AI Structured Summary
Not yet generated for this judgment
Judgment
Loss of Dependency,"Rs.8,11,200/-
,
Carriage of dead
body","Rs.2,000/-
,
,
Head of funeral
expenses","Rs.10,000/-
,
,
Loss of consortium,"Rs.10,000/-
,
Total:-,"Rs.8,33,200/- (Rupees Eight
Lakhs Thirty-three Thousand
& Two Hundred.
,
,
Vehicles Act is a beneficial piece of legisla(cid:43)on and therefore, as the offending vehicle was having a valid policy of insurance issued by the",
appellant, it was the duty of the appellant to sa(cid:43)sfy the award and then to exercise its right to recover such amount from the owner i.e.",
respondent No. 2. It is further submi(cid:29)ed that the fact that the husband of the respondent No.1 had died in the road traffic accident, was not",
disputed, there was no ground to deny just and fair compensa(cid:43)on to the respondent No. 1 by the appellant. It is submi(cid:29)ed that the learned",
Tribunal, a(cid:82)er due adjudica(cid:43)on of the claim had determined the claim of the respondent No. 1 by arriving at a finding that the DW-1 had not",
been able to prove the terms of policy and he failed to explain why the said policy could not be covered for the said accident. Therefore, it",
would be wholly unjust to deny accident compensa(cid:43)on to the respondent No. 1, who had lost her husband and the only source of income for",
the family. It is submi(cid:29)ed that in this case the owner of the vehicle i.e. respondent No. 2 had submi(cid:29)ed his wri(cid:29)en statement and had,
disclosed that the vehicle was duly insured, as such, it was the burden of the appellant to disprove that the vehicle was not having a valid",
insurance, which could not have been done as the offending vehicle was covered by a valid insurance which was proved by the DW-1 as Ext.A.",
Hence, this was a fit case for invoking the principles of “pay and recoveredâ€. It is also submi(cid:29)ed that the policy in ques(cid:43)on also covered",
for bye-standers, as such, the compensa(cid:43)on due to the respondent No.1 could not be lawfully denied. In support of his submissions, the",
learned counsel for the respondent No. 1 had relied on the cases of (i) Shivawwa and another Vs.,
The Branch Manager, Na(cid:43)onal Insurance Co. Ltd. and anr., (2018) 0 Supreme (SC) 262, (ii) Mangla Ram Vs. Oriental Insurance Co. Ltd. and Ors.,",
(2018) 0 Supreme (SC) 283, (iii) Pappu and ors. Vs. Vinod Kumar Lamba and anr., (2018) 0 Supreme (SC) 42 and (iv) Singh Ram Vs. Nirmala and",
Ors., (2018) 0 Supreme (SC) 209.",
Opposing this appeal, the learned counsel for respondent No. 2 i.e. the owner of the offending vehicle has denied its liability by",
submi(cid:80)ng that the vehicle was duly covered by a valid insurance as on the date of accident. Therefore, no liability to sa(cid:43)sfy the award can be",
shi(cid:82)ed against the respondent No. 2. By referring to the case of the Branch Manager, New India Assurance Co. Ltd. Vs. K. Thangam and anr.,",
C.M.A (MD) No. 672 of 2008 and C.O. No. 23 of 2008, decided on 11.04.2012, it is submi(cid:29)ed that as the respondent No. 2 had obtained Rasta",
Apa(cid:80) Kavach, either the appellant is required to sa(cid:43)sfy the award or the respondent No. 1 could apply before the appellant for payment",
under the said policy.,
Having examined the pleading and evidence on record, it is seen that the insurance policy in ques(cid:43)on (Ext.A) was a “Rasta Apa(cid:80)",
Kavachâ€. The special condi(cid:43)on men(cid:43)oned herein is as follows, “THE COVERAGES ARE IN CONNECTION WITH VEH NO. AS 07 A 6858. TATA",
709 BUS BEARING ENG. NO. 497D22HSQ797985, CHASS. NO. 386025HSQ727777. THIS IS NOT A MOTOR LEGAL LIABILITY POLICY AND NOT COVERED",
BY THE MOTOR VEHICLES ACTâ€.,
Therefore, upon a perusal of the said policy, it is seen that it contains the above noted disclaimer that the policy was not a “motor legal",
liability policy†and “not covered by the Motor Vehicles Actâ€. Under the circumstances, it would naturally follow that the offending",
vehicle of the respondent No. 2 did not have a valid “cer(cid:43)ficate of insurance†as defined under sec(cid:43)on 145(b) of the Motor Vehicles Act.,
In this connection, it would be relevant to quote the provisions of sections 145(b), 147(3) and 149(1) of the Motor Vehicles Act:",
 “145(b). Cer(cid:43)ficate of insurance†means a cer(cid:43)ficate issued by an authorised insurer in pursuance of sub-sec(cid:43)on (3) of sec(cid:43)on 147 and,
includes a cover note complying with such requirements as may be prescribed, and where more than one cer(cid:43)ficate has been issued in",
connection with a policy, or where a copy of a certificate has been issued, all those certificates or that copy, as the case may be.",
 147(3).  A policy shall be of no effect for the purposes of this Chapter unless and un(cid:43)l there is issued by the insurer in favour of the,
