Oriental Insurance Co. Ltd. Vs. Shri Prakash and ors. - Court Judgment

Excerpt:
- r.d. shukla, j.1. this revision is directed against the order dated 20.1.1992 passed by the ivth member, motor accidents claims tribunal, indore, in claim case no. 64 of 1991, whereby the appellant insurance company has been directed to make payment of the interim award to the tune of rs. 12,000.2. the contention of the learned counsel for the appellant is that the driver and the owner of the vehicle have not been served and it is the risk of the owner, that is, covered by the insurance company and, therefore, the interim award could not be passed. the second contention of the learned counsel for the appellant is that the insurance was done after the accident and, therefore, the insurance company is not liable.3. as against it learned counsel for the respondents has submitted that the interim compensation is paid to the claimant at the earliest and, therefore, all these formalities are not required to be observed and subsequently if it is found that the vehicle was not insured with the insurance company, the owner may be directed to return the money as paid by the insurance company.4. it is an established principle of law that primarily the driver of the vehicle, who rashly and negligently drives the vehicle and causes accident, is liable for the compensation. the owner of the vehicle is made liable on the principle of vicarious liability as the same has been done by the servant of the owner.5. the insurance company stands to cover the risk of the owner on payment of certain premiums and, therefore, the liability on the insurance company can be saddled only for the driver and the owner who are found liable. in this case the driver and the owner of the vehicle have not been served. they have not been given an opportunity to be heard. under the circumstances the first contention of the learned counsel for the appellant is correct that the insurance company cannot be made liable to the payment of compensation before the service on the driver and the owner of the vehicle. learned counsel for the respondents has submitted that this may take a long time but that ground cannot be taken as the procedure for getting the service effected.6. now so far as the second point is concerned, the insurance relates back to the previous night of the dates mentioned therein, i.e., after 12 o'clock from the date begins.7. on a perusal of the certificate filed by the applicant here it appears that the vehicle was insured on 22.4.1991 and effective date of the commencement of the insurance for the purpose of the act has been shown to be 22.4.1991. under these circumstances the insurance would begin from the midnight of 21st and 22nd, i.e., after 12 o'clock. reference may be made to new india assurance co. ltd. v. ram dayal 1990 acj 545 (sc). learned counsel for the appellant has submitted that the certificate shows that the insurance has been made effective from 9.00 p.m. but the certificate filed before the lower court shows that it has been made effective from 22.4.1991 and not from 9.00 p.m. of 22.4.1991 and, therefore, this contention of the learned counsel for the appellant cannot be accepted. in view of the fact that since the service has not been effected on the driver and the owner of the vehicle the present order of the tribunal cannot be sustained.8. the appeal is, therefore, accepted. the order of the motor accidents claims tribunal, indore, is set aside. in the facts and circumstances of the case the parties shall bear their own costs. the records be sent back to the execution court. no further notice would be required in the case. the parties are directed to appear before that court on 1.9.1992.