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Judgment
Heard on IA No. 2451/2026, an application for amendment.
In absence of any opposition and as the grounds are in respect of additional legal submissions, which have been sought to be incorporated, IA No. 2451/2026 is allowed.
Let necessary amendment be carried out during the course of the day.
Heard.
The appellant has filed the present appeal under Section 96 of the Code of Civil Procedure being aggrieved by the judgment and decree dated 19.03.2002 passed by the I Additional District Judge, Shahdol in Civil Suit No. 3-B/2000 partly decreeing the suit filed by the respondent/plaintiff.
The admitted facts in the present case are that the plaintiff is a permanent resident of Shahdol and is the owner of Truck No. MP 18–6472, which is engaged in the business of goods transportation. The defendant is an insurance company. The plaintiff purchased the said truck in the year 1995 and obtained a comprehensive insurance policy from the defendant’s Jabalpur office on 14.08.1995, valid up to 13.08.1996. Thereafter, the plaintiff renewed the insurance policy for the period from 14.08.1996 to 13.08.1997. Thus, the plaintiff’s Truck No. MP 18–6472 remained duly insured with the defendant’s company up to 13.08.1997.
It is also admitted fact that on 24.05.1997, the plaintiff’s truck met with an accident on the Shahdol–Katni Road. A report of the said accident was lodged at Police Station Umariya, and intimation thereof was also duly given to the defendant company. Upon receipt of such information, the defendant company, through its Shahdol Branch Manager, conducted a preliminary inspection of the vehicle to be conducted through a surveyor. Thereafter, a final survey was carried out. Both the aforesaid reports are annexed to the records of the defendant’s office in Claim Case No. 31/157.
Apart from the admitted facts, the facts of the case are that the plaintiff duly intimated the defendant company regarding the said truck. The said truck, having met with an accident, was extensively damaged; it turned turtle and sustained heavy damage to its body as well as chassis. The plaintiff incurred an expenditure of Rs. 2,18,762/- towards repairs, and submitted the relevant receipts and documents to the surveyor.
Out of the said amount of Rs. 2,18,762/-, the defendant approved a sum of Rs. 94,250/- and forwarded an intimation along with a payment voucher to the plaintiff. The plaintiff duly signed the said voucher and returned it to the defendant’s office. Thereafter, for final settlement of the claim, the defendant demanded certain documents, namely the driving licence, road challan, and police report, which were promptly furnished by the plaintiff.
Subsequently, the defendant assured the plaintiff that the approved amount would be paid at the earliest; however, no such payment was made. Consequently, the plaintiff, by a registered letter dated 03.04.1999, requested expeditious settlement of the claim. Despite the same, the defendant neither made the payment nor replied to the said notice. Instead, the defendant, by a registered letter dated 16.04.1999, informed the plaintiff that the claim case had been closed.
In the said communication, the defendant referred to a letter dated 18.08.1998; however, the plaintiff never received the said letter. The plaintiff had only received a letter dated 12.03.1998, compliance whereof had already been duly made by the plaintiff.
The plaintiff has also averred in the plaint that the said truck was used for commercial purposes. Due to the accident, the plaintiff suffered financial loss, and in order to restore and recommission the said truck, the plaintiff incurred an expenditure of Rs. 2,18,262/-. The said amount was liable to be paid expeditiously by the defendant; however, the same was not paid. It is further submitted that although the defendant had approved a sum of Rs. 94,250/-, but the said amount was not paid within the stipulated period. Consequently, the plaintiff requested for payment of the entire amount of Rs. 2,18,262/-. The plaintiff also requested that interest at the rate of 24% per annum be awarded on the entire compensation amount from the date of the accident until realization.
On behalf of the defendant, apart from the admitted facts, the averments made in the plaint have been denied. It has been contended that at the time of the accident, the said vehicle was being operated in violation of the terms and conditions of the insurance policy, inasmuch as 10 passengers were travelling therein. Out of these, two passengers, namely Ku. Riya and Lajjo, died, and claims have also been filed in respect of their deaths.