person by whom the policy is effected a cer(cid:43)ficate of insurance in the prescribed form and containing the prescribed par(cid:43)culars of any,
condi(cid:43)on subject to which the policy is issued and of any other prescribed ma(cid:29)ers; and different forms, par(cid:43)culars and ma(cid:29)ers may be",
prescribed in different cases.,
 149(1).   If, a(cid:82)er a cer(cid:43)ficate of insurance has been issued under sub-sec(cid:43)on (3) of sec(cid:43)on 147 in favour of the person by whom a policy",
has been effected, judgment or award in respect of any such liability as is required to be covered by a policy under clause (b) of sub-sec(cid:43)on (l)",
of sec(cid:43)on 147 (being a liability covered by the terms of the policy) 1[or under the provisions of sec(cid:43)on 163A] is obtained against any person,
insured by the policy, then, notwithstanding that the insurer may be en(cid:43)tled to avoid or cancel or may have avoided or cancelled the policy,",
the insurer shall, subject to the provisions of this sec(cid:43)on, pay to the person en(cid:43)tled to the benefit of the decree any sum not exceeding the",
sum assured payable thereunder, as if he were the judgment debtor, in respect of the liability, together with any amount payable in respect of",
costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.â€,
In the present case, the undeniable fact is that the husband of the respondent No. 1 had died in the motor vehicle accident, which had",
occurred at 8:00 AM on 10.12.2007. At that (cid:43)me, the offending motor vehicle was being driven without the said vehicle having a valid",
“cer(cid:43)ficate of insuranceâ€. Therefore, the vehicle was being driven in contraven(cid:43)on of sec(cid:43)on 146 of the Motor Vehicles Act. It is also seen",
that the learned Tribunal had held that the policy (Ext.A) covered for “Road side personsâ€. It was held that it was obligatory on part of the,
insurance company to prove in accordance with law the contents of the insurance policy to show that there was prohibi(cid:43)on in the insurance,
policy that the same cannot be extended to cover up a case where a cyclist met with death due to use of the vehicle concerned in public road.,
The learned Tribunal further held that the DW-1 during his deposi(cid:43)on neither explain the terms and condi(cid:43)ons of the policy nor could give any,
explana(cid:43)on as to why the policy in ques(cid:43)on, i.e. Ext.A does not cover the instant case of death of the deceased in a road traffic accident",
caused by the offending vehicle and accordingly, the learned tribunal presumed that the tes(cid:43)mony divulged, the insurance policy (Ext.A) in",
respect of the policy, was a motor legal liability policy. In this connec(cid:43)on, the examina(cid:43)on and cross-examina(cid:43)on of DW-1 is extracted below:",
Â,
 “Examination:-,
 I am presently staying at Dibrugarh. I am Administra(cid:43)ve Officer, New India Assurance Company Limited, Dibrugarh Office. We have been",
made party to the instant claim application as O.P. No. 2.,
 We have filed written statement in connection with the case.,
 We issued a policy (Exhibit-A) in respect of vehicle No. AS-07 A/6858. The aforesaid policy is a non-tradi(cid:43)onal policy and is only issued at,
Jorhat Branch Office. According to this policy it is a “Group Janata Personal Accident Coverageâ€. It is a Rasta Policy Kavach.,
According to this policy there is a special condi(cid:43)on that “this is not a motor legal liability policy and not covered by the Motor Vehicles,
Actâ€. As per this policy we have no liability.,
 Cross-examination: The policy was valid at the time of accident.,
 It is not a fact that Exhibit-A (policy) covers the liability towards the death of deceased.,
 It is a fact that we have not men(cid:43)oned in our wri(cid:29)en statement that the policy is also called as “Group Janata Personal Accident,
Coverage†policy; that the policy is a nontraditional policyâ€.,
From the deposi(cid:43)on of DW-1 as narrated above, the said DW-1 was not cross-examined on the terms and condi(cid:43)ons of policy. His",
categorical statement was that it was not a “motor legal liability policy†and “not covered by the Motor Vehicles Actâ€. The said,
evidence was not dislodged during his cross-examina(cid:43)on. The learned Tribunal had not referred to any provision of law under which the DW-1,
was required to give any explana(cid:43)on as to why the said insurance did not cover the case of death of the deceased. In the opinion of this Court,",
the learned Tribunal had misdirected itself in assuming that the Rasta Apa(cid:80) Kavach policy was a “motor legal liability policyâ€, when on",
the face of Ext.A, it contains an exclusion and/or disclaimer to the effect that it was not a “motor legal policy: and that “it did not",
covered the Motor Vehicles Actâ€. The learned Tribunal had also misdirected itself in not considering that the said policy (Ext.A) did not,
