Oriental Insurance Co. Ltd. and Others vs Dhanwanti Devi and Others

J.P. Singh, J.—Common questions of law and fact arise for consideration in these appeals arising out of award dated 23rd of December,

2005 of Motor Accidents Claims Tribunal, Jammu allowing Claim Petitions in File Nos. 260/Claim, 261/Claim, 259/Claim, 361/Claim, 37/Claim,

207/Claim and 239/Claim. These appeals, taken up for joint consideration with the consent of learned Counsel for the parties, are being disposed

of by this judgment.

Facts giving rise to the filing of these appeals may be stated thus:

Bus No. JK02D-7077 was on its way from Jammu to Banihal on 16-06-2000 when at about 4.45a.m, it met with an accident near Nandni

National Highway because of the rash and negligent driving of the Bus by one Muzaffar Hussain, its driver.

M/s Laleshwar Sardar, Maqbool Ansari, Jamal Ansari, Malok Masih, Ram Chand & Balwant Masih died in the accident whereas Harjinder Singh

received injuries on his head and leg.

Claim Petition No. 260 was preferred by Dhanwanti Devi, the widow, Master Santosh Kumar, the minor son and Baby Surjita Kumari, the minor

daughter of deceased Laleshwar Sardar.

Claim Petition No. 261 was preferred by Mrs. Zalmun Khatoon, the widow, Baby Afsana Khatoon & Ruksaana Khatoon, minor daughters and

Master Jandin Ansari, the minor son of Late Maqbool Ansari.

Claim Petition No. 259 was preferred by Sahanara Khatoon, the widow and Rajeena, the minor daughters of late Jamal Ansari.

Claim Petition No. 361 was preferred by Mangat Masiah and Bimla Devi, the parents of Malok Masiah.

Claim Petition No. 37 was preferred by Harjinder Singh for compensation in respect of the injuries received by him in the accident.

Claim Petition No. 239 was preferred by Anait Masih & Smt. Ailas Masih, father and mother of deceased Balwant Masih, Miss Anwar, Miss

Nirmal, sisters, and Salwinder Masih, brother of deceased Balwant Masih.

The Claims Tribunal allowed these Claim Petitions awarding an amount of Rs. 3,78,600/- in Claim Petition No. 260, Rs. 4,47,648/- in Claim

Petition No. 261, Rs. 4,02,600/- in Claim Petition No. 259, Rs. 2,52,940 in Claim Petition No. 361, Rs. 30,000/- in Claim Petition No. 37, Rs.

2,07,000/- in Claim Petition No. 239.

Before awarding compensation to the claimants, the Tribunal, in order to resolve the issues arising out of the pleadings of the parties raised four

issues which read thus:

(1) Whether an accident took place on 16-6-2000 at Jhajjar Kotli due to rash and negligently driving of the offending Vehicle No. JK02D/7077

by its driver respondent No. 2 in which deceased namely Laleshwar Sardar, Maqbool Ansari, Jamal Ansari, Malok Massih, Balwant Massih and

Ram Chand have died and the petitioner Harjinder Singh sustained grievous injuries? OPP

(2) If issue No. l is proved in affirmative whether petitioners in each case are entitled to the compensation; if so of what amount and from whom ?

OPP

(3) Whether driver of offending vehicle at the time of accident was not holding a valid driving licence at the time of accident? OPR-3

(4) Relief. O.P. Parties

Appreciating the evidence led in the case, the Tribunal held that the accident had taken place on 16-06-2000 at Jajjar Kotli due to the rash and

negligent driving of Vehicle No. JK02D-7077 by its driver Muzaffar Hussain. Finding no substance in the evidence led by the appellants, the

Tribunal decided issue No. 3 against the appellant's Insurance Company. While deciding issue No. 2, the claims were allowed awarding

compensation to the claimants as mentioned in the preceding paragraph.

Oriental Insurance Company Limited has filed Appeal Nos. 103/2006, 104/2006, 105/2006, 106/2006, 107/2006 & 108/2006 arising out of

claims allowed in Claim Petition Nos. 260/Claim, 261 /Claim, 259/Claim, 361 /Claim, 37/Claim&239/Claim.

Appearing in support of the appeals, Mr. D.S. Chouhan, learned Counsel for the appellant vehemently argued that the Insurance Company was

not liable to indemnify the owner of the vehicle whose driver had caused the accident resulting in death and injury to those who had been travelling

in it. Elaborating his submission, Mr. Chouhan submits that the vehicle insured with the company could carry only 42 passengers whereas at the

time of the accident it had been found to carry much more than the permissible load which according to the learned Counsel had contributed to the

accident. Learned Counsel, therefore, argues that the vehicle had been driven by the owner against the terms and conditions of the Insurance

Policy thus disentitling the owner to seek indemnification.

Learned Counsel appearing for the claimants, on the other hand, submitted that neither any evidence had been led by the Insurance Company to

prove that the vehicle had been driven in excess of its permitted load capacity and neither any specific term or condition of the Insurance Policy

had been pleaded, proved or shown to have been infringed which may absolve the company of its liability to indemnify the owner and pay the

compensation awarded by the Tribunal. Learned Counsel for the claimants submitted that the Insurance Company could avoid its liability to satisfy

the award of the Tribunal only if it had established that the owner had violated any of the conditions appearing in Section 149(2) of the Motor

Vehicles Act, 1988.

I have considered the submissions of learned Counsel for the parties and gone through the provisions of Section 149 of the Motor Vehicles Act,

1988.

Section 149(2) of the Motor Vehicles Act, 1988 permits the Insurance Company to avoid a claim for compensation arising out of the use of the

Motor Vehicle on any of the grounds which are as follows:

(a) that there has been breach of a specified condition of, the policy, being one of the following conditions, namely:

(i) a condition excluding the use of the vehicle-

(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle not covered by a permit to ply for hire or reward, or

(b) for organized racing and speed testing, or

(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or

(d) without side-car being attached where the vehicle is a motor cycle; or

(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been

disqualified for holding or obtaining a driving licence during the period of disqualification; or

(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotion; or

(b) that the policy is void on the ground that it was obtained by the nondisclosure of a material fact or by a representation of fact which was false in

some material particular.

In other words, the liability could be avoided by an insurer only if it could bring its case in any of the conditions prescribed u/s 149(2) of the Motor

Vehicles Act, 1988. The Insurance Company cannot avoid its liability to pay compensation arising out of the use of Motor Vehicle for any other

violation. This view finds support from National Insurance Co. Ltd. Vs. Swaran Singh and Others, and this Court judgment in AIR 2006 (2) JKJ

698 titled Oriental Insurance Company Limited v. Allahdin and Ors. Over-loading of a motor vehicle does not attract the breach contemplated by

Section 149(2) of the Motor Vehicles Act.

Plea raised by Mr. Chouhan that the vehicle was over-loaded and the insurer was not liable to compensate the claimants by indemnifying the

owner is thus rejected.

That apart, the appellant had neither pleaded nor proved as to which condition of the insurance policy had been violated in the present case. That

being the case, the plea raised by the appellant that the owner had violated the terms of the policy also does not need any consideration.

The only plea raised by the appellant in these present appeals to avoid the liability of the insurance, having failed, there is no merit in these appeals

which are accordingly dismissed.

A copy of this judgment shall be placed on each file.