High Court · 2012

The findings as returned by the Tribunal as regards the accident that occurred on 15.08.2003 for the rash and negligent driving of the vehicle b earing registration No.AS-18/6631 (motor cycle), injuries received by the claima nt and her son and the insurance cover of the said vehicle at the relevant time by the appellant are not in dispute by either of the parties or in the appeal an d as such those findings stand affirmed, requiring no further appraisal.

4. The questions those have been raised in the appeal are: the mot or cycle was since being driven by the father of the owner and the accident occu rred for involvement of no other vehicle, whether the claim in respect of the ap pellant is sustainable under Section 166 or Section 163A of the M.V. Act or the appellant has any liability to discharge? Ms. A. Ajitsaria, learned counsel appearing for the appellant ha 5. s drawn attention of this Court to the cross-examination of the claimant in the inquiry, where she categorically stated that the accident was caused by her husb and by driving the motorcycle, which belonged to her eldest son. In the impugned judgment and award it has been found that one auto rickshaw was dashed by the s aid motorcycle from the backside and as a result she (the claimant) sustained in juries but, in the claim petition it has been pleaded that the claimant with her husband and her injured son was going from Karbala Bazar to Goalpara town by th e Motor Cycle No.AS-18-6631. As such, the pleadings as advanced in the claim pet ition had been abandoned and substituted by the version that would subserve the purpose of the claimant. By the impugned judgment and award, a sum of Rs.31,200/ - with interest @ 6% was directed to be paid by the appellant from the date of filing of the claim petition i.e. 24.12.2003, failing which the said sum shall c arry interest @ 9% per annum from the date of filing the claim petition till the payment is made.

6. Ms. A. Ajitsaria, learned counsel for the appellant has placed h er reliance on New India Assurance Company Ltd. Vs. Sadanand Mukhi and Ors., as reported in (2009) 2 SCC 417, where the Apex Court held as under : (cid:28)16. t:fnOpenGlobalPopUp(’/citation/crosscitations.asp’,’MANU/SC/7047/2007’,’1’);>) 9 In Oriental Insurance Co. Ltd. v. Jhuma Saha : (2007 <javascrip SCC 263, it was held: (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 <javascript:fnOpenGlobalPopUp(’/ba/d isp.asp’,’2567’,’1’);> of the Motor Vehicles Act, 1988 would 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) It was furthermore held: (cid:28)13. The additional premium was not paid in respect of the entire risk of death or bodily injury of the owner of the vehicle. If that be so, Section 147(b) <jav ascript:fnOpenGlobalPopUp(’/ba/disp.asp’,’2545’,’1’);> of the Motor Vehicles Act which in no uncertain terms covers a risk of a third party only would be attrac ted in the present case. (cid:29) 17. The matter came up for consideration yet again in Oriental Insurance Co. Ltd. v. Meena Variyal (2007) 5 SCC 428, wherein it was observed: (cid:28)13. As we understand Section 147(1) <javascript:fnOpenGlobalPopUp(’/ba/disp.asp ’,’2545’,’1’);> of the Act, an insurance policy thereunder need not cover the li ability in respect of death or injury arising out of and in the course of the em ployment of an employee of the person insured by the policy, unless it be a liab ility arising under the Workmen’s Compensation Act, 1923 in respect of a driver, also the conductor, in the case of a public service vehicle, and the one carrie d in the vehicle as owner of the goods or his representative, if it is a goods v ehicle. It is provided that the policy also shall not be required to cover any c ontractual liability. Uninfluenced by authorities, we find no difficulty in unde rstanding this provision as one providing that the policy must insure an owner a gainst 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 injury 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 not be required to cov er an employee of the insured in respect of bodily injury or death arising out o f and in the course of his employment. Then, an exception is provided to the las t foregoing to the effect that the policy must cover a liability arising under t he 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 serves as a conductor i n a public service vehicle or an employee who travels in the vehicle of the empl oyer carrying goods if it is a goods carriage. Section 149(1) <javascript:fnOpen GlobalPopUp(’/ba/disp.asp’,’2547’,’1’);>, which casts an obligation on an insure r to satisfy an award, also speaks only of award in respect of such liability as is required to be covered by a policy under clause (b) of Sub-section (1) of Se ction 147 <javascript:fnOpenGlobalPopUp(’/ba/disp.asp’,’2545’,’1’);> (being a li ability covered by the terms of the policy). This provision cannot therefore be used to enlarge the liability if it does not exist in terms of Section 147 <java script:fnOpenGlobalPopUp(’/ba/disp.asp’,’2545’,’1’);> of the Act. 14. The object of the insistence on insurance under Chapter XI of the Act thus s eems to be to compulsorily cover the liability relating to their person or prope rties 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 o f the driver, the conductor and the one carried in a goods vehicle carrying good s. On this plain understanding of Section 147 <javascript:fnOpenGlobalPopUp(’/ba /disp.asp’,’2545’,’1’);>, we find it difficult to hold that the Insurance Compan y, 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 employees, who according to the claim, was not the driver. Be it noted that the liability is not one arising under the Workmen’s Compensation Act, 1923 and it is doubtful, on the case put forward by the claimant, whether the deceased could be understood as a workman c oming within the Workmen’s Compensation Act, 1923. Therefore, on a plain reading of Section 147 <javascript:fnOpenGlobalPopUp(’/ba/disp.asp’,’2545’,’1’);> of th e Act, it appears to be clear that the Insurance Company is not liable to indemn ify the insured in the case on hand. (cid:29)

18. The said principle was reiterated in United India Insurance Co. Ltd. v. Davinder Singh : (2007) 8 SCC 698, holding : (cid:28)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 purport 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 vehicl e towards his own loss. A distinction must be borne in mind as regards the statu tory liability of the insurer vis-a-vis the purport and object sought to be achi eved by a beneficent legislation before a forum constituted under the Motor Vehi cles Act and enforcement of a contract qua contract before a Consumer Forum. (cid:29) Learned counsel for the respondents would contend that the object and purport of the Act being to cover the risk to life of any person, the said decision should be applied in this case also. We do not think that it would be a correct readin g of the said judgment as therein National Insurance Co. Ltd. v. Laxmi Narain Dh ut : (2007) 3 SCC 700 has been followed. In Laxmi Narain Dhut a distinction betw een a statutory policy and a contractual policy has clearly been made out. These decisions, clearly, are applicable to the facts of the present case. On scrutiny of the documents as appended in the claim petition a 7. nd on appreciation of the submission of the learned counsel appearing for the ap pellant, this Court is of the view that the Tribunal has erred in fastening the liability on the insurance company. Be that as it may, the question of liability of the insurance company has been discussed in Sadanand Mukhi(supra) where the Apex Court held that the insurance company would have no liability towards the i njuries suffered by one who was a pillion rider, as the insurance policy was a s tatutory policy which did not cover the gratuitous passenger unless there is spe cial contractual arrangement. But there is no such special arrangement in this c ase as is apparent from the statutory Policy being No.130603/31/02/1201. 8. In view of this, this appeal stands allowed. The judgment and aw ard dated 03.07.2006 as passed by the Motor Accident Claims Tribunal, Goalpara i n MAC Case No.569/2003 is set aside. As corollary to this, the claim stands dism issed. The statutory amount be returned to the appellant. 9. Send down the LCRs forthwith.