1. Heard Shri Manish Kumar Nigam, learned counsel for the appellant.
2. This appeal has been filed challenging the award dated 14.10.2015 in M.A.C.P. No.145 of 2013 passed by the Motor Accident Claims Tribunal/Additional District Judge, Court No.1, Chandauli awarding a sum of Rs.74,150/- to the claimant-respondent on account of serious injuries on 5.10.2013 in an accident caused by the vehicle (Magic) bearing Registration No.UP-45 T-1563 in which the injured and some other passengers were travelling.
3. Learned counsel for the appellant submits that the authorized seating capacity of the offending vehicle was 6 while 17 passengers were travelling and, therefore, the Tribunal has committed a manifest error of law in fixing the liability of the Insurance Company to pay compensation instead of the liability of the owner of the vehicle in question. He submits that driver of the offending vehicle was not having a valid driving licence. Hence in view of the decision of the Hon'ble Supreme Court in the case of United Indian Insurance Co. Ltd. vs. Sujata Arora and others, TAC 2014 (3) SC 29, the appellant has no liability to pay the awarded amount.
4. I have carefully considered the submission of the learned counsel for the appellant.
5. Briefly stated the facts of the present case are that on 5.10.2013 the claimant-respondent was travelling in a vehicle (Magic) bearing Registration No. UP45 T-1563. Several other passengers were also travelling in the said vehicle, which caused an accident at about 11.30 P.M. in which the claimant-respondent injured. An F.I.R was lodged at about 4.00 A.M. on the next date i.e. 6.10.2013. Thus, the F.I.R was lodged after few hours of the accident. The claim petition was filed by the claimants-respondents, who are successors of the deceased.
6. In the impugned award, the Tribunal has considered oral as well as documentary evidence and recorded a finding of fact with regard to the occurrence of the accident as aforementioned in which the aforesaid claimant-respondent received serious injuries. It also recorded the finding of fact that the offending vehicle was covered with valid documents including the Insurance Policy and the driver of the vehicle was having a valid driving licence. The Tribunal also considered the contention of the appellant as being raised before this Court as aforenoted but rejected the said contention relying upon the judgment of Hon'ble Supreme Court in the case of United India Insurance Co. Ltd. vs. K.M. Poonam & others, JT 2011 (3) SC 149. The Tribunal computed award of Rs.74,150/-. The quantum of award is not disputed before this Court but the dispute is only with regard to the liability of the Insurance Company to pay compensation. The case of the appellant Insurance Company is that the Insurance Company is not liable to pay compensation under the facts and circumstances of the case and instead the owner of the offending vehicle is liable to pay the awarded amount.
7. In the case of United Indian Insurance Co. Ltd. vs. Sujata Arora and others (supra), heavily relied by the learned counsel for the appellant; it was held that where the Tribunal has recorded a finding that the vehicle, at the relevant point of time; was not being driven by the person holding a valid driving licence, then, it amounts to violation of terms and conditions of insurance policy and no liability can be fastened on the Insurance Company. In the impugned award, the Tribunal has recorded a finding of fact that the driving licence of the driver of the offending vehicle was filed in evidence, which established that driving licence was effective from 12.4.2012 to 11.2.2014 while the date of accident was 5.10.2013, and thus, as on the date and time of the accident, the driving licence of the driver of the offending vehicle was valid and effective and no evidence contrary to it could be filed by the appellant-Insurance Company. Thus, the judgmenet relied by the learned counsel for the appellant does not support the case of the appellant on the facts of the present case.
8. So far as the submission of the learned counsel for the appellant disputing the liability of the Insurance Company to pay the awarded amount is concerned, I find that it is wholly undisputed that authorized seating capacity of the offending vehicle was six while passengers travelling in the vehicle were 17 but the Insurance Company can escape its liability to pay compensation with respect to the authorized number of passengers travelling in the offending vehicle. That apart, in the impugned award, the appellant-Insurance Company has been granted right of recovery from the owner of the vehicle of the awards over and above the awards of six persons i.e. the awards which may be given in respect of the persons over and above the authorized sitting capacity of the offending vehicle.
9. The view taken by the Tribunal in the impugned award is well supported by the law laid down by Hon'ble Supreme Court in the case of United India Insurance Co. Ltd. vs. K.M. Poonam & others (supra) in which it has been held as under:
20. The law as regards the liability of insurers towards third parties killed or injured in accidents involving different types of motor vehicles, has been crystallized in the several decisions of this court referred to hereinabove. The kind of third party risk that we are concerned with in this case involves purported breach of the conditions contained in the insurance agreement executed by and between the insurer and the insured.
21. From the decision in Baljit Kaur's1 case (supra), which was later also articulated in Anjana Shyam's2 case (supra) what emerges is that a policy of insurance, in order to be valid, would have to comply with the requirements of Chapter XI of the Motor Vehicles Act, 1988, which deals with insurance of motor vehicles against third party risks. Section 146 of the Act stipulates that no person shall use, except as a passenger, or cause or allow any other person to use, a motor vehicle in a public place, unless there is a valid policy of insurance in relation to the use of the vehicle complying with the requirements of the said Chapter. Section 147 of the Act is an extension of the provisions of Section 146 and sets out the requirements of policies and the limit of their liability. Section 147 (1) (a) provides that a policy of insurance must be issued by a person who is an authorized insurer. Section 147 (1) (b) provides that a policy of insurance must be a policy which insures the person or class of persons specified in the policy to the extent specified in sub-section (2). Sub-section (2) of Section 147 indicates that subject to the proviso to sub-section (1) which excludes the liability of the insurer in certain specific cases, a policy of insurance referred to therein must cover any liability incurred in respect of any accident, inter alia, for the amount of liability incurred.
