{"id":249319,"date":"2008-02-12T00:00:00","date_gmt":"2008-02-11T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/the-new-indian-insurance-company-vs-darshana-devi-ors-on-12-february-2008"},"modified":"2015-12-07T13:43:36","modified_gmt":"2015-12-07T08:13:36","slug":"the-new-indian-insurance-company-vs-darshana-devi-ors-on-12-february-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/the-new-indian-insurance-company-vs-darshana-devi-ors-on-12-february-2008","title":{"rendered":"The New Indian Insurance Company vs Darshana Devi & Ors on 12 February, 2008"},"content":{"rendered":"
Supreme Court of India<\/div>\n
The New Indian Insurance Company vs Darshana Devi & Ors on 12 February, 2008<\/div>\n
Author: S Sinha<\/div>\n
Bench: S.B. Sinha, V.S. Sirpurkar<\/div>\n
           CASE NO.:\nAppeal (civil)  1232 of 2008\n\nPETITIONER:\nThe New Indian Insurance Company\n\nRESPONDENT:\nDarshana Devi & Ors\n\nDATE OF JUDGMENT: 12\/02\/2008\n\nBENCH:\nS.B. Sinha & V.S. Sirpurkar\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T<\/p>\n
S.B. Sinha, J.\n<\/p>\n
1.\tLeave granted.\n<\/p>\n
2.\tThis appeal is directed against a judgment and order dated 13.02.2004
\npassed by a Division Bench of the Punjab and Haryana High Court whereby
\nand whereunder the appeal preferred by the appellant herein against the
\njudgment and order dated 3.12.2003 passed by the Motor Accident Claims
\nTribunal, Hoshiarpur under Section 166<\/a> of the Motor Vehicles Act, 1988 ,
\nwas summarily dismissed.\n<\/p>\n
3.\tThe facts necessary to be noticed for the present appeal are that the
\ntractor bearing Registration Number PB-070-1026 was owned by three
\nbrothers, namely, Mahinder Singh, Joginder Singh and Jagdev Singh.
\nAjay Kumar son of Mahinder Singh was driving the said vehicle on
\n18.10.2000.  He did not have a driving licence.  The accident occurred at
\nabout 7.00 pm on the aforementioned date.  The deceased, Baldev Singh,
\nwas said to have been travelling on the mudguard of the said tractor which
\nwas going to Hoshiarpur loaded with ‘safeda’ wood.  Owing to rash and
\nnegligent driving by Ajay Kumar, the deceased fell down and came
\nunderneath the said tractor.\n<\/p>\n
A claim petition was filed before the Motor Vehicle Accident Claims
\nTribunal on 19.07.2001 by the heirs and legal representatives of the said
\ndeceased.\n<\/p>\n
Appellant, in its written statement, inter alia, raised the following
\ncontentions :\n<\/p>\n
(1)\tThe deceased being a passenger in the said tractor, was not a third
\nparty within the meaning of the provisions of Section 147<\/a> of the
\nMotor Vehicles Act.\n<\/p>\n
(2)\tAs he was travelling on the mudguard of the tractor in breach of
\nconditions of contract of insurance, the insurance company was not
\nliable to reimburse the owner of the vehicle; and
\n(3)\tAjay Kumar, being the son of one of the owners of the tractor and
\nhaving no licence to drive the same, the case comes within the
\npurview of the exeption as regards the liability of the insurer as
\nenvisaged under sub-section (2) of Section 149<\/a> of the Motor Vehicles
\nAct.\n<\/p>\n
4.\tThe Tribunal in the said proceedings, inter alia, framed the following
\nissues :\n<\/p>\n
“(2) Whether the respondent No.1 was not having
\nany valid driving licence at the time of accident?
