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Mh. L.J. 2009 (1) 898
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
SMT. RANJANA DESAI & SMT. R.P. SONDURBALDOTA, JJ.
Traders Pvt. Ltd and Others - Appellants
Versus
Sunanda widow of Krishna Machivale and Others - Respondents
LETTERS PATENT APPEAL NO.121 OF 2000
Decided on : 27TH AUGUST, 2008.
(b) Motor Vehicles Act (4 of 1939), S. 95(1)(b)(i) and (ii) :-Third Party - Scope of - Driver of the car is not a third party and hence the owner of the car or the insurer can not directed to pay the compensation the heirs of the driver on his death in the accident.
(c) Motor Vehicles Act (4 of 1939), SS. 95 and 92-A :- Meaning of the words “Indemnify the driver” - Limited to make good the loss suffered by the third parties due to the negligent and rash driving by the driver by the owner of the car / insurer, but does not extend to make the owner of the car/ insurer to pay the heirs of the deceased driver who is not third party.
(d) Motor Vehicles Act (4 of 1939), S. 95(2)- Additional compensation - Liability of the insurer - Where the liability of the insurer is limited to an amount and the insurer had made that payment, the insurer can not be compelled to pay any additional compensation unless there is a provision in the policy for such enhancement.
(e) Motor Vehicles Act (4 of 1939), S. 96 and Motor Vehicles Act (59 of 1988), S. 149 :- Scope of Third Party risks - Where the policy provides for the insurers to satisfy the judgments suffered by the insured against third risk parties, then the insurer is deemed to be a judgment debtor and he is liable to satisfy them subject to right of defence/grounds.
(f) Motor Vehicles Act (4 of 1939), S. 96 and Motor Vehicles Act (59 of 1988), S. 149:- Right of Insurer to recovery from insured - Scope of the liability of third party risks for the insured- Sub-section (2) of section 96 of the 1939 Act and sub-section (2) of section 149 of 1988 Act has given right to insurer to recover from the insured in certain contingencies and under some grounds.- This would be superfluous if the insurer is compelled to pay to the claimants first in all cases whether they are liable or not and then recover it from the insured
1. Rule. Respondents waive service. By consent of the parties, taken up for hearing forthwith.
2. In this letters patent appeal, order dated 8/3/2000 passed by learned Single Judge of this court in First Appeal No.807 of 1994 is under challenge. Respondents 1 to 4A are the heirs of one Krishna Babu Machivala. They filed Application No.827 of 1988 under the Motor Vehicles Act, 1939 (for short, “the said Act”) in the Motor Accident Claims Tribunal at Bombay, (for short, “the Tribunal”) for compensation on account of the death of the said Krishna (for convenience, “the deceased”) in a car accident on 16/12/1987.
3. We shall now state how the parties are arraigned in the application before the Tribunal. Respondents 1 to 4A are the original applicants-claimants (for convenience, “the applicants). Appellant 1 firm is opposite party No.3. It is the owner of Maruti Car No.GBL 8335. Maruti Car No.GBL 8335 shall be referred to as the said car and appellant 1 shall be referred to as the owner of the said car. Appellant 2 is the 2nd insurer. It is the insurer of the said car and shall be referred to as such. Respondent 5 is the owner of Motor Truck No.MHT 1835. He is opposite party No.1. Motor Truck No.1835 shall be referred to as the offending truck and respondent 5 shall be referred to as the owner of the offending truck. Respondent 5A is the widow of respondent 5. Respondent 6 is the driver of the offending truck. He is opposite party No.2 and shall be referred to as the driver of the offending truck. Respondent 7 is the 1st insurer. It is the insurer of the offending truck and shall be so referred to.
4. On 16/12/1987, at about 11.40 p.m., the deceased was driving the said car. One Anil Dwarkanath Chudji, an employee of the Indian Express Newspaper Ltd. (for short, “the Indian Express”) and another colleague from the Indian Express Office, were with him. They were proceeding from Nariman Point to Pune. When the said car approached Sion-Trombay Road near R.K. Studio, suddenly the offending truck coming from the opposite direction driven by opposite party No.2 in fast and uncontrollable speed dashed against Maruti Motor No.CGZ-6272 which was ahead of it, then went over the driver and dashed against the said car driven by the deceased with such a great force that it turned round on the spot killing the deceased instantaneously. Other inmates of the said car were injured. Soon, the wireless van of the police came to the spot of incident and removed the injured to the Rajawadi Hospital, Bombay.
5. The case of the applicants is that the sudden death of the only earning member of the family has caused irreparable loss, pain and suffering to them. The deceased was young and of robust health. He could have lived upto 75 years but for this accident. Besides driving in Bombay for the Indian Express who was his employer, he was required to go to Pune, almost daily on overtime wages.
6. The applicants' further case is that the accident took place because of the rash and negligent driving of the driver of the offending truck. The owner of the truck is liable to pay compensation to the applicants because its driver was driving the truck as its servant in the course of employment with him and/or as the agent of and/or on behalf of and/or with his knowledge and/or permission. The insurer of the offending truck is also liable to indemnify any driver holding license after issuing the certificate of insurance under the said Act. It is also the case of the applicants that the deceased was driving the said car as a servant of the owner of the said car in the course of employment with it and/or as the agent of and/or on behalf of and/or with the knowledge of and/or with its permission and, therefore, the owner of the said car was liable to pay compensation to the applicants
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