Allahabad High Court
Shriram General Insurance Co. ... vs Smt. Vipan Devi And Others on 3 April, 2013
Bench: Rakesh Tiwari, Anil Kumar Sharma
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 35
Case :- FIRST APPEAL FROM ORDER No. - 858 of 2013
Petitioner :- Shriram General Insurance Co. Ltd.
Respondent :- Smt. Vipan Devi And Others
Petitioner Counsel :- Nishant Mehrotra
Hon'ble Rakesh Tiwari,J.
Hon'ble Anil Kumar Sharma,J.
( By Hon. Anil Kumar Sharma, J. )
Heard Sri Nishant Mehrotra, learned counsel for the appellant and perused the impugned award as also the papers filed alongwith memo of appeal and affidavit.
The appellant challenges the award dated 20.12..2012 passed by Motor Accident Claims Tribunal/District Judge, Kashiram Nagar in MACP No. 72 of 2010, Smt. Vipan Devi Vs. Ramrahees and another, whereby compensation of Rs. 5,48,000/- together with interest @ 8 % per annum has been awarded to claimant respondents no. 1 to 4.
Learned counsel for the appellant placing statement of Bantoo P.W. 2 examined on behalf of the claimants, has vehemently argued that at the time of accident, the offending Tempo was carrying about 10-12 passengers i.e. more than sitting capacity of the vehicle and thus the insurer has committed breach of the terms of insurance.
On perusal of the award, we find that appellant has neither filed registration certificate of the offending Tempo nor the insurance policy of the vehicle in question. Learned counsel for the appellant could also not inform us as to whether any other claim had been filed pertaining to this accident. In this connection, we may usefully refer to the decision rendered by the Apex Court in Untied India Insurance Co. Ltd. Vs. K. M. Poonam and others ( 2011 (3) TAC 376(SC), wherein
the offending jeep was also having sitting capacity of six persons including driver. On the fateful day the jeep carrying fifteen passengers fell into a ditch resulting into the death of driver and majority of the passengers while causing serious injuries to the other passengers. The Tribunal held that even if a large number of passengers than permitted under the terms of the insurance policy, were being carried in the vehicle, it could not be said that the insurance company would stand exonerated from its liability because the vehicle was insured for third party coverage for unlimited liability and it did not amount to breach of the terms and conditions of the Policy and the insurer would still be liable since the vehicle was legally insured. The appeal filed by the insurer in the High Court also failed. Before the Apex Court, it was contended on behalf of the appellant that having regard to the provisions of Section 149 of Motor Vehicles Act, 1988, the liability, if any, of the insurance company for payment of compensation would have to be limited to the number of passengers validly permitted to be carried in the vehicle covered by the insurance policy and did not extend to the number of passengers carried in excess of the permitted number. The Hon'ble Court after considering various case laws as also the provisions of Sections 146, 147(1)(a) and (b), (2) and 149 of the Motor Vehicles Act, 1988, has held in paragraph no. 20,22,24 and 25 as under:
"20. The law as regards the liability of insurers towards third parties killed or injured in accidents involving different types of motor vehicles, has been crystallized in the several decisions of this Court referred to herein above. The kind of third party risk that we are concerned with in this case involves purported breach of the conditions contained in the insurance agreement executed by and between the insurer and the insured.
22. However in order to fix the liability of the insurer, the provisions of Section 147 have to be read with Section 149
of the Act which deals with the
duty of the insurer to satisfy judgments and awards against persons insured in respect of third party risks. Although, on behalf of the Insurance Company it has been sought to be contended that no third party risks were involved in the accident and that the persons traveling in the ill-fated vehicle were gratuitous passengers, the Insurance Company cannot get away from the fact that the vehicle was insured for carrying six persons and the liability of the Insurance Company was to pay compensation to the extent of at least six of the occupants of the vehicle, including the driver.
24.The liability of the insurer, therefore, is confined to the number of persons covered by the insurance policy and not beyond the same. In other words, as in the present case, since the insurance policy of the owner of the vehicle covered six occupants of the vehicle in question, including the driver, the liability of the insurer would be confined to six persons only, notwithstanding the larger number of persons carried in the vehicle. Such excess number of persons would have to be treated as third parties, but since no premium had been paid in the policy for them, the insurer would not be liable to make payment of the compensation amount as far as they are concerned. However, the liability of the Insurance Company to make payment even in respect of persons not covered by the insurance policy continues under the provisions of sub-section (1) of Section 149 of the Act, as it would be entitled to recover the same if it could prove that one of the conditions of the policy had been breached by the owner of the vehicle. In the instant case, any of the persons traveling in the vehicle in excess of the permitted number of six passengers, though entitled to be compensated by the owner of the vehicle, would still be entitled to receive the compensation amount from the insurer, who could then recover it from the insured owner of the vehicle.
25. As mentioned herein before, in the instant case, the insurance policy taken out by the owner of the vehicle was in respect of six passengers, including the driver, traveling in the vehicle in question. The liability for payment of the other passengers in excess of six passengers would be that of the owner of the vehicle who would be required to compensate the injured or the family of the deceased to the extent of compensation awarded by the Tribunal."
The aforesaid principles laid down by the Apex Court have been followed by this Court in F.A.F.O. No. 2157 of 2012, National Insurance Company Limited Vs. Jagbira and others, decided on July 13, 2012.
In the instant case, the appellant has not pleaded nor has come from the evidence adduced in the case that except the present claim petition, no other claim has been filed pertaining to the instant accident. In this view of the matter, even if the offending Tempo was carrying passengers more than its sitting capacity, the appellant cannot be absolved of its liability to indemnify the award as directed by the Tribunal as no other claim petition pertaining to the instant accident had been filed.
No other point has been argued before us.
In view of the aforestated reasons, we find that the appeal sans merit and is accordingly dismissed at the admission stage.
The amount of statutory deposit by the appellant in this Court, be remitted to the Tribunal concerned within three weeks from today, for adjustment.
Order Date :- 3.4.2013
SNT/
