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FA/211320/2009 12/ 12 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 2113 of 2009
To
FIRST
APPEAL No. 2114 of 2009
With
CIVIL
APPLICATION No. 5573 of 2009
To
CIVIL
APPLICATION No. 5574 of 2009
=========================================================
IFFCO
TOKIO GENERAL INSURANCE CO LTD - Appellant(s)
Versus
FULABEN
RAKESHBHAI PAVAR & 7 - Defendant(s)
=========================================================
Appearance
:
MR
AJAY R MEHTA for
Appellant(s) : 1,
None for Defendant(s) : 1 -
8.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 12/05/2009
ORAL
ORDER
1. Heard
learned advocate Mr.A.R.Mehta for the appellant Insurance Co.
2. In
present appeals, the appellant Insurance Co. has challenged the
common award passed by MAC Tribunal, Navsari in MACP Nos.211 and 212
of 2007, Exh.59, dated 24.9.2008 whereby the claims Tribunal has
awarded Rs.3,47,000/- with 9 % interest in both the cases in favour
of respondents claimants.
3. Learned
advocate Mr.Mehta has raised contention that claims Tribunal has
committed gross error in directing the Insurance Co. to first pay the
amount of compensation to the claimant and then to recover from the
owner. He submitted that this question is pending before the Apex
Court, whether such direction can be given by the claims Tribunal /
the High Court against the Insurance Co. to pay the amount of
compensation and to recover from the owner. He also raised contention
that on the date of accident, driver was not having valid licence and
this being an undisputed fact on record, even though the claims
Tribunal has directed the Insurance Co. to pay the amount of
compensation to the claimants and to be recovered from the owner. He
also raised contention that there is no clear cut exoneration of the
Insurance Co., even there is no clear direction to recover the said
amount from the owner in filing execution proceedings. Therefore, to
recover the amount from owner, long proceeding is required in absence
of such direction. He relied upon the decision of the Apex Court in
case of National Insurance Co. Ltd.v. Vidhyadhar Mahariwala and
others reported in 2008 ACJ 2860 and in case of Ram Babu Tiwari
reported in 2008 ACJ 2654. Relying upon aforesaid two decisions, he
submitted that in both the cases on the date of accident, driver was
not having valid licence and therefore, the Apex Court has in terms
held that Insurance Co. Is not liable to pay compensation to the
claimants. Except that, no other submission is made by learned
advocate Mr.Mehta.
4. I
have considered the submissions made by learned advocate Mr.Mehta and
also considered two decisions cited by learned advocate Mr.Mehta. The
accident occurred on 28.7.2007 where two persons Rakeshbhai and
Rajeshbhai died in the said accident when they were going for service
in Forest Department on Motorcycle bearing No.GJ-17-P-5375 at
Samaghan Range and while coming to that work of place they went to
Saputara along with other officers of the Forest Department for
inquiring they went to Thanapada. During the process of going to
Thanapada from Saputara to Borgav, Taluka- Surgana, District
Nasik at about 5.00 to 6.00 hours, one truck bearing No.GJ-15-Z-2786
came from opposite side which was driven by opponent No.1 rashly and
negligently and dashed to the motorcycle from back side and due to
that impact of truck, both persons received serious injuries and
while going to hospital, they died in the said accident. Accordingly,
FIR was lodged against the driver of said truck at Surguna Police
Station. The driver of the truck was not having valid licence for the
period 23.4.2004 to 22.4.2007. Vide Exh.16 copy of driving licence
given by RTO where opponent No.1 driver was having driving licence
for non-transport vehicle. Thereafter, for the period from 23.4.2004
to 22.4.2007 the driver was also having licence for transport vehicle
but, on the date of accident 28.7.2007, this licence was not
renewed by him and there was no evidence on record by the driver but
considering, Exh.47 a certificate which was given and according to
that, this licence was renewed on 21.8.2007 to 20.8.2010. Therefore,
claims Tribunal has in terms come to conclusion that on the date of
accident, driver was not having valid licence. The appellant has not
examined any witness but considering the policy period from 9.3.2007
to 8.3.2008, the date of accident is covered means on the date of
accident policy was in existence which was produced vide Exh.56
before claims Tribunal. The claims Tribunal has in terms come to
conclusion that opponent no.1 – driver of truck was driving his
truck rashly and negligently and due to his rash and negligent
driving, said truck dashed with motorcycle from back side which
resulted into death of two persons, who were riding motorcycle. The
claims Tribunal has considered Panchnama, FIR and also the evidence
of claimants and come to conclusion that accident occurred due to
rash and negligent driving of opponent No.1. The driver and the
owner remained absent before claims Tribunal in spite of the fact
that summons were received by them. These are the facts on record
before the claims Tribunal.
