National Insurance Co. Limited vs Ravinder Goyal and Others

G.R. Majithia, J.—National Insurance Company Ltd. aggrieved against the award of the Motor Accidents Claims Tribunal, Karnal (hereinafter the ''Tribunal'') dated March 9, 1987 has come up in appeal to this Court.

This appeal came up for motion hearing on June 14, 1987 and the Bench passed the following order :-

"Admitted D.B Execution against the appellant is stayed meanwhile."

It is how this appeal has been placed before us for disposal.

The claimant, Ravinder Goyal, was travelling as an owner of the oil canisters loaded in the four-wheeler Tempo No. HYL-187 being driven by respondent-Harish Kumar son of Sultan Khatri. On December 9, 1985 at about 6.00 p.m., canisters of oil were loaded in that tempo from Gur Mandi, Karnal for being transported to Chandigarh. The Tempo was owned by respondent -Mohinder Singh and was insured with the appellant. Besides, the Tempo driver, tempo cleaner Kala and the owner of the cargo Ravinder Goyal were travelling in that tempo. The tempo left Karnal at 10.00 p.m. on December 9, 1985 for Chandigarh. As this tempo reached near Shamgarh on the G.T. Road, another truck was going ahead of it. The truck driver applied breaks to its vehicle suddenly but the tempo driver could not apply brakes to his tempo and since Harish Kumar, driver, was driving the tempo rashly and negligently ; tempo No HYL-J87 banged into the truck moving ahead of it; and as a result of the impact of the accident all the three occupants of the tempo received injuries. They were shifted to Civil Hospital, Karnal. Of them, Kala, tempo cleaner succumbed to his injuries on the following day, Ravinder Goyal, claimant, filed a claim petition before the Tribunal claiming a compensation of Rs. 3,00,000/-.

The claim petition was registered by the driver and owner of the offending vehicle, i.e. Tempo No. HYL 187 and the appellant (the insurance company). The driver of the tempo, apart from raising preliminary objections, namely, that proper parties were not joined as parties to the claim petition, the petition had not been properly signed and verified by the claimant and the number of the truck which was involved in the accident, was not disclosed, denied the allegations in the petition. Owner of the offending vehicle in a separate written statement took identical pleas as were taken by the driver.

The Insurance Company in its written statement'' pleaded that the accident in question had taken place due to rash and negligent driving and suddenly applying of brakes by the driver of the un-known truck, who is liable to satisfy the claim; that the claimant had got no locus standi to maintain and file the claim petition and that in any case the liability of insurance company was limited to the extent of Rs. 1,50,000/- ; that the F.I.R. was registered in collusion with the police ; that the claimant had not suffered any grievous injury of permanent nature and the claim was highly excessive; that the tempo driver was driving the vehicle on left side of the road; that when the truck driver suddenly applied the brakes, the tempo driver also at once tried to apply brakes but the time and distance was so short that the accident could not be averted and that the accident is the result of rash and negligent driving of the truck driver.

From the pleadings of the parties, the following issues were framed by the tribunal.

Whether Kala died because of the rash and negligent driving of Tempo No. HYL-187 by respondent Harish Kumar as alleged ? OPP

To what amount of compensation, if any, the claimants are entitled and from whom ? OPP

Whether the petition is bad for nonjoinder of necessary parties ? OPR

Whether the petition is bad for misjoinder of parties ? OPR

Whether the petition is time barred ? OPR

Whether the petition is not maintainable in the present form ? OPR

Whether the liability of the respondent No. 3 is limited under the Insurance Policy, Motor Vehicles Act and Workmen''s Compensation Act ? OPR

Whether the tribunal has no jurisdiction to try the present petition ? OPR

Whether the driver of the offending tempo was not holding a valid driving licence at the time of accident ? OPR

Whether the claimants are estopped to file the present petition by their own act and conduct 7 OPR

Relief.

Issue No. 1 was decided in favour of the claimant; issue No. 2 was decided in favour of the claimant and it was held that he was entitled to compensation in the sum of Rs. 63,700/- and that the driver and owner of the offending Tempo No. HYL-187 and the appellant were jointly and severally liable to pay compensation; issues No. 3, 4, 5 and 6 were decided against the respondents and in favour of the claimant, and it was held that the driver of the tempo was holding a valid driving licence at the time of the accident and the Insurance Company was also liable to pay the amount of compensation.

