IN THE HIGH COURT OF JUDICATURE AT PATNA
MA No.12 of 2010
UNITED INDIA INSURANCE COMPANY LTD. through Sri Rajesh
Kumar, Manager, its Patna Regional Office and constituted attorney
of United India Insurance Company, which is at present situated at
3rd Floor, Chanakya Commercial Complex, R-Block, Patna - 1
(Opposite Party No. 2 in the Claim Case)
---------------- Appellant.
Versus
1. MOST. DHAULI DEVI, wife of Late Sogarath Sahni, (Wife of the deceased)
2. Murti Devi, wife of Shri Charitar Sahni, (Mother of deceased)
Both resident of village - Bishanpur, P.O. - Narsara, District - Darbhanga.
(Claimants in the Claim Case).
------------- Respoondents 1st Set.
3. Smt. Ranjana Poddar, wife of Shri Sunil Anand Resident of Laxmipur, Ward
No. 14, P.O. 7 P.S.- Rosera, District - Samastipur.
(Owner of Jeep Taxi No. BR - 33A - 8201)
(Opp. Party No. 1 in the Claim Case).
----------------- Respondents 2nd Set.
-------
For the appellant : Shri Rana Randhir Singh, Adv.
******
03. 09.07.2010 Heard learned counsel for the appellant.
This appeal has been preferred against order dated
15.09.2009 passed by learned 1st Additional District Judge-
cum-Motor Accidents Claim Tribunal, Darbhanga, in claim case
no. 52/2003.
The impugned order appears very cryptic. The claim
tribunal must have given some more details about the nature of
claim, details of insurance etc. but, there is nothing of the kind
as appears from the impugned order stated below:
“Today is the date fixed for order.
In the petition filed by the claimant Dhauli
Devi u/s 140 of the M.V. Act for compensation,
who is said to be the wife of late Sogarath
Sahni. The claim is of Rs. 50,000/-. The
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Insurance Company and the Vehicle owner
appeared and have filed their show cause.
I perused the case record. All the papers
appear to be genuine and the demand of
interim compensation is legal. The insurance
company is directed to pay Rs. 50,000/- to the
petitioners.”
In the normal course, the appeal could have been
allowed and matter could have been remitted for fresh order but,
taking into consideration the spirit of beneficial legislation and
also admitted position as submitted by learned counsel for the
appellant and mentioned in memo of appeal that ill fated jeep
was under valid insurance but, there is only objection of the
appellant that deceased was employed as a Khalashi in the
vehicle but to cover his risk, no premium was paid to the
insurance as such in spite of validity of the insurance for all
other purposes appellant is not liable to pay compensation to
the claimants against the death of deceased Khalashi.
It also appears from impugned order that insurance had
already entered into appearance earlier and filed his objection
by way of written statement, but further reference is lacking.
However, taking into consideration that the original
claim objection has been filed under section 166 of the Motor
Vehicle Act, wherein on prayer under section 140 of the Act, the
impugned order was passed, matter is pending before the Claim
Tribunal for further adjudication, as regard to rival contentions,
extent of liability and quantum of compensation in face of the
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vehicle in question being insured by the appellant and dispute
by appellant is as regard to application of provision as laid down
under Section 147 of the M.V. Act, coverage of risk of a
particular person (employed as Khalashi) at this stage in
particular fact and circumstance application of the provisions as
contemplated under section 149 of the Act shall be more
appropriate. The relevant provision of law referred to above
read a such:
” Section 149. Duty of insurers to satisfy
judgments and awards against persons
insured in respect of third party risks –(1) * * * * (2) * * * * (3) * * * *” (4). Where a certificate of insurance has been
issued under sub-section (3) of section 147 to
the person by whom a policy has been
effected, so much of the policy as purports to
restrict the insurance of the persons insured
thereby by reference to any condition other
than those in clause (b) of sub-section (2)
shall, as respects such liabilities as are
required to be covered by a policy under
clause (b) of sub-section (1) of section 147, be
of no effect:
Provided that any sum paid by the insurer in or
towards the discharge of any liability of any
person which is covered by the policy by virtue
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the insurer from that person.
(5) If the amount which an insurer becomes
liable under this section to pay in respect of a
liability incurred by a person insured by a
policy exceeds the amount for which the
insurer would apart from the provisions of this
section be liable under the policy in respect of
that liability, the insurer shall be entitled to
recover the excess from that person.”
(6) * * * * (7) * * * *"Accordingly, the appellant is hereby directed to make
payment of ad interim compensation as awarded by the court
below to the claimants with a right to recover from the owner in
case on adjudication of the controversy, the court below arrives
at the conclusion that the terms and conditions of the policy
does not cover risk of the deceased Khalashi and no premium is
paid for that as the case of the appellant, appropriate order may
be passed in view of Section 147(2) of the Act which reads as
such:
147. Requirement of policies and limits
of liability : –
(1) * * * *
(2) Subject to the proviso to sub-section (1),
a policy of insurance referred to in sub-section (1),
shall cover any liability incurred in respect of any
-5-accident, up to the following limits, namely: –
(a) save as provided in clause (b), the
amount of liability incurred;
(b) in respect of damage to any property of
a third party, a limit of rupees six thousand;
Provided that any policy of insurance issued
with any liability and in force, immediately before the
commencement of this Act, shall continue to be
effective for a period of four months after such
commencement or till the date of expiry of such
policy whichever is earlier.
(3) * * * * (4) * * * * (5) * * * *It is further made clear that law is clear on the points
that unless it is established that insurer is liable to pay the claim
against the deceased in motor accident in terms and conditions
of the policy. Normally the insurer cannot be compelled to make
payment, however in case of necessity, shelter of provisions as
contemplated under section 149 of the Act can be taken in that
case, right of recovery of the insurer from the owner of the
vehicle in question is always available to the insurer.
With the above observation and direction, this appeal is
hereby dismissed at the admission stage itself. Simultaneously,
the court below is directed to proceed expeditiously even at the
risk of day to day basis and preferably conclude the inquiry
within four months of receipt of the copy of this order or
-6-communication by any other means.
The statutory amount of Rs. 25,000/- deposited in this
appeal be transmitted to the court below by way of a demand
draft in the name of award holder towards payment of
compensation.
(Akhilesh Chandra, J.)
Rajeev/