Bombay High Court

The Divisional Manager United ... vs Subhash Pitamberlal Jaiswal & Ors on 28 September, 2017

Bench: P.R. Bora

                                              ..1..                                                           422.2002FA


            IN THE HIGH COURT OF JUDICATURE AT BOMBAY.
                       BENCH AT AURANGABAD.


                               FIRST APPEAL NO. 422 OF 2002


 The Divisional Manager,
 United India Insurance Company Ltd., 
 Divisional Office, 
 New Osmanpura, Aurangabad.                                                       ... Appellant
                                                                          (Original Respondent No.3)

                 VERSUS

 1.              Subhash s/o. Pitamberlal Jaiswal, 
                 Age : 40 yrs, Occu : Business, 
                 R/o Deopriya, Station Road, 
                 Dist.Aurangabad 

 2.              Budhan Khan s/o. Bhikan Khan Pathan, 
                 Age : 40 yrs, Occu : Truck driver,
                 R/o Bharadi, Tq. Sillod, 
                 Dist. Aurangabad 

 3.              Sureshsing s/o. Amarsing, 
                 Age : Major, Occu : Business, 
                 Truck Owner, Resident of 
                 At & Post : Bharadi, Tq. Sillod, 
                 Dist. Aurangabad 

 4.              Divisional Manager 
                 National Insurance Co. Hajari Chambers, 
                 Railway Station, Dist. Aurangabad          ... Respondents
                                       ..........

                         Shri A.D. Soman, Advocate for Appellant 
                   Shri R.R. Sancheti h/f. Shri R.R. Mantri, Advocate for 
                              respondent Nos.1 & 4 
                Mr. V.N. Upadhye, Advocate for Respondent No.3 
                                     .............




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                                               ..2..                                                           422.2002FA


                                                           CORAM  :  P.R. BORA, J.

                                                             RESERVED ON    :   18.07.2017
                                                             PRONOUNCED ON  :   28.09.2017

 JUDGMENT :

1. Heard the learned Counsel appearing for the parties.

2. 'Whether the Motor Accidents Claims Tribunal constituted

under Section 165 of The Motor Vehicles Act, 1988 can entertain

under Section 166 of the said Act an 'Own Damage Claim' is the

question for my consideration in the present appeal.

3. In Motor Accident Claim Petition No.269/1993 decided on

16th February, 2002, the Motor Accident Claims Tribunal at

Aurangabad has awarded the compensation by way of damages to

the tune of Rs.2,74,000/- to the owner of the vehicle towards loss

caused to the jeep owned by him from the Insurance Company, with

which, the said jeep was insured. The present appellant is the said

Insurance Company and present respondent no.1 had filed the

aforesaid claim petition.

4. Shri Soman, learned Counsel appearing for the appellant -

..3.. 422.2002FA

Insurance Company has challenged the impugned Judgment mainly

on the ground that, the tribunal was not having any jurisdiction to try

and entertain the claim petition so filed by respondent no.1. As

against it, Shri R.R. Mantri the learned Counsel appearing for

respondent no.1 has supported the impugned Judgment and award.

5. In its written statement, the appellant - Insurance

Company had raised a specific plea that, own damage claim was not

liable to be entertained by the Tribunal against it. I find it

appropriate to reproduce herein below para 2 of the said written

statement, which reads thus :

"2. The jeep in question is insured with this respondent under comprehensive cover for which an Own Damage Claim under the contractual liability was filed with the Company which is repudiated by this respondent as the jeep was carrying passengers on hire & reward at the material time. Against this cause of action the respondent says that the remedy would be to file a Civil Suit against this respondent. The claim is not maintainable before this Tribunal since there is no alleged cause of action against this Respondent. Naturally speaking the liability of the claimant himself can be indmnified by this Resp. when negligence of the Insured (Claimant himself) is proved before this Court. Since the claimant himself can not be a resp. in the same proceedings this petition deserves to be dismissed against this Resp., who is wrongly joined in the arrey of respondents."

..4.. 422.2002FA

6. Based on the plea so raised by the appellant - Insurance

Company a specific issue was framed 'whether the claim petition is

maintainable'. The tribunal has answered the said issue in affirmative.

7. From the material on record, it is evident that, the issue so

framed by the learned Tribunal was not properly framed. The claim

petition was filed not only against the appellant - Insurance

Company, but also against the driver, owner and insurer of the truck,

the another vehicle involved in the alleged accident. The plea of

maintainability was raised by the appellant - Insurance Company

alone. The issue as about the maintainability of the petition must

have been, therefore specifically framed restricted to the

maintainability of the petition against the appellant - Insurance

Company. The discussion made by the tribunal while deciding the

aforesaid issue is, however, only in respect of the appellant -

Insurance Company.

8. Reasoning given by the learned Tribunal while deciding the

aforesaid issue in affirmative, is wholly unacceptable. As has been

observed by the Tribunal, because of the decision of this Court in

First Appeal No.177/2000 with First Appeal No.178/2000 decided on

09.07.2001, the defence raised by the appellant - Insurance

..5.. 422.2002FA

Company was liable to be turned down and is accordingly turned

down by the Tribunal.

9. I have carefully perused the Judgment passed by this Court

in First Appeal No.177/2000 with First Appeal No.178/2000. The

aforesaid appeals were filed by respondent no.1 against the decision

of the Motor Accident Claims Tribunal in Motor Accident Claim

Petition No.218/1993 and 283/1993. The said claim petitions were

allowed only against the owner of the jeep i.e. respondent no.1 and

the appellant - Insurance Company was exonerated from its liability

to indemnify the insured. The aforesaid claim petitions were

admittedly filed by the legal heirs of deceased, who died in the

alleged accident while traveling through the jeep owned by

respondent no.1 and insured with the appellant - Insurance

Company.

