Partly allowed

Icici Lombard Genl. Ins. Co. Ltd. v. Pawan Singh & Ors.

Punjab & Haryana HC24 Jan 2012FAO/4295/2010

Case brief

AI extract

What is this about?

Five appeals by ICICI Lombard General Insurance Company Ltd. were dismissed. The High Court held the insurer not liable for injuries to passengers exceeding the vehicle's registered seating capacity due to driving without a proper transport vehicle endorsement. The insurer must first pay the decretal amount before recovering it from the owner and driver.

What did the court decide?

Appeals allowed; Insurance Company absolved of liability for excess passengers but directed to first satisfy the award before recovering from owner and driver.

Icici Lombard Genl. Ins. Co. Ltd. Vs Pawan… — Motor Accident Claims | Punjab & Haryana HC (2012)

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FAO Nos.4295 to 4298 of 2010 (O&M) FAO No.4436 of 2010 (O&M)

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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FAO No.4295 of 2010 (O&M) (in MACT Case No.109 of 2008) Date of decision: 24.1.2012

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ICICI Lombard General Insurance Company Ltd.

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...Appellant

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Versus

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Pawan Singh and others

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...Respondents

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FAO No.4296 of 2010 (O&M) (in MACT Case No.110 of 2008)

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ICICI Lombard General Insurance Company Ltd.

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...Appellant

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Versus

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Rattan Lal and others

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...Respondents

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3. FAO No.4297 of 2010 (O&M) (in MACT Case No.108 of 2008)

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ICICI Lombard General Insurance Company Ltd.

...Appellant

Versus

Smt.Rajni and others

...Respondents

4. FAO No.4298 of 2010 (O&M) (in MACT Case No.111 of 2008)

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FAO Nos.4295 to 4298 of 2010 (O&M) FAO No.4436 of 2010 (O&M) 2

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ICICI Lombard General Insurance Company Ltd.

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...Appellant

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Versus

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Dharamwati and others

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...Respondents

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5. FAO No.4436 of 2010 (O&M) (in MACT Case No.107 of 2008)

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ICICI Lombard General Insurance Company Ltd.

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...Appellant

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Versus

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Geeta Devi and others

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...Respondents

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CORAM: HON'BLE MR.JUSTICE JITENDRA CHAUHAN

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Present: Ms.Vandana Malhotra, Advocate for the appellant. ( in all the appeals)

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None for respondent Nos. 1 to 3 & 5 in FAO No.4295 of 2010

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Ms.Amrita Nagpal, Advocate for respondent Nos. 1 to 3 -claimants in FAO No.4296 of 2010

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Mr.Ram Bilas Gupta, Advocate for the respondent Nos.1 and 2 -claimants in appeal No.FAO No.4298 of 2010 for respondent Nos. 1 to 5 in FAO No.4436 of 2010.

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Ms.Rajwinder Kaur, Advocate for Mr.Tejinder K.Joshi, Advocate for respondent- Reliance General Insurance Co. Ltd. In all the appeals.

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FAO Nos.4295 to 4298 of 2010 (O&M) FAO No.4436 of 2010 (O&M)

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Mr.RS Dhull, Advocate for respondent- Khalid owner of three Wheeler No.HR 38M-4153 in all appeals

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Jitendra Chauhan, J. (Oral)

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Applications for condonation of delay in all the appeals.

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Keeping in view the averments made in the applications, delay

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in filing the appeals is hereby condoned.

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Applications stand disposed of.

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FAO Nos.4295 to 4298 & 4436 of 2010

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All the aforementioned appeals, which have been filed by the Insurance Company of the offending three wheeler bearing registration No.HR-38-M 4153, shall be disposed by a common judgment, as the same have arisen out of a common Award dated 31.3.2010, passed by the learned Motor Accident Claims Tribunal, Faridabad (for short 'the Tribunal'), vide which the claim petitions were allowed and the appellant, being the insurer of the offending vehicle, was held liable to pay the compensation at the ratio of 50:50.