\nOPR-2”\n<\/p>\n
\tThe findings of fact arrived at by the Tribunal are as under :\n<\/p>\n
(i)\tMohinder Singh, Baldev Singh and Jagdev Singh son of Pannu
\nwere the owners of the tractor.\n<\/p>\n
(ii)\tAjay Kumar is son of Mahinder Singh, co-respondent.\n<\/p>\n
(iii)\tThe tractor used to be plied on hire.\n<\/p>\n
(iv)\tAt the relevant time, it was not being used for agricultural
\npurposes for which it was insured.\n<\/p>\n
(v)\tAlthough the owners had contravened the contracts of
\ninsurance, the insurance company cannot escape its liability in
\nregard to third party risk but was entitled to recover the amount
\nof compensation from the insurer, namely, the owner of the
\noffending vehicle.\n<\/p>\n
The Tribunal awarded a sum of Rs.2,04,000\/- by way of
\ncompensation in favour of the claimants.\n<\/p>\n
5.\tAs indicated hereinbefore, a Division Bench of the High Court
\ndismissed the appeal preferred by the insurance company summarily.\n<\/p>\n
6.\tMs.Kiran Suri, learned counsel appearing on behalf of the appellant,
\nsubmitted that the Tribunal committed a serious error in passing the
\nimpugned judgment insofar as it failed to take into consideration that in a
\ncase of this nature, the insurance company was not liable at all in terms of
\nthe provisions of the Motor Vehicles Act<\/a>, 1988.\n<\/p>\n
7.\tMr. Bakshi, learned counsel appearing on behalf of the respondent, on
\nthe other hand, urged that although no exception to the legal proposition can
\nbe taken but it is not a fit case where this Court should exercise its
\ndiscretionary jurisdiction under Article 136<\/a> of the Constitution of India.\n<\/p>\n
8.\tThe liability of an insurance company to recompense the owner and
\ndriver of a vehicle, who are primarily responsible for payment of
\ncompensation to a victim or dependent of a deceased arising out of use of a
\nmotor vehicle, is statutory in nature.
\nWhereas an owner of a motor vehicle is under a statutory obligation to
\nget it compulsorily insured, the defence of an insurance company is limited.
\nSub-section (2) of Section 149<\/a> of the Motor Vehicles Act, 1988 reads thus :
\n“(2) No sum shall be payable by an insurer under
\nsub-section (1) in respect of any judgment or
\naward unless, before the commencement of the
\nproceedings in which the judgment of award is
\ngiven the insurer had notice through the Court or,
\nas the case may be, the Claims Tribunal of the
\nbringing of the proceedings, or in respect of such
\njudgment or award so long as execution is stayed
\nthereon pending an appeal; and an insurer to whom
\nnotice of the bringing of any such proceedings is
\nso given shall be entitled to be made a party
\nthereto and to defend the action on any of the
\nfollowing grounds, namely:-\n<\/p>\n
(a) \tthat there has been a breach of a specified
\ncondition of the policy, being one of the
\nfollowing  conditions, namely:-\n<\/p>\n
(i) \ta condition excluding the use of the
\nvehicle-\n<\/p>\n
(a) \tfor hire or reward, where the vehicle
\nis on the date of the contract of
\ninsurance a  vehicle not covered by
\na permit to ply for hire or reward, or<\/p>\n
(ii) \ta condition excluding driving by a named
\nperson or persons or by any person who
\nis not duly  licensed, or by any person
\nwho has been disqualified for holding or
\nobtaining a driving licence  during the
\nperiod of disqualification; or<\/p>\n
(iii) \ta condition excluding liability for injury
\ncaused or contributed to by conditions of
\nwar, civil war,  riot or civil commotion;
\nor<\/p>\n
(b)\tthat the policy is void on the ground that it
\nwas obtained by the nondisclosure of a
\nmaterial fact or by a  representation of fact
\nwhich was false in some material particular.”\n<\/p>\n
9.\tExtent of liability of an insurance company in terms of the said
\nprovision came up for consideration before this Court in a large number of
\ndecisions.  We may notice some of these.
\nIn Dhanraj v. New India Assurance Co. Ltd. & Anr<\/a>. [(2004) 8 SCC
\n553], this Court held :\n<\/p>\n
“In the case of Oriental Insurance Co. Ltd. v.
\nSunita Rathi<\/a> [(1998) 1 SCC 365] it has been held
\nthat the liability of an insurance company is only
\nfor the purpose of indemnifying the insured against
\nliabilities incurred towards a third person or in
\nrespect of damages to property.  Thus, where the
\ninsured i.e. an owner of the vehicle has no liability
\nto a third party the insurance company has no
\nliability also.”\n<\/p>\n
\tIn United India Insurance Co. Ltd., Shimla v. Tilak Singh & Ors<\/a>.
