United India Insurance Co. Ltd. vs Heeralal Sahni

Akhilesh Chandra, J.—Heard learned counsel for the appellant and learned counsel for the respondents. This is an appeal preferred by insurer opposite party appellant against judgment dated 14th April 2004 passed in M.A.C.T. Claim Case No. 7/1996 by 1st Additional District Judge-cum-Motor Accident Claim Tribunal-6th, Begusarai, awarding a sum of Rs. 3,00,000/- as a compensation to the disablement suffered by claimant respondent with interest @ 9%, if the award is not paid within two months from the date of the order.

The relevant facts of the case is that claimant respondent owner and driver of a Auto Rickshaw aged about 35 years sustained injuries by way of permanent disablement of 70% caused in a accident on 18.07.1995 relating to which Sanha No. 255 was also lodged with Mansahi Police Station. He further claimed that he was earning Rs. 10,000/- per month from Auto Rickshaw purchased under self employment scheme and Rs. 25,000/- spended towards doctor, operation and treatment etc., mental loss Rs. 25,000/-, dependency Rs. 50,000/- totaling Rs. 3 lacs from the insurer of Auto Rickshaw bearing no. BR09-8371 dashed by unknown tractor who was coming from opposite direction rashly.

By filing written statement the insurer appellant has contested the claim mainly on the ground of non coverage of insurance to the claimant has authority to drive the vehicle and non-joinder at whose alleged fault accident was caused. Before the court below solitary witness in the case examined, is none else than the claimant himself who produced the following 8 documents marked as Exhibit 1 to 8 respectively which is as follows:

Exhibit-1-Photocopy of Insurance Policy

Exhibit-2-Photocopy of Sahna

Exhibit-3-Photocopy of Injury Report

Exhibit-4-Photocopy of Prescription

Exhibit-5-Photocopy of Fitness

Exhibit-6-Photocopy of Driving License

Exhibit-7-Photocopy of Owner Book

Exhibit-8-Photocopy of Handicapped certificate

And the insurer simply filed Exhibit 8, photocopy of policy schedule, Exhibit-B, surveyor''s report, and on consideration of all such materials claim tribunal arrived at the conclusion that out of total amount of compensation Rs. 7,56,000/-, the claimant respondent is entitled for half of the same i.e. Rs. 3,78,000/- from the insurer. For the remaining, it was owner/insurer of the Tractor''s liability and since only Rs. 3 lacs has been claimed directed the amount so claimed against which no objection by way of appeal or cross objection has been raised by the claimant respondent.

It is contended by learned counsel for the appellant that though the claimant respondent had a valid license to drive light motor vehicle but it does not carry the endorsement to drive transport vehicle (for commercial purpose). He was not authorized to drive Auto Rickshaw and in spite of the vehicle being comprehensively insured against the liabilities accruing against the owner towards 3rd party insurer is not liable to compensate against injury sustained or death, if any, caused to the owner of the vehicle. Further, as per case of the claimant, it was the Tractor who due to rash and negligent driving dashed with the Auto Rickshaw, otherwise, also entire liability accrued to compensate upon such unknown Tractor whose owner or insurer have not been impleaded.

True it is the claimant has come out with a case that it was the unknown tractor coming from opposite side dashed the vehicle which causing injuries upon him but due to he being senseless was not in a position to locate/trace out in detail of such offending vehicle. However, a sanha (Exhibit-2 etc.) was instituted after collecting information by the police itself.

As is evident from Exhibit-2 based on the statement of police official who on getting informant about the accident arrived at the place of occurrence it appears that, in fact, it was the claimant who just to provide space (side) to the Tractor got the Auto Rickshaw extremely left on the flank of the road and since the same was wet due to rains, one of the wheel went deep in earth causing the vehicle unbalanced resulting into its turning over causing grievous injuries to the claimant i.e. driver of Auto Rickshaw. Similar is the statement of the surveyor appointed by the insurer and the report is Exhibit-B. This also confirms as stated in Exhibit-2 and the Surveyor further gone to submit that claimant injured person Hiralal Sahni due to accident seems to be appeared true and genuine.

This aspect has been considered by the claim tribunal but it has shifted the liability up to 50% upon the Tractor holding that in fact it was an accident because of the circumstance beyond control of the driver of either of the two vehicles and this shifting as stated earlier is acceptable too. The claimant respondent who is satisfied with whatever he has claimed and awarded by the claim tribunal is paid.

The claimant respondent carried valid license to drive light motor vehicle as is evident from Exhibit-6. Section 2(21) of Motor Vehicles Act reads as such:-

2(21). "light motor vehicles" means transport vehicle or omnibus the gross vehicle weight of either of which or a motor car or tractor or road-roller the unladen weight or any of which, does not exceed, [7500] kilograms;

and section 2(29) reads as such:-

2(29). "Omnibus" means any motor vehicle constructed or adapted to carry more than 6% excluding the driver.

Exhibit-7 is a certificate of registration of Auto Rickshaw bearing BR09-8371 owned by the claimant respondent and in column 13 & 14 respectively reads as such:

sitting capacity (including driver) 6+1 = 7 (7 in all) and in column 14-an unladen weight 600 kg.

Whereas Exhibit-1, the certificate of insurance, issued by the appellant indicates, the capacity of the passengers of the vehicle 8+1. Similar is the position of Exhibit-A, the policy schedule. It is difficult to appreciate how and under what circumstances a vehicle registered with sitting capacity including driver (6+1) to carry insurance certificate of two more. Whatever the discrepancy may be due to weight of vehicle in question it comes under the definition of light motor vehicle stated above for which the claimant respondent had a valid license to drive.

So far coverage of insurance against owner of the vehicle is concerned, as is evident from Exhibit-1 the certificate of insurance provided to the insured and filed by the claimant respondent column-5 deals with persons or classes of persons entitled to drive and the insured comes under the category meaning thereby the owner of the vehicle is permitted to drive the vehicle in question. Contrary to Exhibit-1, Exhibit-A the policy schedule, for reasons best known to the insurer, copy not supplied to the insured dealing with the liability indicates it covers liability of paid driver and/or Conductor for which Rs. 30/- as premium was also realized.

If at all the owner though permitted vide the papers supplied to the insured to drive the vehicle in question, of course, having a valid license if excluded from the liability of the insurer, it must have been specifically communicated and known to the insurer. In absence thereof the insurer cannot be permitted to avoid its liability to compensate the loss suffered to the owner who undisputedly with under due authority was driving the vehicle.

Had the insured be well communicated and conversant that insurer covers liability of the person on steering only when he is paid for, if owner is there it may be, but on his own risk, without any coverage of insurance something could have been done by the owner insured but by putting him in dark and furnishing copy of the due papers an inference of evil intention on the part of the insurer may also be drawn. But in absence of any such claim no action is being taken against the insurer. For the last about 17 years the insured victim appears deprived of the amount so awarded hence the insurer is liable to compensate further by way of enhanced interest. Thus, finding no merit in this appeal. It is dismissed on contest and insurer appellant is directed to pay the amount so awarded, but with interest @ 9% from the date of filing of the application till actual payment well within two months. The statutory deposit be transmitted to the claim tribunal below for immediate payment to the claimant.