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2013 Supreme(UK) 4
SUPREME COURT OF INDIA
Hon’ble Mr. Justice R.M. Lodha and Hon’ble Mr. Justice R. Dave
Civil Appeal No. 5 of 2013
MANAGER, NATIONAL INSURANCE CO. LTD. – Appellant
Versus
SAJU P. PAUL & ANR. – Respondents
Decided on : 03.01.2013
For the Respondents:Mr. K. Radhakrishnan, Sr. Adv., Ms. Kiran Bhardwaj, Advocates
Headnote:(A) Motor Vehicles Act, 1988, Sec. 147(1) proviso as it stood prior to its amendment by Amendment Act of 1994 — Insurer’s liability — Claimant not driving the vehicle in question nor was he engaged in driving of the said vehicle, to be treated as a gratuitous passenger — Held — Merely because he was travelling in a cabin as a spare driver would not make his case different from any other gratuitious passenger — No liability of insurer to pay compensation to such person.
(Paras 16 to 18)
(B) Motor Vehicles Act, 1988, Sec. 168 — Scope and Purport — Issuing directions to the insurer to satisfy the award made in favour of the claimant, as in law it had no liability — Propriety — Considering the beneficial object of the Act, proper for the insurer to satisfy such award and thereafter recover the amount from the insured, i.e. the owner of the vehicle — In peculiar fact situation as in the present case, Claimant, allowed to withdraw the amount deposited by the insurer company and invested in a fixed deposit account, alongwith the interest bearing account alongwith the accrued interest. (Paras 19 to 21 and 25)
(C) Motor Vehicles Act, 1988, Sec. 168 — Award of Tribunal directing insurer to first satisfy the awarded amount in favour of claimant and then recover the same from the owner — Mode — For purpose of, not necessary for the insurer to file a separate suit — But he may initiate a proceeding before the executing Court as if the dispute between the insurer and the owner was the subject matter of determination before the Tribunal and the issue was decided against the owner in favour the insurer. (Paras 20, 21 and 25)
¼v½ eksVj okgu vf/kfu;e] 1988] /kkjk 147¼1½ & la’kksf/kr vf/kfu;e] 1994 }kjk la’kksèku ls iwoZ dk ijUrqd & chekdrkZ dk nkf;Ro & nkosnkj u rks okn esa okgu dk pkyd u gh ml okgu dks pykus ds fy, fu;qDr] blfy, mls fu%’kqYd ;k=h ekuk x;k & èkkfjr flQZ blfy, fd og dsfcu esa ,d vfrfjDr MªkbZoj Fkk] mldk okn fHkUu ugha ,d fu%’kqYd ;k=h ls & chekdrkZ dk dksbZ nkf;Ro ugha ,sls O;fDr dks eqvkotk nsukA ¼izLrj 16 ls 18½
¼c½ eksVj okgu vf/kfu;e] 1988] /kkjk 168 & foLrkj vkSj rkRif;Zr & chekdrkZ dks funsZ’k nsuk nkosnkj dks eqvkotk nsus ds fy,] tks mldk nkf;Ro ugha & vkSfpR; & vfèkfu;e ds Qk;nkizn mn~ns’; ij fopkj & chekdrkZ ds fy, leqfpr fd og eqvkotk iznku djs vkSj ckn esa mls chfer ;kfu fd okgu Lokeh ls olwy ys & bu ifjfLFkfr;ksa esa tSls fd izLrqr okn esa nkosnkj dks eatwjh fd og chekdrkZ }kjk tek jkf’k tks ,d Fixed Deposit Account esa gS C;kt lfgr izkIr dj ldsA ¼izLrj 19 ls 21 vkSj 25½
¼l½ eksVj okgu vf/kfu;e] 1988] /kkjk 168 & chekdrkZ dks fVªC;quy ds vkns’k fd og igys nkosnkj dks Hkqxrku vnk djs fQj ml jkf’k dh olwyh okgu Lokeh ls djs & izdkj & rkRi;Z & ds fy, vko’;d ugha fd chekdrkZ ,d vU; okn nk;j djs & ijUrq fu”iknu vnkyr ds le{k gh dk;Zokgh ‘kq: dj ldrk gS & pw¡fd chekdrkZ o okgu Lokeh ds chp fookn fopkjuh; fo”k; gS fVªC;quy ds le{k ftldk fu.kZ; fn;k x;k okgu Lokeh ds fo#) chekdrkZ ds i{k esaA ¼izLrj 20] 21 vkSj 25½
R.M. Lodha. J. — Leave granted.
