Delhi High Court
The New India Assurance Co Ltd vs Shri Ram Murthy And Ors on 23 May, 2016
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on : 28th April, 2016
Pronounced on : 23rd May, 2016
+ MAC.APP. 434/2013
THE NEW INDIA ASSURANCE CO LTD ..... Appellant
Through Mr. Pankaj Seth, Adv.
versus
SHRI RAM MURTHY AND ORS ..... Respondent
Through Mr. Apurv Chandola, Adv.
+ MAC.APP. 436/2013
THE NEW INDIA ASSURANCE CO LTD ..... Appellant
Through Mr. Pankaj Seth, Adv.
versus
SHRI RAM MURTHY AND ANR ..... Respondent
Through Mr. Apurv Chandola, Adv.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT
R.K.GAUBA, J :
1. On 08.10.2003, Ram Dulari Devi aged about 75 years with her grand
child Satya Dev Singh aged 15 years were travelling in three wheeler
scooter bearing registration No.DL 1R E-1331 (TSR) when it was involved
in a collision against Maruti car bearing registration No.UP 78F 4000 at
about 4 AM in the area of police station Sarita Vihar. Both Ram Dulari and
Satya Dev suffered injuries and died in the consequence. Two accident
claim cases, under Sections 166 and 140 of Motor Vehicles Act, 1988 (MV
Act), were filed on 23.03.2004 before the motor accident claims tribunal
(tribunal), one concerning the death of Ram Dulari and the other concerning
the death of Satya Dev Singh, they having been registered as suit
Nos.72/11/04 and 73/11/04. Saurabh Swaroop (seventh respondent in
MAC.APP.No.434/2013 and second respondent in MAC. APP. No. 436/
2013), admittedly the registered owner of the car, was impleaded as the first
respondent in addition to New India Assurance Company Ltd. (appellant in
both these appeals) impleaded as the second respondent in each case. Both
cases were clubbed together for inquiry, during which Saurabh Swaroop (the
owner of the offending vehicle) denied liability to compensate taking the
position that the car had been stolen from his possession sometime during
01.10.2003 and 06.10.2003 while he was away from Delhi to Allahabad and,
thus, it was being driven by a person unknown to him at the relevant point of
time.
2. The insurance company while admitting that there was a third party
insurance policy taken out by the registered owner of the offending vehicle,
sought to be exonerated on the ground that there was no master and servant
relationship between the registered owner (insured) on the one hand and the
driver (unknown person) on the other. It also raised the issue of breach of
terms and conditions of the policy inasmuch as it is not known whether the
person who was driving was holding a valid or effective licence to drive at
the relevant point of time.
3. The tribunal, on the basis of evidence led, returned a finding that the
accident had occurred due to negligent driving of the car. It assessed the
compensation in the case of death of Ram Dulari in the sum of ₹1,13,520/-
and in the case of death of Satya Dev in the sum of ₹3,75,000/-. The said
compensation was awarded with interest at 9% per annum from the date of
filing of the petition(s) till realization. In the case of Ram Dulari, an interim
award under Section 140 of MV Act had been earlier granted. The said
amount was directed to be deducted. The plea of the insurance company for
exoneration was rejected and it was called upon to satisfy the awards in both
the cases.
4. By the appeals at hand, the insurance company raises questions as to
its liability against above backdrop. Its prime contention is that in absence
of the driver from the array of respondents, the claim cases could not have
been maintained. Its further submission is that since the driver is not known,
the insurer has not been able to show due compliance with the terms and
conditions of the insurance policy and, therefore, its case that there was a
breach since the driver would not have held a valid and effective driving
licence cannot be junked. The insurer also argues that there was no master
and servant relationship between the registered owner and the driver and,
therefore, the liability in tort (codified under the MV Act) in terms of
Section 166, cannot be invoked.
5. The tribunal rejected the above contentions of the insurer referring to
the judgment of the Supreme Court in National Insurance Co. Ltd. Vs. Nitin
Khandelwal, 2008 (7) Scale 351 and National Insurance Co. Ltd. Vs.
Swaran Singh and Ors., (2004) 3 SCC 297 observing that the insurer could
not avoid its liability since the insured had taken out a comprehensive policy
in respect of the vehicle. This, in the submission of the insurer, cannot
constitute good reasoning to reject its plea for exoneration, particularly as
there is no answer to its contention that the driver (here the person who had
stolen the vehicle) was not holding a valid or effective driving licence.
