Ramchandra vs R.M., United India Ins.Co.Ltd

The judgment and order dated 17.4.2007 passed by the High Court of Karnataka at Bangalore in M.F.A.No. 6711/2004 (MV) is the subject matter of challenge in this appeal whereby the learned single Judge of the High Court was pleased to allow the appeal preferred by the respondent No.1- United India Insurance Company Ltd. through its Regional Manager holding therein that the liability of the respondent No.1-United India Insurance Company Ltd. (shortly referred to as ‘the Insurance Company’) to pay compensation is restricted to one under the Workmen’s Compensation Act, 1923 and the amount to which the respondent No.1 herein will be liable to pay is Rs.32091/- (Rupees Thirty Two Thousand and Ninety One Only) and the balance amount will have to be borne by the insured -owner of the vehicle who had been impleaded by the appellant/claimant as respondent No. 2 herein but was allowed to be deleted by this Court from the array of parties at the risk of the appellant/claimant herein. The High Court vide its impugned order was thus pleased to hold that the liability of the insurance company/respondent No.1 is restricted to the one under the Workmen’s Compensation Act, 1923 only and hence was not liable to pay any compensation under the Motor Vehicles Act, 1988.

3. Relevant factual details giving rise to the aforesaid question in this appeal disclose that the appellant/claimant filed a claim petition claiming compensation for the injuries sustained by him in a road traffic accident which took place on 10.9.1996 about 4.00 p.m. when the claimant was travelling in a Swaraj Mazda Matator bearing registration No. KA-01-2337 as a cleaner. According to the case of the claimant, the driver of the vehicle drove the same in a rash and negligent manner and when the said vehicle came near Doddabande Crossing, the vehicle dashed against the lorry bearing registration No. TN-28B-8397 which was parked on the road as a result of which the appellant who was travelling on the said vehicle as a cleaner sustained grievous injuries. The injured was, therefore, taken for the first aid treatment at Penukonda Government Hospital and was later shifted to Victoria Hospital, Bangalore as an inpatient. The 2nd respondent in this appeal was Mr. S. Sathyamurthy who admittedly is the owner of the vehicle Swaraj Mazda and the said vehicle was insured with the 1st respondent herein the United India Insurance Company Ltd. Hence, the claimant laid claim against both the respondents before the Motor Accident Claims Tribunal and Court of Small Causes at Bangalore wherein he urged that the respondents are liable to pay just and adequate compensation.

4. The respondent No.1- insurance company appeared and filed objections contending therein that the vehicle was being driven without a valid and effective driving license in contravention of the provisions of the Act due to which the insurance company was not required to pay any compensation. It was further contended by the insurance company that the vehicle in question is a passenger carrying vehicle and the policy of insurance issued was only an act coverage in which the claimant appellant was proceeding as a cleaner. Hence the policy of insurance issued by the respondent does not cover the risk of the cleaner as per Section 147 of the Motor Vehicles Act since the policy of insurance covering the accident vehicle being an act of coverage does not cover the risk of the cleaner; hence the respondent insurance company was not liable to pay compensation. The respondent -insurance company, therefore, sought dismissal of the claim petition.

5. The respondent No.2/the owner of the vehicle herein although was served with the notice, he failed to appear before the tribunal and hence the matter proceeded only against the respondent – insurance company.

22. The question, therefore, is whether the amount of compensation could rightly be apportioned between the insurer/insurance company and the insured/owner of the vehicle. However, the owner of the vehicle had not appeared before the tribunal but the insurance company allowed the matter to be proceeded before the tribunal and when the respondent/insurance company filed an appeal in the High Court, the insured/owner of the vehicle once again failed to appear but the Respondent- Insurance Company did not pursue for his appearance. The High Court, however, further overlooked that the apportionment of the amount of compensation between the owner of the vehicle and the insurance company was an inter se dispute between insurance company and the insured/owner of the vehicle and, therefore, the order due to non-appearance of the insured/owner of the vehicle could not have been passed to the detriment of the claimant as the claimant in any case is entitled to the amount of compensation determined by the tribunal. If the insurance company acquiesced with the situation and allowed the proceeding to continue even in absence of the insured/owner of the vehicle who has been held liable to pay the amount even though the insured might have been liable to pay higher premium, the consequence of the same obviously will have to be borne by the insurance company and the claimant cannot be made to suffer.

26. In the instant matter, we have noted that the High Court although had granted liberty to the insurance company to realise the amount from the owner of the vehicle, it failed to record expressly that the respondent insurance company shall pay the amount to the appellant/claimant determined by the Motor Accident Claims Tribunal although impliedly the High Court has not denied the amount to the claimant/appellant. But in absence of a categorical direction to the respondent/insurance company to pay the entire amount to the appellant as determined by the Motor Accident Claims Tribunal, the appellant is bound to confront impediments in realizing the amount. Hence, the direction of the High Court is clarified to the extent by recording that the respondent/insurance company shall pay the balance amount also beyond Rs.32,091/- along with interest to the Claimant expeditiously but not later than a period of six weeks from the date of receipt of this order.

27. We are , thus, pleased to hold that the judgment and order of the High Court which impliedly held that the employee/claimant is entitled to compensation only under the Workmens’ Compensation Act and not under the Motor Vehicle’s Act stands set aside and the liberty granted to the Respondent/Insurance Company to realise the amount from the owner without a corresponding direction to the Respondent/Insurance company to pay the amount to the Claimant/Appellant making the appellant liable to realise it from the owner of the vehicle stands modified as indicated hereinbefore. The appeal accordingly is allowed but we refrain from making any order as to costs.

………………………………..J (G.S. Singhvi) ………………………………..J (Gyan Sudha Misra) New Delhi, August 2, 2013