New India Assurance Co. Ltd. vs Phoolan Bai

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2000 Supreme(MP) 928

2001 (1) JLJ 276
V.K. Agrawal, J.
New India Assurance Co. Ltd. v. Phoolan Bai & others
Misc. Appeal No. 436 of 2000; against the award of 1st.,
Addl. Motor Accident Claims Tribunal,
Betul, in Claim Case No.1 of 1995; Decided on 30.9.2000.

Advocates:
Anoop Nair for appellant; Satish Shrivastava for respondent Nos 1 to 6;
V.K. Shukla with S.K. Gangrade for respondent No. 10.

Headnote:(1) Motor Vehicles Act, 1988 -- S. 149(2) (a) (ii) -- non-existence of driving licence not proved by insurer -- owner deposing existence of driving licence -- even if subsequently it is found to be forged -- insurer cannot claim breach of policy. [Paras 8 & 9
       (2) Motor Vehicles Act, 1988 -- S. 149(2) (a) (ii) -- burden to prove non-availability of driving licence lies on insurer -- if not so proved it is liable to satisfy the award -- record of R.T.O on such plea not produced -- plea not available. AIR 1985 SC 1281 and AIR 1990 SC 1979 followed. 1998 (1) Vidhi Bhasvar 79 relied on. [Para 11
       (3) Motor Vehicles Act, 1988 -- S. 157 -- policy not transferred in the name of transferee -- liability of third party cannot be escaped by insurer.
       A victim or the legal representatives of the victim cannot be denied compensation by the insurer on the ground that the policy was not transferred in the name of the transferee. (1999) 3 SCC 754 and (1996) 1 SCC 221 followed. 2000 (2) JLJ 199 (PB) relied on. [Para 14
       Therefore, even if the policy was not transferred and no intimation was given to the insurer, about the transfer of the ownership; yet the insurance company could not avoid its third-party liability during the period of insurance. [Para 15
       (4) Motor Vehicles Act, 1988 -- S. 149 (2) -- third party risk of gratuitous passengers in a vehicle of any type -- is covered by the insurance policy. AIR 2000 SC 235 followed. [Para 16
       ¼1½ eksVj ;ku vf/kfu;e] 1988 && /kkjk 149¼2½¼d½¼ii½ && chekdrkZ }kjk Mªkbfoax vuqKfIr dh vfo|ekurk lkfcr ugha dh xbZ && Lokeh }kjk Mªkbfoax vuqKfIr dh fo|ekurk dk vfHklk{; && ckn esa og dwVjfpr fu"df"kZr gks && rc Hkh chekdrkZ ikfylh ds Hkax dk nkok ugha dj ldrkA ¿ iSjk 8 ,oa 9
       ¼2½ eksVj ;ku vf/kfu;e] 1988 && /kkjk 149¼2½¼d½¼ii½ && Mªkbfoax vuqKfIr dh vuqiyC/krk lkfcr djus dk Hkkj chekdrkZ ij gksrk gS && ;fn ,slk lkfcr ugha gks rc og vf/kfu.kZ; dh rqf"V djus ds nkf;Rok/khu gS && ,sls vfHkokd~ ij {ks=h; ifjogu dk;kZy; dk vfHkys[k izLrqr ugha fd;k x;k && vfHkokd~ miyC/k ugha gksxkA , vkb vkj 1985 ,l lh 1281 rFkk , vkb vkj 1990 ,l lh 1979 vuqlfjrA 1998¼1½ fof/k HkkLoj 79 voyafcrA ¿ iSjk 11
       ¼3½ eksVj ;ku vf/kfu;e] 1988 && /kkjk 157 && ikfylh varfjrh ds uke ij varfjr ugha && chekdrkZ ijO;fDr ds nkf;Ro ls ugha cp ldrkA
       vkgr O;fDr vFkok vkgr O;fDr ds fof/k izfrfuf/k dks chekdrkZ }kjk bl vk/kkj ij izfrdj ls oafpr ugha fd;k tk ldrk fd ikfylh varfjrh ds uke ij varfjr ugha gqbZ FkhA ¼1999½ 3 ,l lh lh 754 rFkk ¼1996½ 1 ,l lh lh 221 vuqlfjrA 2000 ¼2½ ts ,y ts 199 ¼iw.kZ U;k;ihB½ voyafcrA ¿ iSjk 14
       vr% ikfylh varfjr ugha gqbZ Fkh rFkk chekdrkZ dks LokfeRo ds varj.k ds ckjs esa dksbZ lalwpuk ugha nh xbZ Fkh rc Hkh chekdrkZ chek dh vof/k ds nkSjku ijO;fDr ds vius nkf;Ro ls ugha cp ldrk FkkA ¿ iSjk 15
       ¼4½ eksVj ;ku vf/kfu;e] 1988 && /kkjk 149¼2½ && fdlh Hkh izdkj ds ;ku esa fu%‘kqYd ;kf=;ksa dk tksf[ke && chek ikfylh dh O;kfIr esa vkrk gSA , vkb vkj 2000 ,l lh 235 vuqlfjrA ¿ iSjk 16

