High Court of Chhattisgarh
Case Details
Digitally signed by ANJANI KUMAR ALLENA Date: 2025.02.04 15:49:32 +0530 1 HIGH COURT OF CHHATTISGARH AT BILASPUR NAFR MAC No. 1292 of 2015 Judgment Reserved on 06.01.2025 Judgment Delivered on 04.02.2025 • Durg Roadways Private Limited, Through its Managing Director, Nemichand Nahar, S/o Late Chunni Lal Nahar (though in the impugned order mentioned as through Proprietor), G. E. Road Durg, Tahsil and District Durg, Chhattisgarh. (Owner of Bus No. C G-07/ L P- 0344) --- Appellant versus 1. The Oriental Insurance Co. Ltd., Through the Divisional Manager, Division Office Parmanand Bhawan, Rajendra Prasad Chowk, G. E. Road, Durg, Tahsil and District Durg, Chhattisgarh. (Insurer of Bus No. CG-07/LP-0344, Policy No. 192500/31/2011/1545; Validity 16.05.2010 to 15.05.2011) 2. Smt. Rashmi Yadav, Wd/o Late Harish Yadav, aged about 29 Years, 3. Anutosh Yadav, S/o Late Harish Yadav, aged about 5 Years, 4. Vijitosh Yadav, S/o Late Harish Yadav, aged about 2 Years, Respondent Nos. 3 & 4 are minors, through Natural Guardian Mother Smt. Rashmi Yadav, Wd/o Late Harish Yadav, 5. Smt. Kamla Yadav, Wd/o Late D. L. Yadav, aged about 63 Years, All are R/o Pachripara Durg, P.S., Tahsil and District Durg, Chhattisgarh. (Claimants) --- Respondents MAC No. 1294 of 2015 • Durg Roadways Private Limited, through its Managing Director, Nemichand Nahar, S/o Late Chunni Lal Nahar (Though in the impugned order mentioned as through Proprietor), G. E. Road Durg, Tahsil and District Durg, Chhattisgarh. (Owner of Bus No. C G-07/ L P- 0344) ---Appellant Versus 1. The Oriental Insurance Co. Ltd., Through the Divisional Manager, Division Office Parmanand Bhawan, Rajendra Prasad Chowk, G. E. Road, Durg, Tahsil and District Durg, Chhattisgarh. (Insurer of Bus No. CG-07/ L P-0344, Policy No. 192500/31/2011/1545; Validity 16.05.2010 to 15.05.2011). 2 2. Dinesh Sharma (Purohit), S/o Radheshyam Sharma, aged about 35 Years, R/o Ganjpara, In Front of Rathi Kirana Stores, Durg, Tahsil and District Durg, Chhattisgarh. (Claimant) --- Respondents (representation in both the appeals) For Appellant
Legal Reasoning
: Mr. Ashish Surana and Mr. Chetan Singh Chouhan, Advocates. For Respondent No.1 : Mr. T.K. Tiwari, Advocate. For Respondent No.2 : None. (Hon'ble Shri Justice Radhakishan Agrawal) (CAV Judgment) 1. Since both the above captioned appeals arise out of the same accident that took place on 29.07.2010, therefore, they are being clubbed, heard and
Decision
disposed of by this common judgment. 2. Both these appeals preferred by the owner – Durg Roadways Private Limited under Section 173 of the Motor Vehicles Act, 1988 (for short, the MV Act) are directed against the award dated 30.03.2015 passed by the 4th Additional Motor Accidents Claims Tribunal, Durg (C.G.) (hereinafter referred to as the Claims Tribunal) in Claim Cases No.1886/2011 and 1590/2011 awarding total compensation of Rs.32,67,000/- in Claim Case No.1886/2011 (MAC No.1292/2015) in a death case and Rs.93,100/- in Claim Case No. 1590/2011 (MAC No. 1294/2015) in an injury case, along with interest at 6% per annum from the date of filing of claim application till its realisation, while primarily making the appellant/owner liable for payment of compensation. 3. Brief facts of the case are that the deceased Harish Yadav and injured Dinesh Sharma (Purohit) along with other pilgrims were travelling from Durg to Nepal in the Bus No.CG-07/LP-0344 (for brevity, the offending vehicle Bus) on 25.07.2010 and on 29.07.2010, when the offending vehicle Bus reached near Deunne hill in Nepal, the driver of the offending vehicle Bus could not control the vehicle due to high speed and the said Bus collided with 3 the hill and met with an accident, as a result of which, driver and two passengers including Harish Yadav died whereas Dinesh Sharma sustained injuries. 4. On account of said accident, legal representatives of the deceased Harish Yadav preferred a claim application, which was registered as Claim Case No.1886/2011 (MAC No.1292/2015), seeking compensation of Rs.48,99,776/- under various heads, inter alia, pleading that the deceased was aged 35 years old and was earning Rs.1,74,981/- per annum by tent business. Similarly, injured Dinesh Sharma (Purohit) also filed a claim application, which was registered as Claim Case No.1590/2011 (MAC No.1294/2015) and sought compensation of Rs.6,25,000/- under various heads, inter alia, stating that he was 35 years old at the time accident and used to earn Rs.1,80,000/- by working private job. 5. Learned Claims Tribunal framed issues on the basis of pleadings and evidence and decided the same in favour of the claimants in the above Clam Cases and awarded the compensation amounts along with interest while fixing the liability upon the appellant/owner, as mentioned in opening paragraph. While holding as such, learned Claims Tribunal exonerated the insurance company on finding that the offending vehicle Bus was being driven in violation of insurance conditions on the date of accident, the accident occurred outside the geographical area of India, i.e., in Nepal and the insurance policy was not effective in Nepal, the driving licence held by the deceased driver was also not effective and valid in Nepal, therefore, the insurance company is held not liable for payment of compensation. It is this award/order, the owner of the offending vehicle Bus, i.e., Durg Roadways Private Limited is before this Court. 