Allowed

Kishore Kumar v. Smt.Kalpana and Others

Rajasthan HC9 Jul 2014CMA/203/2000

Case brief

AI extract

What is this about?

This bench allowed appeals against Motor Accidents Claims Tribunal awards. Holding that overloading did not exonerate the insurer as no nexus was proved between the accident and the breach, the court ordered the insurance company to be jointly and severally liable to pay the compensation to the claimants.

What did the court decide?

Impugned awards modified; respondent-Insurance Company made equally liable to pay compensation jointly and severally with the owner and driver.

Kishore Kumar Vs Smt.Kalpana and Others — Motor Accident Claims | Rajasthan HC (2014)

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S.B.Civ.Misc. Appeal No. 203/2000 & connected appeals.

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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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JUDGMENT

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(1) S.B.Civil Misc. Appeal No. 203/2000

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Kishore Kumar vs. Smt. Kalpana & ors.

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(2) S.B.Civil Misc. Appeal No.204/2000

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Kishore Kumar vs. Dhan Bharti & ors.

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(3) S.B.Civil Misc. Appeal No. 205/2000

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Kishore Kumar vs. Mukesh Kumar & ors.

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under Section 173, Motor Vehicles Act, 1988 against the award dated 26.11.1999 passed by the Motor Accidents Claims Tribunal, Doongarpur passed in MAC Nos. 40/97, 243/97 and 41/97 respectively.

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Date of judgment : 9.7.2014

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PRESENT HON'BLE MR. ATUL KUMAR JAIN, J.

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Mr. Sanjay Raj Paliwal & Mr. S.R. Bhandari for the appellantsclaimants.

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Mr. Vipul Singhvi, for respondent-United India Insurance Co. Ltd.

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BY THE COURT:

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REPORTABLE

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By a common award dated 26.11.1999, Motor Accidents Claims Tribunal, Dungarpur had decided nine motor accident claims and out of those nine claims, only in three claims, the appeals have been preferred by the claimants in this Court and the remaining matters being related to an award of less than rupees ten thousand, the matter was held not appealable and so the writ petitions were filed by those claimants and it has been told to us that those writ petitions have also been dismissed or decided otherwise with the observation that decision in those writs will not

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S.B.Civ.Misc. Appeal No. 203/2000 & connected appeals.

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affect the present appeals which are three in number pending before us.

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In S.B.Civil Misc. Appeal No. 203/2000 award of MAC No. 40/97 has been challenged, in S.B.Civil Misc. Appeal No. 204/2000 award of MAC No. 243/97 has been challenged and in S.B.Civil Misc. Appeal No. 204/2000, the award of MAC No. 41/1997 has been challenged.

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In all these three matters, it has been submitted on behalf of the claimants that the Motor Accidents Claims Tribunal has awarded the claim against the owner of the vehicle but if this Court orders the claims to be passed against the Insurance Company also then it will be still better for the interests of the claimants. On behalf of appellant Kishore Kumar, who is admittedly, the owner of the bus involved in the accident, it has been argued that although the overloading of the bus at the time of the accident is not admitted by him but even if the bus was carrying thirty five or forty persons against the permitted capacity of twenty passengers , it will not exonerate the Insurance Company from the liability to pay the claims of the applicants in nine motor accident claims in which one is death claim and other eight are injury claims. Appellant Kishore Kumar has relied upon the following rulings:-

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(1) National Insurance Co. Ltd. v. Anjana Shyam & ors.

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2007 ACJ 2129(S.C.).

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In this case, Hon'ble the Apex Court has held that when a bus

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S.B.Civ.Misc. Appeal No. 203/2000 & connected appeals.

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fell in a ' nalla' leading to death of twenty five passengers and driver and sixty three passengers sustained injuries, then though the bus had the seating capacity of forty two passengers only, it had a route permit for carrying forty two passengers besides driver and conductor and the Insurance Company had also insured it for forty two passengers, then its liability in terms of Section 149 of the Motor Vehicles Act, 1988 will be only to satisfy the judgments and awards against the said number of persons insured in respect of third party risk and accordingly, the Insurance Company was directed to satisfy forty two awards in descending order starting from the highest of the awards and the Tribunal was directed to distribute the total amount deposited by the Insurance Company proportionately to all the claimants and leave all the claimants to recover the balance from the owner of the vehicle.

