Abhayram Vs. Sumitrabai - Court Judgment

Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 147; [a.k. patnaik, cj, s.s. jha & a.m. sapre, jj] liability of insurer - third party insurance held, the insured who is a party to the insurance is not a third party for the purpose of chapter xi of the act, particularly section 147 thereof. thus, any person other than the insurer and the insured who are parties to the insurance policy is a third party. the insurer, however, would not be liable for any bodily injury or death of a third party in an accident unless the liability is fastened on the insurer under the provisions of section 147 of the act or under the terms and conditions of the policy of insurance. hence, the mere fact that a passenger is a third party would not fasten liability on the insurer unless such liability arises under section 147 of the act or under the terms and conditions of the insurance policy. an employee is a third party inasmuch as he is not a party to the insurance policy. but merely because an employee is a third party, the insurance company would not be liable to compensate in case such employee suffers bodily injury or dies in an accident in which the motor vehicle is involved unless section 147 of the act fixes such liability on the insured or unless the terms and conditions of the contract of insurance fixes liability on the insurer. section 147 (1)(b) of the act provides that in order to comply with the requirements of chapter xi of the act, a policy of insurance must be a policy which insures the person or classes of persons specified in the policy to the extent specified in sub-section (2) against the liabilities mentioned in clauses (i) and (ii) thereunder. even if an employee is a passenger or a person travelling in a motor vehicle which is insured as per the requirements of sub-section (1) of section 147 of the act, the insurer will not be liable to cover any liability in respect of death or bodily injury of such employee unless such employee falls in one of the categories mentioned in sub-clauses (a), (b) and (c)of clause (i) of the proviso to sub-section (1)of section 147 of the act and further in cases where such employees fall under categories mentioned in sub-clauses (a), (b) and (c) of clause (i) of the proviso to sub-section (1`) of section 147 of the act, the insurer is liable only for the liability under the workmens compensation act, 1923. [national insurance co. ltd. v sarvanlal, 2004 (4) mpht 404 (d.b) overruled]. sections 147 & 96 & m.p. m.v. rules, 1994, rule 97; [a.k. patnaik, cj, s.s. jha & a.m. sapre, jj] control of transport vehicles m.p. rules relate to provisions of control of transport vehicles and it cannot be adopted for interpreting sections 147 and 145 of the m.v. act to hold the insurer liable for death or bodily injury suffered by passenger. [national insurance co. ltd. v sarvanlal, 2004 (4) mpht 404 (d.b) overruled]. - the learned counsel pointed out that sub paragraph (c) of paragraph 2 of the petition there is an inadvertant omission in the third line and the word 'collided' had not been fully typed out, possibly because the typist could not properly understand the word and failed to type it. the averments in the pleadings read as a whole clearly make out that the case of the claimants, that the tractor had collided with raghunath ,who was on a bicycle, resulting in his fall and ultimate death. the only exception appears to be where the factum of accident itself is denied and there the tribunal may be inclined and would rather do well to hold a summary enquiry and then form an opinion as to whether the accident did take place and whether the vehicle in question was invovled in the accident or not. if from the evidence collected in such summary enquiry and other material available on record, the tribunal is satisfied prima facie that the accident did take place and the vehicle in question was involved therein, it shall have jurisidction to make an interim award under section 92-a fixing joint and several liability on the insurer alognwith the insured.orderd.m. dharmadhikari, j.1. by the present appeal under section 173 of the motor-vehicles act, 1988, the owner and driver respectively of motor vehicle tractor no. m.p.g. 1342, have challenged the interim award of rs. 15,000/- passed by the claims tribunal, raipur in favour of the respondents, in exercise of powers under sections 92a of the motor vehicles act, 1939 (now repealed by the new act).2. the impugned award has been challenged by the counsel appearing for the appellants, mainly on the ground that the tribunal did not care to examine that the motor vehicle in question was not involved in the accident which resulted in the death of raghunath. the counsel appearing for the appellants urged that in the claim petition itself there is no clear averment that there had been any collision of the deceased with the tractor and the claim tribunal without holding any enquiry and coming to a final conclusion on the same could not have passed the interim award on the basis of no fault liability. the argument of the counsel for the appellants is that the death having not taken place as a result of any collision with the tractor belonging to the appellants, there was no question of fastening any liability on the basis of no fault under section 92a of the motor vehicle act (repealed).4. learned counsel for the respondents on the other side supported the order by inviting my attention to the contents of the claim petition, particularly paragraph 2(a) to (d) and stated that raghunath was on a bicycle with his companion when the tractor coming from the opposite direction came in speed and collided against them. the learned counsel pointed out that sub paragraph (c) of paragraph 2 of the petition there is an inadvertant omission in the third line and the word 'collided' had not been fully typed out, possibly because the typist could not properly understand the word and failed to type it. the averments in the pleadings read as a whole clearly make out that the case of the claimants, that the tractor had collided with raghunath , who was on a bicycle, resulting in his fall and ultimate death.5. the learned counsel for the respondents also urged that the claim tribunal is holding that the tractor was involved in the accident took into account the relevant matter, such as the first information report lodged in the police station and the post mortem report of the body of the deceased raghunath.6. having considered the rival submissions of the parties i am of the view that the claims tribunals committed no error in making the award in favour of the respondents. for passing an award on no fault liability under section 92-a substituted as section 140 of new act, the tribunal is expected only to hold summary enquiry and is not expected at that stage to hold the detailed enquiry, which is to be held only at the final stage of evidence in the claim case. such a view has been taken by this court in two decision (i) by lahoti j. in dwarika v. biso and ors. : air 1990 mp258 . the observations in dwarika's case (supra) may be seen in paragraph 15(iv) as under:the only exception appears to be where the factum of accident itself is denied and there the tribunal may be inclined and would rather do well to hold a summary enquiry and then form an opinion as to whether the accident did take place and whether the vehicle in question was invovled in the accident or not. if from the evidence collected in such summary enquiry and other material available on record, the tribunal is satisfied prima facie that the accident did take place and the vehicle in question was involved therein, it shall have jurisidction to make an interim award under section 92-a fixing joint and several liability on the insurer alognwith the insured. of course, after tyring claim on merits while expressing a final opinion and passing an award under section 110b of the act, the tribunal would not be bound by the opinion recorded earlier at the time of making the interim award under section 92asame view has also been taken by seth j. (ii) in national insurance company v. radhalal (m.a. no. 371 of 1989 (j), decided on 15.2.1990). in the instant case, there was material before the tribunal in the shape of first information report and postmortem report to show that the deceased died due to collision with the tractor. the tractor was prima facie involved in the accident and that there was sufficient prima facie internal to fasten the liability on the owner and the driver of the vehicle to pay compensation under section 92a of the act.7. in view of the above, the appeal has no force and is hereby dismissed, but without any order as to costs.

