JUDGMENT
S.M. Wahab, J.
1. This appeal has been directed against the order dated 18.3.1987 in M.C.O.P. No. 386 of 1985 on the file of the Motor Accidents Claims Tribunal (4th Additional Sub Judge), Madurai.
2. The respondent Nos. 1, 2 and 3 filed the above claim petition for compensation of Rs. 80,000/- for the death of Gurusamy, the husband of the claimant No. 1 and the father of claimant Nos. 2 and 3, in an accident on 8.1.85 involving an Ambassador car bearing No. TNT 5171.
3. According to the claimants, the driver of the Ambassador car was very negligent in driving the car and on account of that the deceased was hit by the vehicle resulting in his death. The Ambassador car belonged to the respondent No. 1 and it was insured with the respondent No. 2. Hence, the claim petition against the respondent Nos. 1 and 2. The respondent Nos. 1 and 2, i.e., the owner of the vehicle as well as the insurer contended that the accident took place on 8.1.1985 when the vehicle was stolen and when the owner had no control over the same. Therefore, the owner of the vehicle was not liable and consequently the insurer was also not liable.
4. The Tribunal has considered the evidence in detail and has found that the accident has taken place due to the negligence of the driver of the car who has driven the car and caused the accident after stealing the car (Sic. and held the insurer liable) to pay the compensation in a sum of Rs. 54,000/-.
5. As against the order of the Tribunal, the insurance company has preferred the appeal. The petitioner claimants in the original petition have also preferred the cross-objections, claiming enhanced compensation. Learned counsel for the appellant contended before me that as there is a categorical finding that the owner of the vehicle is not liable, the insurance company cannot be made liable to pay any amount. On the other hand, the counsel for respondent Nos. 1, 2, 3 (claimants) contended that the vehicle was driven by some person and the vehicle had caused the death. Therefore, the insurance company, which has taken the responsibility to pay the compensation to third parties is bound to pay the compensation. The learned Counsel for the cross-objectors, challenged the finding of the Tribunal, that the owner of the vehicle was not liable.
6. The Tribunal has categorically found that owner of the vehicle was not liable, because the accident has taken place when the vehicle was stolen and driven by the respondent No. 3. The Tribunal arrived at this finding after considering the evidence.
7. In the counter filed by respondent No. 1, the owner who has mentioned that the car was parked near their clinic and left the key in the car after parking it on the side of the road. No reply has been filed by the claimants to controvert this fact. The respondent No. 2 insurance company has also not denied the statement in its counter. RW 1 has been examined and he has stated about the facts of theft. There is no suggestion that the theft was only a story set up for the purpose of evading payment of damages. In addition to that, we have the document Exh. R-7 dated 8.1.1985, it is an F.I.R., wherein a complaint of theft has been registered. Even though, learned Counsel for the claimants have chosen to challenge the finding with reference to the theft, by the Tribunal, in the cross-objection also, there is no specific ground stating that the finding of the Tribunal about the theft was not supported by evidence. In the circumstances, I feel that the finding of the Tribunal, that the accident had taken place when the vehicle was stolen away and it was not in the control of the owner of the vehicle.
7-A. The next question that has to be decided is whether in the circumstances, the insurance company would be liable. In United India Insurance Co. Ltd. v. Lakshmi 1990 ACJ 390 (Madras), a Division Bench of this Court has held that,
the owner of the lorry or in other words the insured himself died in the accident, caused by his own driver and there will be no liability on his part or on the part of the legal representatives towards any third parties, the insurance company liability does not arise.
In the said case, the owner himself died and his legal representatives filed a claim for damages against the insurance company. After considering the provision of Section 95(1)(b)(i) of the Motor Vehicles Act (4 of 1939), the learned Judges have observed further as follows:
In order to fix liability on the insurance company, the liability must be first established against the insured. It is only in that case, the liability of the insurance company would arise.
8. In Chanchalben v. Shailesh Kumar Pandurao Thakore 1974 ACJ 393 (Gujarat), a Division Bench of Gujarat High Court has taken the view that the condition precedent to passing or enforcing a decree against the insurer is that it must first be obtained against the person insured by that insurer. If a claim has been made and a decree is passed against the insured, the liability which falls on such an insurance is to be made good by the insurer. In the said case, a Lambretta scooter and the Vespa scooter were involved in the accident. The Tribunal found that none of the scooter drivers was rash and negligent in driving the scooters. Therefore, the claimants were not entitled to claim any damages from the owners of the vehicles. The Tribunal found that it was an inevitable accident. But Gujarat High Court found that the driver of the scooter Lambretta was negligent and therefore, the owner of that vehicle alone was liable. Further in the said case, the claimant did not pray for any decree and did not make any claim against the owner and driver of the Vespa scooter. Therefore, the insurance company with whom the Vespa scooter was insured was also not found liable to pay the compensation.
From the above said two decisions, we find that before the insurance companies were held liable, the owner of the vehicle must be found to be liable.
9. As against the aforesaid decisions, the learned Counsel for the claimants cited the following decisions:
(i) Skandia Insurance Co. Ltd. v. Kokilaben Chandravadan 1987 ACJ 411 (SC); (ii) Ramu Tolaram v. Ami-chand Hansraj Gupta 1988 ACJ 24 (Bombay); (iii) Guru Govekar v. Filomena F. Lobo 1988 ACJ 585 (SC); and (iv) Bishan Devi v. Sirbaksh Singh 1979 ACJ 496 (SC).