4 6. Shri Ashish Surana and Shri Chetan Singh Chouhan, learned counsel for the appellant/owner would vehemently argue that the Tribunal has fallen in error in exonerating the insurance company from its liability on the ground of accident having occurred at Nepal and in fixing the liability upon the owner on the ground of driving licence and insurance policy having not effective. They would further submit that after obtaining valid permit from Regional Transport Authority, Durg and with the consent of authority of Nepal, offending vehicle is permitted to take pilgrims to Nepal. They would also submit that as per insurance policy (Ex.D.2), the offending vehicle was insured with the respondent/insurance company and once a vehicle is insured qua third party, it is insured for all geographical area, as per the provisions of the MV Act, and therefore, it is also valid for vehicle travelling to Nepal without payment of any additional premium. They would further submit that the offending vehicle entered into Nepal with the permission of the concerned authority and was driven by the driver with effective driving licence and valid permit. They would further argue that as per Section 148 of the MV Act, the insurance policy was effective and operational at the time of accident. In support, reliance has been placed on the decision of this Court rendered in the matter of Nemichand Nahar vs. Smt. Shahana Akhtar and others passed in MAC No.1342/2014 on 09.05.2019 arising out of the same offending vehicle and accident as involved in the present appeal and further placed reliance in the case of The Claim Manager vs. Mahadevi and others passed in M.F.A. No.5355 of 2016 on 12th January, 2021 by the High Court of Karnataka and on these grounds they prayed for exoneration of the appellant/owner from its liability. 7. On the other hand, Shri T.K.Tiwari, learned counsel for respondent/insurance company would support the impugned award and 5 submit that the offending vehicle Bus was insured within territorial jurisdiction of India and not outside India. He would further submit that no additional premium was paid by the appellant/owner for extension of insurance policy for the territory of Nepal. He would also submit that although the driving licence of the driver was renewed from time to time, but there is no endorsement authorising him to drive the offending vehicle Bus outside the India. He would further submit that driver was not having international driving licence. He would next contend that the issue involved in the case law cited by the side of the appellant/owner is totally different as that relates to Employees Workmen Compensation, and therefore, not applicable in this case. In support, he placed reliance on the decisions of the Supreme Court rendered in the matters of National Insurance Company vs. Prembai Patel and others and R. Muthukumar & ors. vs. the Chairman and Managing Director TANGEDCO & Ors. reported respectively in AIR 2005 SC 2337 & 2022 LiveLaw (SC) 140. 8. I have heard learned counsel for the parties and perused the respective records. 9. The questions that remains to be considered is whether the Tribunal was justified in exonerating the insurance company on the ground of accident having occurred out of territory of India, i.e., at Nepal and whether the insurance policy cannot be held effective there? 10. It is not disputed by the counsel for the parties that permit was issued in favour of the owner of the offending vehicle for plying the same in Nepal. The said permit was duly proved, thereby authorizing the owner to ply the vehicle No.CG-07-LP-0344 from Durg to Nepal and that the said permit was duly issued by the competent authority, i.e., Regional Transport Authority, Durg. 6 11. From perusal of the said permit, it is evident that it was issued in favour of the owner of the vehicle for plying the same from Durg to Nepal. As per Ex.D.1C, the deceased driver was having licence for heavy goods vehicle which was renewed from 27.06.2009 till 27.06.2012 and the same has been duly proved by N.A.W.2 Satyendra Kumar Soni examined on behalf of Non-applicant No.1. 12. The only contention of the respondent/insurance company is that since the vehicle in question was being plied outside India in Nepal, the driving licence held by the deceased driver was not valid and effective and as such it being a specific breach of policy condition, the insurance company is not liable to pay compensation to the claimants. In order to deal with the contention of the learned counsel for the insurance company, it would be apt to consider the decision of Punjab & Haryana High Court rendered in the matter of Anil Kumar vs. Roop Kumar Sharma and another passed in FAO No.152/2017 decided on 30.11.2017 wherein while considering the identical issue, it was held as under :- “A bare perusal of Sections 146 and 147 of the Act makes it clear that the insurance policy is attached to the 'vehicle' in question and not to Geographical expense of the area of operation of the vehicle in question. The only requirement