5. Now
the contention raised by learned advocate Mr.Mehta relying upon two
decisions of the Apex Court in case of Ram Babu Tiwari (supra).
According to that facts, on 27.1.1996 the deceased Rajendra Singh and
Balaram along with others were travelling by a truck bearing
registration No.MP 06 E 0129 with their buffaloes on 27.1.1996 from
Agra to Vidisha. It met with an accident having been hit by a
tractor-trolley bearing registration No.MP-6-J-7506. Rajendra Singh
died on the spot whereas Balaram was seriously injured in the said
accident. He was admitted in a hospital at Gwalior where he succumbed
to his injuries. The contention raised that driver of the tractor did
not have any valid and effective driving licence to drive said
vehicle on the said date of accident. Thereafter, issues have been
framed whether terms of the insurance policy has been violated in
this case. The finding given by the claims Tribunal in negative.
5.1 In
second case, the facts are not disclosed by the Apex Court as factual
position in detail need not to be indicated because the issue relates
to the liability of the insurance company as the driving licence was
not valid on the date of accident.
6. Now
considering the facts of this case, the driver of the truck was not
having valid licence but, two persons those who have died, were the
third party. It cannot be disputed by the Insurance Co. advocate
that these two persons are not third party. Therefore, question is to
be examined by this Court under Section 147 of the MV Act that if
accident occurred as a vehicular and if third party is died in the
said accident, whether the Insurance Co. has statutory liability or
not. This question was not examined in two decisions which have been
relied by learned advocate Mr.Mehta. If any vehicle if it is put on
road for driving by any driver, whether he having the licence or not.
But because of that vehicle if third party receives injury or died,
then it considered to be a statutory liability of the Insurance Co.
if on the date of accident, the insurance was in existence. If
default committed by the owner of the vehicle handed over the
possession of the vehicle to the driver, who was not having valid
licence then it is a breach of condition committed by the owner of
the vehicle and not by the third party. So, the appellant
Insurance Co. cannot raise contention that for third party, the
Insurance Co. is not liable to pay compensation and only the owner
insured is duty bound to pay compensation. If that contention is
allowed by this Court then there is no purpose to have a statutory
liability and contractual liability of Insurance Co. There is vast
difference between the contractual and statutory liability of the
Insurance Co. under Section 147(1) of the MV Act. A vehicle which is
not insured means compulsory insurance required for safeguarding the
interest of the third party so, at least, third party can get the
relief from the Insurance Co. in case if the accident occurred by
vehicle.
7. In
light of this background, the view taken by the Apex Court in case of
Samundra Dev & Ors. v. Narendra Kaur & ors. reported in AIR
2008 SC 3205 wherein the Apex Court has considered Section 147 and
148 of the MV Act and held that in respect to third party risk,
liability fastened on insurer and insurer would be bound to indemnify
insured unless exceptions provided in Section 149 are attracted. In
facts of that case, one Shiv Shakti Singh while proceeding in a car
on 9.4.1988 met with an accident having been hit by a truck bearing
registration No.MP-09-KA-6899. The said truck was owned by the first
respondent herein and was being driven at the relevant time by the
second respondent. The said truck was insured with the respondent
No.3. As a result of the injuries sustained in the said accident,
Shiv Shakti Singh died. The car was also damaged. In light of
aforesaid background, the Apex Court has examined the question of
liability of Insurance Co. and held that Insurance Co. is liable to
pay compensation to the claimant and then to recover from the owner.
Relevant observations made by the Apex Court in aforesaid decision
are in Para.15 which is quoted as under :
15.
It has not been disputed before us that in certain situations while
opining that the insurance company would not be liable to reimburse
the insured, a direction upon the insurance company to pay the amount
of compensation to a third party and recover the same from the owner
of the vehicle is permissible. Such a direction has been issued by
the High Court. The said directions are not under challenge.