ORDER

1. These Misc. Appeals arise out of common award dated 29.11.1999 in Claim Case No. 1/95, Claim Case No. 2/95, Claim Case No. 3/95, Claim Case No. 4/95, Claim Case No. 65/96; by First Additional Motor Accidents Claims Tribunal, Betul. In all the aforesaid appeals, preferred by the insurer-appellant, the claimants/respondents have filed cross-objections under Order 41 Rule 22 of the Code of Civil Procedure, 1908, claiming enhancement of the awarded amount. Particulars of the Misc. Appeals and cross-objections are as below: --

S. No. Claim Misc. Appeal Cross Objection

Case Number M(c) P Number

Number

(1) 1/95 438/2000 103/2000

(2) 2/95 436/2000 101/2000

(3) 3/95 440/2000 102/2000

(4) 4/95 437/2000 106/2000

(5) 65/96 439/2000 100/2000

It may be noted that Claim Case No. 1/1995 relating to M.A. No. 438 of 2000 was filed by the legal representatives of deceased Vishram. Claim Case No.2 of 1995 relating to M.A. No. 436 of 2000 has been preferred by the legal representatives of deceased Phoolan; Claim Case No.3 of 1995 relating to M.A. No. 440 of 2000 has been filed by the injured Savita. Claim Case No.4 of 1995 relating to M.A. No. 437 of 2000 has been preferred by the legal representatives of deceased Dulahare while Claim Case No. 65 of 1996 relating to M.A. No. 439 of 2000 has been preferred by the injured Shewari.

All the aforesaid Misc. Appeals and cross-objections, are being disposed of by this common order.

2. The said claim cases were filed by the claimants alleging that on 17.11.1994 Truck No. CPB: 7945 met with an accident on Baretha Ghoda Tanker Road near village Deshawadi. Claimants are either the legal representatives of the deceased or the injured, who were travelling by the said truck, which was being driven by driver Vinod.

3. It was further stated that the said truck was initially of the ownership of General Manager, Western Coalfields Limited, Pathakheda and was purchased in an auction by respondent No.2 Radheyshyam. However, in the registration certificate, the name of the respondent Radheshyam was not entered by the Regional Transport Officer. However, the insurance of the vehicle with respondent No. 3 was made in the name of Western Coalfields Limited, Pathakheda through respondent Radheyshyam. The said vehicle was subsequently purchased by respondent Satosh Tanwar on 29.4.1993 and the insurer/appellant New India Assurance Co. Ltd. thereafter insured the vehicle for the period from 18.11.1993 to 17 .11.1994 treating Santosh Tanwar as the insured. A cover-note to that effect was also issued, though the policy document was not issued.

4. The appellant insurer in their reply to the claim petitions filed by the claimants admitted that they had insured the offending vehicle -- Truck No. CPB. 7945. According to the averments of the insurer/ appellant, the vehicle was insured on 17.11.1994 in the name of General Manager, Western Coalfields Limited, Pathakheda, through the respondent Santosh Tanwar and Insurance Policy No. 314570302903 was issued with regard to the said insurance.

5. Common evidence was recorded in all the cases. The learned Tribunal, after scrutiny and appreciation of evidence, recorded a finding that the accident occurred on account of rash and negligent driving of the truck by its driver Vinod. It was also held that the truck was registered in the name of General Manager, Western Coalfields Limited, Pathakheda through respondent Santosh Tanwar. The truck was admittedly insured by the appellant for the period from 18.11.1993 to 17.11.1994 and thus there was no dispute that the policy of insurance issued by the appellant was effective on the date of accident, i.e., on 17.11.1994. The Tribunal granted awards as below:-

(i) In Claim Case No.1 of 1995, compensation of Rs. 1.0 lakh was awarded to the claimants of that case, on account of death of Vishram in the said accident.

(ii) In Claim Case No.2 of 1995, an amount of Rs. 95,000/- has been granted to the LRs on account of death of Sahu.

(iii) In

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2000 Supreme(MP) 928

2001 (1) JLJ 276V.K. Agrawal, J.New India Assurance Co. Ltd. v. Phoolan Bai & othersMisc. Appeal No. 436 of 2000; against the award of 1st.,Addl. Motor Accident Claims Tribunal,Betul, in Claim Case No.1 of 1995; Decided on 30.9.2000.

Cases Referred (6)

2001 (1) JLJ 276
V.K. Agrawal, J.
New India Assurance Co. Ltd. v. Phoolan Bai & others
Misc. Appeal No. 436 of 2000; against the award of 1st.,
Addl. Motor Accident Claims Tribunal,
Betul, in Claim Case No.1 of 1995; Decided on 30.9.2000.