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1998 Supreme(Cal) 533
High Court Of Calcutta
S. K. SEN, AMITAVA LALA
UNITED INDIA INSURANCE CO.LTD - Appellant
Versus
B.HEMAWATI - Respondent
F. M. A 1 Of 1998
Decided On : 12/21/1998
D.R.Parekh, R.S.SARUP
An insurer cannot avoid liability under a third party insurance policy for injury suffered by a gratuitous passenger if the terms of the policy are wider than the minimum requirement of the statute and cover the risk to gratuitous passengers.
Headnote:
MOTOR VEHICLES ACT - INSURANCE - CLAIMS TRIBUNAL - COMPENSATION - THIRD PARTY LIABILITY - GRATUITOUS PASSENGER - INSURANCE POLICY COVERAGE - BREACH OF CONDITION - LIABILITY OF INSURER - INTERPRETATION OF STATUTORY PROVISIONS - MOTOR VEHICLES ACT, 1988, SECTIONS 147, 149, 163-A.
Fact of the Case:
The victim was travelling on the body of a truck belonging to and driven by Respondent No. 3. The driver turned the truck rashly and negligently towards the right to go to Haddo side at the traffic junction, causing the victim to fall down and sustain fatal injuries. The truck was covered under an insurance policy with Appellant, United Indian Insurance Co. Ltd. The Tribunal awarded compensation to the claimants, holding both the owner of the vehicle and the insurance company liable. The insurance company challenged the award, contending that there was a breach of condition of the insurance policy since the victim was a gratuitous passenger and thus not covered under the policy.
Finding of the Court:
The court held that the insurance company was liable to pay compensation to the claimants under the impugned award. The court found that the insurance policy in question was a third party insurance and that the statutory insurance did not cover injury suffered by occupants of the vehicle who were not carried for hire or reward. However, the court held that the insurer could not avoid liability under the policy since the terms of the policy were wider than the minimum requirement of the statute and covered the risk to gratuitous passengers.
Issues: 1. Whether the insurance company was liable to pay compensation to the claimants under the impugned award. 2. Whether there was a breach of condition of the insurance policy since the victim was a gratuitous passenger.
Ratio Decidendi: 1. The court held that the insurance company was liable to pay compensation to the claimants under the impugned award. The court found that the insurance policy in question was a third party insurance and that the statutory insurance did not cover injury suffered by occupants of the vehicle who were not carried for hire or reward. However, the court held that the insurer could not avoid liability under the policy since the terms of the policy were wider than the minimum requirement of the statute and covered the risk to gratuitous passengers. 2. The court held that there was no breach of condition of the insurance policy since the victim was a gratuitous passenger. The court found that the policy in question clearly covered the risk and that the heirs and the deceased victim were entitled to compensation and the Insurance Company cannot avoid the liability.
Final Decision: The court dismissed the appeal filed by the insurance company.
( 1 ) THIS appeal is directed against the award passed by the Accident Claims Tribunal (District Judge), Port Blair arising out of an application under section 166 (A) of the Motor Vehicles Act, 1988 as amended in 1994, filed by the respondents being the heirs and legal representatives of the victim, directing the appellant, Insurance Co. and the respondent No. 3 to pay jointly and severally the compensation of Rs. 2,47,000/-only.
( 2 ) THE facts inter alia involved in this appeal are that on 29. 6. 1996 at about 14-10 hrs. the victim was travelling on the body of the truck bearing Regn. No. AN 01/a-4501 belonging to and driven by O. P. No. 1 S. Venkatoswar Rao from Phoenix Bay APWD godown to Haddo Wharf via Delanipur after unloading the cement bags at the godown. The driver of the truck turned the truck rashly and negligently in increased speed towards the right in order to go to Haddo side at the traffic junction at Delanipur as a result of which the victim who was sitting on the left side of the body of the truck, fell down on the road and he sustained fatal injuries. Other three mazdoors and S. Narayan shouted and the driver stopped the vehicle after proceeding to some distance. S. Narayan and other three mazdoors got down from the truck and found that the victim was not able to get up. The victim thereafter was shifted to G. B. Pant Hospital by taxi bearing No. AN-1988 by the said mazdoors. On examination the doctor declared the victim dead. S. Narayan went to Aberdeen P. S. and lodged a report to the police where a crime No. 30 of 1996 was registered against the driver. Postmortem examination on the body of V. Lakshmi Narayan, the victim, was held. The victim died in the accident as the offending truck was being driven rashly and negligently. The truct was covered under a policy of insurance with O. P. No. 2 M/s. United Indian Insurance Co. Ltd. At that time the truck had the registration number of Andhra Pradesh bearing no. ADM-8062 which was brought by O. P. No. 1 to Port Blair from Andhra Pradesh. At Port Blair the truck has been registered as AN 01/a-4509. The victim at the time of death was 26 years of age having a good health. He was working as a mazdoor in ATI Bambooflat getting a monthly salary of Rs. 1569/ -. By filing this claim case the claimant prayed for a total compensation of Rs. 4,22,400/- as compensation for loss of consortium, funeral expenses and loss of estate.
( 3 ) O. P. NO. 1 did no file any written statement, but O. P. No. 2 filed written statement wherein all the material facts excepting the facts of accident are denied. It is admitted that the offending vehicle belongs to O. P. No. 1 and it was duly insured with O. P. No. 2. By filing this written statement this O. P. No. 2 has stated that they are not liable to pay the compensation to the claimant as there has been violation of the terms and conditions of the policy of insurance by the insured O. P. No. 2.
( 4 ) ON the basis of the pleadings the following issues were framed for proper adjudication :-1. Is the case maintainable in its present form and in law? 2. Did B. Laxinarayan die in a vehicular accident occurred on 20. 6. 1996 at Delanjpur? 3. Was the truck AN O1-4501 involved in that accident? If so, was O. P. No. 1 Sri Venkateshwar Rao the owner of the said truck? 4. Was the truck covered under insurance at the relevant time?
( 5 ) ARE the claimants entitled to get compensation? If so, what would be the quantum of compensation and who will be liable to payment of compensation?
( 6 ) TO what other relief, if any, are the claimants entitled? 5. Considering the evidence and the facts on record and also considering the third party liability under the insurance policy the Tribunal was of the view that both the owner of the vehicle and the insurance Co. are liable to pay compensation. It has been awarded by the Tribunal as follows :-"that the case be and the same is allowed on contest against the O. P. No. 1 and O. P. No. 2 bu
