National Insurance Company Ltd v. Motor Accident Claims Tribunal, Kamrup

5. Mr. S.S. Sharma, learned senior counsel appearing for the appell ant referred to the Written Statement as filed in the Tribunal by the appellant categorically stating that as per the policy the appellant cannot be made liable to discharge any liability. In the cross-examination it has been stated by the officer of the appellant that the policy of the vehicle involved in the said acc ident was the ’comprehensive’ policy and under the comprehensive policy, the dri ver having the valid driving license is covered and it has been admitted that th e policy under reference covered the driver of the vehicle. Mr. S.S. Sharma, learned senior counsel further submitted that w hen the owner has been the driver, he cannot have the benefit of the workmen. 6. Mr. S.S. Sharma, learned senior counsel appearing for the appell ant referred a decision of the apex Court as rendered in Oriental Insurance Comp any Ltd. Vs. Jhuma Saha as reported in (2007) 9 SCC 263 where it has been held a s under: (cid:28)10. The deceased was the owner of the vehicle. For the reasons stated in the cl aim petition or otherwise, he himself was to be blamed for the accident. The acc ident did not involve motor vehicle other than the one which he was driving. The question which arises for consideration is that the deceased himself being negl igent, the claim petition under Section 166 of the Motor Vehicles Act, 1988 woul d be maintainable. 11. Liability of the insurer company is to the extent of indemnification of the insured against the respondent or an injured person, a third person or in respec t of damages of property. Thus, if the insured cannot be fastened with any liabi lity under the provisions of the Motor Vehicles Act, the question of the insurer being liable to indemnify the insured, therefore, does not arise. (cid:29)

7. Mr. S.S. Sharma, learned senior counsel appearing for the appell ant also relied on another decision of the apex Court in New India Assurance Com pany Ltd. Vs. Sadanand Mukhi and Others as reported in (2009) 2 SCC 417 where it has been held that (cid:28)the object and purport of the Act being to cover the risk t o life of any person, the said decision should be applied in this case also. We do not think that it would be a correct reading of the said judgment as therein National Insurance Co. Ltd. v. Laxmi Narain Dhut as reported in (2007) 3 SCC 700 has been followed. In Laxmi Narain Dhut a distinction between a statutory polic y and a contractual policy has clearly been made out. These decisions, clearly, are applicable to the facts of the present case. (cid:29) In view of the aforementioned authoritative pronouncements, we have no hesitatio n to hold that the Insurance Company was not liable. The impugned judgment, ther efore, cannot be sustained. It is set aside accordingly. The appeal is allowed. (cid:29) Mr. S.S. Sharma, learned senior counsel for the appellant submitted that the Tribunal had miserably misconstructed the statement of the DW-1, Sri Kalpa Deka. On the other hand, Ms. D.D. Roy, learned counsel for the respond 8. ent No.1 contended that the Tribunal did not commit any illegality by holding th at since the deceased was the driver of the vehicle and the policy covered the d river, the insurance company shall have to pay the awarded sum to the dependants of the deceased.

9. On appreciation of the rival contentions as well as on scrutiny of the records as available to this Court, this Court is of the considered opini on that in the case, the appellant does have any liability to discharge in view of the law as laid down in Jhuma Saha (supra) and Oriental Insurance Co. Ltd. Vs . Meena Variyal as reported in (2007) 5 SCC 428 where it has been held as under : (cid:28)13. As we understand Section 147(1) of the Act, an insurance policy thereunder need not cover the liability in respect of death or injury arising out of and in the course of the employment of an employee of the person insured by the policy , unless it be a liability arising under the Workmen’s Compensation Act, 1923 in respect of a driver, also the conductor, in the case of a public service vehicl e, and the one carried in the vehicle as owner of the goods or his representativ e, if it is a goods vehicle. It is provided that the policy also shall not be re quired to cover any contractual liability. Uninfluenced by authorities, we find no difficulty in understanding this provision as one providing that the policy m ust insure an owner against any liability to a third party caused by or arising out of the use of the vehicle in a public place, and against death or bodily inj ury to any passenger of a public service vehicle caused by or arising out of the use of vehicle in a public place. The proviso clarifies that the policy shall n ot be required to cover an employee of the insured in respect of bodily injury o r death arising out of and in the course of his employment. Then, an exception i s provided to the last foregoing to the effect that the policy must cover a liab ility arising under the Workmen’s Compensation Act, 1923 in respect of the death or bodily injury to an employee who is engaged in driving the vehicle or who se rves as a conductor in a public service vehicle or an employee who travels in th e vehicle of the employer carrying goods if it is a goods carriage. Section 149( 1), which casts an obligation on an insurer to satisfy an award, also speaks onl y of award in respect of such liability as is required to be covered by a policy under clause (b) of sub-section (1) of Section 147 (being a liability covered b y the terms of the policy). This provision cannot therefore be used to enlarge t he liability if it does not exist in terms of Section 147 of the Act. It is further observed in Meena Variyal (supra) that:

10. (cid:28)14. The object of the insistence on insurance under Chapter XI of the Act thus seems to be to compulsorily cover the liability relating to their person or prop erties of third parties and in respect of employees of the insured employer, the liability that may arise under the Workmen’s Compensation Act, 1923 in respect of the driver, the conductor and the one carried in a goods vehicle carrying goo ds. On this plain understanding of Section 147, we find it difficult to hold tha t the Insurance Company, in the case on hand, was liable to indemnify the owner, the employer Company, the insured, in respect of the death of one of its employ ees, who according to the claim, was not the driver. Be it noted that the liabil itiy is not one arising under the Workmen’s Compensation Act, 1923 and it is dou btful, on the case put forward by the claimant, whether the deceased could be un derstood as a workman coming within the Workmen’s Compensation Act, 1923. Theref ore, on a plain reading of Section 147 of the Act, it appears to be clear that t he Insurance Company is not liable to indemnify the insured in the case on hand. 10. It is, thus, axiomatic that whereas an insurance company may be held to be liable to indemnify the owner for the purpose of meeting the object and purpo rt of the provisions of the Motor Vehicles Act, the same may not be necessary in a case where an insurance company may refuse to compensate the owner of the veh icle towards his own lost. A distinction must be borne in mind as regards the st atutory liability of the insurer vis-a-vis the purport and object sought to be a chieved by a beneficent legislation before a forum constituted under the Motor V ehicles Act and enforcement of a contract qua contract before a Consumer Forum. (cid:29)

13. It is apparent in the case that the claimant-respondent did not make any endeavour to prove the conditions of the policy Exbt. ’A’. The DW-1 onl y submitted that the premium was paid for the driver. On the basis of that the T ribunal should not have held that it was a comprehensive policy covering the ris k of t he owner as a whole at the time of driving of the vehicle. 14. In view of the authoritative pronouncements by the apex Court, t his Court has no hesitation to hold that the liability as saddled by the Tribuna l to discharge or to make payment cannot sustain in law. 15. In view of this, the impugned judgment and order so far it relat es to the direction upon the appellant to pay the awarded sum is concerned, stan ds set aside. 16. t as indicated above. 17. 18. There shall be no order as to costs. The statutory deposit be returned to the appellant. For the reasons as aforesaid, the appeal is allowed to the exten