6. Before considering the contentions of the insurer to above effect, it
must be observed that the owner (RW-1) of the offending vehicle has shown
on record, by irrefutable evidence adduced through his testimony on the
strength of his affidavit (Ex. RW1/1) and copy of the first information report
(FIR) submitted vide Ex. RW1/A, that the offending vehicle was taken away
from his lawful possession by some unknown person during his absence
from Delhi from 01.10.2003 to 06.10.2003, apparently with dishonest
intention to gain wrongfully, the theft having been brought to the notice of
the concerned police station by him vide DD no.4A dated 06.10.2003
followed by a formal complaint lodged on 07.10.2003 which was translated
into an FIR bearing no.775/2003 on 08.10.2003 in police station Kalkaji for
offence under Section 379 of Indian Penal Code, 1860 (IPC). Thus, the theft
of the car having been reported to the police by the owner, he apparently
could have had no control over it or its use at the time of accident that had
occurred in the early morning hours on 08.10.2003, resulting in the two
deaths which gave rise to the cause of action for the claim petitions at hand.
7. Apparently, the identity of the driver of the car at the time of the
accident could not be discovered by the police during investigation. In these
circumstances, the claimants seeking compensation under Sections 166 of
the MV Act obviously could not implead the said driver as a party
respondent in the proceedings before the tribunal. All that they could dig
out was the information concerning the identity of the offending vehicle, its
owner and of its insurer against third party risk.
8. It is the argument of the insurer on the basis of the judgments in Minu
B. Mehta and Anr. Vs. Balkrishna Ramchandra Nayan and Anr., (1977) 2
SCC 441, Gujarat State Road Transport Corporation, Ahmedabad Vs.
Ramanbhai Prabhatbhai and Anr., (1987) 3 SCC 234 and Machindranath
Kernath Kasar Vs. D.S. Mylarappa and Ors., 2008 (2) TN MAC 289 (SC)
that the liability of the owner of the car to compensate the victim in the
accident due to negligent driving of his servant is vicarious and based on the
law of torts and, therefore, before he (owner) can be made liable, it is
necessary to prove that the servant was acting during the course of his
employment and further that he was negligent. Referring particularly to the
observations in Machindranath Kernath Kasar (supra), it was argued that it
is necessary that the driver must be made a party to such proceedings for the
owner to be held vicariously liable and for the insurer being called upon to
indemnify. The insurer also referred to the National Insurance Co. Ltd.,
Chandigarh Vs. Nicolletta Rohtagi and Ors., (2002) 7 SCC 456 to submit
that in terms of Section 147(5) of the MV Act, its liability arises only with
regard to its contractual responsibility to indemnify the person or class of
persons specified in the policy and further that Section 149(1) makes it clear
that it can be called upon to satisfy the award only if it has been obtained
against a person „insured by the policy‟ and not otherwise. The prime
contention of the appellant insurer is that since the owner seeks to be
exonerated because the accident was caused by a person not authorized by
him to drive the motor vehicle, the liability to indemnify cannot be fastened
against it.
9. Though on first blush the submissions made by the insurer to above
effect seem to be attractive, upon closer scrutiny they are found to be
unacceptable. In a similar fact situation, an identical plea raised by the
insurer before a division bench of the High Court of Judicature at Allahabad
was repelled (by judgment in case reported as National Insurance Co. Ltd.
Vs. Golana and Anr., 2014 ACJ 1165) with reference to the legal maxim
„impossibilium nulla obligation est‟ (which means that there is no obligation
of doing an impossible act). The vehicle was stolen from out of the custody
and control of the insured (owner) during his absence. The vehicle was thus
being driven by a person suspected to be the thief over whom the owner had
no control. It is primarily the duty of the investigating police to find out as
to who was the person who had stolen the vehicle and / or who was driving
at the time of the accident. The police machinery having failed to unearth
the identity of the person(s) in question, the owner of the vehicle cannot be
asked to achieve the impossible. Same applies to the claimants who are
even in a worse state. Undoubtedly, the driver of the vehicle which is
involved in an accident ordinarily is required to be made a party respondent
in a claim petition arising out of the fault liability under Section 166 of the
MV Act. But, if the identity of such person is not known, the claimants
cannot be expected to wait till such fact is discovered. Their claim cannot
be frustrated for their inability to disclose the facts in which the State
machinery is also unable to render any help to them.
