Samir Ranjan Sarkar vs Jayamati Ahir And Ors

[1] This appeal is filed by the owner of the vehicle which was involved in a motor vehicle accident giving rise to Case No. T.S.(MAC) 101 of 2015 before the Motor Accident Claims Tribunal, West Tripura, Agartala. He has challenged an award dated 16th November, 2017 passed by the said Tribunal.

[2] Brief facts are as under :

One Rajkumar Gowala along with his other family members was going to Melaghar to visit Nirmahal in a motor car owned by the present appellant, original opposite party No.1 of the said motor accident claim petition. While the vehicle was returning from Nirmahal proceeding towards Agartala near Sipahijala, the vehicle overturned causing fatal injuries to one of the passengers Rajkumar Gowala. His widow, minor children and mother, therefore, filed the above mentioned claim petition seeking compensation of Rs.67,05,000/- from the driver, owner and insurer of the vehicle involved in the accident. In the claim petition itself it was alleged that the deceased Rajkumar Gowala and his brother-in-law Bijan Gowala and 4(four) other persons had hired the said vehicle for going to Melaghar to visit Nirmahal. The Claims Tribunal by the impugned award held that the driver of the vehicle was negligent in causing the accident. The deceased was stated to be a plumber. The Tribunal assessed the compensation payable to the claimants at Rs.16,64,600/-. With respect to the question of the liability of the insurance company, the Tribunal held and observed as under :

"8. Now the question is who will be held liable for payment of compensation to the claimants. Opposite-party No.1 Shri Samir Ranjan Sarkar is the owner of the offending vehicle, as such he is supposed to pay the compensation to the claimants. Learned counsel for the owner opposite party submitted that his vehicle was insured with The New India Assurance Company Limited and as such The New India Assurance Company Limited should be held liable for payment of awarded amount of compensation. On the other hand, learned counsel for the Insurance Company drawing my attention to Exhibit-A and Exhibit-F insurance policy submitted that as per insurance policy the vehicle which was private vehicle cannot be used for carriage of goods and it cannot be given on rent, but the owner rented the vehicle for carrying passengers to Melaghar and as such since owner violated the condition of policy, Insurance Company cannot be held liable to pay the compensation. Learned counsel also submitted that from the FIR it appears that driver was driving the vehicle on being drunk which is also violation of condition of insurance policy as well as violation of law and as such Insurance Company cannot be held liable for payment of compensation. I have perused the insurance policy which has been marked as Exhibit-A. On perusal of the same I find a clause namely, "Limitation as to use" which shows that the "The Policy covers use of the vehicle for any purpose other Title Suit (M.A.C.) 101 of 2015 7 than a) Hire or Reward b) Carriage of goods (other than samples or personal luggage) c) Organized racing d) Pace making e) Speed testing f) Reliability Trial g) Any purpose in connection with Motor Trade. But, in the instant case I find that victim hired the vehicle for going to Melaghar which was clear violation of condition of insurance policy. On perusal of FIR I also find that driver was driving the vehicle on being drunk which certainly violation of Motor Vehicles Act as well as violation of insurance policy. As owner opposite party violated the condition of the insurance policy, the Insurance Company cannot be held liable for payment of the amount of compensation. However, considering the principle of "pay and recover", I direct The New India Assurance Company Limited to pay the awarded amount to the claimants and then to recover the same from the owner of the vehicle by execution proceeding."

The Tribunal eventually applied the principle of pay and recover, directed the insurance company to satisfy the award by permitting the insurance company to recover such amount from the owner of the vehicle on the ground that there was a breach of the condition of the insurance policy and, therefore, the insurance company was absolved from its liability to cover the risk of the owner. It is this portion of the award which the owner has challenged in this appeal.

[3] Mr. Asutosh De, learned counsel appearing for the appellant submitted that the deceased and other passengers in the car had not hired the vehicle. They were known and related to the owner of the vehicle. On their request the driver had stopped the vehicle to give them a lift. There was, thus, no breach of the insurance policy. The Claims Tribunal committed a serious error in holding that because of the breach of the insurance policy insurance company was not liable to satisfy the award.

[4] On the other hand, Mr. A. Gan Choudhury, learned counsel appearing for the insurance company opposed the appeal contending that there was sufficient evidence on record suggesting that the deceased and other passengers of the car had hired the vehicle. The vehicle being a private vehicle could not have been used for hire or reward. There was, thus, a clear breach of the insurance policy. The Tribunal, therefore, correctly absolved the insurance company of its liability.

[5] The evidence on record is clear. The claim petition itself proceeds on the basis that the deceased, his brother-in-law and other passengers in the car were travelling to Nirmahal. They had boarded the vehicle for the said destination. While the vehicle was returning from Nirmahal proceeding towards Agartala, on account of negligent driving of the driver, it overturned causing fatal injuries to the deceased. Further, an FIR was lodged with the nearby police station by the brother-in-law of the deceased who was a co-passenger. In such FIR also he had disclosed that they had booked the vehicle for the said trip. In fact he went on to add that the driver had consumed liquor and despite instructions continued to drive the vehicle rashly. The findings of the Tribunal, therefore, that the vehicle in question though was a private vehicle used for hire or reward, was thus duly established from the evidence on record. There was, thus, a clear breach of the insurance policy. The insurance company was, therefore, correctly absolved of its liability to satisfy the award.

[6] I find no error in the award of the Tribunal. The appeal, is therefore, dismissed. Pending application(s), if any, also stands disposed of. Record in proceedings may be transmitted to the Tribunal.