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The facts giving rise to the case are that on 28.12.2007, the passengers namely Pawan Singh, Sunil, Ombir, Rakesh and Rajbir alongwith other co-passengers where travelling in a three wheeler bearing registration No.HR-38-M-4153, which was being driven by Kuldip Singhrespondent No.5. On the way, a truck bearing registration No.HR-38B-3501, being driven by Rihayash Khan, coming from village Tigaon side in a rash

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FAO Nos.4295 to 4298 of 2010 (O&M) FAO No.4436 of 2010 (O&M) 4

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and negligent manner, in front of the gate of NTPC, Mujeri, hit the said three wheeler. As a result of which, the three wheeler turned turtle and all the occupants of the three wheeler sustained multiple and grievous injuries. Ombir, Rakesh, Sunil and Rajbir succumbed to their injuries. All the injured as well as the dependents of the deceased filed the separate claim petitions. The learned Tribunal clubbed all the claim petitions being arisen out of the same accident. Notices were issued to the parties. The drivers, owners as well as the Insurance Companies of both the vehicles filed their separate written statement and denied the accident.

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From the pleadings of the parties, the learned Tribunal framed the following issues:-

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Whether the accident in question occurred due to rash and negligent driving of the truck No.HR38B/3501 by the respondent No.1?OPP.

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If issue No.1 is proved, whether the petitioners are entitled for compensation sought in the present petitions? If so, to what extent and from whom?OPP

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Whether the driver of the truck No.HR-38B/3501 was not equipped with valid driving licence? If so, its effect? OPR-3

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Whether the present petition is not maintainable in the present form?OPR.

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Whether the petitioners have no locus standi for

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FAO Nos.4295 to 4298 of 2010 (O&M) FAO No.4436 of 2010 (O&M)

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filing the present petition?OPR.

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Whether the petition is bad for non-joinder of necessary parties?OPR

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Relief.

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After analysing the evidence led by the respective parties and

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hearing the learned counsel for the parties, the learned Tribunal decided the issues as under:-

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Issue No.1 was decided in favour of the petitioners and against the respondent Nos. 1 and 4, drivers, who are equally responsible for the accident.

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Issue Nos.2 & 3, were also decided in favour of the claimants and compensation was awarded as mentioned in the Award. The Insurance Companies of both the vehicles were held liable to pay the compensation in the ratio of 50:50.

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As Issue Nos 4 to 6 remain unrebutted, so these were decided against the respondents.

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Feeling dissatisfied with the same, the Insurance Company has preferred the aforementioned appeals.

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Learned counsel for the appellant contends that licence held by the driver of the offending three wheeler, Kuldip Singh, was for the Light Motor Vehicles private and was not holding valid licence for the passenger carrying vehicle or a commercial vehicle. She further contends that the vehicle in question was being used as taxi for hire and reward. As per the

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FAO Nos.4295 to 4298 of 2010 (O&M) FAO No.4436 of 2010 (O&M) 6

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registration certificate, the sitting capacity of the vehicle was 3+1 passengers, whereas at the time of accident, as per PW23, nine passengers were travelling in the three wheeler. Therefore, the learned counsel for the appellant contends that the three wheeler was being plied in contravention of the terms and conditions of the Insurance Policy, and the claimants being the gratuitous passengers, the appellant -Insurance Company cannot be held liable to indemnify the award.

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To buttress these stances, she has sought to place abundant reliance upon the observations made by the Hon'ble Supreme Court in National Insurance Company Ltd. vs. Anjana Shyam and others 2007 (4) RCR (Civil) 30, National Insurance Company Ltd. vs. Kusum Rai and others 2006(2) RCR (Civil) 313 and New India Assurance Company Ltd. vs. Roshanben Rahemansha Fakir and another 2008(3) RCR (Civil) 267.