Keeping
in view the aforementioned principle in mind, the question which
arises for our consideration is as to whether it was permissible for
the High Court to interfere with the quantum of compensation as
awarded by the learned Tribunal, although no appeal was preferred
either by the owner or the driver of the vehicle nor any appeal was
preferred by the insurance company.
7.1 In
this case also, the Apex Court has given liberty to Insurance Co. to
recover the amount of compensation from the owner of the vehicle.
8. The
view taken by the Apex Court in case of Oriental Insurance Co. ltd.
v. Zaharulnisha & Ors. reported in 2008 AIR SCW 3251 that in
respect of liability of insurer, third party risk, statute raises
legal fiction that insurer would be deemed to be a judgment-debtor in
respect of liability. The liability of insurer insurer can defend
action or any of grounds mentioned in Section 149(1). The liability
of insurer- violation of provisions of Act may result in absolving
insurers. But same may not necessarily hold good in case of third
party. The liability of insurer to satisfy decree passed in favour
third party is statutory.
9. In
view of the aforesaid observations made by the Apex Court in both the
cases and considering the fact that both the persons, those who are
died, are third party hit by truck from back side and the driver of
the truck was not having valid licence. That benefit may be
available to the Insurance Co. but for third party having a statutory
liability, the Insurance Co. must have to pay first to the claimant
and then to recover from the owner of the vehicle and that is the
real safeguard provided by beneficial legislation in favour of
claimant of third party. Otherwise there is no purpose to legislate
Section 147(1) of the MV Act. It is also a compulsory insurance is
required if there is safeguard provided to the third party, the
question of compulsory insurance is also become unnecessary. If the
liability of the Insurance Co. is purely considered to be a
contractual liability then such deeming fiction which has been
provided under Section 147 also not necessary. In insurance policy
while paying the premium to Insurance Co. By the owner, the risk of
third party has been accepted by Insurance Co. and according to my
opinion, no such contention has been raised by Insurance Co. before
claims Tribunal that risk of third party is also not covered under
the policy obtained by the owner. So compulsory risk is accepted by
Insurance Co. by receiving the premium from the owner of the vehicle,
then Insurance Co. cannot deny its liability because of breach
committed by the owner of the vehicle. Otherwise in any of the case,
the third party or their claimant can get the amount of compensation
from the owner of the vehicle or there is no safeguard at all
available to the third party and there is no purpose to have
compulsory insurance to be obtained by the owner of the vehicle when
the vehicle has been put on road by owner of the vehicle. Therefore,
according to my opinion, considering the facts as it is that two
persons died in the accident who are third party which is not
disputed before this Court by learned advocate Mr.Mehta and it is
also not in dispute that risk of third party is not covered under the
policy of insurance. However, he pointed out that risk of third party
is covered under the policy subject to exception provided in Section
149(2) of the MV Act. Learned advocate Mr.Mehta relied upon breach of
specified condition of the policy being one of the following
condition which has been mentioned in Sub-section (2) (a) and (b) to
Section 149(2) and Sub-Section 5 is also relevant while considering
the breach as suggested by learned advocate Mr.Mehta in respect to
Section 149(2). The Section 147 of the MV Act provides requirements
of policies and limits of liability in order to comply with the
requirements of this Chapter, a policy of insurance must be a policy
which is issued by a person who is an authorized insurer and insures
the person or classes of persons specified in the policy to the
extent specified in sub-section (2) against any liability which may
be incurred by him in respect of the death of or bodily to any
person including owner of the goods or his authorized representative
carried in the vehicle or damage to any property of a third party
caused by or arising out of the use of the vehicle in a public place.
That Section 146 of the MV Act provides necessity for insurance
against third party risk. That is also a relevant which require the
policy of insurance complied with the requirements of this chapter.
Therefore, the contention which has been raised by learned advocate
Mr.Mehta that because of the breach committed by the owner of the
vehicle, the Insurance Co. is not liable to pay compensation to the
third party, cannot be accepted and therefore, that contention is
rejected.
