Progressive Public School Lahar vs Smt. Shanti and others

G.D. Saxena, J.—Since common question of law and fact is involved in the aforesaid two appeals, same are being disposed of by this common and one order. The case, in brief, is as follows:

On 5/12/03, the appellant arranged a picnic for the school going children and in pursuance thereto the children were being carried in a new bus from Mayur Chhatri Baag. It is averred in the claim petition that deceased Anil Kumar and one Rajveer were deployed for making arrangements of the picnic. They were standing nearby the seat towards left side. At that juncture, procession of winning candidate came and in order to avoid traffic problem, the driver of the bus drove away the vehicle in such a high speed which threw away Anil Kumar and Rajveer on the road who sustained grievous injuries and died on the spot. The matter was reported to the police on which crime was registered. It is stated that the alleged accident was caused by the offending bus which was being driven rashly and negligently by respondent No. 6, owned by the appellant and insured with the respondent-Insurance Company.

Before the claims tribunal, the appellant/owner submitted a written statement denying thereby claim of the petitioners. It was stated that the bus was being plied for the school purposes and therefore there was no breach of policy of the Insurance Company. It was denied by the owner that the accident had occurred due to negligent driving of the bus. It was further submitted that the driver of the bus was having valid licence and since the bus was insured with the Insurance Company/respondent, the Insurance Company is bound to indemnify the insured. The respondent-Insurance company appeared and also filed written statement denying the averments of the claim-petition.

On the basis of the pleadings of the parties, the learned tribunal framed the issues. After appreciating the oral evidence and analysis of documentary evidence, the learned tribunal passed the impugned Award against the appellant awarding compensation overall to the sum of Rs. 2,37,400/- in favour of the claimants alongwith interest @ 6% per annum w.e.f. 12/3/04. It was directed that the respondent-Insurance Company on the principles of pay and recover shall first indemnify the Award to the claimants and thereafter recover the same from the owner and driver of the offending bus. Being aggrieved, the appellant-owner has challenged the aforesaid findings by filing the aforesaid present appeals, as mentioned above.

Learned counsel for the appellant contended that the owner of the bus could not be made liable since the vehicle was insured with the respondent-Insurance Company. It is submitted that there is nothing to show that any of the conditions contemplated in the policy were overlooked by the driver of the offending bus yet the Award has been passed by the learned Tribunal against the appellant and Insurance Company/respondent has been directed to pay and recover which is not sustainable in law. It is thus submitted that the tribunal has proceeded on erroneous premises that the conditions of the policy were broken and in this manner the impugned findings are liable to be set aside by allowing the present appeals.

On the other hand, learned counsel appearing for the Insurance Company submitted that there is no merit in the present appeals which may require interference by this court. Accordingly, he prayed that the appeals may be dismissed.

As held in the case of Bhav Singh Vs. Smt. Savirani and Others, , an insurer issuing a policy of insurance u/s 147 of the Act is liable to indemnify a person or classes of persons specified in the policy in respect of any liability which the policy purports to cover. Hence, if the policy of insurance covers any liability in addition to the liability u/s 147(1) of the Act, certainly it would be liability of the insurer to indemnify the insured in case of any liability not because of the provisions of sub section (1) of section 147 but because of the terms and conditions of contract of insurance between the insurer and the insured. Therefore, if the contract of insurance provides for a liability to a passenger or to an employee other than the liabilities provided under sub-section (1) of section 147 of the Act, the insurer would be liable to indemnify the insured against such liability.

After hearing the learned counsel for the parties and in the light of the submissions aforesaid and the observations made in the case of Bhav Singh (supra), this court thinks it appropriate to remit the matter to MACT, Lahar, district Bhind to consider the original documents relating to payment of premium which have been referred to by the learned counsel for the appellant, the amount of premium paid and then determine the person from whom the recovery is to be made. Without expressing any opinion on the merits, the matter is remitted to the MACT, Lahar, district Bhind for taking a fresh decision. The learned MACT shall permit the appellant to produce such material or evidence which according to it has relevance and thereafter shall decide the case in accordance with law after hearing both the sides. Parties are directed to appear before the learned MACT within a period of one month from the date of this order. The learned MACT shall decide the case as directed above within a period of six months from the date of appearance of the parties. The appeals are allowed to the aforesaid extent.