ORDER
1. The petitioner in the above C.R.P. has preferred this Civil Revision Petition against the judgment and award dated 17-8-1996 passed in the case MVC No. 776 of 1991 on the file of the II Additional Civil Judge and Motor Accidents Claims Tribunal, Bangalore Rural Districts, Bangalore.
2. The Motor Accident Claims Tribunal has passed an award of Rs. 6,000/- only against the 2nd and 3rd respondents before the lower Court and ultimately directing the 3rd respondent alone, namely the United Insurance Company Limited, to pay the said amount as against the claim of Rs. 1,50,000/- for the injuries sustained by the first respondent herein in a motor vehicle accident. Concluding that the driver of the lorry bearing No. MES 5994 is responsible for this accident and the 2nd respondent being the owner of the said lorry is vicariously liable to pay the loss caused by the driver of the lorry and the 3rd respondent being the insurer of the lorry is liable to indemnify the loss caused to the 2nd respondent, the owner of the vehicle, the award was granted.
3. On behalf of the petitioner-Insurance Company it is contended that the liability to indemnify the insured/owner of the vehicle will be subject to the owner of the lorry becomes liable to pay the compensation to the claimant in the case. Having dismissed the claim against the owner, the direction to the petitioner-Insurance Company to pay compensation is an error committed by the Trial Court. Once the petition is dismissed against the owner, it should have been dismissed against the Insurance Company as well.
4. Heard Sri S. Srishaila, Counsel for petitioner. Respondents 1 and 2 though served remained unrepresented.
5. On facts, though in paragraph 5 of the order, the Trial Court points out the dismissal of the petition as against the 2nd respondent on 1-7-1992, ultimately holds that the liability of the 2nd and 3rd respondents being joint and several allowing the petition partly against them directed the only Insurance Company to pay the compensation amount.
In the final order it is seen that the petition against 1st respondent alone was dismissed.
6. Reliance was placed upon New India Assurance Company Limited v Selvarajamani and Others, wherein the High Court of Judicature at Madras held that when the Tribunal exonerated the owner but mulcted the liability on the Insurance Company, following the earlier dictum in United India Insurance Company Limited v Lakshmi. In the dictum of Oriental Insurance Company Limited v Sunita Rathi and Others, the Apex Court held that the insurer cannot be held liable on the basis of the policy as a liability has to be of the owner of the vehicle. The Supreme Court found that the High Court, without assigning any reason, has simply assumed that the owner of the vehicle was not liable and the insurer alone was liable and such conclusion reached by the High Court was clearly erroneous. The liability of the insurer arises only when the liability of the insured has been upheld for the purpose of indemnifying the insured under the contract of insurance. The finding of the High Court was set aside in that case. Reference was also made to the case of the National Insurance Company Limited v Prakashchand Hanuman and Others. The facts in that case as enumerated by the Court itself is available in paragraph 3, which is as follows.–
“This position is virtually unanswerable. The respondents’ learned Advocate at that stage pointed out to me that the applicants are all petty shopkeepers virtually running their business on the sidewalks, that their status is such that they virtually do not know anything about the niceties of these proceedings and that on enquiries with the learned Advocate who conducted the matter, he is informed that it was due to an error of law, that the application was made for dismissal of the proceedings against the owner and the driver. He submitted that unless this Court were to show sufficient indulgence and even at this late stage, permit the claimants to have the order dated 5-3-1991 set aside, that none of them would receive even the meager compensation that has been awarded. Having regard to the status of the poor respondents who come from virtually the weakest strata of society and also the persuasion of their learned Advocate who essentially submitted that the compensation awarded by the Tribunal could never reach the claimants because of the error committed by their learned Advocate, this Court permitted the respondents’ learned Advocate to prefer civil revision petitions challenging the order dated 5-3-1991. This Court has passed separate orders for condoning the delay and those Civil Revision Petition Nos. 2841 to 2849 of 1996 have accordingly been listed along with the above civil revision petitions filed by the Insurance Company. The petitioners’ learned
Advocate supports these civil revision petitions on the basis of an affidavit filed in the earlier proceedings accepting the mistake and the explanation given is that he was under the impression that the award would be against the K.S.R.T.C. vehicle. In the overall interests of justice, this Court has little option except to set aside the dismissal order dated 5-3-1991 and to restore the claim petitions to their original position whereby the driver and owner will have to be treated as still being parties to the proceeding”.