Judgment:
ORDER

D.M. Dharmadhikari, J.

1. By the present appeal under Section 173 of the Motor-Vehicles Act, 1988, the owner and driver respectively of Motor Vehicle tractor No. M.P.G. 1342, have challenged the interim award of Rs. 15,000/- passed by the Claims Tribunal, Raipur in favour of the respondents, in exercise of powers under Sections 92A of the Motor Vehicles Act, 1939 (now repealed by the new Act).

2. The impugned award has been challenged by the counsel appearing for the appellants, mainly on the ground that the Tribunal did not care to examine that the motor vehicle in question was not involved in the accident which resulted in the death of Raghunath. The counsel appearing for the appellants urged that in the claim petition itself there is no clear averment that there had been any collision of the deceased with the tractor and the Claim Tribunal without holding any enquiry and coming to a final conclusion on the same could not have passed the interim award on the basis of no fault liability. The argument of the counsel for the appellants is that the death having not taken place as a result of any collision with the tractor belonging to the appellants, there was no question of fastening any liability on the basis of no fault under Section 92A of the Motor Vehicle Act (repealed).

4. Learned Counsel for the respondents on the other side supported the order by inviting my attention to the contents of the claim petition, particularly paragraph 2(a) to (d) and stated that Raghunath was on a bicycle with his companion when the tractor coming from the opposite direction came in speed and collided against them. The learned Counsel pointed out that sub paragraph (c) of paragraph 2 of the petition there is an inadvertant omission in the third line and the word 'collided' had not been fully typed out, possibly because the typist could not properly understand the word and failed to type it. The averments in the pleadings read as a whole clearly make out that the case of the claimants, that the tractor had collided with Raghunath , who was on a bicycle, resulting in his fall and ultimate death.

5. The learned Counsel for the respondents also urged that the Claim Tribunal is holding that the tractor was involved in the accident took into account the relevant matter, such as the first information report lodged in the police station and the post mortem report of the body of the deceased Raghunath.

6. Having considered the rival submissions of the parties I am of the view that the Claims Tribunals committed no error in making the award in favour of the respondents. For passing an award on no fault liability under Section 92-A substituted as Section 140 of New Act, the Tribunal is expected only to hold summary enquiry and is not expected at that stage to hold the detailed enquiry, which is to be held only at the final stage of evidence in the claim case. Such a view has been taken by this court in two decision (i) by Lahoti J. in Dwarika v. Biso and Ors. : AIR 1990 MP258 . The observations in Dwarika's case (supra) may be seen in paragraph 15(iv) as under:

The only exception appears to be where the factum of accident itself is denied and there the tribunal may be inclined and would rather do well to hold a summary enquiry and then form an opinion as to whether the accident did take place and whether the vehicle in question was invovled in the accident or not. If from the evidence collected in such summary enquiry and other material available on record, the tribunal is satisfied prima facie that the accident did take place and the vehicle in question was involved therein, it shall have jurisidction to make an interim award under Section 92-A fixing joint and several liability on the insurer alognwith the insured. Of course, after tyring claim on merits while expressing a final opinion and passing an award under Section 110B of the Act, the Tribunal would not be bound by the opinion recorded earlier at the time of making the interim award under Section 92A

Same view has also been taken by Seth J. (ii) in National Insurance Company v. Radhalal (M.A. No. 371 of 1989 (J), decided on 15.2.1990). In the instant case, there was material before the tribunal in the shape of first information report and postmortem report to show that the deceased died due to collision with the tractor. The tractor was prima facie involved in the accident and that there was sufficient prima facie internal to fasten the liability on the owner and the driver of the vehicle to pay compensation under Section 92A of the Act.

7. In view of the above, the appeal has no force and is hereby dismissed, but without any order as to costs.