10. The contentions of the insurance company to above effect must be
rejected with reference to the provisions contained in Sections 146, 147 and
149 of the MV Act. It is a mandate of Section 146 of MV Act that a motor
vehicle cannot be used or allowed to be used at a public place by its owner
unless a policy of insurance covering third party risk has been taken out in
its respect. The breach of the said requirement of law is a penal offence
under Section 196. Section 147(1)(b) makes it compulsory for the policy of
insurance to cover the liability that may be incurred by the insurer in respect
of the death (or bodily injury) of any person, including owner of the goods,
or his authorized representative, carried in the vehicle or damage to any
property of a third party caused by or arising out of the use of the offending
vehicle in a public place. The object of Section 146 is to ensure insurance of
all vehicles which are to be used in public places so that such third parties as
suffer any damage on its account are able to secure damages from the
insured and not be dependent upon the financial condition of the driver or
owner. To put it differently, the owner of a motor vehicle takes out an
insurance policy against third party risk and enters into a contract with the
insurer solely with the motive, intention or purpose of covering the reasons
which may arise in relation to such claims as may be lodged against him by
third parties. By entering upon the insurance contract, the insurer, on the
other hand, undertakes to indemnify the insured against all risks and in
relation to all claims that may be lodged against him by such third parties.
Sub-section (4) of Section 149 makes it clear that where a certificate of
insurance has been issued under sub-section (3) of Section 147 to the person
by whom a policy has been effected, so much of the policy as purports to
restrict the insurance of the person insured thereby by reference to any
condition other than those in clause (b) of sub-Section (2) shall, as respect
such liabilities as are required to be covered by a policy under clause (b) of
sub-section (1) of Section 147, be of no effect. Thus, the authorized
insurers who are permitted to carry on the general insurance business for
such purposes as at hand, are not allowed to enter into contracts which
provide for exclusion of the liability to indemnify other than on the grounds
permitted by the law. Further, sub-Section (7) of Section 149 declares that
no insurer to whom notice under sub-Sections 2 or (3) has been given shall
be entitled to avoid his liability to any person entitled to the benefit of any
such judgment or award as is referred to in sub-Section (1) or in such
judgment as is referred to in sub-section(3) otherwise than in the manner
provided for in sub-Section(2) or in the corresponding law of the
reciprocating country, as the case may be.
11. Section 149(2) of the MV Act denotes the limited defences available
to the insurer. It reads as under :-
"(2). No sum shall be payable by an insurer under sub-section (1)
in respect of any judgment or award unless, before the
commencement of the proceedings in which the judgment or
award is given the insurer had notice through the court or, as the
case may be, the Claims Tribunal of the bringing of the
proceedings, or in respect of such judgment or award so long as
execution is stayed thereon pending an appeal; and an insurer to
whom notice of the brining of any such proceedings is so given
shall be entitled to be made a party thereto and to defend the
action on any of the following grounds, namely, -
(a). that there has been a breach of a specified condition of the
policy, being one of the following conditions, namely -
(i). a conditional excluding the use of the vehicle -
(a). for hire or reward, there the vehicle is on the date of the
contract of insurance a vehicle not covered by a permit to ply for
hire or reward, or
(b). for organized racing and speed testing, or
(c). for a purpose not allowed by the permit under which the
vehicle is used, where the vehicle is a transport vehicle, or
(d). without side-car being attached where the vehicle is a motor
cycle; or
(ii). A condition excluding driving by a named person or
persons or by any person who is not duly licensed, or by any
person who has been disqualified for holding or obtaining a
driving licence during the period of disqualification; or
(iii). A condition excluding liability for injury caused or
contributed to by conditions of war, civil war, riot or civil
commotion; or
(b). that the policy is void on the ground that it was obtained by
the non-disclosure of a material fact or by a representation of fact
which was false in some material particular.
12. In case reported as Sohan Pal Passi Vs.P. Sesh Reddy and Ors.,
(1996), 5 SCC 21, the issue before the Court involved consideration of the
immunity to the insurance company under Section 96(1)(2)(b)(ii) of Motor
Vehicles Act, 1939, which corresponds to the provision contained in Section
149(2)(a)(ii) of Motor Vehicles Act, 1988 respecting the breach on account
of the person driving the motor vehicle not holding a valid or effective
driving license. The court observed thus :
"..Section 96(2)(b)(ii) should not be interpreted in a technical
manner. Sub-section (2) of Section 96 only enables the
insurance company to defend itself in respect of the liability to
pay compensation on any of the grounds mentioned in sub-
section (2) including that there has been a contravention of the
condition excluding the vehicle being driven by any person
who is not duly licensed. This bar on the face of it operates on
the person insured. If the person who has got the vehicle
insured has allowed the vehicle to be driven by a person who is
not duly licensed then only that clause shall be attracted...