\n[(2006)4 SCC 404], it was opined :\n<\/p>\n
“In our view, although the observations made in
\nAsha Rani case were in connection with carrying
\npassengers in a goods vehicle, the same would
\napply with equal force to gratuitous passengers in
\nany other vehicle also.  Thus, we must uphold the
\ncontention of the appellant Insurance Company
\nthat it owed no liability towards the injuries
\nsuffered by the deceased Rajinder Singh who was
\na pillion rider, as the insurance policy was a
\nstatutory policy, and hence it did not cover the risk
\nof death of or bodily injury to a gratuitous
\npassenger.”\n<\/p>\n
10.\tThis Court, inter alia, opined that in a case where the driver has no
\nlicence to drive a particular category of motor vehicle, the insurance
\ncompany would not be liable.  [See National Insurance Company v. Swaran
\nSingh & Ors<\/a>. [(2007) 3 SCC 297, para 84].\n<\/p>\n
11.\tWe may also take notice of a few recent pronouncements of this
\nCourt.\n<\/p>\n
12.\tIn New Indian Insurance Company Ltd. v. Vedwati & Ors<\/a>. [2007 (3)
\nSCALE 397], this Court held that passenger of a motor vehicle is not a third
\nparty, stating :\n<\/p>\n
“The difference in the language of “goods vehicle”
\nas appear in the old Act and “goods carriage” in
\nthe Act is of significance. A bare reading of the
\nprovisions makes it clear that the legislative intent
\nwas to prohibit goods vehicle from carrying any
\npassenger. This is clear from the expression “in
\naddition to passengers” as contained in definition
\nof “good vehicle” in the old Act. The position
\nbecomes further clear because the expression used
\nis “good carriage” is solely for the carriage of
\ngoods. Carrying of passengers in a goods carriage
\nis not contemplated in the Act. There is no
\nprovision similar to Clause (ii) of the proviso
\nappended to Section 95<\/a> of the old Act prescribing
\nrequirement of insurance policy. Even Section 147<\/a>
\nof the Act mandates compulsory coverage against
\ndeath of or bodily injury to any passenger of
\n“public service vehicle”. The proviso makes it
\nfurther clear that compulsory coverage in respect
\nof drivers and conductors of public service vehicle
\nand employees carried in goods vehicle would be
\nlimited to liability under the Workmen’s
\nCompensation Act<\/a>, 1923 (in short ‘WC Act”).
\nThere is no reference to any passenger in “goods
\ncarriage”.\n<\/p>\n
11. The inevitable conclusion, therefore, is that
\nprovisions of the Act do not enjoin any statutory
\nliability on the owner of a vehicle to get his vehicle
\ninsured for any passenger travelling in a goods
\ncarriage and the insurer would have no liability
\ntherefor.”\n<\/p>\n
\tIn Oriental Insuirance Co. Ltd. v. Smt. Jhuma Saha & Ors<\/a>. [AIR 2007
\nSC 1054], it was held :\n<\/p>\n
“11. Liability of the insurer-company is to the
\nextent of indemnification of the insured against the
\nrespondent or an injured person, a third person or
\nin respect of damages of property.  Thus, if the
\ninsured cannot be fastened with any liability under
\nthe provisions of Motor Vehicles Act<\/a>, the question
\nof the insurer being liable to indemnify insured,
\ntherefore, does not arise.”\n<\/p>\n
\t{See also New India Assurance Co. Ltd. v. Asha Rani & Ors<\/a>. [(2003)
\n2 SCC 428}.\n<\/p>\n
\tIn Oriental Insurance Co. Ltd. v. Meena Variyal & Ors<\/a>. [(2007) 5
\nSCC 428], this Court held :\n<\/p>\n
“It is Section 147<\/a> that sets out the requirement of
\npolicies and limits of liability. It is provided
\ntherein that in order to comply with the
\nrequirements of Chapter XI of the Act, a policy of
\ninsurance must be a policy which is issued by an
\nauthorised insurer; or which insures the person or
\nclasses of persons specified in the policy to the
\nextent specified in Sub-section (2) against any
\nliability which may be incurred by the owner in
\nrespect of the death of or bodily injury or damage
\nto any property of a third party caused by or
\narising out of the use of the vehicle in a public
\nplace. With effect from 14.11.1994, injury to the
\nowner of goods or his authorised representative
\ncarried in the vehicle was also added. The policy
\nhad to cover death of or bodily injury to any
\npassenger of a public service vehicle caused by or
\narising out of the use of the vehicle in a public
\nplace. Then, as per the proviso, the policy shall not
\nbe required to cover liability in respect of the
\ndeath, arising out of and in the course of his
\nemployment, of the employee of a person insured
\nby the policy or in respect of bodily injury
\nsustained by such an employee arising out of and
\nin the course of his employment, other than a
\nliability arising under the Workmen’s
\nCompensation Act<\/a>, 1923 in respect of the death of,
\nor bodily injury to, an employee engaged in
\ndriving the vehicle, or who is a conductor, if it is a