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On the other hand, the learned counsel appearing for the owner of the offending three wheeler, has opposed the submissions made by the learned counsel for the appellant and has contended that the overloading of the passengers was not in the knowledge of the owner, therefore, the owner cannot be held liable. The driver was holding a valid and effective driving licence for driving the Light Motor Vehicles and the three wheeler falls in the category of LMV.

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I have heard the learned counsel for the parties and perused the record carefully.

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FAO Nos.4295 to 4298 of 2010 (O&M) FAO No.4436 of 2010 (O&M) 7

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Admittedly, it is a case of head on collusion of the three wheeler and the truck, in which some occupants of three wheeler sustained multiple grievous injuries and other succumbed to their injuries. In this regard FIR No.245 dated 28.12.2007, was lodged against the truck driver. It has come on record in the statement of PW23-claimants Pawan Kumar, who is an eye witness, as under:-

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“In all there were seven passengers, who had boarded the three wheeler at Ballabgarh and one or two passengers were added on the way to Tigaon. That at the time of accident in total there were nine passengers in the said three wheeler and one passenger was sitting left to the driver and another right to the driver. That the road was 15 feet wide at the place of accident and he had spotted the offending vehicle coming from opposite side. At the time of accident, none of the two vehicles involved in the accident was overtaking any other vehicle and that the head lights of the offending vehicle were on. That the offending vehicle was spotted at a distance of about 20 feet and the collusion between the offending vehicle and the three wheeler was a head on collusion.”

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The learned Tribunal has given the minute details, in which, the

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accident has taken place, which is as under:-

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FAO Nos.4295 to 4298 of 2010 (O&M) FAO No.4436 of 2010 (O&M)

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“31. In the present case at the very outset it is pertinent to mention that the FIR of this case was lodged within few hours of the accident and this FIR was lodged at the instance of respondent No.4, Kuldeep Singh. The contents of the FIR are in consonance with the allegations of the petition and therefore, in my opinion, irrespective of the fact that this FIR was not lodged at the instance of any injured, a great sanctity is attached to the contents of this FIR Ex.P-23/3.

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Taking into account the above mentioned testimonies and the facts and circumstances of the case, in my considered opinion, in the present case, on the basis of above discussed oral and documentary evidence, the petitioners have been successful to prove that in the accident in question the vehicle No.HR-38B-3501 was involved and that it was being driven by the respondent No.1 at the time of accident and the respondent No.1 was driving it at a fast speed and in a rash and negligent manner.”

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Learned counsel has failed to point out any defect in the findings arrived at by the learned Tribunal.

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From the manner, in which the accident has taken place, it can safely be inferred that the driver of the offending three wheeler was

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FAO Nos.4295 to 4298 of 2010 (O&M) FAO No.4436 of 2010 (O&M)

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negligent. The same stands further proved coupled with the contents of the FIR. Therefore, this Court has no hesitation to hold that the accident had occurred on account of negligent act of the driver of the three wheeler. It has also come in the statement of this witness that the three wheeler was carrying nine passengers at the time of accident. Therefore, irresistible conclusion is that the vehicle was being plied against the terms and conditions of the Insurance policy beyond permissible seating capacity. The Hon'ble Supreme Court in Anjana Shyam and others' case (supra) , has held as under:-

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“12. Section 58 of the Act makes special provisions in regard to transport vehicles. Sub-Section (2) provides that a registering authority, when registering a transport vehicle, shall enter in the record of registration and in the certificate of registration various particulars. Clause (d) provides that if the vehicle is used or adapted to be used for carriage of passengers, the number of passengers for whom accommodation is provided. Thus the registration of the vehicle, which alone makes it usable on the road, records the number of passengers to be carried and the certificate of registration also contains that entry. So, an insurance company insuring the passengers carried in a vehicle in terms of Section 147(1)(b)(ii) of the Act, can only insure

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FAO Nos.4295 to 4298 of 2010 (O&M) FAO No.4436 of 2010 (O&M)