for coming in operation of the policy liability is; the use of vehicle in any public place. Therefore, the Insurance Company cannot avoid its liability to pay the compensation only on the ground that the vehicle was used in any particular city, state or a particular geographical area. Once a vehicle is insured qua third party it is insured for all geographical areas as per the provisions of the Act. Only plea the Insurance Company can take to avoid its liability qua third party can be; that the vehicle was not being plied in a particular geographical area in accordance with the provisions of the Act, if any, prescribed for that purpose. Every extent of liability qua third party is covered by the consolidated amount of premium required to be paid for insurance qua third party only. Therefore, to cover liability qua third party in any particular geographical area the insured cannot even be asked to pay any extra premium under the provisions of the Act. So the Insurance Company cannot even avoid its liability qua third party, on the ground that it can charge extra premium to cover any particular geographical area and that 7 the insured has not paid that extra premium to cover that particular geographical area. Once insured, the vehicle is insured to cover all geographical areas; where the vehicle is authorised by the authorities to travel. One can come across a thought that the Motor Vehicles Act extends only to 'whole of India' as per its section 1, so it does not cover the area outside India. However, this rational also does not exempt the Insurance Company from liability arising from the usage of the vehicle outside the geographical area of the Union of India. This section also implies that the Act would be applicable to all the citizens and subjects of India qua all the Motor Vehicular aspects in India. It does not exclude the liability of one citizen or entity of India qua the other citizen of India even if the same is incurred outside the geographical area of Union of India, particularly, when the liability is arising from the use of vehicle registered and insured in India. The extra-territorial jurisdiction of a sovereign nation state over its citizen and their rights and liabilities is well recognised concept of jurisprudence. The sovereign Nation State has plenary powers to make law regarding its citizens and subjects; irrespective of territorial limits, may be, for enforcement of such law in another country the reciprocity may be required. Extra-territorial jurisdiction of a nation state is, jurisprudentially valid on the basis of the 'causes and effects' qua the territory, citizens, subjects and objects of a nation state. Indian Parliament too has this power to legislate for extraterritorial causes and effects, as clarified by Article 245 of the Constitution of India. Hence, the Motor Vehicles Act shall also govern the rights and liabilities of citizens and subjects of India; arising from the provisions of Motor Vehicles Act, irrespective of territorial limits. This intention of the Parliament to give extraterritorial effect to the provisions of this aspect of the Act is further clarified by the provisions; as contained in Sections 139 and 149 of the Motor Vehicles Act. Section 139 gives powers to the Government of India to make rules regarding the travelling of the vehicles registered in India to other countries. Section 149 (3) makes the Insurance Company liable to satisfy the decree or award for the accidents occurring outside India, even if the same is passed by a foreign Court, but according to provision of Section 149. If the award of a foreign Court passed as per provisions of Section 149 of the Act is enforceable against an Insurance Company in India, then there is no question of the liability of Insurance Company being excluded in Courts in India on the ground that accident occurred outside India. It is not even disputed by learned counsel for the respondents that the bus in question had the necessary permission to ply in the area of Nepal. Therefore, its insurance policy would be deemed to be validly permitted to travel in the area of travel of the bus. Hence, for the liability arising from the accident involving the vehicle entitled to ply in Nepal, the insurer of the vehicle would be very much liable to make the payment.” 8 13. Yet, in the matter of The Claim Manager vs. Mahadevi and others passed in M.F.A. No.5355 of 2016 on 12th January, 2021, the High Court of Karnataka has also dealt with similar issue in para 15 of its judgment which reads as under :- “15. A perusal of Section 139(2) does not mandate that a person taking his motor vehicle outside India should also obtain appropriate insurance coverage to operate the vehicle outside India. It is noted that the owner – driver of the offending bus had obtained the required permissions to take the vehicle outside India and merely because an additional premium of Rs.100/- was not paid for a geographical extension of the area, the insurer cannot escape its liability to pay the compensation. A perusal of Sections 146 and 147 of the Motor Vehicles Act, 1988 makes it clear that the insurance policy is attached to the vehicle in question and this position would not change on the area where the vehicle