Madhya Pradesh High Court
United India Insurance Co.Ltd. vs Ramkunwar & Ors. on 28 February, 2024
Author: Vivek Rusia
Bench: Vivek Rusia
-1-
IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
MISC. APPEAL No. 1795 of 2008
BETWEEN:-
UNITED INDIA INSURANCE CO. LTD. THRU.LEGAL CELL, IDA
BUILDING, RACE COURSE ROAD, INDORE (MADHYA PRADESH)
.....PETITIONER
(BY SHRI SUDHIR DANDWATE, ADVOCATE.)
AND
SANTUBAI & ORS. LATE GOPAL, AGED ABOUT 48 YEARS,
1.
DINGLIPURA,TEH.& DISTT.DHAR (MADHYA PRADESH)
RAMESH S/O LATE GOPAL, AGED ABOUT 22 YEARS,
2.
DINGLIPURA,TEH.& DISTT.DHAR (MADHYA PRADESH)
SANTOSH S/O BHURELAL KUMAWAT, AGED ABOUT 27 YEARS,
3. BETMA TEHSIL DEPALPUR GRAM GUNAWAD TEHSIL AND DISTT.
DHAR (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI MOHAN PATIDAR, ADVOCATE.)
MISC. APPEAL No. 1796 of 2008
BETWEEN:-
UNITED INDIA INSURANCE CO. LTD. THRU.LEGAL CELL, IDA
BUILDING,RACE COURSE ROAD, INDORE (MADHYA PRADESH)
.....PETITIONER
(BY SHRI SUDHIR DANDWATE, ADVOCATE.)
AND
AMAR SINGH BHEEL S/O RATAN SINGH BHEEL, AGED ABOUT 30
1.
YEARS, GRAM HAIDERI,TEH.& DISTT.DHAR (MADHYA PRADESH)
SMT. SURAJIBAIAMARSINGH, AGED ABOUT 28 YEARS, GRAM
2.
HAIDERI,TEH.& DISTT.DHAR (MADHYA PRADESH)
3. SANTOSH S/O BHURELAL KUMAWAT BETMA TEHSIL DEPALPUR
Signature Not Verified
Signed by: DIVYANSH
SHUKLA
Signing time: 29-02-2024
17:15:30
-2-
GRAM GUNAWAD TEHSIL AND DISTT. DHAR (MADHYA PRADESH)
SANKARLAL S/O BHERAJI SOLANKI KARADIYA TEH AND DISTT.
4.
DHAR (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI MOHAN PATIDAR, ADVOCATE.)
MISC. APPEAL No. 1797 of 2008
BETWEEN:-
UNITED INDIA INSURANCE CO.LTD. THRU.LEGAL CELL,IDA
BUILDING,RACE COURSE ROAD,INDORE (MADHYA PRADESH)
.....PETITIONER
(BY SHRI SUDHIR DANDWATE, ADVOCATE.)
AND
DITABAI BHEEL & ORS.RAMA BHEEL, AGED ABOUT 35 YEARS,
1. OCCUPATION: LABOUR DINGALAI,TEH.& DISTT.DHAR (MADHYA
PRADESH)
SANTOSH S/O BHURELAL KUMAWAT, AGED ABOUT 27 YEARS,
2. BETMA TEHSIL DEPALPUR AT PRES. GRAM GUNAWAD TEH AND
DIST.T (MADHYA PRADESH)
SANKARLALBHERAJI SOLANKI GRAM KARADIYA TEH. AND DISTT.
3.
DHAR TROLLY OWNER (MADHYA PRADESH)
.....RESPONDENTS
(NONE PRESENT FOR THE RESPONDENTS.)
MISC. APPEAL No. 1798 of 2008
BETWEEN:-
UNITED INDIA INSURANCE CO.LTD. THRU.LEGAL CELL,IDA BUILDING
RACE COURSE ROAD,INDORE (MADHYA PRADESH)
.....PETITIONER
(BY SHRI SUDHIR DANDWATE, ADVOCATE.)
