M/s New India Assurance Company Ltd. vs Sarwari Khatoon & Others

Heard, learned counsel for the appellant-M/s New India Assurance Company Ltd., Mrs. Dr. Nisha Thakur, learned counsel for the respondent nos. 1, 2, 4 & 5 / claimants and learned counsel for the respondent nos. 6 & 7 / owner and driver, Mrs. Swati Shalini.

Appellant - M/s New India Assurance Company Ltd. has preferred this appeal against the Award dated 26.07.2011 passed by learned District Judge-cum-Motor Vehicle Accident Claim Tribunal, Simdega in MACC Case No. 12/2004, whereby claimants have been awarded compensation to the tune of Rs. 4,10,000/-, (out of which amount of Rs. 50,000/- has already been paid under Section 140 Motor Vehicles Act), along with interest @7% per annum from the date of Award i.e. 26.07.2011 within a period of three months from the date of award failing which, claimants shall be entitled to an interest @ 9% per annum from the date of final order i.e. 26.7.2011.

Learned counsel for the appellant has assailed the impugned award on the ground that the offending vehicle BR-26G-1739 met with an accident on 29.05.2004 at about 11:00 AM near S.K. Bage College, Kolebira within the jurisdiction of Kolebira police in the district of Simdega and at that time the vehicle has no permit to ply on the road. This contention has been raised in written statement, which has been recorded in para-7 of the impugned judgment and as such, in view of the judgment passed by the Apex Court in the case of Amrit Paul Singh and Another Vs. Tata AIG General Insurance Company Limited and Others reported in (2018) 7 SCC 558 (Para-24), the right of recovery may be granted in favour of the Insurance Company to recover the same from the owner of the offending vehicle, because of fundamental statutory infraction of Section 149 (2) (a)(i)(c) of the Motor Vehicles Act.

Learned counsel for the appellant has submitted that it is a case of no permit which is different from misuse of permit, as such right of recovery may be given in favour of the Insurance Company to recover the same from the Owner of the Offending Vehicle.

Further, the opposite party seeks protection under the provisions of Section 147, 149 of the Motor Vehicles Act, 1988. This opposite party further stated that he may be allowed to take all the defences if necessary as provided under Section 170 of the Motor Vehicles Act, 1988.

Learned counsel for the Owner and Driver of the Vehicle has placed judgment of the Hon'ble Madras High Court in the case of Manicka Mudaliar Vs. Shanmugasundara Mudaliar of 18.12.1981 and has submitted that though such contention was taken by the Insurance Company in the written statement, but no specific issue has been framed by the learned Tribunal nor any evidence has been laid by the Insurance Company, as such, right of recovery may not be granted in favour of the appellant.

Learned counsel for the claimants has submitted that no appeal has been preferred for enhancement of the award.

After hearing learned counsel for the parties and on the basis of materials available on record, it appears that Mohammad Rashid died in a road accident on 29.05.2004 at about 11:00 AM by a truck bearing registration no. BR-26G-1739, though the vehicle was insured vide Policy No. 118/53212 valid from 13.05.2004 to 12.05.2005 before the New India Assurance Company Limited, but in the written statement filed by the M/s New India Assurance Company Limited, Opposite Party no. 2 before the learned Tribunal, it has been categorically stated that the Insurance Company has to indemnify the insured, if it has a valid policy and there is no violation of the terms and conditions of the policy. Further, the owner, opposite party no. 1 may be directed to produced and prove the tax token, registration, fitness certificate of the said vehicle of the relevant period, failing which, it shall be presumed that there is statutory violation of terms and conditions of the Insurance Policy. On such condition, the opposite party in no way responsible for indemnifying the awarded amount of compensation. Further, the owner has no valid route permit for the alleged vehicle and as such this opposite party is not liable for paying any compensation.

The learned Tribunal has framed altogether 05 issues, which are re-produced hereunder:-

(i) Has the claimant any cause of action for this claim case?

(ii) Is the vehicle No. 26G/1739 met the alleged accident in which the deceased Md. Rashid died ?

(iii) Whether the Claimants are entitled for any claim?