\npublic service vehicle or an employee being
\ncarried in a goods vehicle or to cover any
\ncontractual liability. Sub-section (2) only sets
\ndown the limits of the policy. As we understand
\nSection 147(1)<\/a> of the Act, an insurance policy
\nthereunder need not cover the liability in respect of
\ndeath or injury arising out of and in the course of
\nthe employment of an employee of the person
\ninsured by the policy, unless it be a liability arising
\nunder the Workmen’s Compensation Act<\/a>, 1923 in
\nrespect of a driver, also the conductor, in the case
\nof a public service vehicle, and the one carried in
\nthe vehicle as owner of the goods or his
\nrepresentative, if it is a goods vehicle. It is
\nprovided that the policy also shall not be required
\nto cover any contractual liability.”\n<\/p>\n
\tSwaran Singh (supra) was also distinguished stating that therein the
\nvehicle involved having a third party risk stating :
\n“17. \tIt is difficult to apply the ratio of this
\ndecision to a case not involving a third party. The
\nwhole protection provided by Chapter XI of the
\nAct is against third party risk. Therefore, in a case
\nwhere a person is not a third party within the
\nmeaning of the Act, the insurance company cannot
\nbe made automatically liable merely by resorting
\nto the Swaran Singh (supra) ratio. This appears to
\nbe the position. This position was expounded
\nrecently by this Court in National Insurance Co.
\nLtd. v. Laxmi Narain Dhut<\/a> [2007 (4) SCALE 36].
\nThis Court after referring to Swaran Singh (supra)
\nand discussing the law summed up the position
\nthus:\n<\/p>\n
In view of the above analysis the following
\nsituations emerge:\n<\/p>\n
1. The decision in Swaran Singh’s case (supra) has
\nno application to cases other than third party risks.\n<\/p>\n
2. Where originally the licence was a fake one,
\nrenewal cannot cure the inherent fatality.\n<\/p>\n
3. In case of third party risks the insurer has to
\nindemnify the amount and if so advised, to recover
\nthe same from the insured.\n<\/p>\n
4. The concept of purposive interpretation has no
\napplication to cases relatable to Section 149<\/a> of the
\nAct.\n<\/p>\n
The High Courts\/Commissions shall now consider
\nthe mater afresh in the light of the position in law
\nas delineated above.\n<\/p>\n
We are in respectful agreement with the above
\nview.”\n<\/p>\n
\tAsha Rani (supra) was followed.\n<\/p>\n
\tYet again, in Oriental Insurance Co. Ltd. v. Brij Mohan & Ors<\/a>. [2007
\n(7) SCALE 753], wherein one of us (S.B. Sinha, J.) was a member, this
\nCourt noticed Asha Rani and other decisions.  Following the same, it was
\nstated :\n<\/p>\n
“10. Furthermore, respondent was not the owner of
\nthe tractor. He was also not the driver thereof. He
\nwas merely a passenger travelling on the trolley
\nattached to the tractor. His claim petition,
\ntherefore, could not have been allowed in view of
\nthe decision of this Court in New India Assurance
\nCo. Ltd. v. Asha Rani and Ors<\/a>. [(2003) 2 SCC
\n223] wherein the earlier decision of this Court in
\nNew India Assurance Co. v. Satpal Singh<\/a> [(2000)
\n1 SCC 237] was overruled. In Asha Rani (supra) it
\nwas, inter alia, held:\n<\/p>\n
’25. Section 147<\/a> of the 1988 Act, inter alia,
\nprescribes compulsory coverage against the
\ndeath of or bodily injury to any passenger of
\n“public service vehicle”. Proviso appended
\nthereto categorically states that compulsory
\ncoverage in respect of drivers and
\nconductors of public service vehicle and
\nemployees carried in a goods vehicle would
\nbe limited to the liability under the
\nWorkmen Compensation Act<\/a>. It does not
\nspeak of any passenger in a “goods
\ncarriage”.\n<\/p>\n
26. In view of the changes in the relevant
\nprovisions in the 1988 Act vis-`a-vis the
\n1939 Act, we are of the opinion that the
\nmeaning of the words “any person” must
\nalso be attributed having regard to the
\ncontext in which they have been used i.e. “a
\nthird party”. Keeping in view the provisions
\nof the 1988 Act, we are of the opinion that
\nas the provisions thereof do not enjoin any
\nstatutory liability on the owner of a vehicle
\nto get his vehicle insured for any passenger
\ntravelling in a goods vehicle, the insurers
\nwould not be liable therefor.\n<\/p>\n
27. Furthermore, Sub-clause (i) of Clause\n<\/p>\n
(b) of Sub-section (1) of Section 147<\/a> speaks
\nof liability which may be incurred by the
\nowner of a vehicle in respect of death of or
\nbodily injury to any person or damage to any
\nproperty of a third party caused by or arising
\nout of the use of the vehicle in a public
\nplace, whereas Sub-clause (ii) thereof deals
\nwith liability which may be incurred by the
\nowner of a vehicle against the death of or
\nbodily injury to any passenger of a public
\nservice vehicle caused by or arising out of
\nthe use of the vehicle in a public place.’