2. The appellant, insurance company, is in appeal by special leave against the judgment and order dated 23.03.2011 whereby the Division Bench of the Kerala High Court allowed the review petition and reviewed its order dated 09.11.2010 and held that the insurance company was liable to pay compensation in sum of Rs. 2,88,000/- with 9% interest thereon to the claimant awarded by the Motor Accident Claims Tribunal in its award dated 23.07.2002.
3. The question of law that arises in this appeal is as to whether having regard to the provisions of the Motor Vehicles Act, 1988 (for short, ‘1988 Act’), the insurance company is liable to pay compensation for the bodily injury caused to the claimant who was travelling in a goods vehicle as a spare driver though he was employed as a driver in another vehicle owned by the owner of the vehicle under the policy of insurance.
4. The above question arises in this way Saju P. Paul, claimant (Respondent No.1), was a heavy vehicle driver. He was employed with Respondent No.2 as a driver in some other vehicle. On 16.10.1993, he was travelling in a goods vehicle bearing No. KL-ZN3411 in the cabin. The goods vehicle was being driven by one J ayakumar. In that vehicle, many other persons were also travelling. At Nilackal, due to rash and negligent driving Elf the driver Jayakumar, the goads vehicle capsized. As a result of which the claimant suffered fracture and injuries. The claimant remained under treatment for quite some time and the injuries that he sustained in the accident rendered him permanently disabled. In the claim petition filed by him before the Motor Accident Claims Tribunal, Pathanamthitta (for short, ‘the Tribunal’), he claimed compensation of Rs.3,00,000/-. The owner and insurer were impleaded as respondent no. 2 and respondent no. 3 respectively in the claim petition.
5. The insurer filed its written statement and opposed the claimant’s claim insofar as it was concerned. The insurer set up the plea that the vehicle was a goods vehicle and the risk of the passengers travelling in the goods vehicle was no; covered under the policy of insurance. It was stated in the written statement that nearly 50 unauthorised passengers were travelling at the time of accident; they were not traveling in the vehicle in pursuance of the contract of employment, such as loading and unloading nor they were travelling as the owner of the goods or the representative of the owner of the goods and hence the insurer could not be saddled with any liability.
6. The Tribunal, after recording the evidence and hearing the parties. on 23.07.2002, passed an award in favour of the claimant holding that he was entitled to a total compensation of Rs. 3.00,000/-. The liability of the insurer was made joint and several with the owner and driver.
7. Being not satisfied with the award of the Tribunal, the insurer filed an appeal before the Kerala High Court. The Division Bench of that Court by relying upon decisions of this Court in New India Assurance Co. Ltd. v. Asha Rani and others (2003) 2 SCC 223 and National Insurance Co. Ltd. v. Cholleti Bharatamma and Others (2008) 1 SCC 423 allowed the appeal of the insurer vide judgment and order dated 09.11.2010. The Division Bench held that insurer was not liable as gratuitous passengers travelling in a goods vehicle were not covered under the policy and the claimant shall be entitled to recover the awarded amount from the owner or driver of the vehicle.
8. The claimant sought review of the order dated 09.11.2010 and, as noted above. by the impugned order that review application has been allowed. While allowing the review application. the Division Bench held as under:
“It has already been noticed that the petitioner was admittedly a spare driver of the vehicle. It may be true that he was not driving the vehicle at the relevant point of time; but he was directed to go to the worksite by his employer as a spare driver in th
