Partly allowed

The Oriental Insurance Company Limited v. Shankar Lal Nag

Chhattisgarh HC5 Oct 2023MAC/84/2017

Case brief

AI extract

What is this about?

In this appeal against a Tribunal award, the High Court held that while the appellant insurer is technically exonerated from direct liability as the claimant was a gratuitous passenger, the insurer must pay the compensation award first. The insurer can then recover the amount from the owner through execution court proceedings, as per the recent Balu Krishna Chavan judgment.

What did the court decide?

Appellant directed to pay compensation and recover amount from owner via execution court proceedings instead of filing a suit.

The Oriental Insurance Company Limited Vs Shankar Lal Nag — Insurance | Chhattisgarh HC (2023)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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Misc. Appeal (C) No. 84 of 2017

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The Oriental Insurance Company Limited, through Branch Manager, Branch Office, Jagdalpur, address – Laxman Avenue, Medical College Road, Jagdalpur, District Bastar, CG ---Appellant/Insurer

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Versus

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Shankar Lal Nag, S/o late Bahadur Singh Nag, aged about 37 years, Caste Gond, R/o Village and Post – Badagaon, Police Station – Dhanora, District Bastar, CG – At present R/o Dornapal, District Dantewada, CG

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---Respondents/Claimant

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Pramod Sharma son of Shri Ramavatar Sharma, aged about 38 years, R/o Dipopara, Dornapal, District Dantewada, CG at present Kailash Nagar, Dantewada, District Dantewada, CG ---Driver

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Vinod Singh Rathore, S/o late Awadh Bihari Singh Rathore, R/o Main Road, Sukma, Police Station – Sukma, District Dantewada, CG

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---Owner

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For appellant -	Shri Gautam Khetrapal and Smt. Astha
	Sharma, Advocates
For respondent No.1-	Shri Shikhar Shukla, Advocate
For respondent No.2-	Shri Pravin Dhurandhar, Advocate

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Order on Board by Hon'ble Shri Justice Sachin Singh Rajput 05/10/2023

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This appeal under Section 173 of the Motor Vehicle Act (for short “MV Act”) is against the impugned award dated 07.10.2016 passed by Motor Accident Claims Tribunal (for short “Tribunal”) Dantewada, District North Bastar, Dantewada, CG, in Claim Case No. 79/2014.

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Facts in short : On 13.08.2009 when claimant/R-1, aged about 37 years at the relevant time; working as Cook in Jai Maa Chandi Construction Company, was going to Dantewada along with other labourers on being asked by the owner (respondent No.3) in a pick-up vehicle bearing registration No. CG-18-H-2500 which was being driven by respondent No.2, owned by respondent No.3 and insured by the appellant herein, and on due to rash and negligent driving by the driver, the vehicle dashed against a tree stand-

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ing by the side of the road as a result of which the claimant/R-1 the bone of the thigh (femur bone) got fractured. The claimant received treatment in various hospitals but the fractured bone could not be joined properly and his left leg got shortened in comparison to right leg. The claimant preferred a claim application seeking compensation of Rs. 5,16,480/-.

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Learned Tribunal by the award impugned came to the conclusion that respondent/claimant is entitled to receive the total compensation of Rs.2,96,824/- payable by the driver, owner and insurer jointly and severely with 9% interest thereon. It is this award which is under challenge in this appeal by the Insurer.

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Learned counsel for the appellant/insurance company submits that the Tribunal has committed an error of law in fastening the liability on the appellant/insurer and has not taken into consideration the fact that the claimant was not an employee in the offending vehicle; rather he was working as Cook in Jai Maa Chandi Construction Company; that he was traveling as gratuitous passenger in the offending vehicle i.e. a goods vehicle and whose risk is not covered in the insurance policy. He further submits that the driver of the offending vehicle did not even have the valid and effective driving licence. He however fairly submits that though the Insurance Company has charged the additional premium of the employee of the vehicle but admittedly the injured/claimant was not employed in the said vehicle and therefore his risk is not covered in the policy, therefore, the liability may be fixed on the owner/respondent No.3. He further submits that the perusal of the Insurance Policy Ex. D-1 shows that the Insurance Company has charged the additional premium such as third party cover – Rs. 5,580/-; PA for owner-driver-GR36A – Rs. 100/-; LL paid driver, conductor, cleaner-IMT-40; and LL to employees. Reliance is placed on the decision of the Supreme Court in the matter of New India Assurance Co. Ltd. v. Asha Rani (2003) 2 SCC 223 , in the matter of Oriental Insurance Company Ltd. v. Devireddy Konda Reddy

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(2003) 2 SCC 339 and in the matter of National Insurance Company Ltd. v. Cholleti Bharatamma and others reported in AIR 2008 SC 484.

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Learned counsel for the respondents 1 and 2 support the award impugned to be just and proper and opposes the submissions made by counsel for the appellant/insurance company.

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After hearing the parties and going through the material available on record it is apparent that none of the parties could dispute that the injured was not employed in connection with the offending vehicle. Therefore, he was travelling in the offending vehicle as gratuitous passenger. Thus in view of the above factual and legal position, and in light of the judgment of Hon’ble Supreme Court referred to above the appellant/insurance company is exonerated from its liability to pay compensation to the claimants. However, in view of the decision of the Supreme Court in the matter of Balu Krishna Chavan Vs. The Reliance General Insurance Company ltd. and others reported in 2022 Livelaw (SC) 932 the appellant/insurance company shall pay the compensation and then it would be at liberty to recover the amount from the owner. For the purpose of recovering the amount from the owner, the insurer shall not be required to file a suit. It may initiate a proceeding before the executing Court concerned as if the dispute between the owner and the insurer was the subject matter of determination before the Tribunal and the issue is decided against the owner and in favour of the insurer.

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Sd/-

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(Sachin Singh Rajput) Judge

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Jyotishi

The Oriental Insurance Company Limited v. Shankar Lal Nag

Case brief

What is this about?

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The Oriental Insurance Company Limited v. Shankar Lal Nag

Case brief

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