The defendant has further denied that the plaintiff incurred an expenditure of Rs. 2,18,262/- and has also denied that it had agreed to pay Rs. 94,250/- to the plaintiff. It is averred that no settlement of any amount was ever arrived at between the parties. It is further contended that the vehicle in question, being a goods carriage, was being used in contravention of the insurance policy conditions as well as the provisions of the Motor Vehicles Act, as it was carrying passengers. On these grounds, the claim of the plaintiff was closed, as no explanation was furnished by the plaintiff regarding the presence of passengers in the vehicle. By way of specific averment, it is further stated that the surveyor appointed by the defendant, during the course of investigation, found that at the time of the accident, 10 passengers were travelling in the said truck, out of whom two passengers died and the remaining eight sustained injuries. The cases relating to Riya and Lajjo are stated to be pending. It is also alleged that the plaintiff, in collusion with the police, got the name of the driver recorded as Sarfaraj Khan @ Rake Majja Hussain at the time of the accident, since Sarfaraj Khan did not possess a valid driving licence.
Additionally, a preliminary objection has been raised that the Court lacks territorial jurisdiction to entertain and try the suit, and accordingly, a prayer has been made for dismissal of the plaint.
Upon a careful consideration of the aforesaid pleadings and the rival contentions advanced by the parties, the learned Court below deemed it appropriate to frame issues for the proper adjudication of the dispute. Accordingly, the Court framed as many as four issues, which were considered necessary and material for the just and effective determination of the questions in controversy between the parties. The court below recorded that both parties had produced witnesses, whose statements were recorded and considered. On behalf of the plaintiff, witnesses including Mahmood Ali, Nawab Ahmed, Ashok Kumar, Mahmud Ahmed, Achchelal Vishwakarma, and Bharat Arora gave evidence, while the defendant’s witnesses namely, Deepak Bahate, Raksh Dwivedi, and A.K. Bhageriya tendered evidence.
It was admitted on behalf of the defendant that the plaintiff’s truck met with an accident on 24.05.1991 and a report was lodged at Police Station Umariya. The defendant arranged a preliminary survey through Rakesh Trivedi and a detailed inquiry conducted by Suresh Kumar. The plaintiff’s claim was considered by the defendant and subsequently repudiated, primarily on the ground of alleged violation of terms of insurance policy and the quantum of expenditure.
The defendant contended that at the time of the accident, the truck was being operated in violation of the insurance policy because it allegedly carried 10 passengers, two of whom died, and claimed that the plaintiff had not incurred the full amount of Rs. 2,18,262/-. The court emphasized that it was necessary to determine whether the vehicle was indeed operated in contravention of the terms of the policy.
The plaintiff, Mahmud Ahmed, proved ownership of Truck No. MP-18-6472 and that the vehicle was insured with the defendant, which was corroborated by the defendant’s own witness. It was thus established that the truck was duly insured at the time of the accident.
Regarding presence of passengers, the Court below has held that the plaintiff stated that no persons were travelling in the truck but admitted that he had only signed the claim form (Ex. D/1), which was filled out by someone else. While Ex. D/2 mentioned two deceased and six injured persons, but there was no evidence to establish whether the injured were sitting inside the truck. There was also no proof that the two deceased were fare-paying passengers, and consequently, no breach of insurance policy was established on this ground.
The court below has held that defendant’s objection that the driver did not hold a valid driving licence was unsupported by any evidence and thus could not be used to establish violation of the insurance policy.
The Court below further held that the plaintiff produced bills and receipts (Ex. P/13 to Ex. P/18) for repairs of the truck. However, these documents did not indicate that by whom payments were made, and their authenticity and reliability were questioned. The mechanical inspection report (Ex. P/5) confirmed damage to the vehicle but no Panchnama at the site was available to directly link the repairs. Therefore, the court did not accept the full claimed expenditure of Rs. 2,18,262/-. However, the surveyor’s report submitted by the defendant and the plaintiff’s testimony confirmed that the loss to the truck amounted to Rs. 94,250/-, which the plaintiff accepted through signing the voucher. The defendant’s own witnesses corroborated that the surveyor had assessed this amount and communicated it to the plaintiff. The court found this claim credible and observed that the defendant had attempted to suppress this fact in its written submissions.
