Oriental Insurance Co. Ltd. Rep. by Its Divisional Manager Vs. Dr. M. Mallesappa (Died) Per L.Rs. and anr. - Court Judgment

Excerpt:
- cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. the school tribunal constituted under section 8 of the maharashtra act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. teacher employed in the school run by cantonment board being covered under rule 2 (f) of the cantonment fund servants rules, 1937 can file appeal under rules 13, 14 and 15 to authorities provided therein against any order imposing any penalties etc. [deolali cantonment board v usha devidas dongre, 1993 mah. lj 74; 1993 lab ic 1858 overruled]. -- maharashtra employees of private schools (conditions of service) regulations act, 1978 [act no. 3/1978]. sections 9 & 2(21): jurisdiction of school tribunal whether a school run by cantonment board is not a recognised school within the meaning of section 2(21)? - held, the act is enacted to regulate recruitments and conditions of employees in certain private schools and provisions of the act shall apply to all private schools in the state whether receiving any grant-in-aid from the state government or not. private school is defined in section 2(2) of the act as a recognised school established or administered by a management other than the government or a local authority. recognised means recognised by director, the divisional board or state board. thus as far as the first part of the definition of being recognised is concerned, it includes, as stated above, four directors, the divisional boards and four state boards. the second part of this definition which comes after the comma refers to any officer authorised by director or by any of such boards. the question to be examined is whether school run by the cantonment board could be said to be one run by any such boards. a private school has to be recognised by the state or the divisional board or by any officer authorised in that behalf. when this phrase namely: recognised by any officer authorised by the director or by any such boards, is included in the latter part of section 2(21), such boards will be of the level of the state board or the divisional board. the boards referred to in the definition of the word recognised means the boards which deal with education at levels other than that of the level at which primary schools are operating. thus for being recognised, the school has to be recognised by the board and therefore, it has to be operating at a higher level i.e., secondary level. section 2(21) of the act defines the term recognised. the last clause therein is by any of such boards. the term such is defined in oxford dictionary as of the kind or degree indicated or implied by the context. therefore, the term such board will have to mean a divisional board of or the level of divisional board or the state board. the divisional board holds the examination and issues certificates after 10th and 12th standard examinations. the state board advises the state government on policy matters, ensures uniform pattern of secondary and higher secondary education, lays down principles for determining syllabi, prescribes text books, etc. the cantonment board does not discharge any of such duties nor is there any other board or body under the cantonments act discharging any such duties. the duties of the cantonment board are laid down in section 62 and amongst others, clause (xiv) lays down the duties of establishing and maintaining or assisting primary schools only. the cantonment board is not required to enter into the area of secondary education. therefore, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. that being the position, it is not possible to accept it to be a recognised school for being a private school under the act. for the reasons state above, the school tribunal constituted under section 8 of the act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. [deolali cantonment board v usha devidas dongre, 1993 mah.lj 74; 1993 lab ic 1858 overruled]. - 3. before the tribunal, the second respondent, who is the insurance company, took a plea that the petition is bad for nonjoinder of the necessary party i.g. yethirajulu, j.1. this civil miscellaneous appeal has been preferred by the oriental insurance company against the order of the motor accidents claims tribunal, anantapur in op. no. 248 of 1994, dated 4-7-2000.2. the o.p. was filed by the first claimant under section 166 of the motor vehicles act, 1988 (for short 'the act') claiming compensation on account of injuries received by him and after death of the first claimant, the legal representatives came on record and claimed compensation on account of death of the deceased.3. before the tribunal, the second respondent, who is the insurance company, took a plea that the petition is bad for nonjoinder of the necessary party i.e., the owner of the vehicle. the second respondent is only subject to the terms and conditions of the insurance policy and when the owner of the vehicle is not a party and when he is not made liable, in the absence of owner of the vehicle the insurance company cannot be made liable. the tribunal observed that it is true that the owner of the vehicle cannot be said to be not a necessary party and the injured or the deceased are to be indemnified by the insurer for the use of the vehicle and whether the presence of the owner of the vehicle is essential in the petition. the insurance company's liability is co-existence with the owner's liability and therefore, unless the owner's liability is established, the insurance company will not come into picture to indemnify the owner's liability. this is a general rule. while making the above observation, the tribunal further observed that the presence of owner of the vehicle is only of an academic interest and the claim, if it is otherwise maintainable, cannot be dismissed on mere technicality of not impleading the owner of the vehicle as the very legislation and the tribunal should see that the spirit of the act, but not the technical lapses, especially when this technical lapse causes hardship to the persons who are really entitled for compensation. though the claimants examined owner of the vehicle as a witness, they did not choose to implead him as the respondent.4. the learned standing counsel appearing on behalf of the insurance company/appellant submitted that in the absence of owner of the vehicle, there cannot be any liability of the insurance company and in support of his contention, he relied on a decision in oriental insurance company v. sunitha and ors. air 1998 sc 257 wherein the supreme court while considering the scope of section 149 of the act, held that as per section 149, the liability of the insurer arises only when the liability of the insured has been upheld for the purpose of indemnifying the insured under the contract of insurance.5. section 149(1) of the act reads as follows:149. duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks: (1) if, after a certificate of insurance has been issued under sub-section (3) of section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as is required to be covered by a policy under clause (b) of sub-section (1) of section 147 (being a liability covered by the terms of the policy) or under the provisions of section 163a is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall, subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if he were 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. 6. in the light of the above legal position, the observation of the tribunal cannot be appreciated and it is not based on any legal principle or statutory provision in this respect. in view of the above discussion, i find tat the order of the tribunal cannot be sustained against the insurance company and therefore, it is liable to be set aside.7. the learned counsel for the respondents/claimants submitted that on account of mistake of the advocate, the party cannot be made to suffer, therefore, he requested to remand the matter to the tribunal to enable the claimants to implead the owner of the vehicle as a party to the proceedings.8. the accident occurred on 14-11 -1993. after lapse of 13 years, it is not desirable to direct the matter to be remanded to the tribunal to give an opportunity to the claimants to implead the owner of the vehicle as a party to the proceedings. i am, therefore, not inclined to accede the request of the learned counsel for the respondents.9. in the result, the civil miscellaneous appeal is allowed by setting aside the decree and order of the tribunal against the appellant who is the second respondent in the motor accident o.p. no order as to costs. if any amount is paid by the insurance company by way of interim direction, and it is already withdrawn by the claimants, it is not liable to be refunded. if any amount is lying in the tribunal, the appellant is at liberty to withdraw the same.