(iv) Whether the insured / insurer is liable to pay the compensation? (emphasis supplied)

(v) Is the claimants are entitled for any relief of reliefs?

From perusal of record, it appears that claimant has only examined three witnesses, A.W.-1 Md. Yakub, A.W.-2 Anjum Ansari and A.W.-3 Sarwari Khatoon, Claimant herself.

The claimants have adduced some documentary evidence which are as follows:- Exhibit-1 Certified copy of F.I.R., Exhibit-1/1 Certified copy of Formal FIR of Kolebira P.S. 22/04, Exhibit-2 Certified copy of charge sheet of Kolebira P.S. 22/04, Exhibit-3 Postmortem report of deceased Md. Rashid, Exhibit-4 Insurance Certificate, Exhibit-5 Driving license, Exhibit-6 Photo copy of R.C. Book of vehicle No. B.R. 26G/17389, Exhibit-7 Photo copy of Permit (emphasis supplied) & Exhibit-8 Photo copy of Fitness Certificate.

All the issues have been decided in favour of the claimants. However, while discussing the Issue No. 4, the learned Tribunal has held as under:-

"This issue is one of the important issue of the case. As per averment of Opposite Party No. 1 the offending vehicle was duly insured with O.P. No. 2 i.e. The New India Assurance Company Ltd. under a policy bearing No. 118/53212 and the same is effective from 13.5.04 to 12.5.05 and the said accident had taken place on 29.5.04 it means the same is occurred during insured period so in my view the insured is not liable to pay any compensation. It further appears that the offending vehicle was insured with The New India Assurance Company Ltd with a valid insurance and the same is effective one from 13.5.04 to 12.5.05. On above discussion it appears that the New India Assurance is liable to pay any compensation. Accordingly, this issue is decided in favour of the claimant."

As such, this Court is not satisfied with the finding recorded by the learned Tribunal. There is a clear averment in the written statement of the Insurance Company, that owner has no valid route permit for the alleged vehicle. Further, the Opposite Party No. 2 seeks protection under the provision of Sections 147 and 149 of the Motor Vehicles Act, 1988. Though, learned Tribunal has not framed the issue, but learned Tribunal has adjudicated the same in paragraph-14 of the impugned order, which is profitably quoted hereunder:

"14. Learned counsel on behalf of Insurance Company submits that in this case route permit of the said offending vehicle is lapsed and in this respect he referred AIR 2004 Supreme Court 4882 in which the Hon'ble Court has held that plying of vehicle without valid permit-person without permit to ply vehicle cannot be placed at better pedestal vis-a- vis one who has permit, but has violated condition thereof Insurer consequently would not be liable to pay compensation. Contrary to it the learned counsel on behalf of the claimant referred (2009) 1 Supreme Court Cases (Cri) 204 in which the Hon'ble Apex Court has held where parts of a document have been relied on by both the parties the Claims Tribunal may rely on the same irrespective of whether the contents of the document have been proved or not. Further if the contents have been proved, the question of reliance thereupon only upon a part thereof and not upon the rest, on the technical ground that the same had not been proved in accordance with law wound not arise. Further held, insurance is mandatory under Section 147 (2) hence insurer would be liable to reimburse the insured to the extent of the damages payable by the owner to the claimants, subject to the limit of its liability as laid down in the Act or the contract of insurance. Further Section 147 of the Act is mandatory in character; the insurance company would statutorily be enjoined to indemnify the owner."

It appears that the learned Tribunal has taken note of the situation that vehicle, which was plying without any valid permit, but did not consider the judgment passed by the Apex Court in the case of Amrit Paul Singh and Another (Supra) (Para-24). The finding recorded by the learned Tribunal is not in consonance with the judgment passed by the Apex Court in the case of Amrit Paul Singh and Another (Supra) (Para-24), which is profitably quoted hereunder:

In the case at hand, it is clearly demonstrable from the materials brought on record that the vehicle at the time of the accident did not have a permit. The appellants had taken the stand that the vehicle was not involved in the accident. That apart, they had not stated whether the vehicle had temporary permit or any other kind of permit. The exceptions that have been carved out under Section 66 of the Act, needless to emphasise, are to be pleaded and proved. The exceptions cannot be taken aid of in the course of an argument to seek absolution from liability. Use of a vehicle in a public place without a permit is a fundamental statutory infraction. We are disposed to think so in view of the series of exceptions carved out in Section 66. The said situations cannot be equated with absence of licence or a fake licence or a licence for different kind of vehicle, or, for that matter, violation of a condition of carrying more number of passengers. Therefore, the principles laid down in Swaran Singh (supra) and Lakhmi Chand (supra) in that regard would not be applicable to the case at hand. That apart, the insurer had taken the plea that the vehicle in question had no permit. It does not require the wisdom of the"Tripitaka", that the existence of a permit of any nature is a matter of documentary evidence. Nothing has been brought on record by the insured to prove that he had a permit of the vehicle. In such a situation, the onus cannot be cast on the insurer. Therefore, the tribunal as well as the High Court had directed the insurer was required to pay the compensation amount to the claimants with interest with the stipulation that the insurer shall be entitled to recover the same from the owner and the driver. The said directions are in consonance with the principles stated in Swaran Singh (supra) and other cases pertaining to pay and recover principle.

Though the Apex Court in the case of Oriental Insurance Company Limited Vs. Premlata Shukla and Others reported in (2007) 13 SCC 476 has held at para-15, which is profitably quoted hereunder:-

"A party objecting to the admissibility of a document must raise its objection at the appropriate time. If the objection is not raised and the document is allowed to be marked and that too at the instance of a party which had proved the same and wherefor consent of the other party has been obtained, the former in our opinion cannot be permitted to turn round and raise a contention that the contents of the documents had not been proved and, thus, should not be relied upon."

Learned counsel for the appellant, Mrs. Nisha Thakur, has rightly raised that Insurance Company has taken such plea that there is a violation of terms and conditions of the policy. The owner may be directed to produce and prove the tax token, registration, fitness certificate of the said vehicle of relevant period, otherwise it shall be presumed that there is a statutory violation of terms and conditions of the insurance policy and in such condition the Insurance Company in no way responsible to indemnify the awarded amount of compensation. Further, Insurance Company has submitted that owner had not valid route permit for the alleged vehicle and Insurance Company is not liable for pay any compensation.

It appears from perusal of Exhibit-7 from lower court records, that it is a single page document, where on the face of it Exhibit-7 has been marked, meaning thereby that entire document has been proved.

Under the aforesaid circumstances, this Court is of the opinion that non-production of the relevant document by the owner of the offending vehicle, pursuant to the written statement filed by Insurance Company for a direction to the owner to produce the same. The Insurance Company has discharged its duty and that's the reason the learned Tribunal though has not framed specific issue, but discussed the same in Issue No. (iv) and taken note at paragraph-14 of the impugned judgment, but committed an error in not adjudicating fact, that use of vehicle at public place without a permit is a fundamental statutory infraction.

Under the aforesaid circumstances, this Court considering the judgment passed by the Apex Court in the case of Oriental Insurance Co. Ltd. Vs. Nanjappan & Others reported in (2004)13 SCC 224 is inclined to grant right to recover in favour of the Insurance Company against the Owner of the Offending Vehicle.

Accordingly, the appeal is hereby allowed.

So far computation of compensation is not under challenge before this Court, as such, this Court restrain from interfering with the same. The impugned judgment is modified to the extent that after indemnifying the awarded amount by the New India Assurance Company Limited (appellant) in terms of the judgment passed by the learned Tribunal, the same shall be recovered from the owner of the offending vehicle by the Insurance Company.

Since the accident took place in the year 2004 i.e. on 29.05.2004, it is incumbent upon the Insurance Company to indemnify the award as soon as possible as the poor claimants are the sufferer of such road accident for last 17 years and thereafter, the Insurance Company shall recover the same from the owner of the vehicle.

The statutory amount deposited by the Insurance Company shall be remitted to the learned Tribunal by the Registrar General of this Court within a period of four weeks, so that the Insurance Company shall indemnify the part of award and rest amount shall be indemnified by the Insurance Company within a reasonable period.

Let the LCR be sent down.