United India Insurance Company Ltd. vs Smt. Chandra Bisht and Others

B.C. Kandpal, J.—This appeal u/s 173 of the Motor Vehicles Act, 1988 has been filed by the appellant/Insurance Company against the judgment and award dated 01.04.2008 passed by Motor Accident Claim Tribunal/District Judge, Champawat in Motor Accident Claim Case No. 12 of 2006, Smt. Chandra Bisht and Ors. v. Imran Husain and Ors.

Brief facts of the case are that on 24.06.2006, the deceased Chakra Bahadur Bisht along with his wife Smt. Chandra Bisht was travelling by Mahindra Jeep (Delivery Van) No. UP24B/4778 from Banbassa to Pillibhit for medical treatment of his wife Smt. Chandra Bisht. When the said vehicle reached near Mohalla Civil Lines, District Pilibhit, the said vehicle met with an accident, due to rash and negligent driving of its driver. The deceased - Chakra Bahadur received serious injuries and afterwards succumbed to injuries. At the time of the accident, the deceased was 28 years of age and was working as a Head Constable in the Government of Nepal and used to earn Rs. 97,103.10 per annum. Hence, an amount of Rs. 18,50,000/- was claimed as compensation.

Thereafter notices were issued to the opposite parties. In spite of sufficient service of notice, the opposite party No. 1 - owner of vehicle No. UP24B/4778 did not appear before the court below, hence, the claim petition proceeded ex- parte against him. The opposite party No. 2/United India Insurance Company Ltd. contested the claim petition by filing written statement before the Tribunal and denied the allegations. The notices were served upon respondent Nos. 3 to 5 through publication but they did not put in appearance and the court below proceeded ex-parte against them.

On the basis of the pleadings of the parties, the Tribunal has framed relevant issues in the claim petition. Therefore, both the parties led evidence in support of their cases. After hearing learned Counsel for the parties and perusing the entire material available on record, the Tribunal decreed the claim petition for a sum of Rs. 7,08,620/- and also directed that the amount paid within forty days vide judgment and award dated 01.04.2008 and in default interest @ 8% per annum shall be paid from the date of award till the final payment.

Feeling aggrieved by the aforesaid judgment and award, the appellant/Insurance Company has preferred this appeal before this Court.

Heard Sri D.S. Patni, learned Counsel for the appellant, Sri Kishore Kumar, Advocate, holding brief of Sri D.D. Bhatt, learned Counsel for the respondent Nos. 1 to 5, Sri D.K. Sharma, learned Counsel for the respondent Nos. 6 to 8 and perused the record.

As far as the factum of accident is concerned, the finding recorded by the Tribunal that the accident took place on account of the rash and negligent driving of the driver of the Mahindra Jeep No. UP24B/4778 appears to be perfectly justified and I am in total agreement with the findings recorded by the Tribunal in this regard.

Learned Counsel for the appellant has submitted before the Court that the Tribunal has held that the deceased was travelling in the vehicle in question as a gratuitous passenger and in spite of that, the Tribunal has imposed the liability upon the Insurance Company and gave the recoverable right from the owner of the vehicle.

In order to resolve the sole controversy, I have gone through the entire record available before me. As far as this direction issued by the Tribunal that the Insurance Company shall pay the amount of compensation to the claimant but shall have a recoverable right of the amount of compensation from the owner of the vehicle, is concerned that does not appear to be justified in view of the latest judgment of the Hon''ble Apex Court in National Insurance Company Ltd. v. Prema Devi and Ors. reported in 2008 (2) Scc 205. The Hon''ble Apex Court in the aforesaid case has held in paragraph Nos. 14 to 17, which reads as under:

The inevitable conclusion, therefore, is that provisions of the Act do not enjoin any statutory liability on the owner of a vehicle to get his vehicle insured for any passenger travelling in a goods carriage and the insurer would have no liability therefor.

Our view gets support from a recent decision of a three-Judge Bench of this Court in New India Assurance Company Ltd. v. Asha Rani and Ors. 2002 (8) Supreme 594 in which it has been held that Satpal Singh''s case (supra) was not correctly decided. That being the position, the Tribunal and the High Court were not justified in holding that the insurer had the liability to satisfy the awards.

This position was also highlighted in Oriental Insurance Company Ltd. Vs. Devireddy Konda Reddy and Others etc. etc. and Jogi Subbamma and Others etc. etc., . Subsequently also in National Insurance Co. Ltd. Vs. Ajit Kumar and Others, , in National Insurance Co. Ltd. Vs. Baljit Kaur and Others, and in National Insurance Company Ltd. v. Bommithi Subbhayamma and Ors. 205 (12) SCC 243, the view in Asha Rani''s case (supra) was reiterated.

Above being the position, the impugned order of the High Court is not sustainable and is set aside. It is open to the claimant to recover the amount awarded from the owners of the offending vehicles.

In the instant case, it is not disputed that the deceased was travelling as a gratuitous passenger in the vehicle, which met with an accident. The offending vehicle in question was a delivery van, hence, it was being used for light goods carriage vehicle. The deceased was working in the Nepal Government as a Head Constable and was travelling in the vehicle along with his wife as a gratuitous passenger. There was no insurance for the vehicle in question with regard to the carriage of the passengers at the time of the accident. The Tribunal has also assessed the entire evidence in this regard and has come to the conclusion that the deceased had been travelling as a gratuitous passenger at the time of the accident. Thus, it is a clear-cut case, which indicates that there was a violation of insurance policy in the instant case.

In view of the aforesaid circumstances as well as in the light of the judgment of the Hon''ble Apex Court, the judgment and award passed by the Tribunal is liable to be modified to an extent that instead of paying the amount of compensation by the Insurance Company, it will be the liability of the owner of the vehicle to pay the amount of compensation to the claimants. The direction recorded by the Tribunal in the impugned judgment and award to this regard is hereby set aside. It is open to the claimants/respondents to recover the amount, so awarded, from the owner of the offending vehicle. However, if any amount deposited by the Insurance Company with the Tribunal concerned, the same shall be given to the Insurance Company on moving an application in this regard.

For the reasons stated above, the appeal partly allowed. The impugned judgment and award is modified upto an extent that the instead of paying the amount of compensation by the appellant/Insurance Company, it will be the liability of the owner of the vehicle to pay the amount of compensation to the claimants.

The statutory amount deposited by the appellant before this Court be remitted to the Tribunal concerned.