..The expression „breach‟ occurring in Section 96(2)(b) means
infringement or violation of a promise or obligation. As such
the insurance company will have to establish that the insured
was guilty of an infringement or violation of a promise. The
insurer has also to satisfy the Tribunal or the Court that such
violation or infringement on the part of the insured was
willful..."
(emphasis supplied)
13. In Skandia Insurance Co. Ltd. v. Kokilaben Chandravadan, (1987) 2
SCC 654, it was held that unless the insured "is at fault and is guilty of a
breach" the insurer cannot escape from the obligation to indemnify.
Pertinently, the Court observed thus :
"It needs to be emphasised that it is not the contract of
insurance which is being interpreted. It is the statutory
provision defining the conditions of exemption which is being
interpreted. These must therefore be interpreted in the spirit in
which the same have been enacted accompanied by an anxiety
to ensure that the protection is not nullified by the backward
looking interpretation which serves to defeat the provision
rather than to fulfil its life-aim. To do otherwise would amount
to nullifying the benevolent provision by reading it with a non-
benevolent eye and with a mind not tuned to the purpose and
philosophy of the legislation without being informed of the true
goals sought to be achieved. What the legislature has given, the
Court cannot deprive of by way of an exercise in interpretation
when the view which renders the provision potent is equally
plausible as the one which renders the provision impotent. In
fact it appears that the former view is more plausible apart
from the fact that it is more desirable. When the option is
between opting for a view which will relieve the distress and
misery of the victims of accidents or their dependants on the
one hand and the equally plausible view which will reduce the
profitability of the insurer in regard to the occupational hazard
undertaken by him by way of business activity, there is hardly
any choice."
(emphasis supplied)
14. The following observations of the Supreme Court in National
Insurance Co. Ltd. v. Abhaysing Pratapsing Waghela (2008) 9 SCC 133 are
also instructive and so extracted in extenso :
"18. ... No doubt, a contract of insurance is to be governed by
the terms thereof, but a distinction must be borne in mind
between a contract of insurance which has been entered into
for the purpose of giving effect to the object and purport of the
statute and one which provides for reimbursement of the
liability of the owner of the vehicle strictly in terms thereof. In
that limited sense, a contract of insurance entered into for the
purpose of covering a third-party risk would not be purely
contractual. We may place on record that an ordinary contract
of insurance does not have a statutory flavour. The Act merely
imposes an obligation on the part of the insurance company to
reimburse the claimant both in terms of the Act as also the
contract. So far as the liability of the insurance company which
comes within the purview of Sections 146 and 147 is concerned,
the same subserves a constitutional goal, namely, social justice.
A contract of insurance covering the third-party risk must,
therefore, be viewed differently vis-à-vis a contract of
insurance qua contract."
(emphasis supplied)
15. Contentions similar to those raised before this Court in the present
appeals have come up in a number of cases before other High Courts as
well. These cases include Selvarajamani v. New India Assurance Co. Ltd.
2004 (2) TN MAC 21 (DB); Oriental Insurance Co. Ltd. v. Abdul Rasheed
2006 ACJ 1476 (Kerala); Parvat v. Sheikh Ejaj & Ors. 2006 ACJ 1507
(Madhya Pradesh); A.C.G. Venancious v. Jagajothi 2007 (1) TN MAC 196
(DB); Sasidharan Nair v. Ali 2010 ACJ 1061 (Kerala); M. Suresh v. M.
Sreedevi Haridas „Sree Hari‟ (2012) SCC Online Ker 10603; National
Insurance Co. Ltd. v. Rohit Sharma 2013 Law Suit (P & H) 769 and
National Insurance Co. Ltd. v. Golana 2014 ACJ 1165 (Allahabad). In
each of these cases, the contention of the insurer for exoneration was
repelled.
