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(FULL BENCH)
A.K. Patnaik, C.J., Subhash Samvatsar and A.M. Naik, JJ.
Vimlabai and others v. Sharif Khan and others
Miscellaneous Appeal No.915 of 2004 Gwalior Bench;
Decided on 24.8.2009.
Held : Policy of insurance is a contract between the insurer and insured to indemnify the insured from the liability which will be fastened upon the latter on account of the accident resulting from the use of his motor vehicle.
The liability of the indemnifier to indemnify would arise only if the same is fastened upon the person who has to be indemnified. If no liability is fastened upon such person, there would be no occasion to indemnify him. Thus, it may, indeed, be concluded that in case of negligence on the part of the offending motor vehicle, the liability of compensation shall have to be fastened along with the insurance company on the owner also and consequently the insurance company alone cannot be made liable to make payment of compensation. [Paras 8 & 9
(2) Motor Vehicles Act, 1988 -- S.168 -- payment of compensation upon act of negligence ndriver and owner of offending vehicle are jointly liable. AIR 2008 SC 2545 followed. [Para 10
(3) Motor Vehicles Act, 1988 -- Ss.147 and 168 -- liability to pay compensation -- driver is primarily liable -- owner of vehicle is vicariously liable and insurer is statutorily liable. 2009(2)JLJ 161 (SC) followed. [Para 10
(4) Motor Vehicles Act, 1988 -- Ss.168 and 147 -- motor accident-owner of vehicle cannot be exempted from liability to pay compensation -- insurer only indemnifies the liability of owner --if there is no liability of owner, insurer cannot be asked to indemnify. AIR 1998 SC 257 followed. 2001 ACJ 1621 relied on. [Paras 11 & 12
(5) Motor Vehicles Act, 1988 -- Chap. XI -- valid insurance policy available in respect of offending vehicle --liability of owner of vehicle and insurer is joint and several to pay compensation. [Para 14
¼1½ eksVj ;ku vf/kfu;e] 1988 && /kkjk 168] 146] 147 rFkk 149 && lafonk vf/kfu;e] 1872 && /kkjk 124 rFkk 125 && chek dh ikfylh nq?kZVuk dh n’kk esa chekd`r dh Lokeh ds nkf;Ro ;s {kfriwfrZ djus ds fy, chekdrkZ rFkk chekd`r ds e/; lafonk gS && {kfriwfrZdrkZ dk nkf;Ro rHkh mRiUu gksrk gS tc og nkf;Ro ml O;fDr ij Mkyk tkrk gS ftldh {kfriwfrZ dh tkuk gSA vfHkfu/kkZfjr % chek dh ikfylh chekd`r ds eksVj ;ku ds mi;ksx ls ifj.kr nq?kZVuk ds dkj.k ml ij Mkys tkus okys nkf;Ro dh mldh {kfriwfrZ djus ds fy, chekdrkZ rFkk chekd`r ds e/; lafonk gSA {kfriwfrZdrkZ dk {kfriwfrZ djus dk nkf;Ro rHkh mRiUu gksxk tc ;g nkf;Ro ml O;fDr ij Mkyk tk, ftldh {kfriwfrZ dh tkuk gSA ;fn ml O;fDr ij dksbZ nkf;Ro ugha Mkyk tkrk rc mldh {kfriwfrZ djus dk dksbZ dkj.k ugha gksxkA bl izdkj] okLro esa ;g fu"d"kZ fudkyk tk ldrk gS fd mYya?kudkjh eksVj ;ku dh vksj ls mis{kk dh n’kk esa] izfrdj dk nkf;Ro chek daiuh ds lkFk Lokeh ij Hkh Mkyk tkuk gksxk rFkk] ifj.kkeLo:i] dsoy chek daiuh izfrdj dk lank; djus ds fy, nk;h ugha BgjkbZ tk ldrhA ¼iSjk 8 ,oa 9 ¼2½ eksVj ;ku vf/kfu;e] 1988 && /kkjk 168 && mis{kk ds d`R; ij izfrdj dk lank; && mYya?kudkjh ;ku dk pkyd rFkk Lokeh la;qDr :i ls nk;h gSaA , vkb vkj 2008 ,l lh 2545 vuqlfjrA ¼iSjk 10 ¼3½ eksVj ;ku vf/kfu;e] 1988 && /kkjk 147 rFkk 168 && izfrdj lanRr djus dk nkf;Ro && izkFkfed :i ls pkyd nk;h gS && ;ku dk Lokeh izfrfuf/kd :i ls rFkk chekdrkZ dkuwuh :i ls nk;h gSA 2009¼2½ ts ,y ts 161 ¼mPpre U;k-½ vuqlfjrA ¼iSjk 10 ¼4½ eksVj ;ku vf/kfu;e] 1988 && /kkjk 168 rFkk 147 && eksVj nq?kZVuk && ;ku ds Lokeh dks izfrdj lanRr djus ds nkf;Ro ls NwV ugha nh tk ldrh && chekdrkZ dsoy Lokeh ds nkf;Ro dh {kfriwfrZ djrk gS && ;fn Lokeh dk nkf;Ro ugha gS rks chekdrkZ ls {kfriwfrZ djus ds fy, ugha dgk tk ldrkA , vkb vkj 1998 ,l lh 257 vuqlfjrA 2001 , lh ts 1621 voyafcrA ¼iSjk 11 ,oa 12 ¼5½ eksVj ;ku vf/kfu;e] 1988 && v/;k; 11 && mYya/kudkjh ;ku ds laca/k esa fof/kekU; chek ikfylh miyC/k && ;ku ds Lokeh rFkk chekdrkZ dk izfrdj lanRr djus dk nkf;Ro la;qDr rFkk i`Fkd&i`Fkd~ gSA ¼iSjk 14