10. The Tribunal, which decided the Motor Accident Claim

Petition Nos.218/1993 & 283/1993 had held that, there was breach

of insurance policy on account of excess passengers being carried

through the insured jeep than permitted capacity and as such

Insurance Company was exonerated and the entire liability of paying

compensation to the claimants was fixed on the owner of the jeep.

..6.. 422.2002FA

This Court while deciding First Appeal No.177/2000 with First

Appeal No.178/2000 held that, the Tribunal has wrongly concluded

that there was breach of Insurance Policy, but in fact it was breach of

permit. The High Court, therefore, set aside the order passed by the

Tribunal exonerating the appellant Insurance Company and held it

jointly and severally liable along with respondent no.1 to pay the

compensation granted by the Tribunal to the respective claimants in

the aforesaid claim petitions.

11. The persons, who had filed the aforesaid claim petitions

were admittedly third parties. The petitions filed by them were

therefore perfectly maintainable under Section 166 of M.V. Act

before the Motor accident Claims Tribunal. The question involved

in the said matters was 'whether the tribunal has committed any

error in exonerating the Insurance Company from its liability holding

that, the owner of the jeep had committed breach of policy condition

by carrying excess number of passengers in the said jeep and as noted

herein above the finding recorded by the Tribunal exonerating the

Insurance Company was set aside by the High Court in the aforesaid

appeals. The said decision in First Appeal No. 177/2000 & 178/2000

thus cannot be made applicable to the facts of the present case.

..7.. 422.2002FA

12. The Tribunal has manifestly erred in recording a conclusion

based on the decision of this Court in First Appeal No.177/2000 that,

the defence raised by the Insurance Company about the

maintainability of the petition against it was no more available to it.

I reiterate that, the issue involved in First Appeal No.177/2000 was

altogether different than the issue raised in the present matter. The

Tribunal was thus under an obligation to decide the issue of

maintainability independently having regard to the relevant

provisions in the M.V. Act. Unfortunately the Tribunal has not even

referred to the relevant provisions.

13. Section 165 of the M.V. Act deals with the constituting of

the Claims Tribunals. I deem it necessary to reproduce herein below

clause (1) of Section 165 of the M.V. Act, which reads thus :

"165. Claims Tribunals.- (1) A State Government may, by notification in the Official Gazette, constitute one or more Motor Accidents Claims Tribunals (hereafter in this Chapter referred to as Claims Tribunal) for such area as may be specified in the notification for the purpose of adjudicating upon claims for compensation in respect of accidents involving the death of, or bodily injury to, persons arising out of the use of motor vehicles, or damages to any property of a third party so arising, or both."

14. There cannot be a dispute that, the Motor Accident Claim

..8.. 422.2002FA

Tribunal at Aurangabad is constituted under Section 165 of the M.V.

Act. On reading of the aforesaid provision, there remains no doubt

that, the Tribunal under Section 165 of the M.V. Act is constituted

for the purpose of adjudicating upon claims for compensation in

respect of accidents involving the death of, or bodily injury to,

persons arising out of the use of motor vehicles, or damages to any

property of a third party so arising, or both. It is thus evident that,

the claim, if any, in regard to the damages to the property of a third

party can only be entertained by the Tribunals constituted under

Section 165 of the M.V. Act and the claim for own damages does not

fall within the purview of the Motor Accident Claims Tribunal

constituted under the aforesaid provision. Section 166 of the Motor

Vehicles Act provides that, an application for compensation arising

out of an accident of the nature specified in sub-section (1) of section

165 may be made - (a) by the person who has sustained the injury;

or (b) by the owner of the property; or (c) where death has resulted

from the accident, by all or any of the legal representatives of the

deceased; or (d) by any agent duly authorised by the person injured

or all or any of the legal representatives of the deceased, as the case

may be.

15. Section 166 of the M.V. Act cannot be read in isolation. It

..9.. 422.2002FA

has to be read with Section 165 of the Act. The conjoint reading of

which leaves no doubt that the 'own damage claim' cannot be

entertained by the Claims Tribunal under Section 166 of the M.V.

Act. Arising out of the use of a motor vehicle if the damages are

caused to the property of a third party the said party can certainly

approach the Claims Tribunal and seek compensation under Section

166 of the Act from the owner and insurer of the offending vehicle,

for the damages caused to his property. In the instant matter, in no

case it can be said that, respondent no.1 i.e. original claimant is a

third party qua appellant - Insurance Company. The same was

therefore not liable to be entertained by the Tribunal.

16. It has to be further stated that, the claims arising out of the

tort liability are made before the claims Tribunal. Unless some tort

has committed by the third party, no party can approach the claims

tribunal. In the circumstances, the claim made by the claimant

against the driver, owner and insurer of the another vehicle though

was perfectly maintainable, it was not maintainable against the

appellant - Insurance Company.

17. Section 146 of the M.V. Act lays down the requirements for

insurance against the third party risk. Where a third party risk is

..10.. 422.2002FA

involved, and Insurance policy is required to be mandatorily taken

out. The requirements of policies and the limits of liability, however,

have been stated in section 147 of the Act. Section 147 (1)(b) of the

Act, reads as under :

"147. Requirements of policies and limits of liability.--(1) In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which--

(a) .......

(b) insures the person or classes of persons specified in the policy to the extent specified in sub-section (2) -

(i) against any liability which may be incurred by him in respect of the death of or bodily [injury to any person, including owner of the goods or his authorised representative carried in the vehicle] or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place;

(ii) against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place:

Provided that a policy shall not be required--

(i) to cover liability in respect of the death, arising out of and in the course of his employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment other than a liability arising under the Workmen's Compensation Act, 1923 (8 of 1923), in respect of the death of, or bodily injury to, any such employee--