AND
SUKMABAIKALIYA, AGED ABOUT 40 YEARS, OCCUPATION: LABOUR
1.
GRAM DINGLAI,TEH.& DISTT.DHAR (MADHYA PRADESH)
Signature Not Verified
Signed by: DIVYANSH
SHUKLA
Signing time: 29-02-2024
17:15:30
-3-
SANTOSH S/O BHURELAL KUMAWAT, AGED ABOUT 27 YEARS,
2. BETMA TEH DEPALPUR AT PRESENT GRAM GUNAWAD TEH & DISTT.
DHAR (MADHYA PRADESH)
SANKARLALBHERAJI SOLANKI GRAM KARADIYA TEH AND DIST.
3.
DHAR (MADHYA PRADESH)
.....RESPONDENTS
(NONE PRESENT FOR THE RESPONDENTS.)
MISC. APPEAL No. 1799 of 2008
BETWEEN:-
UNITED INDIA INSURANCE CO.LTD. THRU.LEGAL CELL,IDA
BUILDING,RACE COURSE ROAD,INDORE (MADHYA PRADESH)
.....PETITIONER
(BY SHRI SUDHIR DANDWATE, ADVOCATE.)
AND
BHAVSINGH @ BHAVLIYA S/O PARSINGH, AGED ABOUT 35 YEARS,
1. OCCUPATION: LABOUR GRAM DINGLIPURA,TEH.& DISTT.DHAR
(MADHYA PRADESH)
SANTOSH S/O BHURELAL KUMAWAT, AGED ABOUT 27 YEARS,
2. BETMA TEH.DEPALPUR AT PRES. GRAM GUNAWAD TEH. AND DIST.
DHAR (MADHYA PRADESH)
SANKARLAL S/O BHERAJI SOLANKI KARADIYA TEH. AND DISTT.
3.
DHAR (MADHYA PRADESH)
.....RESPONDENTS
(NONE PRESENT FOR THE RESPONDENTS.)
MISC. APPEAL No. 1800 of 2008
BETWEEN:-
UNITED INDIA INSURANCE CO.LTD. THRU.LEGAL CELL,IDA
BUILDING,RACE COURSE ROAD,INDORE (MADHYA PRADESH)
.....PETITIONER
(BY SHRI SUDHIR DANDWATE, ADVOCATE.)
AND
1. RAMKUNWAR & ORS.BABU, AGED ABOUT 6 YEARS, OCCUPATION:
Signature Not Verified
Signed by: DIVYANSH
SHUKLA
Signing time: 29-02-2024
17:15:30
-4-
STUDY GRAM DINGLIPURA,TEH.& DISTT.DHAR (MADHYA PRADESH)
SANTOSH S/O BHURELAL KUMAWAT, AGED ABOUT 27 YEARS,
2. BETMA TEH. DEPALPUR AT PRES. GRAM GUNAWAD TEH.AND
DISTT.DHAR (MADHYA PRADESH)
SANKARLALBHERAJI SOLANKI GRAM KARADIYA TEH. AND DISTT.
3.
DHAR (MADHYA PRADESH)
.....RESPONDENTS
(NONE PRESENT FOR THE RESPONDENTS.)
Reserved on : 19.02.2024
Delivered on : 28.02.2024
--------------------------------------------------------------------------------------------------------
This appeal coming on for orders this day, the court passed the
following:
ORDER
Regard being had to the similitude of the controversy involved
in the present cases, with the joint request of the parties, these
Miscellaneous Appeals are finally heard and decided by this common
order.
02. These Bunch of appeals are filed by the Insurance Company
challenging the award dated 05.04.2008 passed in as many as 7 claim
cases arising out of the accident which took place on 06.04.2005.
