Delhi High Court
Dayawanti & Ors vs Lala & Ors on 5 March, 2012
Author: G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 5th March, 2012
+ MAC.APP. 621/2010
DAYAWANTI & ORS ..... Appellants
Through: Mr.Peeush Sharma, Advocate
versus
LALA & ORS ..... Respondents
Through: Mr. Madhuendra Kumar,
Advocate for R-2.
Mr.Pradeep Gaur, Mr.Amit
Gaur and Mr.Shashank Sharma,
Advocates for R-3
+ MAC.APP. 853/2010
RAJBIR SINGH ..... Appellant
Through: Mr. Madhuendra Kumar,
Advocate
Versus
DAYAWANTI & ORS ..... Respondents
Through: Mr.Peeush Sharma, Advocate
for R-1 to R-3.
Mr.Pradeep Gaur, Mr.Amit
Gaur and Mr.Shashank Sharma,
Advocates for R-5
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J. (ORAL)
1. These two appeals MAC APP.621/2010 and 853/2010 arise out
of a common judgment dated 02.07.2012 passed by the Motor
Accident Claims Tribunal whereby a compensation of `17,94,368/-
was awarded in case of the Claimants who are Appellants in MAC
APP.621/2010.
2. In MAC APP. 621/2010 the Appellants' (hereinafter referred to
as Claimants) contention is that it is difficult to recover the award
amount of compensation from the owner of the offending vehicle. It
is averred that the Respondent/Oriental Insurance Company should be
first asked to pay the awarded compensation and to recover the same
from the owner of the vehicle i.e Respondent No.2 in this Appeal.
3. In MAC APP. 853/2010 filed by Rajbir Singh (hereinafter
referred to as the owner) the owner of the Tata Tempo bearing No. DL
1LC 7387 it is contended that the driver (Lala, the Respondent No.1)
was not authorized to carry the passengers for any satsang. He took
the vehicle for washing and unauthorizedly carried the passengers. It
is argued that the Owner's counsel did not contest the proceedings
before the Tribunal properly and, therefore, a complaint was made
against him to the Bar Council.
4. The learned counsel for the Claimants places reliance on
National Insurance Company Limited v. Baljit Kaur & Ors., (2004) 2
SCC 1, Oriental Insurance Co. Ltd. v. Shri Nanjappan and Ors.(2004)
13 SCC 224 and Oriental Insurance Co.Ltd. v. Brij Mohan and Ors.
2007 SC 640.
5. First of all, let me deal with the factual position.
6. The owner who was the Respondent No.2 before the Claims
Tribunal filed a written statement and took a defence that no accident
was caused by the Tata Tempo DL 1L C 7387 which was owned by
him. Now a plea is sought to be taken that the driver had
unauthorizedly taken the gratuitous passenger for attending some
satsang. The learned counsel for the owner also places reliance on a
judgment of United India Insurance Co. Ltd. v. K.M.Poonam & Ors.,
2011 ACJ 917, in support of the contention that even when there is
violation of the policy, the Insurance Company cannot avoid the
liability.
7. It is submitted by Mr. Pradeep Gaur, learned counsel for
Oriental Insurance Co. Ltd. that since the policy did not cover the
gratuitous passenger, the Insurance Company has no liability at all and
there is no question of breach of the terms of the policy.
8. As per Baljit Kaur (Supra) which is a three judges bench
decision of the Supreme Court it was held as under:-
"By reason of the 1994 Amendment what was added is
"including the owner of the goods or his authorised
representative carried in the vehicle". The liability of the owner
of the vehicle to insure it compulsorily, thus, by reason of the
aforementioned amendment included only the owner of the
goods or his authorised representative carried in the vehicle
besides the third parties. The intention of the Parliament,
therefore, could not have been that the words 'any person'
occurring in Section 147 would cover all persons who were
travelling in a goods carriage in any capacity whatsoever. If
such was the intention there was no necessity of the Parliament
to carry out an amendment inasmuch as expression 'any person'
contained in Sub-clause (i) of Clause (b) of Sub-section (1) of
Section 147 would have included the owner of the goods or his
authorised representative besides the passengers who are
gratuitous or otherwise.
The observations made in this connection by the Court in Asha
Rani case (supra) to which one of us, Sinha, J, was a party,
however, bear repetition:
"26. In view of the changes in the relevant provisions in the
1988 Act vis-a-vis the 1939 Act we are of the opinion that the
meaning of the words "any person" must also be attributed
having regard to the context in which they have been used i.e.
