(Per : HONOURABLE MR.JUSTICE AKIL KURESHI)
1. These appeals arise out of a common judgment and award of the Motor Accident Claims Tribunal (Aux.), Mehsana dated 21st January 2002 passed in Motor Accident Claim Petitions Nos.1117/91, 1134/91 and 1048/91. Brief facts may be noted at this stage.
2. On 7.7.91, a jeep hired by the Gujarat Electricity Board carrying two Deputy Engineers and which was being driven by the driver employed by GEB met with a serious accident in the early morning hours when it collided with a tanker coming from opposite direction. In the accident, driver and both the Deputy Engineers of GEB died. For the death of Dasrathbhai Maganbhai, Deputy Engineer, his dependents which included his widow, minor children and aged parents filed Claim Petition No.1117/91 claiming compensation of Rs.20 lacs. Likewise, for the death of C. Laxminarayan, also a Deputy Engineer, his dependents filed Claim Petition No.1134/91 claiming compensation of Rs.16 lacs. For the death of driver Anwarkhan, his dependents filed Claim Petition No.1048/91 claiming compensation of Rs.3 lacs.
3. The Claims Tribunal on the basis of the evidence produced before it came to the conclusion that the accident occurred due to 60% negligence of the driver of the tanker and 40% of that of the driver of the jeep. With respect to the claims made in MACP No.1117 of 1991, the Tribunal awarded compensation of Rs.12,78,000/-, in MACP No.1134/91, the Tribunal awarded compensation of Rs.11,88,000/- and in MACP No.1048/91 for the death of the driver of the jeep, the Tribunal awarded a sum of Rs.2,30,000/-.
4. We may record that the tanker involved in the accident was insured by the National Insurance Company and such insurer has accepted the common award of the Claims Tribunal and not preferred any appeal against the same. Before us, the Oriental Insurance Company has preferred three appeals calling in question the legality of the award of the Claims Tribunal in all the three petitions. The appellant Insurance Company is the insurer of the jeep in question. All the three appeals are sought to be maintained on single legal contention, namely, that in view of breach of terms of policy of insurance, the Insurance Company was not liable to satisfy the award.
5. Before dealing with such contention, we may also record that in MACP Nos.1117/91 and 1134/91, the Claims Tribunal held the GEB also jointly and severally liable to satisfy the award. In MACP No.1048/91, GEB was not joined as opponent and therefore the GEB is not required to satisfy the award passed in such claim petition.
6. Learned Shri Rajni Mehta appearing for the appellant Insurance Company submitted that the jeep was owned by a private owner who had taken out the insurance. As per the terms of the policy, risk for the use of the vehicle for hire and reward was not covered. Taking us through the terms of the policy, he further submitted that the insurance policy did not cover the risk of the employees being carried in such vehicles also. Counsel further submitted that in case of MACP No.1048/91, while awarding compensation of Rs.2,30,000/-, the Claims Tribunal omitted to deduct 40% attributable to the negligence of the driver whose dependents were the claimants before the Tribunal.
7. Learned counsel Ms.Acharya for the GEB opposed the appeals contending that the vehicle was duly insured. The Insurance Company, therefore, cannot escape the liability to satisfy the award. She, however, agreed that the vehicle was taken on hire by the GEB and the same was being driven by the driver of the GEB at the time when the vehicle met with the accident. On the basis of the above clear evidence on record, it is required to be ascertained whether the Insurance Company can be held to satisfy the award as held by the Claims Tribunal. Before doing so, however, we may record that the Insurance Company has not in any manner questioned the finding of the Tribunal with respect to the degree of negligence of the drivers as also the computation of compensation payable to the claimants in each case. We have, therefore, focused our attention solely on the legal contentions raised before us.
8. The Insurance policy provides that the policy does not cover the use for hire or reward or for organized racing,pace-making, reliability trial, speeding testing, for carriage of goods (other than samples), in connection with any trade or business or use any purpose in connection with the motor trade. The policy also provided that the insured would not be indemnified if the vehicle is used or driven otherwise than in accordance with the schedule. One of the important conditions of the insurance with regard to liability to third parteis, read as under:
"1.
The Company will indemnify the insured in the event of accident caused by or arising out of the use of the Motor Car against all sums including claimants costs and expenses which the insured shall become legally liable to pay in respect of
(a) death of or bodily injury to any person including occupants carried in the Motor Car provided that such occupants are not carried for hire or reward but except so far as is necessary to meet the requirement of section 92 and section 95 of the Motor Vehicles Act,1939. The Company shall not be liable where such death or injury arises out of and in the course of employment of such person by the insured."
From the above, it can be seen that the insurance was not for the purpose of covering the risk for the use of vehicle for hire or reward. Admittedly, the vehicle in question was given on hire by the owner to the GEB. In that view of the matter, the Insurance Company was not liable to satisfy the award. Additionally, condition (1) of section II pertaining to liability to third parties also provides that insurance would not cover the risk of the employee driving the vehicle. We had an occasion to deal with somewhat similar situation in First Appeal No.2214 of 1999 which was decided by judgment dated 7.2.12. Following the decision of the Apex Court in the case of Oriental Insurance Co. Ltd. v. Meena Variyal & ors., 2007 ACJ 1284, we had absolved the Insurance Company of its liability to satisfy the award with respect to the death of an employee of the Government traveling in the vehicle. On such grounds, we are of the opinion, that these appeals are required to be allowed and the appellant Insurance Company is required to be absolved of its liability to satisfy the awards. We accordingly do so in all the three cases.
9. Before closing, however, may way recall that in MACP No.1117/91 and in MACP No.1134/91, GEB is held jointly and severally liable to satisfy the award. GEB has not filed any appeal against such judgment. In that view of the matter, despite this order that we pass, GEB would continue to be liable to satisfy the award. Even otherwise, we are of the opinion that GEB as the employer of the driver who caused the accident and who had taken the vehicle on hire cannot escape the liability to pay the compensation for the tortuous act of the agent. We notice that in the case of National Insurance Company Ltd. v.
Deepa Devi, 2008 ACJ 705, the Apex Court had held that the Government is liable to satisfy the award where the vehicle requisitioned by the Government for election duty and being driven by the Government driver met with an accident. These observations and findings will apply only in MACP Nos.1117/91 and 1134/91. In MACP No.1034/91, GEB was not a party before the Claims Tribunal. In that case, the award of Rs.2,30,000/- shall have to be reduced by 40% which represents the negligence attributable to the jeep driver himself.
10. In the result, all the three appeals are allowed. The appellant Insurance Company is absolved of the liability to satisfy the award which represented 40% of the claim granted by the Claims Tribunal for the negligence of the driver of the jeep. The awards of the Tribunal stand modified accordingly. We are informed that pending these appeals, the Insurance Company had deposited its share of 40% of the amounts awarded by the Claims Tribunal in each case and such amounts have also been withdrawn by the respective claimants. We have held that GEB would continue to be liable to satisfy the award in MACP No.1117/91 and 1134/91. In those cases, the Insurance Company shall receive the amount deposited by it from GEB with simple interest at the rate of 9% per annum from the date of deposit till the same is returned by GEB which shall be done within two months from the date of receipt of a copy of this order. It is clarified that this direction shall not cover the amount deposited by the Insurance Company in case of MACP No.1048/91.
R & P be transited to the Claims Tribunal.
(Akil Kureshi J.) (C.L.Soni, J.) (vjn) Top