22. However, in order to fix the liability of the insurer, the provisions of Section 147 have to be read with Section 149 of the Act which deals with the duty of the insurer to satisfy judgments and awards against persons insured in respect of third party risks. Although, on behalf of the Insurance Company it has been sought to be contended that no third party risks were involved in the accident and that the persons travelling in the ill-fated vehicle were gratuitous passengers, the Insurance Company cannot get away from the fact that the vehicle was insured for carrying six persons and the liability of the Insurance Company was to pay compensation to the extent of at least six of the occupants of the vehicle, including the driver.
23. Sub-section (1) of Section 149 of the Motor Vehicles Act, 1988, makes it amply clear that once a certificate of insurance is issued under sub-section (3) of Section 147, then notwithstanding that the insurer may be entitled to avoid or cancel the policy, it shall pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured, payable thereunder, as if he was 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. Sub-section (2), however, places a fetter on the payment of any sum by the insurer under sub-section (1) in respect of any judgment or award unless, the insurer had notice of the proceedings in which the said judgment or award is given and an insurer to whom such notice is given shall be entitled to be made a party thereto and to defend the action on the grounds enumerated therein involving a breach of a specified condition of the policy.
24. The liability of the insurer, therefore, is confined to the number of persons covered by the insurance policy and not beyond the same. In other words, as in the present case, since the insurance policy of the owner of the vehicle covered six occupants of the vehicle in question, including the driver, the liability of the insurer would be confined to six persons only, notwithstanding the larger number of persons carried in the vehicle. Such excess number of persons would have to be treated as third parties, but since no premium had been paid in the policy for them, the insurer would not be liable to make payment of the compensation amount as far as they are concerned. However, the liability of the Insurance Company to make payment even in respect of persons not covered by the insurance policy continues under the provisions of sub-section (1) of Section 149 of the Act, as it would be entitled to recover the same if it could prove that one of the conditions of the policy had been breached by the owner of the vehicle. In the instant case, any of the persons travelling in the vehicle in excess of the permitted number of six passengers, though entitled to be compensated by the owner of the vehicle, would still be entitled to receive the compensation amount from the insurer, who could then recover it from the insured owner of the vehicle.
25. As mentioned hereinbefore, in the instant case, the insurance policy taken out by the owner of the vehicle was in respect of six passengers, including the driver, travelling in the vehicle in question. The liability for payment of the other passengers in excess of six passengers would be that of the owner of the vehicle who would be required to compensate the injured or the family of the deceased to the extent of compensation awarded by the Tribunal.
(Emphasis supplied by me)
26. Having arrived at the conclusion that the liability of the Insurance Company to pay compensation was limited to six persons travelling inside the vehicle only and that the liability to pay the others was that of the owner, we, in this case, are faced with the same problem as had surfaced in Anjana Shyam's case (supra). The number of persons to be compensated being in excess of the number of persons who could validly be carried in the vehicle, the question which arises is one of apportionment of the amounts to be paid. Since there can be no pick and choose method to identify the five passengers, excluding the driver, in respect of whom compensation would be payable by the Insurance Company, to meet the ends of justice we may apply the procedure adopted in Baljit Kaur's case (supra) and direct that the Insurance Company should deposit the total amount of compensation awarded to all the claimants and the amounts so deposited be disbursed to the claimants in respect to their claims, with liberty to the Insurance Company to recover the amounts paid by it over and above the compensation amounts payable in respect of the persons covered by the Insurance Policy from the owner of the vehicle, as was directed in Baljit Kaur's case.
27. In other words, the Appellant Insurance Company shall deposit with the Tribunal the total amount of the amounts awarded in favour of the awardees within two months from the date of this order and the same is to be utilized to satisfy the claims of those claimants not covered by the Insurance Policy along with the persons so covered. The Insurance Company will be entitled to recover the amounts paid by it, in excess of its liability, from the owner of the vehicle, by putting the decree into execution. For the aforesaid purpose, the total amount of the six Awards which are the highest shall be construed as the liability of the Insurance Company. After deducting the said amount from the total amount of all the Awards deposited in terms of this order, the Insurance Company will be entitled to recover the balance amount from the owner of the vehicle as if it is an amount decreed by the Tribunal in favour of the Insurance Company. The Insurance Company will not be required to file a separate suit in this regard in order to recover the amounts paid in excess of its liability from the owner of the vehicle.
10. In view of the above discussions, I do not find any merit in this appeal. Consequently, the appeal fails and is hereby dismissed.
11. The amount deposited before this Court shall be remitted to the Tribunal concerned for adjustment.
Order Date :- 21.1.2016 Ajeet