16. In Selvarajamani (supra), the learned division bench of the High
Court of Madras observed thus :
"6. When a vehicle is stolen, it cannot always be said that the
owner had been negligent. The ingenuity of the person who
committed theft cannot always be foreseen. If as a prudent
owner, the owner of the vehicle had taken the normal
precaution of locking the car while parking it in a public place,
the owner cannot be held responsible for the theft of the
vehicle. The person who steals the motor vehicle cannot, on the
basis of any principle, be described as an agent of the owner,
or employee of the owner, for the purposes of casting liability
on the owner. The concepts of agency or employment or
contract are wholly inapposite in a case of theft. Theft is taking
away of the property without the consent expressed or implied
of the owner, and with intent to appropriate the property for
oneself. None of the established legal principles can be
stretched so as to constitute a thief who stole the motor vehicle,
a representative of the owner for the purpose of making the
owner liable.
7. ... Even in case where the vehicle has been stolen, and
there is no negligence on the part of the owner, the owner, and
consequently the insurer is liable to pay the amount provided
for as no fault liability under the applicable statutory provision
in force at the time of the accident."
(emphasis supplied)
17. In Abdul Rasheed (supra) the learned single judge of the High Court
of Kerala while declining to permit the insurer to avoid its statutory
responsibility, and holding that the owner (insured) of the offending vehicle
could not be denied the right to be indemnified, referring in this context to
the law laid down in National Insurance Company V. Swaran Singh (2004)
3 SCC 297 held, on facts, that since the person found at the steering wheel
of the stolen vehicle had not appeared to put in contest, in the peculiar fact
situation a presumption arising that he was not holding an effective driving
license, the insurer though called upon to satisfy the award was entitled to be
granted recovery rights against the thief.
18. In Parvat (supra), A.C.G. Venancious (supra), Sasidharan Nair
(supra), M. Suresh (supra) and Rohit Sharma (supra), the plea of the insurer
for exoneration was repelled with observation that mere fact that the vehicle
in question was stolen would not provide a statutory defence. Pertinently in
Sasidharan Nair (supra), the learned division bench of the High Court of
Kerala observed thus :
4. ...There is a statutory obligation cast upon the insurer to
indemnify the persons or class of persons specified in the policy
in respect of any liability which the policy purports to cover. As
per the statutory liability the policy covers injuries sustained to
third parties. Under Section 149 of the Act the insurer of
the vehicle is liable to the award of compensation to the person
who is entitled to the statutory benefit of compensation. The
only exemption under which can be claimed by the insurer is on
any of the condition as provided under Section 149(2). ...
19. In Rohit Sharma (supra), a learned single judge of High Court of
Punjab and Haryana held as under :
"...It is also apparent that there was no violation of the
conditions of the policy of insurance and the theft of the vehicle
by Sukhwinder Singh-respondent No.2 was also beyond the
control of the owner. The vehicle was duly insured at the time
of the accident. The owner himself becomes sufferer due to the
theft. The aim and object of getting the vehicle insured is to the
liability by the Insurance Company in such exigencies if the
vehicle is insured for theft. Thus, the argument that the owner
was responsible for the liability, if any, on account of the
accident of the vehicle, which was stolen, is of no
consequence."
(emphasis supplied)
20. In case reported as United India Insurance Company Ltd. V. Lehru &
Ors. (2003) 3 SCC 338, the Supreme Court was considering a plea of the
insurer about breach of terms and conditions of the policy against the
backdrop of proof that the driving license held out was found to be a fake
and fabricated document. While rejecting the said plea and holding that the
insurer may be granted recovery rights in the event of it proving complicity
of the owner/insured, it was observed as under :
18. Now let us consider Section 149(2). Reliance has been
placed on Section 149(2)(a)(ii). As seen, in order to avoid
liability under this provision it must be shown that there is a
"breach". As held in Skandia [(1987) 2 SCC 654] and Sohan
Lal Passi [(1996) 5 SCC 21 : 1996 SCC (Cri) 871] cases the
breach must be on the part of the insured. We are in full
agreement with that. To hold otherwise would lead to absurd
results. Just to take an example, suppose a vehicle is stolen.
Whilst it is being driven by the thief there is an accident. The
thief is caught and it is ascertained that he had no licence. Can
the insurance company disown liability? The answer has to be
an emphatic "No". To hold otherwise would be to negate the
very purpose of compulsory insurance. ..."
(emphasis supplied)
21. It is well settled that the liability of the insurer to indemnify under the
insurance policy against third party risk is not simpliciter contractual but
primarily, rather foremost, statutory. It is not necessary that in each and
every claim arising out of a motor vehicular accident, the relationship of
master and servant between the owner and the driver must be established
before the insurer can be called upon to satisfy the award. It is not difficult
to conceive of cases where the identity of the driver may not even be known.
