Partly allowed

The Oriental Ins Co.Ltd. v. Shri Swaroop Singh and Ors.

Rajasthan HC5 Jul 2024CMA/107/2001

Case brief

AI extract

What is this about?

The Rajasthan High Court held that while the insurance policy violated conditions by covering an extra occupant due to breach of policy, the company must initially pay the compensation to the claimant. The court granted the insurer liberty to recover the amount from the vehicle owner later, following established Supreme Court precedents.

What did the court decide?

Directed appellant Insurance Company to pay complete compensation to claimants and allowed recovery of same from vehicle owner. Stay on remaining undue payment for two months with interest.

The Oriental Ins Co.Ltd. Vs Shri Swaroop Singh and Ors. — Consumer Protection | Rajasthan HC (2024)

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[2024:RJ-JD:27151]

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Civil Misc. Appeal No. 107/2001

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The Oriental Ins Co.ltd.

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----Appellant

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Versus

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Shri Swaroop Singh And Ors.

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----Respondent

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For Appellant(s)	: Mr. D.S. Nimla
For Respondent(s)	: Mr. Sunil Beniwal with Mr. Shailendra Gwala.
	Mr.Mudit Vaishnav for Mr. Rajesh Panwar.

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HON'BLE MS. JUSTICE REKHA BORANA

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Judgment

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05/07/2024

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The present appeal has been preferred by the appellant Insurance company against the judgment and award dated 04.10.2000 passed by the Motor Accident Claims Tribunal, Bikaner in Motor Accident Claims Case No.39/1998.

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The learned Tribunal, vide the impugned Award dated 04.10.2000, awarded a sum of Rs. 7,39,900/- as compensation along with interest @ 12% per annum from the date of filing of claim petition i.e. 28.04.1998, holding Insurance Company also liable to pay compensation.

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Brief facts of the case are that a claim petition was preferred by the claimant Shri Swaroop Singh with the submission that on 30.06.1996, at about 04:00 PM, he was going on tractor bearing registration no.RJ13-5712 for testing its “Hera Set”. After about 3 kilometres from Loonkaransar, when it reached near

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Shambhu Singh Hotel, respondent no.3 Dulla Ram, while driving the tractor rashly and negligently, suddenly took the tractor on a sand dune whereby, the tractor overturned. As a result, the claimant came under the tractor and sustained injuries.

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The Tractor, on the date of accident, was owned by respondent no.2 and was insured with appellant– Insurance Company.

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The claimant claimed a total compensation to the tune of Rs.34,00,000/- under various heads.

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3 . The learned Tribunal after framing the issues, evaluating the evidence available on the record and after hearing the counsel for the parties, awarded total compensation of Rs.7,39,900/- in favour of the claimant holding all the nonclaimants including the appellant Insurance Company jointly and severally liable to pay the said compensation.

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4 . The grounds raised by the appellant Insurance Company and as argued by counsel for the appellant are as under:

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(a) Driver Dulla Ram was not in the employment of the owner and hence, the accident having been caused by an unauthorised driver, the liability should have been fixed on him only and not the company.

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(b) It is the owner who sent the tractor to a mechanic for repairs and the claimant mechanic Swaroop Singh, accompanied driver of the tractor for the purposes of testing, therefore, it would only be the owner who would be liable as the act whatsoever, was on his implied consent.

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(c) Admittedly, the insurance policy could cover the risk of only one person i.e. the driver of a tractor and the Insurance Company cannot be held liable qua the compensation to any other occupant other than the driver.

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(d) The tractor was insured only for agricultural purposes and it been used for the purpose of hire/reward, the same being a breach of the conditions of the insurance policy, Insurance company cannot be held liable.

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5 . The case of the owner before the Tribunal was that his authorised driver was Daulat Ram Saran to whom he had handed over the vehicle. Dulla Ram, the driver at the time of the accident was not in his employment and neither did he grant any permission to Dulla Ram to drive/use the vehicle. Therefore, the liability, if any, would be of Dulla Ram only. Secondly, the claimant was not authorized to sit in the tractor and he sat on the same of his own and therefore, the owner of the tractor could not be held liable qua the compensation.

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During the course of the arguments, counsel appearing for the respondent owner also submitted that even otherwise no prayer has been made in the present appeal to quash or set aside the impugned judgment/award and hence, the Court need not interfere.

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6 . Learned counsel appearing for respondent No.1 claimant submitted that the story framed by the owner averring Daulat Ram to be his authorised driver, was an afterthought. Counsel submitted that it was Dulla Ram only who took the tractor for repairs to the claimant and it is only with the consent of Dulla Ram that the claimant boarded the tractor for testing purposes.

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Due to the rash and negligent driving of Dulla Ram, he sustained the injuries. Therefore, the award as passed by the learned Tribunal deserves to be affirmed in toto and no interference in the same is called for.

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In the alternate, counsel submitted that if the Court reaches to the conclusion that the appellant Insurance Company cannot be held liable to pay, it be directed to pay the complete compensation amount to the claimant and may be directed to recover the same from the owner.

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7 . Heard the counsels and perused the material available on record.

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8 . So far as the first ground raised by counsel for the appellant regarding the driver Dulla Ram not being in employment of the owner is concerned, the said ground was not even raised by the Insurance Company before the Tribunal. Therefore, a total new ground cannot be permitted to be raised before this Court.