Common facts of the cases are as under:
03. On 06.04.2005, the claimants/ respondents were travelling to
Village Nimkheda to cultivate wheat in a field on truck no. CII / 3183
attached trolley having a registration no. MP-11 M 1163. At 1:30 the
postmortem, The driver drove in a rash and negligent manner at a place
near village Chaklya in between Limkheda and Tirla the truck trolley
carrying 30-32 people in it overturned and led to the death of Baby
Laxmi and Dinesh and caused serious injuries to other occupants
leading to permanent disability.
04. Consequently, a criminal case at police station Tirla was
registered against the driver and owner of the vehicle with a crime no.
52/2005 under sections 279, 337, 339 and 304 of IPC and section
146/196 of Motor Vehicles Act. The claimants filed 6 claim cases before
the Motor Accident Claim Tribunal (hereinafter referred to as M.A.C.T),
Dhar against the owner and driver of the tractor, owner of the trolley and
Insurance Company(appellant) which were all decided by the Common
Award dated 5/04/2005.
05. According to the claimants the tractor trolley was being driven
rashly and negligently by respondent driver Santosh due to which the
accident took place. The trolley was owned by Shankerlal and insured
with United India Insurance Co. Ltd/ appellant. The Tractor and trolly
were owned and driven by Santosh. The appellant company resisted the
claim and denied that the accident was a result of rash and negligent
driving and also stated that it was a tractor and trolley not to be used for
the transportation of passengers. At least 30-32 people paid money and
were travelling on it at the relevant time. There is a violation of the
insurance policy as the tractors and trolly were insured for agriculture
purposes.
06. The learned M.A.C.T. on the pleadings of parties framed some
common issues and some specific issues in each claim case. The
appellant contested the case by alleging that only the trolley, owned by
respondent Shankerlal, was insured, while the tractor, owned and driven
by Santosh, was not insured.
07. The learned M.A.C.T. after enquiry and evidence concluded
that the accident was caused due to the rash and negligent driving of
Santosh. The driver and owner of the tractor trolley have been held
liable to pay 50% of the amount of compensation, and the insurance
company has been held liable for the rest of the 50% amount. The
Appellant (United India Insurance Co. Ltd.) has challenged this award
passed by M.A.C.T. Dhar in the following Miscellaneous appeals i.e.
M.A. No.1795/2008, M.A. No.1796/2008, M.A. No.1797/2008, M.A.
No.1798/2008, M.A. No.1799/2008 & M.A. No.1800/2008.
Individual facts of the appeals are as under:
08. The facts of M.A. No.1795 of 2008:
8.1. In this Claim case no. 87/2006 before the M.A.C.T., the
claimant (Santubai) is the mother of the deceased Dhinesh, asserting that
his death resulted due to multiple serious injuries sustained in the
accident. Dhinesh was aged 20 at the time of the incident and used to
earn a monthly wage of 23000. The deceased was given treatment from
06/04/2005 till he passed away on 07/04/2005. The claimants incurred
significant expenses during his treatment and experienced immense
shock and financial strain due to his death, as they were dependent on
his income. As a result, they claimed compensation amounting to ₹5,
00,000.
Findings & Award of M.A.C.T. - The claimant's daily wages were
evaluated at Rs. 280, resulting in a yearly income of Rs. 225,200 one-
third of which be allocated for his expenses, resulting in Rs. 16,800 for
compensation. The deceased being an unmarried person, learned
M.A.C.T. applied legal principles established by the Apex Court and
assessed the age of the mother between 45 to 50 years to calculate
compensation and applied the multiplier of 13 according to the II
schedule of the Motor Vehicle Act and calculated compensation as
16,800 x 13= Rs. 2,19,400.
8.2. Additionally, the M.A.C.T. awarded ₹10,000 for mental agony
due to the death of their child. 21,000 for hospital treatment, 2000 for
her funeral and ₹1000 for other expenses which in total is a
compensation of 2,42,000, to be paid from 24/08/2006 till payment with
7% simple interest.