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(2) National Insurance Co. Ltd. v. Barla Bhadraiah & ors. 2013 ACJ 2694.(A.P.)

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In this case, Hon'ble Andra Pradesh High Court was dealing with a case in which the seating capacity of the vehicle was nine persons plus driver but at the time of the accident, the vehicle was carrying ten passengers except driver and so the Insurance Company disputed its liability on the ground of alleged breach of policy but relying upon B.V. Nagaraju v. Oriental Insurance Co. Ltd., 1996 ACJ 1178 (SC) , it was held by the Andra Pradesh High Court that mere carrying one or two persons extra without the

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S.B.Civ.Misc. Appeal No. 203/2000 & connected appeals.

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knowledge of the owner of the vehicle, cannot be considered to be a fundamental breach so as to exonerate the Insurance Company from liability.

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(3) National Insurance Company v. Mohini Devi, MACD 2006(1)(Raj) 665(DB).

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In this case, it was held by a Division Bench of this Court that carrying passengers in excess of prescribed capacity, does not constitute breach of conditions of policy within the meaning of clause (c) of Section 149(2)(a)(i) of the Motor Vehicles Act, 1988. It was further held in this case that the Insurance Company cannot avoid the liability cast upon it on such grounds.

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(4) R.K. College v. Ramesh Chand & ors. 2008 RAR 48 (Raj.).

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In this case also, it was held that overloading of passengers in a vehicle may be a violation of the conditions of permit but one cannot say that by that breach, the vehicle is used for a purpose different from the one authorised by the permit. It was further held in this case that the Apex Court ruling of National Insurance Company Ltd. vs. Chella Bharathamma, 2004 ACJ 2004 will not be applicable because in that case the vehicle was having no permit at all.

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On the other hand, the learned counsel for the Insurance Company has quoted Section 147(5) of the Motor Vehicles Act,

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S.B.Civ.Misc. Appeal No. 203/2000 & connected appeals.

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1988, which reads as under:-

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“Notwithstanding anything contained in any law for the time being in force, an insurer issuing a policy of insurance under this section shall be liable to indemnify the person or classes of persons specified in the police in respect of any liability which the policy purports to cover in the case of that person or those classes of persons.”

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I am unable to understand that how this clause can help the court to exonerate the Insurance Company from the liability to pay compensation in the three claims relating to which appeals are pending in this Court. The learned counsel for the Insurance Company has also not been able to convince this Court that the accident had occurred only because of the overloading of the vehicle. It has also not been proved by the evidence that the accident had occurred only due to imbalance of the vehicle caused by the alleged overloading. Accordingly, it can be said that there was no nexus between the accident and the alleged breach of the policy, even if it may be a case of fundamental breach of policy, but it was a duty of the Insurance Company to prove the nexus between accident and the alleged breach of policy, which has not been proved. The bus was admittedly insured for eighteen persons excluding the driver and conductor and only nine claims have been filed in this matter and in the circumstances of the case, the ruling of the Apex Court in National Insurance Co.Ltd. v. Anjana Shyam and ors. (supra) is directly applicable in the case. No other point has been raised.

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S.B.Civ.Misc. Appeal No. 203/2000 & connected appeals.

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Hence, the impugned awards stand modified to the extent that the respondent-Insurance Company (United India Insurance Co. Ltd.), in all the three appeals, shall be equally liable to pay the compensation to the claimants. No doubt the liability of the Insurance Company to pay the award amount will be joint and several along with owner and the driver of the vehicle. All the three appeals are accepted accordingly. Record of the MACT be returned with a copy of this judgment within a week.

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( ATUL KUMAR JAIN),J.

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mlt/

Kishore Kumar v. Smt.Kalpana and Others

Case brief

What is this about?

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Kishore Kumar v. Smt.Kalpana and Others

Case brief

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