\n[See also National Insurance Co. Ltd. v. Bommithi
\nSubbhayamma and Ors<\/a>. [(2005) 12 SCC 243];
\nUnited India Insurance Co. Ltd., Shimla v. Tilak
\nSingh and Ors<\/a>. [(2006) 4 SCC 404]; Prem Kumar
\n& Ors. v. Prahlad Dev & Ors<\/a>. [2008 (1) SCALE
\n531] and Oriental Insurance Co. Ltd. v. Prithvi Raj<\/a>
\n[2008 (1) SCALE 727]”\n<\/p>\n
\tHaving said so, we must take notice of the fact that the deceased
\nBaldev Singh was labourer. The Tribunal has found that besides being a
\nlabourer, he also used to deal in Safeda wood.  He was the owner of the
\n‘Safeda’ wood which was being transported to the market for its sale.  The
\nfirst respondent, Darshana Devi, in her deposition, stated that the deceased
\nused to purchase wood from the State of Himachal Pradesh on contract
\nbasis.  Only Gurdial Singh and Ravinder Singh  were accompanying him as
\nlabourer.  His income was assessed only at Rs.2,400 per month.\n<\/p>\n
13.\tIn this view of the matter, we are of the opinion that it is not a fit case
\nwhere this Court should exercise its discretionary jurisdiction under Article
\n136<\/a> of the Constitution of India.  Even in Brij Mohan (supra), this Court
\nheld :\n<\/p>\n
“13. However, respondent No. 1 is a poor labourer.
\nHe had suffered grievous injuries. He had become
\ndisabled to a great extent. The amount of
\ncompensation awarded in his favour appears to be
\non a lower side. In the aforementioned situation,
\nalthough we reject the other contentions of Ms.
\nIndu Malhotra, we are inclined to exercise our
\nextraordinary jurisdiction under Article 142<\/a> of the
\nConstitution of India so as to direct that the award
\nmay be satisfied by the appellant but it would be
\nentitled to realize the same from the owner of the
\ntractor and the trolley wherefor it would not be
\nnecessary for it to initiate any separate proceedings
\nfor recovery of the amount as provided for under
\nthe Motor Vehicles Act<\/a>.\n<\/p>\n
14. It is well settled that in a situation of this nature
\nthis Court in exercise of its jurisdiction under
\nArticle 142<\/a> of the Constitution of India read with
\nArticle 136<\/a> thereof can issue suit directions for
\ndoing complete justice to the parties.”\n<\/p>\n
14.\tWe, therefore, while dismissing the appeal would direct that for the
\npurpose of realization of dues, the insurance company need not file a
\nseparate execution petition against the owner.  If an application is filed for
\nrealization or recovery of dues before the Tribunal, the Tribunal shall take
\nappropriate steps in this behalf.  The appeal is disposed of accordingly.  No
\ncosts.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India The New Indian Insurance Company vs Darshana Devi & Ors on 12 February, 2008 Author: S Sinha Bench: S.B. Sinha, V.S. Sirpurkar CASE NO.: Appeal (civil) 1232 of 2008 PETITIONER: The New Indian Insurance Company RESPONDENT: Darshana Devi & Ors DATE OF JUDGMENT: 12\/02\/2008 BENCH: S.B. Sinha & V.S. Sirpurkar JUDGMENT: […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-249319","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nThe New Indian Insurance Company vs Darshana Devi & Ors on 12 February, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/the-new-indian-insurance-company-vs-darshana-devi-ors-on-12-february-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"The New Indian Insurance Company vs Darshana Devi & Ors on 12 February, 2008 - 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