09. The facts of M.A. 1796 of 2008:
9.1. In this Claim case the claimant (Amar Singh), who is the father
of the deceased girl child Laxmi, asserts that her death resulted from
injuries sustained in a tractor trolley overturning accident. The deceased
was given treatment from 6/04/2005 till she passed away on 10/04/2005
She was aged 7 years at the time of the incident and used to accompany
her relatives to cut crops and earned a daily wage of Rs. 250. The
claimant claimed that Rs. 230,000 was spent on her treatment and
incurring additional expenses for her funeral and related rituals.
Furthermore, they claim to have suffered significant mental anguish due
to her death and seek compensation amounting to ₹5, 00,000.
9.2. Findings & Award of M.A.C.T. - Under the Motor Vehicles
Act, although the M.A.C.T. doesn't consider income for a child, it has in
this case applied legal principles established by the Honourable Apex
Court to determine notional income and fixed a notional income of
₹15,000 with one-third of it allocated for her expenses, resulting in
₹10,000 for compensation. According to the second schedule of the
Motor Vehicles Act for a person up to 15 years of age, a multiplier of 15
is used. Therefore, the calculation of compensation would be ₹10,000 x
15 = ₹1. 50,000.
9.3. Additionally, the M.A.C.T. awarded ₹10,000-10,000 for mental
agony due to the death of their child, ₹2,000 for hospital treatment,
22000 for her funeral and ₹1000 for other expenses which in total is a
compensation of 1,75,000, to be paid from 27/07/2006 till payment with
7% simple interest.
10. The facts of M.A. No.1797 of 2008:
10.1. In Claim Case, the claimant (Ditabai) was also travelling in the
vehicle at the time of the accident and suffered from multiple injuries
resulting in a spinal fracture and a serious injury in her left foot. She
claimed that she used to earn a monthly income of ₹3000 but due to a
spinal fracture, she is now permanently disabled and unable to earn her
livelihood and thus sought a compensation of ₹2, 40,000.
10.2. Findings & Award of M.A.C.T. On the basis of medical
reports i.e. exhibit P13 to P20, M.A.C.T. came to the conclusion that
although the MLC report and disability certificate issued by PW Dr.
Borasi indicates a 20% disability but the X-ray report only confirms the
spinal fracture leading to a 10% disability only. Thus, in the view of
M.A.C.T. the claimant only suffers from 10% disability.
10.3. The claimant's daily wages were evaluated at Rs. 260, resulting
in a yearly income of 219,200 but the M.A.C.T. granted only a 10%
deduction in earning capacity, resulting in a deduction of Rs. 1,920 in
his earnings. Taking her age to be 35 to 40 years, the learned M.A.C.T.
applied Schedule II of the Motor Vehicle Act, resulting in a
multiplication factor of 16 and a compensation calculation of Rs.
230,720 (1920 x 16=Rs. 30,720).
10.4. Additionally, the M.A.C.T. awarded ₹1000 for mental agony,
₹1000 for hospital treatment, and 22,500 for other expenses, totalling
35,200 to be paid from 02/08/2006 with 7% simple interest payment.
11. The facts of M.A. No.1798 of 2008:
11.1. In this claim case, the claimant (Sukmabai) pleaded that she
suffered spinal fracture and serious injuries in both her knees and foot
due to the accident. She was admitted in the hospital and given
treatment from 6/04/2005 till 15/04/2005. She claimed that she used to
earn a monthly income of Rs. 3000 but due to a spinal fracture she is
suffering from permanent disability and unable to earn her livelihood
and thus seeks a compensation of 22, 85,000.
11.2. Findings & Award of M.A.C.T. - On the basis of medical
reports i.e. exhibit P21 to P29, M.A.C.T. came to the conclusion that
although the MLC report and disability certificate issued by PW Dr.
Borasi indicates a 20% disability but the X-ray report only confirms the
spinal fracture leading to 10% disability only. Thus, in the view of
M.A.C.T. held that the claimant is only 10% disabiled.
11.3. The claimant's daily wages were evaluated at ₹60, resulting in a
yearly income of ₹19,200 but the M.A.C.T. recognized only a 10%
deduction in earning capacity, resulting in a deduction of 1.920 in his
earning. Considering the claimant's age range of 45 to 50 years and
falling under Schedule II of the Motor Vehicle Act with a multiplier of
13, the compensation calculated by MACT was 1920 x 13-24,960.
