that the judgment of Hon'ble Punjab and Haryana High Court in the case of Shiv Lochan Singh @ Bhola V/s National Insurance Company Ltd. & Ors. He further submits that the judgment of Hon'ble Punjab and Haryana High Court in the case of Shiv Lochan Singh @ Bhola V/s National Insurance Company Ltd. & Ors. as well as judgment of Hon'ble Karnatka High Court in the case of Pintu V/s Sri Umalu & Anr. are pending consideration before the Hon'ble Supreme Court and therefore, this court should not decide the matter at this stage. 9. I have considered the submissions made at the bar, gone through the judgment dated 27.07.2001 as also relevant record of the case. 10. The finding of fact recorded by the Tribunal on issue No.3 is admittedly on the strength of judgment of the Hon'ble Supreme Court in the case of Satpal Singh (supra). The fact is that the judgment of the Hon'ble Supreme court has been expressly overruled by the Hon'ble Supreme Court in its subsequent judgment in the case of New India Assurance Co. Ltd. V/s Asha Rani and Ors. reported in AIR 2003 SC 607 holding as under- "10. In Satpal's case (supra) the Court assumed that the provisions of Section 95(1) of Motor Vehicles Act 1939 are identical with Section 147(1) of the Motor Vehicles Act 1988, as it stood prior to its amendment. But a careful scrutiny of the provisions would make it clear that prior to the amendment of 1994 it was not necessary for the insurer to insure against the owner of the goods of his authorised representative being carried in a goods vehicle. On an erroneous impression this Court came to the conclusion that the insurer would be liable to pay compensation in respect of the death or bodily injury caused to either the owner of the goods or his authorised representative when being carried in a goods vehicle the accident occurred. If the Motor Vehicle Amended Act of 1994 is examined, particularly Section 46 of the Act 6 of 1991 by which expression 'injury to any person' in the original Act stood substituted by the expression 'injury to any person including owner of the goods or his authorised representative carried in the vehicle the conclusion is irresistible that prior to the aforesaid amendment Act of 1994, even if widest interpretation is given to the expression 'to any person' it will not cover either the owner of the goods or his authorised representative being carried in the vehicle. The objects and reasons of Clause 46 also states that it seeks to amend Section 147 to include owner of the goods or his authorised representative carried in the vehicle for the purposes of liability under the Insurance Policy. It is no doubt true that sometimes the legislature amends the law by way of amplification and clarification of an inherent position which is there in the statute, but a plain meaning being given to the words used in the statute, as it stood prior to its amendment of 1994, and as it stands subsequent to its amendment in 1994 and bearing in mind the objects and reasons engrafted in the amended provisions referred to earlier, it is difficult for us to construe that the expression 'including owner of the goods or his authorised representative carried in the vehicle which was added to the pre-existed expression 'injury to any person' is either clarificatory or amplification of the pre-existing statute. On the other hand it clearly demonstrates that the legislature wanted to bring within the sweep of Section 147 and making it compulsory for the insurer to insure even in case of a goods vehicle, the owner of the goods or his authorised representative being carried in a goods vehicle when that vehicle met with an accident and the owner of the goods or his representative either dies or suffers bodily injury. The judgment of this Court in Satpal's case, therefore must be held to have not been correctly decided and the impugned judgment of the Tribunal as well as that of the High Court accordingly are set aside and these appeals are allowed. It is held that the insurer will not be liable for paying compensation to the owner of goods or his authorised representative on being carried in a goods vehicle when that vehicle meets with an accident and the owner of goods or his representative dies or suffers any bodily injury. 31. For the foregoing reasons. I am in respect agreement with My Lord the Chief Justice of India that the decision of this Court in New India Assurance Company v. Satpal Singh and Ors. MANU/SC/0751/1999MANU/SC/0751/1999:AIR2000SC235 has not laid down the law correctly and should be overruled". 11. This view was further relied upon by the Hon'ble Supreme Court in the case of the Oriental Insurance Company Limited V/s Meena Variyal and Ors. MANU/SC/0751/1999MANU/SC/0751/1999:AIR2000SC235 has not laid down the law correctly and should be overruled". 