The facts of those case is certainly not applicable to the facts of the present case. The dictum in Abdul Ghafoor and Others v The New India Assurance Company and Others, to the following effect was relied on.–
“Under Section 95 of the Motor Vehicles Act the insurer is responsible for the liability which may be incurred by the owner (the person insured) in respect of bodily injury caused to any person by him or by his employees arising out of the use of a vehicle in a public place. Section 96 compels the insurer to satisfy the judgments against person insured in respect of third party subject to conditions stated in it viz., (i) that there should be a judgment or decree against a person insured; (ii) that the judgment is in respect of liability covered by the policy under Section 95(1)(b); and (iii) that the liability, in fact, is covered by the terms of the policy. Where therefore the claim is liable to be dismissed as against the owner of the vehicle (insured) for neglect to take steps to serve notice of the claim on him the insurer was not liable to the claimant and the claim could not be decreed as against the insurer”.
7. The point decided in this case is that there should be a decree in respect of the liability covered by the policy against the person insured. It is significant to note that in this case, the decree reads that “this petition is partly allowed against respondents 2 and 3. The liability of respondents 2 and 3 is joint and several”. This decree has become final, as no appeal was filed for that part of the decree, as the 2nd respondent has not preferred any appeal. It is not even the case of the petitioner before this Court that passing a decree against the 2nd respondent is contrary to the finding rendered in para 5 of the judgment. So long as the judgment and decree stands unamended and as it is passed against the 2nd respondent, the owner of the lorry as well, the contention now raised by the petitioner is not sustainable.
8. It is also necessary to place on record the fact that the dictum relied upon by the petitioner is not entertainable as they wanted this Court to take in that way.
9. In the case of Lakshmi, supra, the owner himself died in the accident caused by his own driver. Therefore, there is no liability on the part of the driver or on the part of the legal representatives towards any third party. Consequently, the Insurance Company’s liability does not arise. The clear finding rendered therein though in terms that the Insur-
ance Company is liable, if a claim is made against the owner by third parties. In that case, the provisions of Section 95(1)(b)(i) of the Motor Vehicles Act was considered. The provisions read 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”.
10. In Chanchalben v Shailesh Kumar Pandurao Thakore, the Division Bench held that the Insurance Company was not found liable to pay the compensation on the ground that the owner of the insured vehicle who had driven vehicle was found to be negligent and he was alone held liable. In fact, the claimant did not pray for any decree and did not make any claim against the owner and driver of the Vespa scooter, namely, the vehicle that caused accident. This decision impliedly holds that the liability of the Insurance Company cannot be taken away. In fact in the dictum of Skandia Insurance Company Limited v Kokilaben Chan-dravadan, the Supreme Court 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 bad 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 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”.
Here again, because the insured was found to be at fault and consequently he could be made liable, the Insurance Company was made liable. Even in the case of Bishan Devi and Others v Sirbaksh Singh and Another, 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. Therefore, once, the owner himself was not found liable, making the claim against the Insurance Company does not arise. In Guru Govekar v Miss Filomena F. Lobo and Others, the Supreme Court has held 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”.
11. Therefore, a distinction has been made in cases where the liability could not be fastened on the owner or the insurer, such liability cannot be fastened on the Insurance Company alone. Such cases is not for the proposition that though the Court finds the insurer is liable, but yet the decree is deprived against the insurer for some technical reason, the Insurance Company cannot take advantage of such procedural omission or defect in the conduct of the claimant as against the owner to escape from its liability. It is significant to point out that the Supreme Court has taken a very fair view even in the case of Sunita Rathi, supra, wherein they observed “In the circumstances of the case, we deem fit to say that the amount already paid by the insurer, to the claimant is not required to be refunded by the claimant to the insurer”.
12. Therefore, in equity and in law, I find that the order passed by the Trial Court is not liable to be interfered with by this Court in revision. Consequently, this C.R.P. is dismissed with costs.