11.4. Additionally, the M.A.C.T. awarded ₹1000 for mental agony,
₹1000 for hospital treatment, and 2,500 for other expenses, totalling
29,460, to be paid from 27/07/2006 till payment with a 7% simple
interest.
12. The facts of M.A. No.1799 of 2008:
12.1. In this Claim case, the claimant (Bhavsingh) claimed that he
sustained multiple fractures in his left finger, wrist and left shoulder due
to the overturning of a tractor-trolley. She was admitted in the hospital
and given treatment from 6/04/2005 till 15/04/2005. The claimant
asserted earning daily wages of ₹75 to 280 before the accident, but due
to the serious injuries in his left hand he is suffering from permanent
disability, is unable to work and has become jobless and thus seeks
compensation of Rs. 22,00,000, Findings & Award of M.A.C.T. The
M.A.C.T. found that the medical reports from exhibit P30 to P37 which
includes MLC and X-ray report indicate only a fracture in the left wrist,
with other injuries being classified as simple in nature. PW Dr. Borasi
issued a 21% disability certificate to the claimant.
12.2. The learned M.A.C.T. calculated his yearly salary as ₹25,200
but opined that despite a 21% personal disability, the M.A.C.T.
recognises only a 10% deduction in earning capacity, resulting in a
deduction of 22520 in his earning due to accident. Considering the
claimant's age range of 35 to 40 years and him falling under Schedule II
of the Motor Vehicle Act with a multiplier of 16, the compensation
calculated by M.A.C.T. was 2520 x 16-240,320.
12.3. Additionally, the M.A.C.T. awarded him ₹1000 for mental
agony, ₹1000 for hospital treatment, and 22,500 for other expenses,
totalling 44,820, to be paid from 27/07/2006 till payment with a 7%
simple interest.
13. The facts of M.A. No.1800 of 2008:
13.1. In this claim case the claimant (Ramkunwari) represented by
her father, asserts that she suffered severe injuries, including a serious
injury to the left side of her head, fractures on her waist and left leg, and
multiple injuries to her legs, hands, head, elbow, resulting in permanent
disability. She received treatment from 6/04/2005 till 16/04/2005 in the
hospital. At the time of the accident; she was 6 years old and used to
earn a daily wage of ₹50 by accompanying her relatives to cut crops.
Due to the accident, she is now permanently disabled and unable to
continue her studies, becoming dependent on others. As a result, she
claims compensation amounting to ₹2, 80,000.
13.2. Findings & Award of M.A.C.T. - Based on the medical
reports, like MLC and X-Ray reports, exhibited from (Exhibit-P-38) to
(Exhibit-P-45), the learned M.A.C.T. concluded that the claimant
suffered fractures in both knees and has incurred 7% permanent
disablement, as per the physical disability certificate issued by PW Dr.
Borasi.
13.3. In order to consider the income for a child, the learned Tribunal
has applied legal principles established by the Honourable Apex Court
took notional income as ₹15,000 along with 7% permanent disability,
resulting in reduced income amounting to Rs. 1050 (15,000 x
7/100=1050). In this case, according to the second schedule of the
Motor Vehicle Act, the multiplier of 15 shall be applicable, the
calculation of which will be 1050 x 15 = Rs. 15,750.
13.4. Additionally the M.A.C.T. awarded her ₹25,000 for her living
expenses like food, education and other expenses totalling ₹. 40,750, to
be paid from 02/08/2006 till payment with 7.5% simple interest.
In all the above Claim cases, the M.A.C.T. directed that the
amount be divided with 50% payable by the Tractor Owner &
Driver (Santosh S/o.Bhurelal Kumawat) and Trolley Owner
(Sankarlal S/o. Bheraji Solanki) and with 50% payable by the
Appellant (United India Insurance Company).