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such number of passengers as are shown in the certificate of registration. The position is reinforced by Section 72 of the Act, which deals with grant of stage carriage permits. Sub-Section (2) provides that when a permit is decided to be granted for a stage carriage, the Regional Transport Authority can attach to the permit one or more of the conditions specified therein. Clause (vii) is the condition regarding the maximum number of passengers that may be carried in a stage carriage. Overloading also invites a consequence which can be termed penal. Section 86 of the Act provides for cancellation of a permit if any condition contained in the permit is breached. Therefore, the apparent wide words of Section 147(1)(b)(ii) of the Act have to be construed harmoniously with the other provisions of the Act, namely, Sections 58 and 72 of the Act. As early as in 1846, Dr. Lushington in Queen V. Eduljee Byramjee [(1846) 3 MIA 468] posited that to ascertain the true meaning of a clause in a statute the court must look at the whole statute, at what precedes and at what succeeds and not merely at the clause itself. This Court has accepted this approach in innumerable cases. Thus, the expression 'any passenger' must be understood as

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FAO Nos.4295 to 4298 of 2010 (O&M) FAO No.4436 of 2010 (O&M)

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passenger authorized to be carried in the vehicle and 'use of the vehicle' as permitted use of the vehicle. Affording of insurance for more number of passengers than permitted, would be illegal since in that case the manifest intention would be the overloading of the vehicle, something not contemplated by law. Thus, it is not possible to accept a contention that the insurance can be taken to cover more passengers than permitted by the certificate of registration and the permit as a stage carriage and that it will cover all the passengers overloaded. Of course, in these cases, there is no dispute that the insurance cover took in only the permitted number of passengers.

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In spite of the relevant provisions of the statute, insurance still remains a contract between the owner and the insurer and the parties are governed by the terms of their contract. The statute has made insurance obligatory in public interest and by way of social security and it has also provided that the insurer would be obliged to fulfil his obligations as imposed by the contract and as overseen by the statute notwithstanding any claim he may have against the other contracting party, the owner, and meet the claims of third

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FAO Nos.4295 to 4298 of 2010 (O&M) FAO No.4436 of 2010 (O&M)

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parties subject to the exceptions provided in Section 149 (2) of the Act. But that does not mean that an insurer is bound to pay amounts outside the contract of insurance itself or in respect of persons not covered by the contract at all. In other words, the insured is covered only to the extent of the passengers permitted to be insured or directed to be insured by the statute and actually covered by the contract. The High Court has considered only the aspect whether by overloading the vehicle, the owner had put the vehicle to a use not allowed by the permit under which the vehicle is used. This aspect is different from the aspect of determining

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the extent of the liability of the insurance company in respect of the passengers of a stage carriage insured in terms of Section 147(1)(b)(ii) of the Act. We are of the view that the insurance company can be made liable only in respect of the number of passengers for whom insurance can be taken under the Act and for whom insurance has been taken as a fact and not in respect of the other passengers involved in the accident in a case of overloading.”

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Reverting back to the instant case, as per the registration certificate, the seating capacity of the three wheeler is only 3+1. However,

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FAO Nos.4295 to 4298 of 2010 (O&M) FAO No.4436 of 2010 (O&M)

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at the time of accident, there were nine passengers in the vehicle.

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As far as the driving licence held by the driver of the three wheeler, he was holding a driving licence for driving motorcycle and the light motor vehicles. The Hon'ble Supreme Court in Oriental Insurance Co. Ltd. vs. Angad Kol and others 2009 (2) RCR (Civil), 419 has held as