Such cases include not only those where the motor vehicle may have been
stolen but also such as where the driver deployed by the owner may have
unauthorizedly passed it on in the hands of another person who, having
caused the accident, runs away never to be caught. It, therefore, cannot be
laid down as an unexceptional rule that an accident claim case on the fault
liability principle cannot be maintained in absence of the principal tort-
feasor (driver). If the identity of the driver is not known, or if such person
cannot be hauled in for any other just or sufficient reason (as in a case where
the driver may have also died), holding a claim petition not maintainable on
account of absence of the driver from the array would be unjust and unfair.
22. Having regard to the object behind the statutory mandate for
compulsory third party insurance cover, the statutory defences can be
availed by the insurer only in the event of it proving willful breach on the
part of the insurer. The negligent driving of the motor vehicle by a thief, if
cogently and properly proved, cannot be said to be with the authority of the
owner of the vehicle and, thus, would not constitute such willful breach. It
is natural sequitur of these conclusions that absence of proof contrary to the
assumptions that the person who had stolen the vehicle, and may have been
the driver at the relevant point of time, was not holding a valid or effective
driving licence, would not lead to the owner being held accountable, he
himself being the sufferer on account of the theft and he having no control
over the conduct of the thief. Resultantly, the liability to compensate would
not fasten upon him. But, this cannot mean that the insurer gets away with
its statutory responsibility to indemnify.
23. One must, however, hasten to add that if theft of the motor vehicle
anterior to the accident giving rise to cause of action were to be taken as a
defence by the owner, the liability of the owner to compensate would be a
mixed question of fact and law. The owner must prove that after the theft
had been committed and come within his knowledge, he had taken requisite
steps with all promptitude including by report to police so that efforts to
trace it and preclude its misuse are initiated. These steps include necessary
action under Sections 48(6) and 62 of MV Act, prompting such further
action as is envisaged in Section 53. The burden of proving the requisite
facts concerning the theft lies squarely, and very heavily, at the door of such
person (owner). Upon this onus being properly discharged, it is legitimate
that the insurer (against third party risk) is called upon to satisfy the claim of
the third party, on account of its statutory responsibility. It may be added
that if the identity of the thief or the person at the wheel of the offending
vehicle at the time of accident were to be known and established, such
person (thief / driver) being the principal tort-feasor, and liable in law to
compensate, the insurer called upon to satisfy the third party claim would
deservedly be granted recovery rights against him. Similarly, if the identity
of the driver (in case of stolen vehicle) or the thief were not to be
immediately known, the insurer which is called upon to compensate the
third party would have to await enforcement of its recovery rights against
such principal tort-feasor till such time such identity is discovered.
24. In the case at hand the vehicle is proved by cogent and reliable
evidence to have been stolen from the possession of the insured during his
absence. He had taken prompt steps to report the theft to the police. Before
the police could trace it out, the vehicle had already been put to use on a
public road in the course of which accident took place causing injury to, and
death of, third parties. In the facts and circumstances of the case, it cannot
be said that the person at the wheels of the offending vehicle had the
authority of its owner (insured) to take it out on public road. While the
owner cannot be held liable in this peculiar fact-situation, the insurer at the
same time cannot avoid its liability under the insurance policy to pay the
compensation to the third parties. The object of the law will have to be
enforced and the insurer held bound to pay. At the same point of time,
however, it must be observed that the person at the wheel of the offending
vehicle at the relevant point of time (who in all likelihood would be either
the person who had committed the theft or one who had received the stolen
property from the thief) remains the principal tort-feasor inasmuch as
negligent driving on his part has been proved to be the cause for the fatal
accident. Since such person did not have the authority of the owner of the
offending vehicle to use the motor vehicle, the liability to compensate would
not shift on the principle of vicarious responsibility on to the owner. In other
words, it is the person driving the vehicle at the time of accident who
remains solely responsible to compensate. For want of privity of contract,
obviously, such person (thief) cannot take the benefit of the indemnity
clause under the insurance contract.
25. For above reasons, it is held that the insurance company must satisfy
the awards in these cases by paying the compensation determined by the
tribunal in favour of the claimants. At the same time, the insurer is held
entitled to recover the amounts thus paid to the third parties from the person
who was driving the vehicle as and when he is traced out.
26. Both appeals are disposed of in above terms.
R.K. GAUBA
(JUDGE)
MAY 23, 2016
VLD/yg
