FIRST APPEAL NO. 700/2008

29th April 2019

Petitioner Counsel: Shri A.J. Pophlaly
Respondent Counsel: Shri Asghar Hussain

Cases Cited :
Para 10: Amrit Paul Singh and another Vs. Tata AIG General Insurance company and others, reported in Part-II (2018) ACC 638 (SC)

JUDGEMENT

1. By this Appeal filed under Section 173 of the Motor Vehicles Act, 1988 (for short “the Act”), the appellant-New Assurance Co. has challenged the judgment and award passed on 31.8.2007 passed by learned Member, Motor Accident Claims Tribunal, Nagpur in Claim Petition No.106/2002.

2. The legal heirs of deceased-Rajendra Tatte i.e. respondent nos.1 to 4 had filed Claim Petition No.106/2002 claiming compensation of Rs. 3,50,000 on account of death of deceased-Rajendra who met with an accident on 13.11.2001. The learned member of the Tribunal had awarded compensation to the tune of Rs. 2,89,500/- to the claimants and the insurance Company was directed to deposit the entire amount of compensation with interest. The appellant -company was further directed to recover the said amount from the owner of the vehicle i.e. respondent no.5. The Tribunal has also recorded a finding that there is breach of terms and conditions of the policy and therefore, the Insurance Company is not liable to pay the compensation. Being aggrieved, the appellant -Insurance company has preferred the instant Appeal.

3. Mr. A.J. Pophaly, learned Advocate for the appellant contended that the impugned judgment and award is illegal and perverse and no such directions should have been passed by the Tribunal. Mr.Pophaly, however, did not dispute the position of law. On the contrary, Mr. Asghar Hussain, learned counsel for respondent nos. 1 to 4 contended that the learned Tribunal has rightly passed the impugned judgment.

4. On 13.11.2001, Rajendra and Jagdish were travelling in a jeep bearing No. MH 31/ Z-4515. When they reached near Jamgaon, at that time, the driver of the said vehicle had lost his control and as a result, dashed the vehicle to an autorickshaw bearing No. MH 31/AH 4047. Consequently, deceased received several injuries and died. The original respondent no.1 was the owner and original respondent no.2 was the insurer. They both were held jointly and severally liable to pay the compensation.

5. The Tribunal has observed that the deceased was a skilled carpenter getting Rs.100/-per day and was aged about 30 years and as such, compensation was calculated to the tune of Rs.3,50,000/-. The claim was restricted to Rs. 1 lakh however it was again enhanced to Rs.3,50,000/-.

6. The respondent no.1 has submitted his reply denying all the adverse allegations except the partnerhship and the insurance.

7. The Insurance company has submitted in its written statement that the Jeep is a private motor vehicle to be used by its owner for private use. It was carrying 15 passengers illegally and in contravention of the limitations as to the use of the motor vehicle and the breach of policy conditions. It was submitted that the Insurance Company is not liable to pay any compensation in view of the breach of policy conditions.

8. I have heard both sides at length and also gone through the record and proceedings of the case. The point which arises for my consideration is,”whether the impugned order passed by the Tribunal regarding satisfying the compensation award first and then at liberty to recover the said amount from the owner is proper or not?”

9. It is noticed that the documents of the petitioners i.e. FIR and the final report disclose that the private jeep was carrying the passengers illegally. The Insurance policy discloses the capacity of the Jeep for passengers as 9 plus 1, however the evidence on record shows that fifteen passengers were travelling in the Jeep. It was admitted by the petitioners in Claim Petition No.106/2002 i.e. that his son was fair paying passenger in the jeep which clearly confirms the case of the Insurance Company. In these circumstances the liability cannot be fastened against the Insurance company. In my view, the Tribunal has properly assessed the evidence and has rightly come to the conclusion that the liability cannot be fastened against the Insurance company. However, it is well-settled that in case of such a breach at initial stage, the Insurance company has to satisfy the award and later on is at liberty to recover the said amount from the owner of the vehicle.

10. In the case of Amrit Paul Singh and another vs. Tata AIG General Insurance company and others, reported in Part-II (2018) ACC 638 (SC), the vehicle at the time of accident did not have permit. It was held that the exceptions that carved out u/s 66 of the Act are to be pleaded and proved. The exceptions cannot be taken aid of in course of an argument to seek absolution from the liability. It was observed that use of a vehicle in a public place without a permit is a fundamental statutory infraction. It was not brought on record by the insured to prove that he had a permit of vehicle. The Hon'ble Apex Court held that onus cannot be cast on the insurer. In that case the High Court had directed the insurer was required to pay the compensation amount with interest with stipulation that the insurer shall be entitled to recover same from the owner and driver and the impugned judgment of the High Court was upheld.

11. Likewise, in the instant case also, the Tribunal has rightly held that the insurer was required to pay the compensation amount with interest and the insurer was at liberty to recover the same from the owner and driver.

12. The aforesaid case law is applicable to the facts and circumstances of the instant case. In view thereof, no interference is called for in the impugned judgment and order. Consequently, the Appeal fails and is dismissed.