"a third party". Keeping in view the provisions of the 1988 Act,
we are of the opinion that as the provisions thereof do not
enjoin any statutory liability on the owner of a vehicle to get his
vehicle insured for any passenger traveling in a goods vehicle,
the insurers would not be liable therefore."
In Asha Rani (supra), it has been noticed that Sub-clause (i) of
Clause (b) of Sub-section (1) of Section 147 of the 1988 Act
speaks of liability which may be incurred by the owner of a
vehicle in respect of death of or bodily injury to any person or
damage to any property of a third party caused by or arising
out of the use of the vehicle in a public place. Furthermore, an
owner of a passenger-carrying vehicle must pay premium for
covering the risks of the passengers travelling in the vehicle.
The premium in view of the 1994 Amendment would only cover
a third party as also the owner of the goods or his authorised
representative and not any passenger carried in a goods vehicle
whether for hire or reward or otherwise.
It is therefore, manifest that in spite of the amendment of 1994,
the effect of the provision contained in Section 147 with respect
to persons other than the owner of the goods or his authorized
representative remains the same. Although the owner of the
goods or his authorized representative would now be covered
by the policy of insurance in respect of a goods vehicle, it was
not the intention of the legislature to provide for the liability of
the insurer with respect to passengers, especially gratuitous
passengers, who were neither contemplated at the time the
contract of insurance was entered into, nor any premium was
paid to the extent of the benefit of insurance to such category of
people.
The upshot of the aforementioned discussions is that instead
and in place of the insurer the owner of the vehicle shall be
liable to satisfy the decree. The question, however, would be as
to whether keeping in view the fact that the law was not clear so
long such a direction would be fair and equitable. We do not
think so. We, therefore, clarify the legal position which shall
have prospective effect. The Tribunal as also the High Court
had proceeded in terms of the decisions of this Court in Satpal
Singh (supra). The said decision has been overruled only in
Asha Rani (supra). We, therefore, are of the opinion that the
interest of justice will be subserved if the appellant, herein is
directed to satisfy the awarded amount in favour of the
claimant if not already satisfied and recover the same from the
owner of the vehicle. For the purpose of such recovery, it would
not be necessary for the insurer to file a separate suit but it may
initiate a proceeding before the executing court as if the dispute
between the insurer and the owner was the subject matter of
determination before the tribunal and the issue is decided
against the owner and in favour of the insurer. We have issued
the aforementioned directions having regard to the scope and
purport of Section 168 of the Motor Vehicles Act, 1988 in terms
whereof it is not only entitled to determine the amount of claim
as put forth by the claimant for recovery thereof from the
insurer, owner or driver of the vehicle jointly or severally but
also the dispute between the insurer on the one hand and the
owner or driver of the vehicle involved in the accident
inasmuch as can be resolved by the tribunal in such a
proceeding."
9. The learned counsel for the Claimants urges that since the
Claimants are poor, they would have difficulty in recovering the
amount of compensation awarded from the owner and the Insurance
Company may be directed to pay the compensation with a right to
recover the same from the owner. No such direction can be issued by
this Court in view of the law laid down in Baljit Kaur (supra) that
Insurance Company has no liability to pay.
10. In Oriental Insurance Co.Ltd. v. Brij Mohan and Ors., the
Insurance Company was directed to satisfy the award (in exercise of
an extra jurisdiction) by the Supreme Court under Article 142 of the
Constitution of India. United India Insurance Co. Ltd. v. K.M.Poonam
& Ors., relied upon by the learned counsel for the owner does not help
the owner as the issue before the Supreme Court in K.M.Poonam
(supra) was about carrying of passengers more than the capacity of the
insured vehicle. It was directed that the highest amount of six awards
(which was the carrying capacity of the vehicle) be paid by the
Insurance Company and be apportioned equitably amongst all the
Claimants. The balance amount (which the Insurance Company was
not liable to pay) was held to be recoverable from the owner of the
vehicle. K.M.Poonam (supra) therefore does not help the owner of the
vehicle rather it shows that when the Insurance Company has no
liability to pay under the terms of policy it cannot be directed to pay
the amount of compensation.
11. In view of the above discussion, both the Appeals are devoid of
merit. The same are, accordingly, dismissed.
(G.P. MITTAL)
JUDGE
MARCH 05, 2012
mr
