Allowed

Shriram General Insurance Company Ltd. v. Sikander

Rajasthan HC18 Aug 2023CMA/1546/2020

Case brief

AI extract

What is this about?

This court allowed the appeal filed by Shriram General Insurance Company against the Motor Accident Claims Tribunal award. The court held the insurer not liable for the death of a gratuitous passenger in an insured goods-carrying vehicle, relying on Supreme Court precedents limiting statutory liability for such passengers.

What did the court decide?

Impugned judgment and award dated 12.2.2020 is quashed and set aside qua the appellant-insurance company. The substantive pendency is disposed of.

Shriram General Insurance Company Ltd. Vs Sikander — Insurance | Rajasthan HC (2023)

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(1 of 6) [CMA-1546/2020]

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Civil Misc. Appeal No. 1546/2020

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Shriram General Insurance Company Ltd., E-8, Epip, Riico Industrial Area, Sitapura, Jaipur Through Its Authorized Representative.

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----Appellant

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Versus

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Sikander S/o Jamal Khan, B/c Damami Musalman, R/o Jaleu, Tehsil Ratangarh, District Churu.

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Jagdish Prasad S/o Savantaram Meghwal, R/o Ward No. 18, Near Geegji-Ka-Kua, Ratangarh, District Churu (Owner)

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Shamshad S/o Ishak Kayamkhani, R/o Ward No. 31, Ratangarh, District Churu. (Driver)

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----Respondents

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For Appellant(s) : Jagdish Chandra Vyas For Respondent(s) :

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HON'BLE MR. JUSTICE MADAN GOPAL VYAS

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Order

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18/08/2023

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Despite service, nobody has appeared on behalf of respondent no.1. At the request of learned counsel for the appellant, the service upon the respondent no.2 is dispensed with. The service of respondent no.3 was also dispensed with vide order dated 19.1.2022. 2. The present miscellaneous appeal has been preferred by the appellant-Insurance Company under Section 173 of the Motor Vehicle Act, 1988 against the judgment and award dated 12.02.2020 passed by the learned Judge, Motor Accident Claims

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Tribunal, Ratangarh, District Churu in Motor Accident Claim Case No. 17/2016 whereby the learned tribunal has awarded a sum of Rs 2,56,570/- as compensation to the claimants and has fastened the liability upon the appellant-insurance company.

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Learned counsel for the appellant submits that in the present case, the insured pick up vehicle bearing number RJ-10-GA-6971 (hereinafter referred to as the offending vehicle) has falsely been implicated in the present case. It is further submitted that the claimant-respondent no.1 was travelling in the capacity of a gratuitous passenger in an insured goods carrying commercial vehicle, which does not cover the risk of any passenger. It is therefore submitted that the learned tribunal has passed the impugned award contrary to the material available on record as the appellant-insurance company cannot be held liable as per the insurance policy. In support of his contentions, learned counsel relied upon the following judgments:

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(I) Parminder Singh v. New India Assurance Company Ltd. And Ors. reported in (2019) 7 SCC 217.

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(II) National insurance Co. Ltd. v. Bommithi Subbhayamma and Ors. reported in (2005) 12 SCC 243.

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(III) National Insurance Company limited v. Savitri Devi, reported in (2013) 11 SCC 554.

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(IV) Oriental Insurance Company Limited v. Sarojben Ghanshyambhai Siroya & Ors, R/First Appeal No. 973/2015, decided on 09.08.2023, Gujarat High Court.

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[CMA-1546/2020]

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(V) Babu Lal v. Kailash bai and Ors, SB civil Misc Appeal No. 4547/2019, decided on 03.05.2023, Rajasthan High Court, Jaipur Bench.

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Heard learned counsel for the appellant and perused the impugned award as well as the judgments cited by the learned counsel for the appellant.

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In National Insurance Co. Ltd. v. Bommithi Subbhayamma and Ors (supra), the Hon’ble Supreme Court in para no.9 has held as under:

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“9. The question again came up for consideration before a threeJudge Bench of this Court, of which we are members, in National Insurance Co. Ltd. v. Baljit Kaur [(2004) 2 SCC 1 : 2004 SCC (Cri) 370] wherein upon considering the effect of amendment carried out in Section 147 of the Motor Vehicles Act, 1988 by the Motor Vehicles (Amendment) Act, 1994, it was opined: (SCC pp. 7-8, paras 17-20)

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“17. By reason of the 1994 amendment what was added is ‘including owner of the goods or his authorised representative carried in the vehicle’. The liability of the owner of the vehicle to insure it compulsorily, thus, by reason of the aforementioned amendment included only the owner of the goods or his authorised representative carried in the vehicle besides the third parties. The intention of Parliament, therefore, could not have been that the words ‘any person’ occurring in Section 147 would cover all persons who were travelling in a goods carriage in any capacity whatsoever. If such was the intention, there was no necessity of Parliament to carry out an amendment inasmuch as the expression ‘any person’ contained in subclause (i) of clause (b) of sub-section (1) of Section 147 would have included the owner of the goods or his authorised representative besides the passengers who are gratuitous or otherwise.

