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SIKKIM HIGH COURT
S.P. Wangdi, J.
Senior Branch Manager, National
Insurance Co. Ltd. —Appellant
versus
Smt. Namita Dixit & Ors. —Respondents
M.A.C. Appeal No. 1 of 2009 with M.A. C. Appeal No. 02 of 2009
Decided on 1.12.2009
M.A.C. Appeal No. of 01/2009
For the Appellant:Mr. Ramesh Sharma, Advocate. Mr. A.K. Upadhyaya, Senior Advocate appearing as Amicus Curiae by the Court with Mr. Dhurba Tewari and Mr. Ashim Chettri, Advocates.
For the Respondent Nos. 1 and 2:Mr. A. Moulik, Senior Advocate with Mr. Ajay Rathi and Ms. Sushma Pradhan, Advocates.
For the Respondent No. 3:Mr. N. Rai, Advocate with Ms. Jyoti Kharka, Advocate.
M.A.C. Appeal No. of 02/2009
For the Appellant:Ms. Navtara Sarda, Advocate.
For the Respondent Nos. 1, 2 and 3:Mr. Ajay Rathi, Advocate with Ms. Sushma Pradhan, Advocate.
For the Respondent No. 4:Ms. Sabina Gurung, Advocate.
IMPORTANT POINT
Liability of insurer to satisfy decree passed in favour of a third party is statutory.
Headnote:(i) Motor Vehicles Act, 1988—Sections 147 and 173—Accident—Liability of insurer to pay compensation—Third party liability—Policy in question is a package policy in which Section 11(l)(i) of IMT Rules is covered—In an Act or statutory policy insurer’s liability would be limited to extent provided in the Act, but law does not restrict or prohibit insured and insurer to enter into a special contract for purpose of providing larger coverage of risk on payment of special or higher premium—Policy also covers gratuitous passengers and insured (owner) is fully covered of all risks connected with such category of passengers setting at naught only ground of appeal set up by appellant—Appeals dismissed with costs. (Paras 15, 16, 21, 26 and 27)
(1998) 3 SCC 744: (2003) 2 SCC 278: (1995) 2 SCC 529: 2003(2) SCC 223: 2006(4) SCC 404—Relied on.
AIR 2000 SC 235—Since overruled.
AIR 2008 Delhi 201—Referred to. AIR 2008 Delhi 201—Assented to.
(ii) Motor Vehicles Act, 1988—Section 149(2) —Appeal by insurance company—Liability of insurer is a statutory one—Liability of insurer to satisfy decree passed in favour of a third party is also statutory—Insurance policy is a matter of contract between insurer and insured—Under law it is essential for appellant to have raised all objections permissible under Section 149(2) before Tribunal which was not done—Appellant is now estopped from raising it for first time in this appeal, having waived his right to do so. (Para 30)
1993(1) Acc. CC 530 (P & H) (DB) —Relied on.
Result: Appeals dismissed.
S.P. Wangdi, J.—The two appeals have been taken up together for disposal by this common judgment as the issues involved in them are the same.
M.A.C. Appeal No.1 of 2009
In M.A.C. Appeal No.01 of 2009 the appellant, who is the Senior Branch Manager, National Insurance Company Limited, Gangtok, has preferred this appeal under Section 173 of the Motor Vehicles Act, 1988 against the judgment or the learned Motor Accident Claims Tribunal, East and North Sikkim at Gangtok, dated 19.5.2008 in M.A.C.T. Case No.33 of 2006.
2. The facts of the case material, for the purpose of disposal of this appeal are that on 5.2.2005, the deceased Jai Kant Dixit was travelling by a Maruti Alto Car along with some other persons from Kaluk, West Sikkim to Gangtok, East Sikkim, after attending a marriage ceremony. On the way, the vehicle met with an accident at a place called Charcharey Bhir on the Jorethang Melli Road, South Sikkim, resulting in the death of the deceased on the spot. The respondents 1 and 2 who are the wife and son of the deceased, filed an application under Section 166 of the Motor Vehicles Act, 1988 against the appellant in the present case and the owner of the vehicle who is the present respondent No.3, for award of death compensation of Rs.18,10,052. The claim was contested primarily by the appellant here who was the respondent No.1 before the learned trial Court by filing a written objection to the claim petition substantially on the following grounds:
(i) The driver of the accident vehicle did not possess a valid driving licence at the time of the accident;
(ii) The claim petition was not maintainable and the terms and conditions of the Insurance Policy had been grossly violated as the vehicle in question registered as a private vehicle was used for the purpose of hire and reward at the time when the accident took place;
(iii) There being neither a statutory liability nor any contractual obligation on the part of the appellant to pay the compensation or to indemnify the owner of the vehicle, no liability could be fastened on the appellant and that, if at all the petition would be maintainable only against the opposite party No.2 (the respondent No.3 in this appeal), the owner of the vehicle in question.
Apart from the above, some formal objection had been taken in the written objections which were not pressed before the tribunal and are also immaterial and irrelevant for the purpose of disposal of this appeal.
3. The respondent no.3 who was the owner of the vehicle and impleaded as the respondent No.2 before the Claims Tribunal in her written objection, simply stated that the accident vehicle had indeed been insured with the appellant.
4. On the basis of the pleadings of the parties, learned Claims Tribunal framed two issues which are as under:
1. Whether the deceased (late Jai Kant Dixit) died on 5.2.2005 due to motor accident involving vehicle bearing registration No.SK-2 A/457 at Charcharey Bhir, near Jorethang Bazar South Sikkim?
2. Whether the claimants are entitled for the compensation, and if so, who is liable for the same?
5. It appears that the respondent No.2, as the claimant No.1 before the learned Tribunal, had entered into the witness box and deposed on the facts of the case and exhibited all relevant documents including the Certificate of Insurance/Insurance Policy as Ex. 12 with the object to substantiate the fact that the deceased Jai Kant Dixit died on 5.2.2005 due to motor accident involving the accident vehicle and that the vehicle was indeed insured with the appellant and that it belonged to the respondent No.3. In his cross-examination, no material contradictions were brought out on behalf of the appellant and his evidence remained unshaken leading to the tribunal deciding issue No.1 in favour of the respondents.
6. It is quite significant to note that although in its written objection, the appellant had denied the claims and made certain assertions, substance of which have been set out herei
