Court No. 1
First Appeal From Order No. 2060 Of 2010
New India Assurance Company Ltd..........................................Appellant
Versus
Smt. Agar Kali and another.................................................Respondents
Hon. Rakesh Tiwari, J.
Heard counsel for the appellant and perused the record.
This first appeal from order has been filed by New India
Assurance Company Ltd. (hereinafter referred to as the appellant
company ), challenging the validity and correctness of the impugned
judgment and award dated 25.3.2010 passed by Motor Accident
Claims Tribunal/Additional District Judge, court no. 3, Etah in Motor
Accident Claim Petition no. 402 of 1999, Smt. Agarkali ..Vs…New India
Assurance Company Ltd. and another. The appellant has prayed for
setting aside the impugned award dated 25.3.2010 on the ground that
award is illegal, arbitrary and without any justification and as such is
liable to be set aside.
It is submitted by the counsel for appellant that the tribunal has
not considered facts and circumstances as well as the evidence on
record while awarding Rs. 95000/- to the claimant and since the
tribunal has arrived to the conclusion that at the time of accident on
27.8.1999 the driver of the vehicle did not have effective and valid
driving licence which is in violation of section 149 of the Motor
Vehicles Act, hence the appellant cannot be made liable to pay
compensation awarded by the tribunal.
It appears from record that claimant respondent met with an
accident while she was going on to her village on 27.8.1999. The
accident took place with Truck No. DLG 7595 coming from Maanpur. It
was claimed that the aforesaid truck was being driven negligently and
in a rash manner by the driver.
The appellant company appears to have made an application
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under section 170 of the Act which was allowed by the Tribunal vide
order dated 4.3.2010 permitting the appellant company to contest the
case as owner of the vehicle was not contesting it properly. The
Tribunal by the impugned judgment and award dated 25.3.2010 has
awarded a sum of Rs. 95000/- with 6 % simple interest against
opposite party no. 2 in the claim petition i.e. Asian Road Carriers
Company through its proprietor Surendra Mohan Chopra, R/o L-17,
Kalka Ji, New Delhi – owner of the vehicle. The Tribunal directed the
appellant company arrayed as opposite party no. 1 in the claim petition
to pay the aforesaid amount with interest to the claimant on behalf of
opposite party no. 2- owner of the truck and recover the same from
him. Aggrieved by the aforesaid award, the appellant company has
come up in this first appeal from order.
Contention of the counsel for appellant insurance company is
that driver of the truck was not having a valid and effective licence on
the date of accident as the same had expired and had not been
renewed, hence it is not liable to pay any compensation to the
claimant. According to the counsel for appellant, the driving licence
was issued to the driver on 27.9.1995 which was valid and effective
upto 26.7.1998. It was again renewed for the period 6.8.2000 to
15.8.2003 and as such was not effective on the date of accident i.e.
27.8.1999.
It is correct to say that driving licence of the driver was not
effective on the date the accident took place. It is also an admitted fact
that the truck in question had been insured by the appellant company
which had received premium from the owner. The Tribunal has noted
in its judgment that it is the responsibility of the appellant company to
prove that it had taken all measures to ensure that terms and
conditions of the policy are not violated and in case they are violated it
will not be liable to pay any compensation. At this juncture, the relief
granted by the Tribunal may be looked into. For ready reference, it is
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reproduced here as under :
^^;kph dh ;kfpdk eqo0 95]000-00 ¼ipkuos gtkj :i;s½ ds fy;s foi{kh ua0&2
ds fo:) vokMZ dh tkrh gSA ;kph mDr izfrdj /kujkf’k ij 6 izfr’kr lkykuk
C;kt ;kfpdk ds fnukad ls Hkqxrku dh frfFk rd izkIr djus dh vf/kdkfj.kh gS ;kph
mDr izfrdj /kujkf’k o C;kt dks foi{kh ua0&2 dh vksj ls foi{kh ua0&1 U;w bf.M;k
,’;ksjUs l da0 fy0 ls izkIr djus dh vf/kdkfj.kh gSA foi{kh ua&1 chek dEiuh dk
vkns’k fn;k tkrk gS fd og mDr izfrdj /kujkf’k o C;kt fu.kZ; ds fnukad ls 30
fnu ds vUnj vf/kdj.k esa tek djsaA foi{kh ua0&1 dks ;g vf/kdkj gksxk og mDr
/kujkf’k o C;kt foi{kh ua0&2 ls olwy dj ysA
fnukad 25&3&2010 ¼fojtsunz dqekj flag½
,e-,-lh-Vh-@vij ftyk tt
U;k;ky; ua0&3] ,VkA**
From perusal of the relief granted by the Tribunal, it is clear that
the Tribunal has not held the appellant company liable for the payment
of compensation. It appears that the appellant company is aggrieved
by the fact that Tribunal has directed it to pay compensation to the
claimant and recover the same from the owner of the truck who had
taken insurance policy from it.
