AO/257/2010 of NEW INDIA ASSURANCE CO. LTD Vs SMT HASEENA KHATOON and OTHERS

AO No. 257 of 2010

Hon’ble Servesh Kumar Gupta, J.

Mr. M.K. Goyal, Advocate for the appellant.

Mr. Prabhakar Joshi, Advocate for the respondent nos.1 to 4.

The Insurance Company has challenged the Award rendered by the Tribunal on the ground that the vehicle, in question, was public vehicle meant for carrying the passengers charging fare from them. It was the Mahindra Jeep being plied in the hill region while the driver of the same had only the licence of driving motorcycles as well as the private Light Motor Vehicles. So, the order of the Tribunal, asking the Insurance Company to pay the amount awarded, is illegal. In place of the Insurance Company, the amount would have been the responsibility of the vehicle owner who entrusted the vehicle to be driven by such driver.

Learned counsel has relied on the judgment of this Court in the United Insurance Company Ltd. v. Smt. Tara Devi and others, 2009(2) U.D. 539, wherein the judgement decided by the Hon’ble Apex Court on 31.08.2009 in case of National Insurance Co. Ltd. v. Parvathneni and another, has been referred. It was held that where, under the insurance policy, only the Owners and Drivers had been ensured and not the gratuitous passengers in the car, then the dependant of these gratuitous passengers could not have been awarded the compensation payable by the Insurance Company. This precedent is in quite different context as is apparent that the car, which met with the accident, was being driven by the owner of the same

and under the Policy, only the owner and driver of the car were insured. So, in that case, Another Judge of this Court held that the Insurance Company was not liable to pay the amount to the dependant of the gratuitous passengers with liberty to recover the same from the owner of the vehicle. It is obvious that this precedent is at all not applicable in the present controversy.

Rather, the precedents relied upon by the respondent’s counsel are perfectly applicable in the present controversy which are as under:-

1. “National Insurance Co. Ltd. v. Swaran Singh and others (2004) 3 SCC 297.Swaran Singh and others (2004) 3 SCC 297.

2. S. Iyyapan v. United India Insurance Co. Ltd. and another, (2013) 7 SCC 62.Insurance Co. Ltd. and another, (2013) 7 SCC 62.3. Pepsu Road Transport Corporation v. National Insurance Company, (2013) 10 SCC 217.”Corporation v. National Insurance Company, (2013) 10 SCC 217.”

In all these precedents, almost similar view has been taken by the Full Bench of the Hon’ble Apex Court. It was held that in the beneficial statutes, the interpretation of the law should be different than the statutes which is penal in nature. Even the vehicle was being driven by person, having no licence at all, much less the licence not endorsed for driving the passenger vehicles in the hills, then also, the Insurance Company cannot escape from the liability, otherwise, the purpose of getting the vehicle insured for third party accident will be frustrated.

I feel that there is no force in the appeal and it is, accordingly, dismissed.

However, the finding recorded by the court below making the Insurance Company entitled to recover the money from the vehicle owner is left intact. The amount deposited by the appellant-Insurance Company before this Court be transmitted to the concerned Tribunal for being paid to the claimants/respondents.

(Servesh Kumar Gupta, J.) 19.08.2014

Ravi