ORIENTAL INSURANCE CO. LTD v. SMT. SARABJIT KAUR & Ors.

SMT. SARABJIT KAUR & OTHERS ...RESPONDENTS CORAM: HON'BLE MR. JUSTICE K.KANNAN.

1. Whether reporters of local papers may be allowed to see the judgement. Yes/No To be referred to the reporters or not? Yes/No

2. 3. Whether the judgement should be reported in the digest? Yes/No ---- PRESENT: MR. AMIT RAWAL, ADVOCATE FOR THE APPELLANT. MR. S.K. SHARMA, ADVOCATE FOR RESPONDENTS NO.1, 2 TO 5 AND 7. NONE FOR RESPONDENTS NO.6 AND 8. MR. RAJ KARAN, ADVOCATE FOR MR. VIKAS SAGAR, ADVOCATE FOR RESPONDENT NO.9. MR. AMIT JASWAL, ADVOCATE FOR RESPONDENT NO.10. K.KANNAN, J.(ORAL)

1. Mr. Raj Karan, counsel appearing on behalf of Mr. Vikas Sagar, counsel for the owner of yet another vehicle in the accident seeks for an adjournment. This case was also taken up at the previous hearing, namely, on 7.12.2010, and after hearing the arguments at some length, it was adjourned for a direction that yet another case in FAO No.5198 of 2010 should also be tagged alongwith this case. All the counsel appearing for all other parties are present and ready. I decline the plea for adjournment and FAO No.3358 of 2009 -2- post the case for hearing on merits.

2. All the appeals arise out of same accident. The accident was the result of collision between a stationary truck having Registration No.PB05E-9607 and another truck which rammed into the stationary truck bearing Registration No.PB02D-9696. The claim petition by the wife of the driver of truck PB02D-9696 was filed at Amritsar under Section 163A of the Motor Vehicle Act and the Tribunal had apportioned the liability between both the vehicles as 50:50 and after determining the compensation of Rs.3,56,000/- directed the insurer of the vehicle and the owner of the stationary vehicle liable for the claim of compensation. The owner of the stationary vehicle PB05E-9607 is in appeal in FAO No.5198 of 2010, challenging the finding that there was no negligence on the part of the driver of the stationary vehicle. The representative of the deceased of the stationary vehicle had filed a petition against the owner and the insurer of the vehicle PB02D-9696 at MACT, Ambala and the claim petition was allowed granting a compensation of Rs.3,95,000/-. The owner of the stationary vehicle had also filed a petition for compensation for damage to his property against the owner and insurer of the other vehicle PB02D-9696. The Tribunal had awarded Rs.25,000/- for damage to the vehicle.

3. The insurer who was made to indemnify the owner of the vehicle PB02D-9696 for the claims arising out of the award of the MACT Ambala, has preferred appeal in FAO No.2039 of 2010. The insurance company which has been made liable for the claim for compensation upto 50% for death of the driver of PB02D-9696 is in appeal in FAO No.3358 of

2009. The claim by the insurer of the truck PB02D-9696 is that the accident took place at 10.00 p.m. on 17.6.2003, but the commencement of risk under FAO No.3358 of 2009 -3- the policy was only from 17th midnight and 18th morning and consequently there was no liability to the insurer to satisfy the claim. The premium had been paid at 10.00 a.m. in the morning on 17.6.2003 and therefore, the Tribunal assumed that risk must be taken to be covered under the policy and further made mis-appreciation of fact in referring to the actual time of the accident as 1.00 a.m. on 18.6.2003. The payment of premium will not be itself a proof of the commencement of the policy, when the policy stipulated a particular time of the commencement of risk. The policy terms themselves are not in dispute and the insurance company has undertaken the risk only from 17th midnight and 18th morning. In such an event, it is obvious that the accident taken place prior to the commencement of the policy and, however, it is not possible to direct any liability against the insurer. The liability cast on the insurance company of the vehicle PB02D-9696 was, therefore, clearly erroneous. FAO No.3358 of 2009 ought to be allowed.

4. FAO Nos.3358 of 2009, FAO No.2039 of 2006 and FAO No.2040 of 2009 are allowed setting aside the finding of the Tribunal making the insurer liable. Instead the liability shall be on the owner of the truck PB02D-9696, namely, Kaushil Arora S/o Jugal Kishore.

5. The owner of the stationary truck himself is in appeal in FAO No.5198 of 2010 urging that the liability cast to the extent of 50% for the damages claimed by the L.R.s of the deceased-driver of the vehicle PB02D- 9696 was erroneous, for no negligence could be attributed to the driver of the stationary truck. The facts giving rise to the accident were that the owner's truck had been stationed at Ambala when the driver was changing the tyre. The tyre was being changed in the night and it could not have been totally dark when somebody was changing the tyre. The deceased, who FAO No.3358 of 2009 -4- rammed into the stationary vehicle alone was responsible for the accident and the liability could not have been any more than what was possible under the Workmen's Compensation Act. If the claim petitions were to be filed against the owner of yet another vehicle, it shall not be possible unless any portion of negligence could be attributed to the stationary vehicle. I cannot find such negligence and the finding of the Tribunal at Amritsar that the liability must be apportioned in the ratio of 50:50 is accordingly set aside.

6. Consequently, FAO No.5198 of 2010 filed by the owner against the liability cast on him is allowed. The liability shall be, instead, only of the owner of the vehicle PB02D-9696, the same way as he shall become liable also for the death of the driver and for damage to the stationary vehicle. December 21, 2010 Gulati (K.KANNAN) JUDGE