is put to use, so long as such area is a public place. Once the vehicle is insured and is permitted to ply in any area, then it is deemed that such vehicle carries with a policy of insurance. In similar circumstances, the Punjab and Haryana High Court in Anil Kumar Vs. Roop Kumar Sharma and another reported in 2019 ACJ 381 held that insurer cannot avoid liability on the ground that the accident occurred outside India and that no additional premium was paid for plying outside India. It is relevant to note that the offending bus was registered in Karnataka and both the claimant and the owner of the offending bus are citizens of India and are thus, bound by the provisions of the Motor Vehicles Act, 1988. The extra-territorial jurisdiction of a sovereign State qua its citizens, is a well entrenched jurisprudential concept. Yet another provision which palpably runs counter to the contention of the insurer in this is Section 149(3) of the Motor Vehicles Act, 1988 which warrants that a Judgment of a foreign Court or by a Court in a reciprocating Country shall be honoured by the insurer, notwithstanding the fact that such insurer is either registered or not in such reciprocating Country. Thus, if the insurer is bound to honour a foreign award, it would be preposterous to contend that the insurer is not liable to honour a Judgment and Award passed in India, on the ground that the accident occurred in India. In that view of the matter, the insurer cannot escape its liability on the ground that owner of the offending bus had not paid an additional premium.” 14. Be that as it may, the insurance company has also not adduced any evidence to the effect that the deceased was not having effective and valid driving licence. Copies of documents filed on record show that Entry Border 9 of Nepal was issued by the Government of Nepal and in Indian Tourist Passenger Checking Card, name of driver ‘Riyaz’ and his driving licence No.7298 are mentioned. Further, in ‘Bhansar Pragna Patra’ issued by the Nepal Government, the name of driver ‘Riyaz’ and his driving licence No.7298 and the offending vehicle Bus were specifically mentioned, therefore, the authority in Nepal had not shown their objection that the driver of the offending vehicle Bus was not having valid and effective driving licence to drive the offending vehicle in Nepal. It is pertinent to mention here that driver Riyaz has already died in the said accident that took place in Nepal and legal heirs of Riyaz filed an application before the Labour Court under the Workmen’s Compensation Act, 1923/now Employee’s Compensation Act, 1923 for compensation, which was allowed while fixing the liability upon the owner/employer of Riyaz and against this judgment, the owner/employer filed an appeal in High Court being registered as MAC No.1342/2014, which was allowed vide judgment dated 09.05.2019, as a result of which, the owner/employer was exonerated whereas the insurance company was held liable to pay compensation and the compensation amount has already been paid by the Insurance company to the legal representatives of deceased Riyaz (driver) under the Workmen’s/Employee’s Compensation Act, as stated by the parties. Apart from this, no breach of policy is proved by the insurance company and the permit was duly extended to Nepal by the concerned RTO. The case law cited by the learned counsel for the insurance company, being distinguishable on facts of the present case, would be of no help to him. 15. Thus, considering the facts and circumstances of the case, the fact that a valid permit was issued by the competent RTO in favour of the appellant/owner for plying the offending vehicle from Durg to Nepal which 10 was effective on the date of accident, further considering the fact that the deceased driver was holding a valid and effective driving licence for driving the offending vehicle, the terms and conditions of the insurance policy and also considering the principle laid down in the matter of Anil Kumar vs. Roop Kumar Sharma and another (supra) which was followed by the Karnataka High Court in its judgment rendered in the matter of “The Claim Manager vs. Mahadevi and the fact that except leading evidence with respect to breach of policy condition on the ground of the use of the vehicle outside the geographical area of India by the insurer, this Court is of the opinion that the learned Tribunal was not justified in exonerating the insurance company from its liability. 16. In the result, the finding recorded in the impugned award dated 30.03.2015 fixing the liability upon the appellant/owner – Durg Roadways Private Limited is set aside and the appeals filed by the appellant/owner – Durg Roadways Private Limited are allowed and consequently, respondent No.1/insurance company is held liable to satisfy the entire compensation as assessed and awarded by the learned Claims Tribunal, to the respective claimants with interest as awarded by the Tribunal, from the date of filing of claim applications till its realisation. If any amount is deposited by the appellant/owner of the offending vehicle Bus and paid to the claimants, he shall have the right to recover the same from the respondent/insurance company accordingly. Sd/- (Radhakishan Agrawal) Judge Anjani