Dismissed

Reliance General Insurance Company Limited, v. Mohd. Saleem

Telangana HC28 Dec 2012MACMA/836/2010

Case brief

AI extract

What is this about?

The Single Judge dismissed the insurance company's appeal, upholding the Tribunal's direction under Section 168 of the Motor Vehicles Act to pay compensation first and recover the amount from the insured later, despite a policy breach regarding a passenger in a goods vehicle.

What did the court decide?

Small cause matrimonial appeal dismissed; Tribunal's direction to insurer to pay and recover upheld.

Reliance General Insurance Company Limited, Vs Mohd… — Motor Accident Claims | Telangana HC (2012)

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HON’BLE SRI JUSTICE R.KANTHA RAO M.A.C.M.A.No.836 of 2010

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DATE:28.12.2012

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BETWEEN:

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Reliance General Insurance Company Ltd. Rep. by its Regional Claims Manager,Hyderabad

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.. Appellant/R-2

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And

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Mohd. Saleem and another

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Respondents

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HON’BLE SRI JUSTICE R.KANTHA RAO

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M.A.C.M.A.No.836 of 2010

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JUDGMENT:

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This appeal is filed by the appellant-Reliance General Insurance Company Limited against the order dated 02.12.2008 passed in O.P.No.1173 of 2007 by the Motor Accident Claims Tribunal-cum-XVI Additional Chief Judge-cum-II Additional Metropolitan Sessions Judge, Hyderabad.

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2. I have heard the learned counsel appearing for the appellantInsurance Company and the learned counsel appearing for the respondent/claimant.

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3. Mr.Mohd. Saleem, the claimant filed a claim case under Section 166 of the Motor Vehicles Act seeking compensation of Rs.3 lakhs on account of the injuries sustained by him in a motor accident occurred on 23.11.2006 at about 11.30 p.m. on the outskirts of Pulluru village within the territorial jurisdiction of Police Station, Manopad, Mahboobnagar District.

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4. The claimant’s version before the Tribunal is that he was proceeding on the Eicher Van bearing No.AP-28-X-2517,the offending vehicle as owner of the goods from Hyderabad to Kurnool, when the vehicle reached outskirts of Pulluru village, it met with an accident as the driver of the said vehicle drove it in a rash and negligent manner and dashed the stationed tractor-trailor, he received grievous injuries, he was shifted to Government Hospital, Kurnool and from there to Area Hospital, Golconda . Stating that he sustained permanent disability, he sought compensation of Rs.3 lakhs against which the leaned Tribunal awarded compensation of Rs.1,44,200/- with interest @ 7.5% per annum from the date of petition till the date of realization.

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5. Since the compensation has been properly computed and the

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main contention of the insurance company being as to its liability to pay compensation to the claimant, the quantum of compensation does not require any reconsideration in the present appeal and the Tribunal has also on evidence rightly held that the accident was on account of the rash and negligent driving of the driver of the said Eicher van and the finding having attained finality also need not be re-examined.

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6. The only question requires determination in the present appeal is whether the Tribunal is right in issuing a direction to the insurance company to pay the compensation in the first instance and then recover the same from the owner of the vehicle.

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7. The contention of the claimant that he was traveling in the said van along with load of his vegetables was repelled by the Tribunal below on the ground that in the cross-examination the claimant as PW1 stated that he was working on the offending vehicle under the first respondent and that his work was to proceed with the Eicher Van belonging to the first respondent-owner and also that the said vehicle is a goods carrying vehicle. The Tribunal also further took into consideration Exs.A-1 and A-2 the documents relied upon by the claimant which do not disclose that he was traveling in the vehicle as owner of the goods. Therefore, the Tribunal below rightly recorded a finding basing on the evidence before it that the claimant was not traveling in the vehicle as owner of the goods and as he was allowed to travel in the goods vehicle, there was violation of terms and conditions of the policy. The Tribunal relying on the judgment in NATIONAL ASSURANCE COMPANY LIMITED v. KAMALA AND

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OTHERS^[1] held that the insurer who is made statutorily liable to pay compensation to third parties, on account of certificate of insurance

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issued, shall be entitled to recover from the insured the amount paid to third party, if there was any breach of conditions of the policy, but, in the first instance it has to pay the compensation to the claimant. The said finding has been challenged in the present appeal. Reliance is placed by the learned counsel appearing for the insurance companion o n NEW INDIA ASSURANCE COMPANY LIMITED v. VEDWATI

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AND OTHERS^[2] wherein the Supreme Court held that the owner of the goods vehicle has no statutory responsibility to get his vehicle insured for covering any passenger travelling in the goods vehicle and the insurance company is not liable to pay compensation to the claimants. I n NATIONAL INSRUANCE COMPANY LIMITED v. PREMA DEVI AND OTHERS^[3] the Supreme Court held that when the claimant was travelling in a goods vehicle not as owner of the goods or as representative of the owner of the goods is a gratuitous passenger and the insurance company can avoid its liability on the ground that the owner of the vehicle had not taken policy for such passenger and there was no requirement under law for obtaining a policy covering such passengers.

