Oriental Insurance Co. Ltd vs Vimla Devi And Ors

Oriental Insurance Co. Ltd. ....Appellant

Versus

Vimla Devi and Ors. ....Respondents

JUDGMENT

Dr. ARIJIT PASAYAT, J.

1. Leave granted.

2. Challenge in these appeals is to the order passed by a Division Bench

of the Uttaranchal High Court. Three appeals filed by the appellant against

the common judgment and award dated 10.10.2003 passed by Motor

Accidents Claims Tribunal, District Judge, Tehri Garhwal (in short the `MACT') were dismissed. It is the case of the claimants who filed a Claim

Petition under Section 166 of the Motor Vehicles Act, 1988 (in short the

`Act') that because of rash and negligent driving of the driver of the vehicle

i.e. UP.07-F-4885 the vehicle fell into a ditch resulting in the death of three

persons namely, Sohan Singh, Uttam Singh and a boy Rakesh Singh aged

about 12 years. The dependants of the deceased filed three Claim Petitions

for compensation. The appellant-Oriental Insurance Company took the

stand the accident occurred due to mechanical failure of the vehicle and in

any event the insurance company had no liability as the offending vehicle

was being driven in violation of the terms and conditions of the policy and

the driver of the offending vehicle did not have a valid driving license. The

MACT took the view that the policy was operative for a period from

5.7.1999 to 4.7.2000 and since the accident occurred on 13.4.2000 it was

within the validity period. The MACT also noticed that the driver's license

was valid during the period of time when the accident occurred. The MACT

and the High Court held that the vehicle was the subject matter of insurance

for goods as well as for passengers, though it was a goods commercial

vehicle. MACT did not accept the stand of the appellant-Insurance company

holding that no premium was paid for any passenger. The High Court also

accepted the said view.

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3. In support of the appeals, learned counsel for the appellant submitted

that the original records produced by the insurance company clearly show

that no premium was received in respect of any non fare paying non

employees. It was the stand of learned counsel for the appellant that both

the MACT and the High Court erroneously held that the premiums were

paid for the goods as well as for the passengers. In fact no premium was

paid for passengers as admittedly the vehicle was a goods commercial

vehicle. The appeal survives in respect of respondent No.9. The details of

premium paid by the owner have been indicated in the policy that the

following amounts were paid:

Third party liability Rs.2,779.00

Third Party Property Damage Rs. 75.00

NFPE Rs. 50.00

Driver Rs. 15.00

Coolie Rs. 15.00

4. The MACT and the High Court appear to have proceeded on

erroneous premises that the premium was also paid in respect of goods and

passengers. In the aforesaid circumstances we think it appropriate to remit

3 the matter to the MACT to consider the original documents relating to

payment of premium which have been summarized in the paper book the

amount of premium paid, and determine the person from whom the recovery

is to be made. Without expressing any opinion on the merits, we remit the

matter to MACT for taking a decision. It shall permit the appellant to

produce such material or evidence which according to it has relevance.

4. The appeals are allowed to the aforesaid extent.

...........................................J. (Dr. ARIJIT PASAYAT)

..........................................J. (ASOK KUMAR GANGULY)

New Delhi, February 09, 2009

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