11. This view was further relied upon by the Hon'ble Supreme Court in the case of the Oriental Insurance Company Limited V/s Meena Variyal and Ors. reported in AIR 2007 SC 1609 wherein the Hon'ble Supreme Court has specifically held that the occupants of the vehicle, whether private or commercial, will not be construed to be third party. Relevant paras of the judgment are reproduced as under:- "6. The only argument attempted on behalf of the claimants, the appellants in the High Court, was that in the light of the decision of this Court in National Insurance Co. Ltd. v. Swaran Singh and Ors. MANU/SC/0021/2004:A IR2004SC1531, the insurance company was liable to pay the amount awarded even if there was breach of a policy condition and if there was a dispute between the insured and the insurer, it had to be fought elsewhere and they cannot be denied the benefit of the insurance. The insurance company pointed out that the ratio in Swaran Singh (supra) had no application to the case and in the face of the finding that the deceased was himself driving the vehicle belonging to his employer, the insurance company had no liability. There was no special contract and since it was only a policy in terms of the Motor Vehicles Act, the insurance company cannot be asked to pay the amount awarded which was even otherwise not supported by any admissible or acceptable evidence. The High Court, stating that they had in so many cases held, in view of the ratio in Swaran Singh (supra), that it is not open to the insurance company to avoid liability under the Act, simply directed the insurance company to pay the amount as ordered by the Tribunal, leaving it to the insurance company to take recourse to recover the amount from the insured in accordance with the directions of this Court in Swaran Singh (supra). 14. It is difficult to apply the ratio of this decision to a case not involving a third party. The whole protection provided by Chapter XI of the Act is against third party risk. Therefore, in a case where a person is not a third party within the meaning of the Act, the insurance company cannot be made automatically liable merely by resorting to the Swaran Singh (supra) ratio. The whole protection provided by Chapter XI of the Act is against third party risk. Therefore, in a case where a person is not a third party within the meaning of the Act, the insurance company cannot be made automatically liable merely by resorting to the Swaran Singh (supra) ratio. This appears to be the position. This position was expounded recently by this Court in National Insurance Co. Ltd. v. Laxmi Narain DhutMANU/SQ'1233/2007: AIR2007SC1414. This Court after referring to Swaran Singh (supra) and discussing the law summed up the position thus: In view of the above analysis the following situations emerge: 1. The decision in Swaran Singh's case (supra) has no application to cases other than third party risks. 2. Where originally the licence was a fake one, renewal cannot cure the inherent fatality. 3. In case of third party risks the insurer has to indemnify the amount and if so advised, to recover the same from the insured. 4. The concept of purposive interpretation has no application to cases relatable to Section 149 of the Act. The High Courts/Commissions shall now consider the matter afresh in the light of the position in law as delineated above. We are in respectful agreement with the above view". 12. Admittedly, in the present case, the insurance policy (Ex.A2) clearly shows that it was only 'an act only policy' and risk of driver was only covered besides third party risks. The passengers who were traveling in the Jeep cannot be construed as third party, therefore, their risk is not covered. Thus, the finding of the Tribunal on issue No.3 is quashed and set aside and it is held that the insurance company is not required to pay the compensation on account of death of deceased Kesa Ram and Rupa Ram as per the insurance policy (Ex.A2). 13. The reliance placed by the counsel for the respondents-claimants on the judgment of Hon'ble Punjab and Haryana High Court in the case of Shiv Lochan Singh @ Bhola V/s National Insurance Company Ltd. & Ors. as well as judgment of Hon'ble Karnatka High Court in the case of Pintu V/s Sri Umalu & Anr. is of no help to the claimants on the ground that Rajasthan High Court relying upon the judgment of New India Assurance Co. Ltd. V/s Asha Rani & Ors. and Oriental Insurance Company Limited V/s Meena Variyal & ors. as well as judgment of Hon'ble Karnatka High Court in the case of Pintu V/s Sri Umalu & Anr. is of no help to the claimants on the ground that Rajasthan High Court relying upon the judgment of New India Assurance Co. Ltd. V/s Asha Rani & Ors. and Oriental Insurance Company Limited V/s Meena Variyal & ors. has held in the case of National Insurance Company Ltd. V/s Smt. Sahidan Bano W/o Shri Kursheed & Ors. that risk of the persons traveling in vehicle under the 'Act only policy' will not be covered and the Insurance Company will not be liable to pay the compensation. 14. So far as the contention of the learned counsel for the respondents- claimants to defer hearing of the above appeals on the count of pendency of Civil Appeal No.(s) 4291-4292/2018 (National Insurance Company Ltd. V/s Shiv Lochan Singh @ Bhola & Ors. & SLP (Civil) diary No.(s) 36722/2019 (The Branch manager Legal, National Insurance Company Limited V/s Pintu & Anr.) before the Hon'ble Supreme Court is concerned, it is noted that in view of the authoritative pronouncement of the Hon'ble Supreme Court in the case of the New India Assurance Co. Ltd. V/s Asha Rani & Ors. this court does not deem it appropriate to defer the hearing of the present appeals. 15. In view of the discussions made above, the appeals filed by the appellant insurance company are allowed. The finding recorded by the Tribunal on issue No.3 vide its judgment and award dated 27.07.2001 is set aside. It is held that the appellant insurance company will not be liable to pay the compensation on account of death of deceased Kesa Ram and Rupa Ram. The amount, if any, already paid by the appellant insurance company in the present case will also be recoverable from the driver/ owner of the vehicle. The insurance company shall be free to recover the amount paid in accordance with law.