Naik, J. -- 1. Following questions are referred to this Full Bench:
"(i) Whether, in an appeal for enhancement of compensation when there is no dispute about the liability of the insurance company, it is necessary to pass the award against all as they are jointly and severally liable?
(ii) Whether the respondent No.2-owner of the disputed truck and respondent No.3-Insurance Company both are jointly and severally liable to pay amount of compensation to appellants-claimants or respondent No.3-Insurance Company is liable to pay the amount of compensation to the appellants-claimants?"
2. Facts relevant for the purpose of reference are in a narrow compass. Truck No. HR38/D-1157 was owned by Satish Kumar (respondent No.2) whereas the same was being driven at the relevant time by Sharif Khan (respondent No.1). It was insured with the United India Insurance Company (respondent No.3). Claimants-appellants are the legal heirs of the deceased Kapoorchand, who was travelling in Jeep No.MP07/H-4205, which met with an accident due to head on collision with the aforesaid truck. Kapoorchand, aged about 35 years, died due to injuries received by him in the accident. Claimants-appellants being dependents of the deceased Kapoorchand, submitted a claim petition before the Claims Tribunal, Guna. It was found by the Claims Tribunal that the offending truck was being driven at the relevant time in a rash and negligent manner. Accordingly, an award was granted for compensation to the tune of Rs.2,00,000/- (Rs. Two lacs only) against the owner and the insurance company since it could not be proved that the offending truck was being driven at the time of occurrence of the accident by the respondent No.1.
3. Being aggrieved by the aforesaid award dated 31.7.2004, passed by the learned Claims Tribunal, Guna, claimants submitted Miscellaneous Appeal No.915/04 before this Court for enhancement of compensation. Learned Division Bench after hearing the arguments enhanced the amount of compensation to the tune of Rs.2,76,000/- along with interest @ 8% p.a. from the date of filing of the appeal till realisation. However, the learned senior Judge of the Division Bench directed the respondent No.3-United India Insurance Company alone to deposit the amount of award within a period of two months. Another learned Judge of the Division Bench opined that the respondent No.2 (i.e., owner of the offending vehicle) is equally responsible with the insurance company in joint and several manner. On account of difference of opinion in the manner indicated above, the questions stated hereinabove are referred to this Full Bench.
4. We have heard the learned counsel for the parties. Their submissions have been considered in the light of the law governing the situation.
5. The Motor Vehicles Act, 1939 has been repealed by the Motor Vehicles Act, 1988. Accident giving rise to the present matter took place on 7.4.2002 therefore, obviously, it would be governed by the provisions of the current Act of the year 1988. Section 146 of the said Act makes it obligatory on the person using the motor vehicle in a public place to have a policy of insurance in accordance with the requirements of Chapter XI of the Motor Vehicles Act, 1988. Contents of the policy of insurance in order to comply with the requirements of Chapter XI are contained in section 147. Section 149 casts a duty on the insurer to satisfy judgments and awards against persons insured in respect of third party risks. In the present case, it is not in dispute that the United India Insurance Company had issued a policy of insurance to indemnify the respondent No.2 with respect to the offending vehicle, which was valid at the time of occurrence of the accident.
6. Precise questions involved herein are whether the owner of the offending vehicle may be exonerated from the liability of the compensation and whether the insurance company alone may be fastened with the liability of compensation.
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