On the basis of the above, the court concluded that the plaintiff’s truck suffered a loss of Rs. 94,250/- as a result of the accident and the defendant insurance company was liable to indemnify the plaintiff. The court specifically held that the loss assessed by the surveyor at Rs.94,250/- was accepted and the defendant was responsible for payment.
On the basis of aforesaid findings, the court below has partially decreed the suit of the plaintiff and directed that the plaintiff is entitled to recover from the defendant a sum of Rs. 94,250/-. The plaintiff shall also be entitled to interest on the said amount at the rate of 6% per annum from the date of filing of the suit until the date of realization. The plaintiff shall further be entitled to the costs of the suit. As the plaintiff has claimed the full amount in the plaint, the court below has directed that the court fees shall be proportionate to the decree amount.
Being aggrieved by the impugned judgment and decree, the appellant/defendant has filed the present appeal.
The learned counsel for the appellant submits that the impugned judgment and decree are liable to be set aside on several grounds. It is contended that the learned Court below completely failed to appreciate that by carrying passengers in a goods vehicle, which was being plied in clear violation of the conditions of the insurance policy under which it was insured. As such, the respondent is not entitled to claim damages under the policy.
It is further submitted that the insurance is a contract between the parties and is binding on both. Any violation of the terms and conditions of the contract disentitles the respondent from obtaining the benefit of the insurance, a principle, which the learned Court below failed to recognize.
Counsel for the appellant has also contended that the learned Court below erred in overlooking the fact that the driver, in his survey report, had himself admitted that some persons were traveling in the truck, thereby violating the terms of the insurance policy. Despite this clear admission, the Court failed to consider its legal consequences.
It is further contended that the court below misdirected itself in assuming that the burden of proof was on the appellant, rather than on the respondent, who as the claimant is required to prove entitlement to damages.
It is submitted that it was undisputed that the vehicle involved was a goods vehicle, and it was not permitted to carry passengers. This fact was established by the evidence on record, but the learned Court failed to appreciate its significance.
It is further contended that the learned Court erred in awarding compensation of Rs. 94,215/- to the respondent, despite respondent’s failure to prove that any such loss was actually incurred and attributable to the accident. The Court below should also have noted that the suit was without justification and was instituted with an ulterior motive.
It is submitted that the Court below failed to appreciate that it was for the plaintiff/respondent to prove whether the passengers were fare-paying and it was improper to shift this burden onto the appellant.
It is further contended that the learned Court overlooked the jurisdictional bar under Section 175 of the Motor Vehicles Act, 1988 and erred in assuming that it had civil jurisdiction to decide a matter specifically barred under the statute. Similarly, under Section 9 of the Civil Procedure Code, 1908, a Civil Court cannot take cognizance of matters which are either expressly or impliedly barred, the said principle has been ignored by the Court below.
It is submitted that the learned Court lacked jurisdiction to adjudicate the dispute. For all the foregoing reasons, it is contended that the judgment and decree of the Court below are bad in law and liable be set aside.
Heard learned counsel for the appellant and perused the record. The present appeal has been preferred against the judgment and decree passed by the trial court whereby the suit of the plaintiff was partly decreed directing the defendant insurance company to pay a sum of Rs. 94,250/- with interest.
At the outset, this Court finds that the most fundamental issue raised in the present appeal relates to the maintainability of the civil suit on account of express bar under Section 175 of the Motor Vehicles Act, 1988. It is well settled that under Section 9 of the Code of Civil Procedure, 1908 the civil courts have jurisdiction to try suits of civil nature except those which are expressly or impliedly barred.
In the present case, the claim arises directly out of a motor vehicle accident dated 24.05.1997 involving the insured truck, wherein not only damage to the vehicle occurred but also death and injuries to passengers were reported. Such claims fall squarely within the ambit of the Motor Vehicles Act, 1988.
Section 175 of the Motor Vehicles Act, 1988 expressly bars the jurisdiction of Civil Courts in respect of matters which the Motor Accidents Claims Tribunal is empowered to adjudicate. The language of the provision clearly excludes the jurisdiction of the Civil Courts in all such matters. Section 175 of the Act, 1988 provides as under:-
"175.Bar on jurisdiction of Civil Courts.—Where any Claims Tribunal has been constituted for any area, no Civil Court shall have jurisdiction to entertain any question relating to any claim for compensation which may be adjudicated upon by the Claims Tribunal for that area, and no injunction in respect of any action taken or to be taken by or before the Claims Tribunal in respect of the claim for compensation shall be granted by the Civil Court."