14. The Insurance Company has filed these appeals assailing the
award solely on the ground that the injured hired the tractor and trolley
for going to the village and they were travelling as the passengers in the
trolley which was insured only for agricultural purposes, therefore, the
Insurance Company has wrongly been held liable to pay the
compensation. The Insurance Company be discharged from liability to
pay compensation and the owner and driver be directed to pay the
compensation.
15. Shri Sudhir Dandwate, learned counsel for the appellant /
Insurance Company submits that when the tractor and trolley were
registered for carrying agricultural produce and goods then it should not
have been used as a passenger vehicle. Admittedly, the claimants injured
were not travelling as insured workmen of the owner. They hired the
tractor as a passenger vehicle, therefore, the Insurance Company has
wrongly been held liable to pay compensation.
16. Learned counsels appearing for the claimants submit that the
Insurance Company ought not to have filed these appeals as a very
meagre amount of compensation has been awarded in favour of the
claimants. The tractor and trolley were insured for six workers for which
the extra premium was paid. Only 7 claims were filed, therefore, the
premium amount has already been received by the Insurance Company.
It is further submitted that in rural areas, public transport vehicles are
not provided by the Government like in urban areas, therefore, these
labour-class persons travel in tractors and trolleys. At the most, they can
be treated as a third party for the purpose of compensation.
I have heard the learned counsel for the parties and perused
the record.
17. A similar controversy came up before the Division Bench of
this Court in the case of Kunwariya Bai V/s Mohan Lal and others
reported in 2000 SCC OnLine MP 102 : 2002 ACJ 77 in which the
finding recorded by the Motor Accident Claims Tribunal has been
confirmed that carrying of gracious passenger is to be covered in the
insurance policy as per the decision of the Apex Court in case of
National India Assurance Company V/s Satpal Singh and others
reported in 2000 ACJ (1) SC. Shri Dandwate, learned counsel for the
appellant has placed reliance on various judgments passed in the case of
-(i) National Insurance Co. Ltd. V/s Ramkalibai and others [2012 ACJ
1319], and (ii) recent judgment passed by the coordinate bench in the
case of United India Ins. Company .ltd. Versus Poonam Chand and
others [ Miscellaneous Appeal No. 2762/2007].
18. The Full Bench of this High Court in the case Bhav Singh Vs.
Savirani and others reported in 2008 (1) MPLJ 72 (FB), held the mere
fact that a passenger is a third party would not fasten liability on the
insurer unless such liability arises under section 147 of the Act or under
the terms and conditions of the insurance policy. Similarly, an employee
is a third party inasmuch as he is not a party to the insurance policy. But
merely because an employee is a third party, the insurance company
would not be liable to compensate in case such an employee suffers
bodily injury or dies in an accident in which the motor vehicle is
involved unless section 147 of the Act fixes such liability on the insured
or unless the terms and conditions of the contract "of insurance fixes
liability on the insurer.:-
10. Sub-section (5) of section 147 of the Act, however,
provides that notwithstanding anything contained in any law for the
time being in force, an insurer issuing a policy of insurance under
section 147 of the Act shall be liable to indemnify a person or
classes of persons specified in the policy in respect of any liability
which the policy purports to cover in the case of that person or
classes of persons. Thus, if the policy of insurance covers any
liability in addition to the liability under section 147(1) of the Act,
the insurer will be liable to indemnify the insured in case of any
liability not because of the provisions of sub-section (1) of section
147 but because of the terms and conditions of contract of
insurance between the insurer and the insured. Therefore, if the
contract of insurance provides for a liability to a passenger or to an
employee other than the liabilities provided under sub-section (1)
of section 147 of the Act, the insurer would be liable to indemnify
the insured against such liability.
