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2009 Supreme(UK) 524
2010 (1) UAD 304
UTTARAKHAND HIGH COURT
Hon’ble Mr. Justice Prafulla C. Pant
Appeal From Order No. 668 of 2006
UNITED INDIA INSURANCE COMPANY LTD. – Appellant
Versus
SMT. TARA DEVI & ORS. – Respondents
Decided on : 26.10.2009
For the Appellant :Mr. Naresh Pant, Advocate
For the Respondents No. 1 to 4:Mr. B.S. Negi, Advocate
Headnote:Motor Vehicles Act, 1988, Secs. 147, 149, 165, 166 — Claim for compensation — Liability — No law which empowers the Tribunal to direct the insurance company to pay compensation after holding that the insurance company is not liable to pay the amount, with liberty to the company to recover it from the owner of the vehicle — The burden of getting recovered the amount of compensation, cannot be put on a party by the Tribunal unless such orders can be passed under some law — Tribunal has erred in law in directing the insurance company to pay the compensation, after holding that it was not liable to pay the compensation as there was violation of the terms of the policy, and the gratuitous passenger was not covered under the policy by which the vehicle was insured — The impugned award, passed by the Tribunal stands modified accordingly — The appellant insurance company entitled to get back amount if any deposited by it, leaving it open for the claimants to recover amount from other parties held liable to pay the compensation. (Paras 8 & 9)
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This appeal, preferred under Section 173 of the Motor Vehicles Act, 1988, is directed against the award dated 26.07.2006, passed by the Motor Accident Claims Tribunal/District Judge, Uttarkashi, in Motor Accident Claim Case No. 13 of 2003, whereby said Tribunal has awarded a sum of Rs. 5,40,000/- as compensation to the claimants/respondents to be recovered from the owner of the vehicle, but directed that the insurance company should pay the amount and recover it from the legal representatives of the owner of the vehicle.
2. Heard learned counsel for the parties and perused the record received from the Tribunal.
3. Brief facts of the case, giving rise to this appeal, are that one Mahendra Kumar (husband of claimant/respondent No. 1 Tara Devi) was travelling on 26.02.2003, in a Maruti car registration No. UP 11-A/8363, owned by one Madan Gopal Dhiman (husband of the present respondent No. 5). Said vehicle was being driven by the owner (Madan Gopal Dhiman). When the vehicle was on its way from Uttarkashi to Rishikesh, it met with an accident in which the owner of the vehicle (Madan Gopal Dhiman) and Mahendra Kumar (husband of the claimant/respondent Tara Devi) died. Respondents No. 1 to 4, who are the dependents of deceased Mahendra Kumar, travelling as a gratuitous passenger in the car, filed a claim petition under Section 166 of the motor Vehicles Act, 1988, or a compensation of Rs. 31,45,000/-. The claimants pleaded that the vehicle was being driven rashly and negligently. It was further pleaded that the vehicle was insured with the United India Insurance Company.
4. The Tribunal issued notices to the insurance company i.e. United India Insurance Co. Ltd. (present appellant). The insurance company contested the claim petition and denied that the vehicle was being driven rashly and negligently. It was pleaded that the accident took place due to the mechanical failure. It was further pleaded by the contesting insurance company that the claimants are not entitled to compensation for want of valid registration certificate, valid driving license for the hill area. It was further pleaded that under the policy the insurance company has no liability to pay compensation for death of the gratuitous passenger i.e. Mahendra Kumar.
5. The legal representatives of the owner did not contest the claim petition.
6. The Tribunal framed following issues on the basis of the pleading of the parties.
(i) Whether, on 26.02.2003, deceased Mahendra Kumar was travelling in the vehicle bearing registration No. UP 11-A/8363, after taking lift on it, and whether the accident occurred due to the rash and negligent driving on the part of the driver (owner), who himself died in the accident? If so, its effect?
(ii) Whether, the claimants are entitled to any amount of compensation? If so, to what amount and from whom?
(iii) Whether, the vehicle was being driven at the time of the accident with valid papers, and whether the driver did not possess the valid and effective license?
(iv) Whether, the vehicle was insured with the United India Insurance Co. Ltd., at the time of the accident?
(v) Whether, the suit is bad for non-joinder of the legal representatives of the owner of the vehicle?
(vi) To what relief, if any, the claimants are entitled?
7. It appears that during the pendency of the claim petition, issue No. 5 was decided as preliminary issue and legal representatives of the deceased owner of the vehicle were added in the array of parties, who did not contest the claim petition, even after receiving the notices. On the rest of the issues, the Tribunal found, after recording the evidence and hearing the parties, that the accident had occurred due to rash and negligent driving on the part of the driver/owner of the vehicle i.e. Madan Gopal Dhiman (who himself died in the accident). It further found that the vehicle was insured with the United India Insurance Co. Ltd. It also found that the deceased was a Clerk with New India Assurance Co. Ltd., and
