United India Insurance Company Limited vs Prathimadevi and Others

R.S. Chauhan, J.—1. The United India Insurance Company Limited has challenged the legality of the award dated 7-11-2009 passed by the Fast Track Court and Additional M.A.C.T. (11), Bhadravathi, in M.V.C. No. 37 of 2003, whereby the learned Tribunal has directed the appellant - Insurance Company to pay 50% of the compensation of Rs. 4,67,000/- to respondents No. 1 to 4.

The brief facts of the case are that one T. Ramesh, husband of respondent No. 1, father of respondents No. 2 and 3, and the son of respondent No. 4, was driving a lorry bearing Registration No. KA-14/8735 near Channagiri Micro Station on 28-9-2002. While he was driving the lorry, another tipper lorry, bearing Registration No. KA-07/3857, being driven rashly and negligently, came and dashed against the lorry driven by T. Ramesh. Due to the collision, T. Ramesh sustained injuries and died on the spot. Since respondents No. 1 to 4 lost the sole bread earner of the family, they filed a claim petition before the learned Tribunal.

In the claim petition, respondent No. 1 pleaded that she was the owner of the lorry bearing Registration No. KA-14/8735 which was insured with the appellant -Insurance Company. On the other hand, the appellant -Insurance Company did not examine either any witness, or submit any document. The Insurance Company of the offending vehicle namely, the New India Assurance Company Limited, examined a single witness, and did submit five documents. After going through the oral and documentary evidence, the learned Tribunal concluded that the accident was not caused only due to the negligence of the tipper lorry, but it was equally caused due to the negligence of T. Ramesh himself. Therefore, the learned Tribunal concluded that it is a case of contributory negligence. Hence, the learned counsel directed the appellant - Insurance Company to pay 50% of the compensation amount to the respondents. Hence, the present appeal before this Court.

Mr. B.C. Seetharama Rao, the learned counsel for the appellant - Insurance Company, has relied upon the case of M/s. Oriental Insurance Company Limited v. Sunita Rathi and Others (, AIR 1998 SC 257) for raising a single contention, namely that unless and until the learned Tribunal had found the owner of the lorry driven by T. Ramesh liable to pay the compensation, since she is the insured person, the Insurance Company cannot be held liable to pay the compensation. According to the learned counsel, the learned Tribunal has not held the owner of the lorry driven by T. Ramesh as liable to pay the compensation. Thus, the appellant - Insurance Company cannot be held liable to pay 50% of the compensation.

On the other hand, the learned counsel for respondents No. 1 to 4, has pleaded that under Section 167 of the Motor Vehicles Act, 1988 (for short, ''the Act''), it was the option, and it was open for the claimants -respondents to file their claim petition either under the Act, or under Workmen''s Compensation Act. Therefore, they were justified in filing the claim petition under the Act. In order to buttress his plea, the learned counsel has relied upon the case of The National Insurance Company Limited v. Siddappa and Another (, ILR 2004 KAR 331), and on the case of The National Insurance Company Limited v. Prembai Patel and Others (, 2005 ACJ 1323).

Secondly, an anomalous situation has arisen as respondent No. 1 happens to be under the twin capacities, being the owner of the lorry as well as the claimant. Therefore, she could not have been held liable to pay the compensation to herself. Therefore, the learned Tribunal was justified in directing the appellant - Insurance Company to pay 50% of the compensation to the respondents, who happens to be the rightful claimants. Therefore, the learned counsel for the respondents has supported the impugned award.

Undoubtedly, an Insurance Policy is a contract between the Insurance Company and the insured. The Insurance Company is liable to indemnify the insured only when the liability to pay the compensation is imposed on the insured as in the case of Sunita Rathi (supra). However, in the impugned award, the learned Tribunal has not held the owner of the vehicle driven by T. Ramesh, namely respondent No. 1 liable to pay the compensation. Therefore, obviously, the appellant - Insurance Company cannot be held liable to indemnify the compensation to respondent No. 1. Hence, the contention raised by the learned counsel for the appellant - Insurance Company is worthy of acceptance.

As far as contention raised by the learned counsel for the respondents are concerned, they are highly misplaced: firstly, the issue before this Court is not whether the claimants had a right to file their petition under Section 167 of the Act or not? Therefore, the reliance placed by the learned counsel on the case of Mr. Siddappa and on the case of Mr. Prembai Patil (supra) is highly misplaced.

Secondly, even if the anomalous situation does exist that respondent No. 1 would have to pay the compensation to herself, the learned Tribunal would be justified in merely holding the Insurance Company of the tipper lorry as liable to indemnify the owner of the tipper lorry, and to direct the owner of the tipper lorry to pay 50% of the compensation amount to the claimants.

For the reasons sated above, the appeal is hereby allowed. The impugned award dated 7-11-2009 qua the appellant - Insurance Company is set-aside to the extent that the claimants - respondents shall be entitled to claim only 50% of Rs. 4,67,000/- from respondents No. 7 and 8, namely the New India Assurance Company Limited, and from the legal representatives of Mr. Ayub Khan.

The amount deposited by the appellant - Insurance Company shall be returned back to the appellant forthwith.