At the time of hearing, the learned counsel for the appellant did not dispute the occurrence and the manner in which it had taken place. He also did not assail the correctness of the compensation amount awarded to the claimant. His only contention is that the liability of the Insurance Company is not covered under clause (b) of sub-section (1) of Section 95 of the Motor Vehicles Act, 1939 (for short, the Act). He submits that under sub-section (1) of Section 96 of the Act, the Insurance Company was liable to satisfy only such awards which were in respect of a liability required to be covered by a policy under clause (b) of sub-section (1) of Section 95 of the Act. If the liability was not covered by the said provision, the question of any payment by the Insurance Company pursuant to any judgment by a Tribunal or Court did not arise. The risk in respect of the deceased was not covered nor it was required to be covered u/s 95 (1) (b) of the Act because he was not travelling in the goods vehicle by reason of or in pursuance of any contract of employment. In support of his submission, he relied upon Oriental Fire and General Insurance Co. Ltd. v. Gurdev Kaur 1967 69 P.L.R. 461 a Full Bench decision of this Court in Des Raj Angra v. Oriental Fire & General Insurance Co. Ltd. Chandigarh 1985 87 P.L.R. 543 a Full Bench decision of the Bombay High Court in Oriental Fire & General Insurance Co. Ltd., Solapur v. Hirabhai Vithal Nikam 1988 (2) A.C.J. 435 a Full Bench decision of the Karnataka High Court in National Insurance Co. Ltd. Vs. Dundamma and others, .

There is no dispute that these authorities support the submission made by the learned counsel for the appellant. However, it was obligatory for the Insurance Company to plead that it was not liable to pay the claim in view of the provisions of Section 95 (1) (b) read with Section 96(1) of the Act. If this plea had been taken before the Tribunal, the claimant would have had an opportunity to rebut it and an issue would have been struck and the claimant would have the opportunity to lead evidence that the insurance company was liable. The Insurance Company cannot be allowed to raise this question as an abstract question of law in first appeal.

Identical point was raised by the insurance company in National Insurance Co. Ltd. and Anr. v. Smt. Subhash Kumari and Ors. 1989 96 P.L.R 512 and S.S. Sodhi, J. repelled the submission by observing thus :-

"Faced with this situation, counsel for the Insurance Company sought to take up an entirely new plea, namely, that according to the terms of the Insurance Policy, the Insurance Company was not liable in the case of death or bodily injury to the goods being carried in the tempo. It is for the first time in appeal here that such a point has been sought to be raised. If. would clearly be contrary to the interests of justice to permit this to be done as it would patently cause prejudice to the claimants. The Insurance Company cannot, therefore, be heard to take up this ground at that stage."

Again, this question arose in Dalbir Singh Vs. Smt. Krishna and Others, . before a Division Bench of this Court. In that case, the Tribunal directed that the compensation amount be paid by the owner and the driver of the offending vehicle. Claim petition against the Insurance Company was dismissed. The claimant had assailed the award of the Tribunal in this Court only on the ground that the Insurance Company was liable. The facts of that case are pari material with the facts of the instant case. In that case the deceased was travelling in a goods vehicle. The heirs of the deceased moved a claim petition before the Tribunal. The Insurance Company in its written statement denied that the vehicle was ever insured with it. The Tribunal held that the deceased was travelling in a goods vehicle and the Insurance Company was not liable to pay compensation. This part of the award of the Tribunal was assailed in this Court and this Court held thus :-

"After hearing the learned counsel for the parties and going through the records and the insurance policy, we find that view taken by the Tribunal was wholly wrong It could not be disputed that no such plea was taken on behalf of the insurance company in its written statement, nor there was any such issue. claimed. In the absence of any plea and the evidence, it could not be held that the insurance company was not liable to pay the compensation. As observed earlier, the insurance company even denied that the yellow coloured vehicle, No. HYH-1879, was insured with it, but in the presence of the insurance policy produced on the the record, this could no More be disputed "

In the instant case, since the Insurance Company did not take any plea in the written statement before the Tribunal, no issue was framed on this point. Thus, the claimant had no opportunity to meet the plea which is now sought to be raised. We do not think it proper to allow this plea to be raised at this stage in the light of the dictum in Dalbir Singh''s ease (supra).

For the reasons stated above, F.A.O. No. 659 of 1987 fails and is dismissed, but with no order as to costs.

No useful arguments were addressed in support of the cross-objections. We find no merit in them and dismiss the same.