In Skandia Insurance Co. Ltd. v. Kokilaben Chandravadan 1987 ACJ 411 (SC), the Supreme Court considered the question of vicarious liability and has held as follows:
Now the proposition is incontrovertible that so far as the owner of the vehicle is concerned, his vicarious liability for damages arising out of the accident cannot be disputed having regard to the general principles of law as also having regard to the violation of the obligation imposed by Section 84 of the Act which provides that no person driving or in charge of a motor vehicle shall cause or allow the vehicle to remain stationary in any public place, unless there is in the driver’s seat a person duly licensed to drive the vehicle or unless the mechanism has been stopped and a brake or brakes applied or such other measures taken as to ensure that the vehicle cannot accidentally be put in motion in the absence of the driver.
In the said case, the accident had taken place when the driver of the truck stopped the vehicle and went to bring snacks from the opposite shop leaving the engine running and with the key in the ignition lock. The cleaner who had no licence, interfered, the vehicle ran over a person and a fatal accident was caused. Only, in this circumstance, the Apex Court has found the owner is liable. In para 14, that is also observed as follows:
If the insured is not at all at fault and has not done anything he should not have done or is not amiss in any respect how can it be conscientiously posited that he has committed a breach? It is only when the insured himself places the vehicle in charge of a person who does not hold a driving licence, that, it can be said that he is ‘guilty’ of the breach of the promise that the vehicle will be driven by a licensed driver. It must be established by the insurance company that the breach was on the part of the insured and that it was the insured who was guilty of violating the promise or infringement of the contract. Unless the insured is at fault and is guilty of a breach, the insurer cannot escape from the obligation to indemnify the insured.
Therefore, the fact of the said case is not helpful to decide the case on hand.
10. Bishan Devi v. Sirbaksh Singh 1979 ACJ 496 (SC), is also not helpful to the claimants. In the said case the plea of theft was found to be palpably false and made without any sense of responsibility with a view to somehow escape the liability. The statement is clearly mentioned at the end of para 10. But in the present case, the Tribunal has found that the theft was true. Therefore, the said case is also not helpful to decide the case.
11. Ramu Tolarm v. Amichand Hansraj Gupta 1988 ACJ 24 (Bombay), is also not helpful to the claimants. In the said case, the owner of the vehicle entrusted the vehicle to the owner of the garage. The vehicle was taken from the garage by an unidentified person and damage was caused. The owner of the vehicle has given the key to the owner of the garage. But in the evidence, the garage owner studiedly refrained from disclosing the person who drove the vehicle. Therefore, adverse inference was drawn against the garage owner. As the owner of the vehicle has handed over the key to the garage owner and constituted him as his agent, the principle of vicarious liability was applied in the said case. Therefore, the said case is not helpful to the claimants.
12. Guru Govekar v. Filomena F. Lobo 1988 ACJ 585 (SC), is also a case where the owner of the vehicle entrusted the vehicle to a repairer and the repairer in turn engaged a mechanic. The accident took place when the vehicle was taken away by the mechanic and caused the death. In the said case also, the Apex Court has taken note of the facts that the repairer was authorised by the owner of the vehicle to have the car repaired, and entrusted the vehicle to the mechanic for repair. The mechanic is not a person unconnected with the repair work and therefore, the authorisation given to the repairer in turn is an authorisation to a person employed under him also. In para 9, the learned Judges of the Apex Court have observed as follows:
When the owner of the motor vehicle entrusts his vehicle to a repairer to carry out repairs, he is in fact allowing the repairer to use his vehicle in that connection. It is also implicit in the said transaction that unless there is any contract to the contrary, the owner of the vehicle also causes or allows any servant of the repairer who is engaged in the work of repairs to use the motor vehicle for the purpose of or in connection with the work of repairs and when such work or repair is being carried out in a public place if on account of the negligence of either the repairer or his employee, who is engaged in connection with the work of repair, a third party dies or suffers any injury either to his person or property, the insurer becomes liable to pay the compensation under the provisions of the Act.
The learned Counsel for the claimants cited a decision of a single Judge of this Court dated 20.1.1992 in C.M.A. No. 274 of 1990. In the said case, the plea of theft set up by the owner of the vehicle was not accepted. Only in the said circumstances, the owner as well as the insurance company were held liable. Hence, the said case is also not helpful to this case. In the case on hand, the Tribunal has found that the accident took place while the vehicle was stolen by the respondent No. 3 and when the vehicle was not in the custody or control of the owner. The finding cannot be said to be unreasonable or without evidence. Therefore, the cases cited by the learned Counsel for the claimants are not helpful to them. On the other hand, the decisions cited by the learned Counsel for the appellant are to the effect that, if any accident had taken place when the vehicle is not in the custody or control of the owner of the vehicle or his servant or other persons authorised by him, then the liability of the owner is not there. If the owner’s liability is not there, it goes without saying that the insurer is not liable.
13. After considering the facts of the cases referred above, I am of the view that the Tribunal is not correct in awarding compensation against the appellant, the insurance company. The appeal preferred by the insurance company is allowed. No costs.