11. This position of law has been stated by us in our judgment
in Smt. Suniiu Lokhande v. The New India Assurance Company
Limited, (supra). Paragraph 12 of our judgment in Smt. Sunita
Lokhande (supra) is quoted hereinbelow:
"12. This is not to say that the owner of the vehicle would not be
entitled to any loss suffered in an accident from the insurer. All that
we have held is that a policy only satisfying the requirements of
section 147 of the Act does not cover such loss suffered by the
owner of the vehicle. But sub-section (5) of section 147 of the Act
makes it clear that a policy of insurance may contain terms and
conditions under which the owner can claim loss suffered by him in
the accident from the insurer notwithstanding anything contained in
any law for the time being."
12. Regarding the Division Bench judgment
in Sarvanlal (supra), we find that the Division Bench has relied on
not only the judgment of the Full Bench in Jugal Kishore (supra)
but also clause (vii) of Rule 97 of the Motor Vehicles Rules, 1994
(for short „the Rules of 1994‟) made by the State of M.P. So far as
the judgment of the Full Bench in Jugal Kishore (supra) is
concerned, we have already clarified the position of law. Regarding
clause (7) of Rule 97 of the Rules of 1994, we find that the Rules of
1994 have been made by the State of M.P. under section 96 of the
Act and in particular sub-section (2)(xxxi) which provides that
without prejudice to the generality of the foregoing power, rules
under section 96 may be made with respect to the carriage of
persons other than the driver in goods carriages. Section 96 is
placed in Chapter-V of the Act which relates to „Control of
Transport Vehicles‟. Sub-section (1) of section 96 of the Act stales
that the State Government may make rules for the purpose of
carrying into effect the provisions of Chapter-V. Hence, Rule 97 of
the Rules of 1994 has been made by the State Government to give
effect to the provisions of Chapter-V of the Act, which, as we have
seen, relates to „control of transport vehicles‟. These rules
obviously cannot have a bearing in interpreting the provisions of
Chapter-XI of the Act including sections 145 and 147 of the Act.
As we have indicated above, the liability of the insurer to
indemnify the insured in respect of death or bodily injury suffered
by a passenger or an employee would be covered by the provisions
of section 147 of the Act or the terms and conditions of the
insurance policy. Thus, the decision of the Division Bench
in Sarwan Lal (supra) insofar as it relies on Rule 97 of the Rules of
1994 to hold the insurer liable for death or bodily injury suffered by
the passenger does not lay down the correct law.
Since we have answered the reference, the appeal will now be
listed before the appropriate Division Bench for hearing and
disposal in accordance with law.
Reference answered accordingly.
19. In view of the above, the learned Tribunal has wrongly held that
there is no violation of the insurance policy and the appellant is liable to
indemnify the owner and driver of the offending tractor and trolly. The
Miscellaneous Appeals are liable to be allowed.
20. So far as the contention of counsel for the respondents /
claimants is concerned, that the Insurance Company ought to have been
directed to pay the compensation with liberty to recover it from the
owner and driver, learned counsel placed reliance on the following
ruling (i) Manuara Khatun and others V/s Rajesh Kumar Singh and
others [(2007) 4 Supreme Court Cases 796], (ii) National Insurance
Co. Ltd. V/s Madibai [2013 (I) MPWN 105], (iii) S. Iyyapan V/s United
India Insurance Company Limited and another [(2013) 7 Supreme
Court Cases 62], (iv) Sri Pramod Kumar Agrawal and others V/s Smt.
Mushtari Begum and others [2004 L.T. (SC) 122] and (v) National
Insurance Company Limited V/s Balakrishnan and another [(2013) 1
Supreme Court Cases 731].
21. In view of the forgoing discussions, these Miscellaneous
Appeals filed by the Insurance company are partly allowed. The
findings of joint and several liabilities stand set aside, but keeping in
view of the peculiar facts and circumstances of the cases the appellant
company is directed to deposit the remaining amount of compensation
and thereafter shall initiate the process to recover the same from the
owner and driver of the tractor and trolly. With the aforesaid, all the
present Miscellaneous Appeals are partly allowed.
22. Let a photocopy of this order be kept in all the connected
appeals. Let record be sent back to the concerned MACT.
(VIVEK RUSIA)
JUDGE
Divyansh