contain a “cer(cid:43)ficate of insurance†as envisaged under the provisions of sec(cid:43)on 145(b), sec(cid:43)on 147(3) as well as sec(cid:43)on 149(1) of the",
Motor Vehicles Act. Therefore, as the appellant had stated in their wri(cid:29)en statement that the insurance policy was not valid for coverage for",
liabili(cid:43)es arising under the Motor Vehicles Act, it was the duty cast on the learned Tribunal to answer the ques(cid:43)on of jurisdic(cid:43)on first a(cid:82)er",
framing preliminary issues and only a(cid:82)er answering the ques(cid:43)on of jurisdic(cid:43)on, the learned Tribunal ought to have proceeded with the trial",
by allowing the pari(cid:43)es to adduce evidence and therea(cid:82)er to hear the arguments and pass the impugned judgment. However, if the",
preliminary issue was answered against the maintainability of the claim against the insurer, the claimant could have either proceeded with",
claim under “Rasta Apatti Kavachâ€, or would have proceeded only against the respondent No.2 before the learned Tribunal.",
In this case, the appellant had raised the issue of jurisdic(cid:43)on that at the ini(cid:43)al stage by filing its wri(cid:29)en statement and sta(cid:43)ng therein that",
the insurance policy was not covered by the Motor Vehicles Act and, as such, the ques(cid:43)on of jurisdic(cid:43)on ought to have been taken up as a",
preliminary issue. In the considered opinion of this Court, the award passed qua the appellant has got no legal force. Therefore, the appellant",
cannot be saddled with any liability under sec(cid:43)on 166 of the Motor Vehicles Act against the said insurance policy of “Rasta Apa(cid:80) Kavachâ€,
(Ext.A), which is not a “motor legal liability policy†and “not covered by the Motor Vehicles Actâ€.",
In view of the discussions above, the respondent No. 2, being the ownercum- driver of the offending motor vehicle is held to have allowed",
the offending vehicle to ply on the public road without a valid “Cer(cid:43)ficate of Insuranceâ€, as such, the liability arising out of the judgment",
and award dated 29.08.2015 passed by the learned Member, Jorhat in MAC Case No. 41/2008 to the extent of Rs.8,33,200/- with interest at the",
rate of 8% from 12.08.2008 till recovery shall stand shifted against the respondent No. 2, who is required to satisfy the award.",
Considering the fact that the accident took place on 10.12.2007 and having seen that the “Rasta Apa(cid:80) Kavach†policy had coverage for,
personal accident to byestanders, the respondent No.1 is directed to examine the claim of the respondent No. 1 within a period of 3 (three)",
weeks from today and if the respondent No. 1 is found en(cid:43)tled to any insurance claim under the Rasta Apa(cid:80) Kavach policy, the appellant shall",
inform the respondent No. 1 and 2 about the result of such claim, within a period of 1 (one) week therea(cid:82)er, with a copy to Mr. K.",
Bha(cid:29)acharjee, the learned counsel appearing for the respondent No. 1/claimant through Mr. R. Goswami, the learned counsel appearing for",
appellant. Moreover, the payment under the said claim is to be made as early as possible, but in any case within the outer period of 2 (two)",
months from today. Accordingly, the liability of the respondent No. 2 under the award shall stands reduced to the extent borne by the",
appellant, if any.",
In view of above, this Court is of the considered opinion that as the policy in ques(cid:43)on being “Rasta Apa(cid:80) Kavach†policy was not",
motor legal liability policy and not covered by the Motor Vehicles Act, the learned MACT, Jorhat had no jurisdic(cid:43)on to adjudicate the claim of",
the respondent No.2 against the appellant, as such, this Court is unable to agree with the submissions made by the learned counsel for the",
respondent No. 1 to direct the appellant to pay compensa(cid:43)on and recover the same from the respondent No. 2 on the principles of “pay,
and recoverâ€. Hence, the cases cited by the learned counsel for the appellant is dis(cid:43)nguishable on facts as in none of the cases, the offending",
vehicle had no “motor legal liability†policy, as such, the ratio of the said cases cannot be applied in the present case in hand.",
Accordingly, this appeal stands allowed. The judgment and award dated 29.08.2015 passed by the learned Member, MACT, Jorhat in MAC",
Case No. 41/2008 stands modified by exonera(cid:43)ng the appellant for the liability under the said award and the liability of paying award of,
Rs.8,33,200/- with interest @ 8% from 12.08.2008 (cid:43)ll recovery is shi(cid:82)ed on the respondent No. 2 by holding that there was not valid",
“Certificate of insurance†in respect of the offending vehicle under the Motor Vehicles Act on the date of the accident.,
The parties are left to bear their own cost.,
Return back the LCR.Â,