The Hon’ble Supreme Court in catena of judgments has specifically held that once a special forum is created under the Motor Vehicles Act for adjudication of claims arising out of motor accidents, the jurisdiction of the civil court stands barred.
The Hon'ble Apex Court in the case of Chairman, Thiruvalluvar Transport Corporation vs. Consumer Protection Council reported in (1995) 2 SCC 479 has held as under:-
"5.The said Act was enacted to consolidate and amend the law relating to motor vehicles. Section 2(28) defines a “motor vehicle” or ‘vehicle’ to mean any mechanically propelled vehicle adapted for use upon roads whether the power of propulsion is transmitted thereto from an external or internal source and includes a chassis to which a body has not been attached and a trailer. The vehicle which was involved in the accident was indisputably a vehicle within the meaning of the said provision. Chapter XII refers to claims tribunals. Section 165 provides that a State Government may, by notification in the Official Gazette, constitute one or more Motor Accident Claims Tribunal for such area as may be specified in the notification for the purpose of adjudicating upon claims for compensation in respect of accidents involving the death of, or bodily injury to, persons arising out of the use of motor vehicles, or damages to any property of a third party so arising, or both. Section 166 next provides that an application for compensation may be made by the person who has sustained the injury or by the owner of the property or where death has resulted from the accident, by all or any of the legal representatives of the deceased or by any agent duly authorised by the person injured or all or any of the legal representatives of the deceased, as the case may be. Section 168 then says that on receipt of an application for compensation, the Claims Tribunal shall, after giving notice of the application to the insurer and after giving the parties an opportunity of being heard, hold an inquiry and make an award determining the amount of compensation which appears to be just. Section 175 next provides that where any claims tribunal has been constituted for any area, no civil court shall have jurisdiction to entertain any question relating to any claim for compensation which may be adjudicated upon by the Claims Tribunal for that area. In the present case the death had occurred due to the injury suffered in the accident arising out of the use of a motor vehicle. The legal representatives of the deceased did not prefer any claim before the Claims Tribunal for the area in which the accident occurred but instead the respondent-Council preferred the claim before the National Commission which without examining the question whether or not it had jurisdiction awarded a sum of Rs 5.10 lakhs by way of compensation.
6.The question which then arises for consideration is whether the National Commission had jurisdiction to entertain the claim application and award compensation in respect of an accident involving the death of Shri K. Kumar caused by the use of a motor vehicle. Clearly the Claims Tribunal constituted for the area in question, had jurisdiction to entertain any claim for compensation arising out of the fatal accident since such a claim application would clearly fall within the ambit of Section 165 of the 1988 Act. The 1988 Act can be said to be a special Act in relation to claims of compensation arising out of the use of a motor vehicle. The 1986 Act being a law dealing with the question of extending protection to consumers in general, could, therefore, be said to be a general law in relation to the specific provisions concerning accidents arising out of the use of motor vehicles found in Chapter XII of the 1988 Act. Ordinarily the general law must yield to the special law. Besides, the complaint in question cannot be said to be in relation to any goods sold or delivered or agreed to be sold or delivered or any service provided or agreed to be provided to the deceased. The expression ‘service’ as defined by the 1986 Act means service of any description which is made available to potential users and includes the provision of facilities inter alia in connection with transport. The accident that occurred had nothing to do with service provided to the deceased. This becomes obvious when one reads the provision along with the definition of complaint in Section 2(1)(c) and service in Section 2(1)(o) of the 1986 Act. Complaint according to Section 2(1)(c) means any application in writing in relation to an unfair trade practice or as a restrictive trade practice adopted by any trader or in relation to goods bought by him or agreed to be bought by him. Both these clauses have no application whatsoever. The third clause relates to the services hired or availed of or agreed to be hired or availed of by a consumer. Therefore, at best it can be said the complaint in question related to the service hired or availed of by the deceased. The complaint in the instant case cannot be said to be in relation to any service hired or availed of by the consumer because the injury sustained by the consumer had nothing to do with the service provided or availed of by him but the fatal injury was the direct result of the accident on account of which he was thrown out of his seat and dashed against an iron handle of the seat in front of him. We have, therefore, no manner of doubt that this case squarely fell within the ambit of Section 165 of the 1988 Act and the Claims Tribunal constituted thereunder for the area in question had jurisdiction to entertain the same. As pointed out earlier, the 1988 Act and, in particular, the provisions in Chapter XII thereof creates a forum before which the claim can be laid if it arises out of an accident caused by the use of a motor vehicle. That being a special law would prevail over the relevant general law such as the 1986 Act but in the instant case even that question does not arise for the simple reason that the dispute in question did not attract the jurisdiction of the National Commission, whatsoever and the National Commission has not shown how it had jurisdiction. The issue was pointedly raised and for reasons best known to the National Commission it failed to come to grip with it. Surprisingly, there is no discussion whatsoever in the order of the National Commission in this behalf. We are, therefore, of the opinion that the National Commission did not have jurisdiction and, as counsel for the appellant put it, this was a case of unwarranted exercise of jurisdiction."