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under:-

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“8. Motor Vehicles Act, 1988 (hereinafter called as ‘the Act’) was enacted to consolidate and amend the law relating to motor vehicles. ‘Driving licence’ has been defined in Section 2(10) to mean the licence issued by a competent authority under Chapter II authorizing the person specified therein to drive, otherwise than as a learner, a motor vehicle or a motor vehicle of any specified class or description. “Goods carriage” has been defined in Section 2(14) to mean any motor vehicle constructed or adapted for use solely for the carriage of goods, or any motor vehicle not so constructed or adapted when used for the carriage of goods. The said Act also defines ‘heavy goods vehicle’, ‘heavy passenger motor vehicle’, ‘medium goods vehicle’ and ‘medium passenger motor vehicle’ as well as a ‘light motor vehicle’ in Section 2(21) of the Act to mean :

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“ ‘light motor vehicle’ means a transport vehicle or

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FAO Nos.4295 to 4298 of 2010 (O&M) FAO No.4436 of 2010 (O&M)

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omnibus the gross vehicle weight of either of which or a motor car or tractor or road-roller the unladen weight of any of which, does not exceed 7500 kilograms.”

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Although the definition of the ‘light motor vehicle’ brings within its umbrage both ‘transport vehicle’ or ‘omnibus’, indisputably, as would be noticed infra, a distinction between an effective licence granted for transport vehicle and passenger motor vehicle exists.

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Section 3 provides for the necessity of driveling licence, stating :

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“ 3. Necessity for driving licence.— (1) No person

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shall drive a motor vehicle in any public place unless he holds an effective driving licence issued to him authorizing him to drive the vehicle; and no person shall so drive a transport vehicle other than a motor car or moter cycle hired for his own use or rented under any scheme made under sub-section (2) of Section 75 unless his driving licence specifically entitles him so to do.

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(2) …”

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Section 9 provides for grant of driving licence. Section 10 prescribes the form and contents of licences to drive

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FAO Nos.4295 to 4298 of 2010 (O&M) FAO No.4436 of 2010 (O&M)

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which is to the following effect :

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“ 10. Form and contents of licences to drive.— (1)

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Every learner's licence and driving licence, except a driving licence issued under section 18, shall be in such form and shall contain such information as may be prescribed by the Central Government.

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(2) A learner's licence or, as the case may be, driving licence shall also be expressed as entitling the holder to drive a motor vehicle of one or more of the following classes, namely:-

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(a) to (c) …

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(d) light motor vehicle;

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(e) transport vehicle;

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(i) road Roller;

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(j) motor vehicle of a specified description.”

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The distinction between a ‘light motor vehicle’ and a

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‘transport vehicle’ is, therefore, evident. A transport vehicle may be a light motor vehicle but for the purpose of driving the same, a distinct licence is required to be obtained. The distinction between a ‘transport vehicle’ and a ‘passenger vehicle’ can also be noticed from Section 14 of the Act. Sub-section (2) of Section 14 provides for duration of a period of three years in case of

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FAO Nos.4295 to 4298 of 2010 (O&M) FAO No.4436 of 2010 (O&M)

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an effective licence to drive a ‘transport vehicle’ whereas in case of any other licence, it may remain effective for a period of 20 years.”

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In the present case, no endorsement was entered in the driving licence of the driver of the three wheeler to drive the passenger /commercial vehicle such as the offending there wheeler. The licence held by the driver was only for driving motorcycle, Car and Jeep.

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As a sequel of the above discussion, the present appeals are allowed and the Insurance Company-appellant of the offending vehicle i.e. three wheeler is absolved of the liability. The driver and the owner of the offending vehicle i.e. three wheeler are held liable to indemnify the award jointly and severally. However, in view of Roshanben Rahemansha Fakir

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and another's case (supra) , it is directed that at the first instance, the appellant -Insurance company may satisfy the award in favour of the claimants and thereafter, recover the same from the owner and driver of the offending vehicle three wheeler.

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24.1.2012 gsv

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(JITENDRA CHAUHAN) JUDGE

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Note: Whether to be referred to the Reporter?

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Yes/No

Icici Lombard Genl. Ins. Co. Ltd. v. Pawan Singh & Ors.

Case brief

What is this about?

What did the court decide?

Icici Lombard Genl. Ins. Co. Ltd. v. Pawan Singh & Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

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