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18. The observations made in this connection by the Court in Asha Rani case [(2003) 2 SCC 223 : 2003 SCC (Cri) 493 : (2002) 9 Scale 172] to which one of us, Sinha,

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J., was a party, however, bear repetition: (SCC p. 235, para 26)

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‘26. In view of the changes in the relevant provisions in the 1988 Act vis-à-vis the 1939 Act, we are of the opinion that the meaning of the words “any person” must also be attributed having regard to the context in which they have been used i.e. “a third party”. Keeping in view the provisions of the 1988 Act, we are of the opinion that as the provisions thereof do not enjoin any statutory liability on the owner of a vehicle to get his vehicle insured for any passenger travelling in a goods vehicle, the insurers would not be liable therefor.’

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19. In Asha Rani [(2003) 2 SCC 223 : 2003 SCC (Cri) 493 : (2002) 9 Scale 172] it has been noticed that subclause (i) of clause (b) of sub-section (1) of Section 147 of the 1988 Act speaks of liability which may be incurred by the owner of a vehicle in respect of death of or bodily injury to any person or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place. Furthermore, an owner of a passengercarrying vehicle must pay premium for covering the risks of the passengers travelling in the vehicle. The premium in view of the 1994 amendment would only cover a third party as also the owner of the goods or his authorised representative and not any passenger carried in a goods vehicle whether for hire or reward or otherwise.

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20. It is, therefore, manifest that in spite of the amendment of 1994, the effect of the provision contained in Section 147 with respect to persons other than the owner of the goods or his authorised representative remains the same. Although the owner of the goods or his authorised representative would now be covered by the policy of insurance in respect of a goods vehicle, it was not the intention of the legislature to provide for the liability of the insurer with respect to passengers, especially gratuitous passengers, who were neither contemplated at the time the contract of insurance was entered into, nor was any premium paid to the extent of the benefit of insurance to such category of people.””

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In National Insurance Company v. Savitri Devi and Others (supra), in paras 8 and 9, the Hon’ble Supreme Court has held as under:

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“ 8. After having gone through the award of the Claims Tribunal and the judgment and order [National Insurance Co. Ltd. v. Savitri Devi, FAO No. 143 of 2000, decided on 28-7-2005 (HP)] passed by the learned Single Judge of the High Court, we are not able to understand as to how it has been found that the appellant Insurance Company can still be held liable to pay the amount of compensation as there has been a categorical finding by both the courts recording that the vehicle in question was insured only as “goods carrying vehicle”. The custom of carrying barat in the village on the said truck will not be sufficient to hold the appellant Insurance Company liable to pay the amount of compensation. Admittedly, the appellant Insurance Company would not know unless the accident takes place as to for what purpose the vehicle in question was being used. The terms and conditions of the insurance policy are very clear and categorical and it creates a specific bar on carrying of any passengers, except the employees other than the driver, not exceeding six (6) in number, who should also come under the purview of the Workmen's Compensation Act.

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9. The specific case of the claimants was that the barat was being taken in the said open truck on 12-11-1996 when the accident had taken place. Thus, according to us, it clearly violates the terms and conditions of the policy.”

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Dealing with similar circumstances, the Gujarat High Court in

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Oriental Insurance Compnay Limited v. Sarojben

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Ghanshyambhai Siroya and Ors (supra) has held as under:

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“16. Reasons spells hereinabove indicate that learned Tribunal seriously erred in fastening liability upon Insurance Company inspite of the fact that deceased was travelling as gratuitous passenger in Utility Van. Error of understanding of provision of law is crept. The Appeal thus merits and requires to be allowed.”

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The present controversy is squarely covered by the decision of Hon’ble Supreme Court in National Insurance Co. Ltd. v. Bommithi Subbhayamma and Ors.

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09 . Hence, the present Civil Misc. Appeal is allowed. The impugned judgment and award dated 12.2.2020 passed by the learned tribunal is quashed and set aside qua the appellantinsurance company.

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It is however, directed that the appellant-insurance company shall be at liberty to recover the amount, if any, deposited by it in the learned tribunal from the driver and owner of the offending vehicle.

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The stay application also stands disposed of accordingly.

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(MADAN GOPAL VYAS),J

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157-CPGoyal/-

Shriram General Insurance Company Ltd. v. Sikander

Case brief

What is this about?

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Shriram General Insurance Company Ltd. v. Sikander

Case brief

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