Further, the Punjab and Haryana High Court in the case of Satyavir vs. Satbir Singh and others reported in 2010 SCC OnLine P&H 1494 in paras 12, 13, 14 and 15 has held as under:-
"12.It is apparent that the amount of Rs. 2000/- was added for the first time as a proviso to Section 110 by amended Act No. XVI of 1969to Section 110 of the Act of 1939 on the basis of which the J&J High Court correctly took a view but with the amendment in the Act, the proviso has been deleted and now as per Section 175 of the Act, the jurisdiction vest only with the Tribunal to adjudicate upon loss to the property in the vehicular accident and not with the Civil Court.
13.There is no dispute between the parties that in order to satisfy the claim made in terms of Section 166-B, the owner of the property, namely, the plaintiff can put up his claim before the Motor Accident and Claims Tribunal at Jhajja. Section 175 of the Act clearly provides that there is no jurisdiction of the Civil Court to entertain any question relating to any claim for compensation which can be adjudicated upon by the Claims Tribunal for that area, in respect of any action taken or to be taken whereas Section 165says that the Tribunal has the jurisdiction to decide any matter with regard to accident involving death or bodily injury to persons arising out of the use of motor vehicles or damages to any property of a third party or both.
14.In view of the above, the substantial question of law raised by learned counsel for the appellant is answered in his favour and it is decided that the Civil Court does not have the jurisdiction to decide the claim of Rs.62,500/- for damages caused due to negligent driving on the part of the appellant in the case of motor vehicular accident. The jurisdiction exclusively vests with the Tribunal to entertain a claim for damage to property, under Section 165 of the Act. Thus, the present appeal is allowed and judgment and decree of the Courts below is set aside.
15.Since, this Court has decided jurisdiction of the Civil Court viz a viz the Tribunal constituted under the Act, therefore, the respondent/claimant is at liberty to pursue his claim before the Motor Accident and Claims Tribunal, Jhajjar in accordance with law, if so, advised."
In view of the law laid down by the Hon'ble Apex Court on the issue in the cases of Chairman, Thiruvalluvar Transport Corporation and Satyavir (supra), in the considered opinion of this Court, the present suit, though framed as a recovery suit based on an insurance contract, is essentially founded upon a motor accident and the liability arising therefrom. Therefore, the jurisdiction of the Civil Court is clearly barred by virtue of Section 175 of the Act.
The court below has gravely erred in overlooking this statutory bar and proceeded to decide the suit on merits. The impugned judgment, therefore, suffers from inherent lack of jurisdiction and is liable to be set aside on this ground alone.
In view of the aforesaid discussion, in the considered opinion of this Court, the civil suit filed by the plaintiff was not maintainable in view of the bar under Section 175 of the Motor Vehicles Act, 1988.
Accordingly, the appeal is allowed. The impugned judgment and decree dated 19.03.2002 passed by the I Additional District Judge, Shahdol in Civil Suit No. 3-B/2000 is hereby set aside.