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9 . So far as the ground raised by counsel for the respondent owner is concerned, the same does not appeal to this Court. On one hand, the owner has averred that Dulla Ram was not his authorized driver and on the other hand both the owner and driver Dulla Ram have been and are being represented by one counsel. Secondly, in the reply to the notice under Section 133 of the Motor Vehicles Act, 1988, the owner did not even aver any fact of Dulla Ram not being his authorised driver or Daulat Ram being his authorised driver.

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Further, even going by the version of the owner himself, the liability cannot be shifted on the Insurance company as Daulat Ram (NAW-3), the alleged authorised driver of the owner, in his

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examination in chief stated that he was going to plough the fields of Kesaram Jaat. He further admitted that Dulla Ram accompanied him to the workshop of the claimant mechanic for repair of “hera” of the tractor. Meaning thereby, Dulla Ram boarded the tractor with the consent of Daulat Ram and Dulla Ram handed over the tractor to the claimant mechanic for repairs/service. Therefore, any action done by the claimant was with the implied consent of the alleged driver Daulat Ram. It is the settled proposition of law, the owner would be vicariously liable for the acts of his agent (driver).

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10. Finally and most importantly, it is admitted on record that at the time of accident, there were two people boarding in the tractor. The insurance policy admittedly could cover the risk of only one occupant, that is, a driver. Permitting the second occupant to board the tractor was clearly in breach of the conditions of the policy. The tractor, wherein the seating capacity is only of one, and the policy covers the risk of only the said one occupant, the Insurance company cannot be held liable to indemnify the owner.

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11. However, although the Insurance company cannot be held liable to indemnify the owner, in view of the consistent view taken in the cases of National Insurance Co. Ltd. v. Swarna Singh and Ors.; (2004) 3 SCC 297 , Manuara Khatun and Ors. v. Rajesh Kumar Singh And Ors.; (2017) 4 SCC 796, Mangla Ram v. Oriental Insurance Co. Ltd.; (2018) 5 SCC 656 and Rani and Ors. v. National Insurance Co. Ltd. and Ors.; 2018 (9) SCALE 310 the Insurance company would necessarily be required to pay the compensation amount to the

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claimant and thereafter would be entitled to recover the same from the owner.

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The Hon’ble Apex Court in Shivaraj vs. Rajendra and Ors. ; (2018) 10 SCC 432 , while dealing with a similar situation held as under:

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“9....…Thus, it would follow that the Appellant travelled in the tractor as a passenger, even though the tractor could accommodate only one person namely the driver . As a result, the Insurance Company (Respondent No. 2) was not liable for the loss or injuries suffered by the Appellant or to indemnify the owner of the tractor. That conclusion reached by the High Court, in our opinion, is unexceptionable in the fact situation of the present case.

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At the same time, however, in the facts of the present case the High Court ought to have directed the Insurance Company to pay the compensation amount to the claimant (Appellant) with liberty to recover the same from the tractor owner ………”

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The Co-ordinate Bench of this Court in the case of New

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India Assurance Company Ltd. vs. Nathu Lal Meena and

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Ors ; S.B. Civil Misc. Appeal No.645/2001 decided on 16.04.2021 held as under:

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“12......... Also in cover note, it is mentioned that the risk of only one person, i.e., driver is covered by Insurance policy and the deceased was the person other than the driver who was sitting on the bonut (mudguard) of the tractor. Therefore, it is violation of the policy condition and Insurance company is

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not ultimately liable but it does not mean that the insurer did not have initial liability at all. The settled practice, which has now virtually cystallized into a law and in the consistent view taken in that regard by the Hon'ble Supreme Court in cases of National Insurance Company Ltd. Vs. Swarna Singh & Ors., reported in (2004) 3 SCC 297, Mangla Ram Vs. Oriental Insurance Company Ltd. reported in (2018) 5 SCC 656 and Shivaraj Vs. Rajendra & ors. reported in (2018) 10 SCC.

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This appeal deserves to be partly allowed and disposed of with a direction to the appellant Insurance Company to first make payment of the entire amount of compensation and then to recover the same from the owner of the offending vehicle (Respondent no.4) in accordance with law. “

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In view of the ratio as laid down in the aforesaid judgments and in view of the above analysis, this Court is of the opinion that the appellant Insurance company could not have been held liable qua the compensation and to indemnify the owner but then, in view of the settled position of law, the learned Tribunal ought to have directed the Insurance company to pay the amount of compensation to the claimant and ought to have granted liberty to recover the same from the owner of the tractor.

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As a consequence of the above analysis, the present appeal is partly allowed . It is hereby directed that the appellant Insurance Company shall pay the complete compensation amount as determined by the learned Tribunal to the claimants and would be at liberty to recover the same from the owner of the tractor in accordance with law.

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The appellant Insurance company shall, after excluding the compensation amount already paid, pay the remaining amount to the claimant with interest within a period of two months from now failing which the same shall carry interest @ 7.5% per annum from the date of this order till the actual realization. Upon deposition, learned Tribunal shall disburse the same to the claimant forthwith.

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All pending applications, if any, stand disposed of .

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(REKHA BORANA),J

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347-Sphophaliya/-

The Oriental Ins Co.Ltd. v. Shri Swaroop Singh and Ors.

Case brief

What is this about?

What did the court decide?

The Oriental Ins Co.Ltd. v. Shri Swaroop Singh and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

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