10. The
Apex Court has recently considered the aforesaid aspect in case of
Premkumari and Others v. Prahlad Dev & others reported in 2008
(3) GLR 2744. Relevant observations of aforesaid decision are quoted
as under :
Motor
Vehicles Act, 1988 (LIX of 1988) – Secs. 149 (2) (a) (ii), 149 (4) &
149 (5) – Liability of Insurance Company when driver did not have
effective driving licence – Principle in earlier decision that “in
case of third party risks, the insurer has to indemnify the amount
and to recover the same from the insured” Principle
reiterated.
Principles laid down in National
Insurance Co. v. Swaran Singh, 2004 (2) GLR 989 (SC) : 2004 (3) SCC
297, reiterated. (Para 8)
The
Court referred to the principle in National Insurance Co. v. Laxmi
Narain Dhut, 2007 (3) GLR 2565 (SC) : 2007 (3) SCC 700, namely, “In
case of third party risks the insurer has to indemnify the amount,
and if so advised, to recover the same from the insured. (Para 9)
11. The
Madhya Pradesh High Court has recently considered the aforesaid
aspect in case of Bhav Singh v. Smt. Savirani & Ors. reported in
AIR 2008 MP 1. Relevant observations of aforesaid decision are quoted
as under :
The
insured who is a party to the insurance is not a third party for the
purpose of Chapter XI of the Act, particularly Section 147 thereof.
Thus, any person other than the insurer and the insured who are
parties to the insurance policy is a ‘third party’. The insurer,
however, would not be liable for any bodily injury or death of a
third party in an accident unless the liability is fastened on the
insurer under the provisions of Section 147 of the Act or under the
terms and conditions of the policy of insurance. Hence, the mere
fact that a passenger is a third party would not fasten liability on
the insurer unless such inability arises under Section 147 of the Act
or under the terms and conditions of insurance policy.
12. The
Apex Court has recently considered the aforesaid aspect in case of
New India Insurance Co. v. Darshana Devi and others v. State of
Madhya Pradesh and others reported in (2008) 7 SCC 416. Relevant
observations of aforesaid decision are quoted as under :
The
deceased, owner of the goods, was travelling on the mudguard of the
tractor loaded with “safeda” wood. Owing to rash and
negligent driving by ‘A’ who did not have a driving licence, the
deceased fell down and came underneath the said tractor. The tractor
used to be plied on hire. At the relevant time, it was not being
used for agricultural purposes for which it was insured. The
Tribunal held that although the owners had contravened the contract
of insurance, the Insurance Company could not escape its liability in
regard to third-party risk but was entitled to recover the amount of
compensation from the insurer, namely, the owner of the offending
vehicle and awarded a sum of Rs.2,04,000 by way of compensation in
favour of the claimants. Division Bench of the High Court dismissed
the appeal preferred by the Insurance Company summarily.
13. The
Apex Court has recently considered the aforesaid aspect in case of
Oriental Insurance Co. v. Rajni Devi and others v. State of Madhya
Pradesh and others reported in 2008 (3) Supreme 201. Relevant
observations of aforesaid decision are quoted as under :
6. It is now a well settled
principle of law that in a case where third party is involved, the
liability of the insurance company would be unlimited. Where,
however, compensation is claimed for the death of the owner or
another passenger of the vehicle, the contract of insurance being
governed by the contract qua contract, the claim of the insurance
company would depend upon the
terms thereof.
14. In
view of the aforesaid observations made by this Court and considering
the facts which are on record that two persons died in the accident
by the dash given by truck driver on the back side, those who are
third party and truck driver was not having valid licence on the date
of accident, even though the Insurance Co. has to comply with the
award and make the payment to the claimants but, Insurance Co. can
recover the said amount from the owner of the vehicle by filing
merely execution proceedings against the owner of the vehicle, if law
permits such recovery. No other contention except as referred above.
Therefore, according to my opinion, the claims Tribunal has rightly
examined the matter and for that, claims Tribunal has not committed
any error which requires interference by this Court. Therefore, there
is no substance in present appeals. Accordingly, present appeals are
dismissed.
15. Today,
this Court has disposed of first appeals and, therefore, no order is
required to be made on civil applications for stay, therefore, civil
applications for stay are disposed of accordingly.
16. Amount,
if any, deposited by appellant in the Registry of this court be
transmitted to claims tribunal concerned immediately.
(H.K.RATHOD,J.)
(vipul)
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