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8. Basing on the judgments above referred, the learned counsel appearing for the insurance company contends that in the said cases the Supreme Court held that in the case of gratuitous passengers, the insurance company is not liable to pay compensation and when once it is not liable to pay compensation, the Tribunal has no jurisdiction under Section 168 of the Motor Vehicles Act to issue a direction to the insurance company to pay the amount in the first instance and then it can recover the same from the owner of the vehicle.

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As to this, I would like to state that whether the insurance company can be exonerated from liability to pay compensation on

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account of breach of terms and conditions committed by the insured is a different question from the one, whether the Tribunal is empowered to issue a direction under Section 168 of the Motor Vehicles Act to pay compensation to the claimant, as a gratuitous passenger under Section 168 of the Motor Vehicles Act. In the judgments relied on by the learned counsel appearing for the insurance company the Supreme Court does not dealt with the question whether the Tribunal has no jurisdiction to issue such direction. The Supreme Court only dealt with the issue as to whether the insurance company in the given circumstances was liable to pay compensation to the claimants.

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9. In NATIONAL INSURANCE CO. LTD. v. BALJITH KAUR

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AND OTHERS^[4] the Supreme Court did not lay down that the power to issue direction to the insurance company to satisfy the award in the first instance and then recover the same from the insurer was only with the Apex Court under Articles 136 or 141 of the Constitution of India. In the said case, the Supreme Court laid down the law in general terms and held that by issuing such direction interest of justice will be subserved and also emphasized that it has issued the aforesaid direction having regard to the scope and purport of Section 168 of the Motor Vehicles Act, 1988 and has laid down the legal position in categorical and clear terms that the Tribunal is not only entitled to determine the amount of compensation claimed as put-forth by the claimant for recovery thereof from the insurer, owner or driver of the vehicle jointly and severally but also the dispute between the insurer on the one hand and the owner or driver of the vehicle involved in the accident inasmuch as can be resolved by the Tribunal in such a proceeding. In

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KUSUM LATA AND OTHERS v SATBIR AND OTHER S^[5] the

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Supreme Court held that that the Tribunal has inherent power to issue such direction. Therefore, the argument advanced by the learned counsel appearing for the insurance company goes contra to the ratio laid down in BALJITH KAUR case (cited supra) and the same cannot be sustained. The Tribunal by virtue of its power and jurisdiction under Section 168 of the Motor Vehicles Act can issue direction to the insurer to satisfy the award in the first instance in favour of the victims/third parties and then recover the amount so paid from the insured. In NATIONAL ASSURANCE COMPANY LIMITED v.

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KAMALA AND OTHERS^[6] the Supreme Court held that the insurance company is liable to pay compensation to third parties, irrespective of the fact that there was any breach or violation of any policy conditions, but the insurance company can recover the amount from the insured the amount paid to third party, if there was any breach of conditions of the policy, but, in the first instance it has to pay the compensation to the claimant.

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10. The Scheme of the Motor Vehicles Act, 1988 as can be seen from the provisions of Sections 147 and 149 is that after notice to the insurer when the award has been passed, the position of the insurer is that of a judgment debtor and it has legal obligation to satisfy the award, despite the fact that it is entitled to avoid liability on the ground of breach of terms and conditions of the contract or the statutory provisions so long as there is a valid third party insurance. A distinction has to be drawn between the defences which the insurance company can take under Section 149 of the Motor vehicles Act and its obligation to satisfy the decrees and awards insofar as victims/third parties are concerned. In MACMA Nos.2535 of 2006 and 1661 of 2006, a Division Bench of this Court to which I am a party rendered a

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judgment applying the ratio laid down in BALJITH KAUR case to the effect that even though the insurance company is not liable to pay compensation for violation of terms and conditions of the policy, it can be directed to satisfy the award in the first instance and then recover the same from the owner of the vehicle.

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11. In the instant case also, by allowing the claimant to travel in a goods vehicle, the insured committed breach of terms of the policy, on account of which the insurance company cannot be held liable to pay compensation to the claimants. But, at the same time, the Tribunal is right in issuing a direction to the insurance company to satisfy the award in the first instance and thereafter recover the same from the owner of the vehicle. The said direction issued by the Tribunal is in accordance with law lay down by the Supreme Court in BALJITH KAUR case. The finding of the Tribunal is therefore upheld by not accepting the contentions urged on behalf of the insurance company.

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12. For the foregoing reasons, the appeal filed by the insurance company fails and the same is dismissed without any order as to costs.

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__________________ Date:28.12.2012 R. KANTHA RAO, J ccm

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THE HON’BLE MR JUSTICE R. KANTHA RAO

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M.A.C.M.A.No.836 of 2010

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DATE:28.12.2012

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