In a similar case, in A.I.R. 2007 SC-144, Ishwar Chandra and
others Vs. The Oriental Insurance Company Ltd. and others , the
Apex Court considered this question in paragraph no. 4 and 5 of the
judgment thus :
“4. Respondent no. 1, however, preferred an appeal thereagainst
which was dismissed by an order dated 24.1.2005 stating :
” We therefore while dismissing the aforesaid appeal give
liberty to the appellant to initiate appropriate proceedings against the
owner and driver of the vehicle for realization of the amount which is
to be paid by the Insurance Company in terms of the award to the
third party-claimant subject to establishing its case before the
Tribunal.
We further provide that the amount which is in deposit before
this Court as well as before the Tribunal shall be allowed to be
withdrawn by the claimants/respondents . The balance amount shall
be deposited by the Insurance Company within two months from
today before the Tribunal. On deposit so being made, the
claimants/respondents shall be allowed to withdraw the same also
4without furnishing any security.
It will however be open to the Insurance Company to
recover the amount in question from the insured. For the
purpose of recovering the same from the insured owner of the
vehicle, the insurer shall not be required to file a suit. It may
initiate a proceeding before the Executing Court as if the
dispute between the insurer and the owner was the subject
matter of determination before the Tribunal and the issue is
decided against he owner and in favour of the insurer. It is
further directed that before releasing the amount, the insured owner
of the vehicle shall be issued a notice and he shall be required to
furnish security for the entire amount which the insurer will pay to
the claimants. This observation is in consonance with the view
taken by the Apex Court in case of oriental Insurance Co. Ltd.
Vs. Nanjappan and others, AIR 2004 SC -1600.
5. Respondent no. 1, however, filed an application for review of
the said order inter alia on the premise that as on the date of the
accident, admittedly the driver was not holding any valid licence in
terms of the judgment of this Court in National Insurance Company
Ltd Vs. Svaran Singh and others (2004) 3 SCC 297). Relying on or
on the basis of the decision of this Court in Oriental Insurance Co.
Ltd. Vs. Nanjappan and others (AIR 2004 SC 1630, the said
application for review was dismissed.”
Thus, it is clear from the judgment of the Apex Court aforesaid
that view taken by the Tribunal in the present case for payment of
compensation to the claimant by the insurance company on behalf of
owner insured and recovery from him – the insured is in consonance
with the law and is permissible.
This aspect can also be looked from another angle. A claimant
may suffer either bodily injury or might die in an accident with motor
vehicle. The insurance company who had insured the vehicle has
taken premium from the owner. If for some reason, the terms and
conditions of the policy are violated, it is the insurance company which
has cause of action against the owner for breach of the policy but the
claimant who has received injury or has died, in that case his
dependants would be entitled to the amount. If there is breach of
terms and conditions of the policy, it is the owner who is liable to pay
the compensation and in case there is no breach of policy or it is found
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that the insurance company is liable to pay, it is the insurance
company which is liable to pay the compensation, but the claimant
cannot be made to suffer and compensation if not paid, his miseries
are prolonged merely because the insurance company chooses to
challenge the award before the High Court on the ground that the
Tribunal has directed it to pay compensation on behalf of the insured
and further that it has permitted the insurer to recover the amount from
the insured.
The Courts have been of the view all throughout in the history
of litigation that justice is to be done to ensure that victim is not
victimised further. The insurance company in cases where the Tribunal
has directed it to pay the amount of compensation on behalf of the
owner, cannot be said to be aggrieved party. If the compensation
awarded is stayed at the behest of the insurance company which is in
proxy litigation, it cannot be ruled out that owner of the vehicle would
not come in appeal and claim parity for stay of award against him. In
the considered opinion of this Court, insurance company does not
suffer by the manner in which the order is couched as the Tribunal has
permitted it to recover the amount from the owner which is in
accordance with the decisions of the Apex Court in A.I.R. 2007 SC-
144, referred to and followed in this judgment.
For the reasons stated above, the present first appeal from
order filed by the appellant company is incompetent as it has no
grievance or cause of action to file this appeal. The appeal is
accordingly dismissed. The appellant company shall comply with the
award and will pay the amount within a period of 15 days from today
and shall be entitled to initiate proceedings for recovery from the
owner before the executing court as if the dispute was between the
insurer and the owner in terms of the aforesaid judgment in Ishwar
Chandra case (supra).
Dt/-19.7.2010
SNT/
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