Oriental Fire and General Insurance Co. Ltd. Vs. Rajkumari Mathur and ors. - Court Judgment

SooperKanoon Citationsooperkanoon.com/768804
SubjectMotor Vehicles
CourtRajasthan High Court
Decided OnDec-02-2004
Case NumberS.B. Civil Appeal No. 759 of 1993
Judge Dalip Singh, J.
Reported in2006ACJ2273
ActsMotor Vehicles Act, 1939 - Sections 95(2)
AppellantOriental Fire and General Insurance Co. Ltd.
RespondentRajkumari Mathur and ors.
Appellant Advocate G. Bardhar, Adv.
Respondent Advocate Sandeep Mathur, Adv.
DispositionAppeal dismissed
Cases ReferredNational Insurance Co. Ltd. v. Swaran Singh
Excerpt:
- - shivraj 1992 acj 1039 (rajasthan), wherein this court has taken a view that the liability in cases where the vehicle is requisitioned for election purposes is joint and several of the state government as well as owner of the vehicle. in this view of the matter the remedy available to the insurance company whose liability is joint and several with the other respondents is to make good the payment under the award if it is executed against it and in case it is required to pay any amount in excess of its statutory liability it would be open to the insurance company to recover such excess amount from the other respondents.dalip singh, j.1. this appeal has been filed against the award dated 21.8.1993 passed by learned judge, motor accidents claims tribunal (first), ajmer in motor accident claim no. 42 of 1980 whereby compensation amounting to rs. 2,82,380 with interest at the rate of 15 per cent per annum was awarded by the learned tribunal on account of death of r.n. mathur who died in accident on 26.5.1980.2. appellant is the insurance company which is insurer of the vehicle owned by abdul hamid, respondent no. 6 and which was being driven by noor mohammad, respondent no. 5. since the vehicle bearing registration no. rsz 3501 which was involved in the accident was requisitioned by the state government for election duties at the time when it met with an accident, the state of rajasthan was also impleaded as party.3. in view of the aforesaid, the learned counsel appearing on behalf of the insurance company submits that the insurance company in spite of the fact that the vehicle which met with accident being covered by the policy of insurance, the insurance company would not be liable to compensate and make the payment for any loss that might have occurred while vehicle in question was under requisition with the government.4. the aforesaid argument of learned counsel for the appellant cannot be sustained any longer because the question has already been adjudicated upon and decided by this court in a case in united india insurance co. ltd. v. shivraj 1992 acj 1039 (rajasthan), wherein this court has taken a view that the liability in cases where the vehicle is requisitioned for election purposes is joint and several of the state government as well as owner of the vehicle. i am in respectful agreement with the view taken in the aforesaid decision and relied upon by the tribunal holding that the state government and the insurance company are jointly and severally liable.5. the second submission made by the learned counsel for insurance company is that the vehicle in question being a goods vehicle, the limit of liability of the said vehicle under section 95(2)(a) of motor vehicles act, 1939 being rs. 50,000 the insurance company could not have been saddled with the liability for the whole amount. learned counsel for the appellant has relied upon the judgments of hon'ble supreme court in new india assurance co. ltd. v. c.m. jaya 2002 acj 271 (sc) and national insurance co. ltd. v. keshav bahadur 2004 acj 648 (sc) and submitted that in the aforesaid judgments it has been held that the liability of the insurance company could not exceed the statutory limit of rs. 50,000.6. learned counsel appearing on behalf of the respondent-claimant mr. sandeep mathur submits that in the instant case, the statutory liability of the insurance company appellant shall remain as rs. 50,000 as provided under section 95(2)(a) of the motor vehicles act, 1939. nonetheless then insurer is liable to satisfy the award and recover the excess amount from the owner and driver. the liability of the insurance company being rs. 50,000 would not preclude the claimants to recover the amount under the award as a whole leaving the insurer to realize and recover the excess amount so paid over and above, the statutory liability from the owner/driver who is also jointly and severally liable. he further submits that by making the insurer jointly and severally liable the limit of liability of the insurance company qua the insured is not being enhanced in any manner. he has relied upon the judgments of the hon'ble supreme court in oriental insurance co. ltd. v. cheruvakkara nafeessu 2001 acj 1 (sc) and national insurance co. ltd. v. swaran singh 2004 acj 1 (sc), wherein the lordships of the supreme court have held that it is the right of the claimant to recover the amount from any of the non-claimants including the insurer and in case the insurer is required to pay anything in excess of the liability, the insurer would be entitled to recover the same from insured.7. i have considered the rival submissions and the judgments cited at the bar. their lordships of the apex court in case of cm. jaya 2002 acj 271 (sc), have held that the liability of the insurance company cannot exceed the statutory liability. in the instant case the extent of liability of the insurance company is not in question. the said liability would be to the extent of rs. 50,000 as provided under section 95(2)(a) of the act of 1939. but as has been held in the later case of national insurance co. ltd. v. swaran singh 2004 acj 1 (sc), in para 96 at page 32 that it is the liability of the insurance company to satisfy the decree at the first instance and recover the awarded amount over and above the excess statutory liability from the owner and driver. this, as per their lordships, is the view which has been holding the field for a long time as stated in para 96. para 96 reads as under:it is, therefore, evident from the discussions made hereinbefore that the liability of the insurance company to satisfy the decree at the first instance and to recover the awarded amount from the owner or driver thereof has been holding the field for a long time.8. the above view seems to have been taken in view of the fact that the award in favour of the claimants may not remain illusionary and that they should get the actual benefit of the award in terms of money compensation. since the legislation itself is a beneficial one the interpretation has to be made which will go towards achieving the said object. in this view of the matter the remedy available to the insurance company whose liability is joint and several with the other respondents is to make good the payment under the award if it is executed against it and in case it is required to pay any amount in excess of its statutory liability it would be open to the insurance company to recover such excess amount from the other respondents.9. as held by their lordships of apex court, this is the view which has been holding the field for a long time and in this view of the matter while maintaining that the limit of liability of the insurance company appellant would remain as provided under the statute it would be open to the claimants to recover the amount from any of the respondents as their liability is joint and several and in the event of the insurer paying any amount in excess of the statutory limits it would be free to recover the same from the other respondents.10. consequently, this appeal fails and is hereby dismissed. in the facts and circumstances of this case, the parties shall bear their own costs.
Judgment:

Dalip Singh, J.

1. This appeal has been filed against the award dated 21.8.1993 passed by learned Judge, Motor Accidents Claims Tribunal (First), Ajmer in Motor Accident Claim No. 42 of 1980 whereby compensation amounting to Rs. 2,82,380 with interest at the rate of 15 per cent per annum was awarded by the learned Tribunal on account of death of R.N. Mathur who died in accident on 26.5.1980.

2. Appellant is the insurance company which is insurer of the vehicle owned by Abdul Hamid, respondent No. 6 and which was being driven by Noor Mohammad, respondent No. 5. Since the vehicle bearing registration No. RSZ 3501 which was involved in the accident was requisitioned by the State Government for election duties at the time when it met with an accident, the State of Rajasthan was also impleaded as party.

3. In view of the aforesaid, the learned Counsel appearing on behalf of the insurance company submits that the insurance company in spite of the fact that the vehicle which met with accident being covered by the policy of insurance, the insurance company would not be liable to compensate and make the payment for any loss that might have occurred while vehicle in question was under requisition with the government.

4. The aforesaid argument of learned Counsel for the appellant cannot be sustained any longer because the question has already been adjudicated upon and decided by this Court in a case in United India Insurance Co. Ltd. v. Shivraj 1992 ACJ 1039 (Rajasthan), wherein this Court has taken a view that the liability in cases where the vehicle is requisitioned for election purposes is joint and several of the State Government as well as owner of the vehicle. I am in respectful agreement with the view taken in the aforesaid decision and relied upon by the Tribunal holding that the State Government and the insurance company are jointly and severally liable.

5. The second submission made by the learned Counsel for insurance company is that the vehicle in question being a goods vehicle, the limit of liability of the said vehicle under Section 95(2)(a) of Motor Vehicles Act, 1939 being Rs. 50,000 the insurance company could not have been saddled with the liability for the whole amount. Learned Counsel for the appellant has relied upon the judgments of Hon'ble Supreme Court in New India Assurance Co. Ltd. v. C.M. Jaya 2002 ACJ 271 (SC) and National Insurance Co. Ltd. v. Keshav Bahadur 2004 ACJ 648 (SC) and submitted that in the aforesaid judgments it has been held that the liability of the insurance company could not exceed the statutory limit of Rs. 50,000.

6. Learned Counsel appearing on behalf of the respondent-claimant Mr. Sandeep Mathur submits that in the instant case, the statutory liability of the insurance company appellant shall remain as Rs. 50,000 as provided under Section 95(2)(a) of the Motor Vehicles Act, 1939. Nonetheless then insurer is liable to satisfy the award and recover the excess amount from the owner and driver. The liability of the insurance company being Rs. 50,000 would not preclude the claimants to recover the amount under the award as a whole leaving the insurer to realize and recover the excess amount so paid over and above, the statutory liability from the owner/driver who is also jointly and severally liable. He further submits that by making the insurer jointly and severally liable the limit of liability of the insurance company qua the insured is not being enhanced in any manner. He has relied upon the judgments of the Hon'ble Supreme Court in Oriental Insurance Co. Ltd. v. Cheruvakkara Nafeessu 2001 ACJ 1 (SC) and National Insurance Co. Ltd. v. Swaran Singh 2004 ACJ 1 (SC), wherein the Lordships of the Supreme Court have held that it is the right of the claimant to recover the amount from any of the non-claimants including the insurer and in case the insurer is required to pay anything in excess of the liability, the insurer would be entitled to recover the same from insured.

7. I have considered the rival submissions and the judgments cited at the Bar. Their Lordships of the Apex Court in case of CM. Jaya 2002 ACJ 271 (SC), have held that the liability of the insurance company cannot exceed the statutory liability. In the instant case the extent of liability of the insurance company is not in question. The said liability would be to the extent of Rs. 50,000 as provided under Section 95(2)(a) of the Act of 1939. But as has been held in the later case of National Insurance Co. Ltd. v. Swaran Singh 2004 ACJ 1 (SC), in para 96 at page 32 that it is the liability of the insurance company to satisfy the decree at the first instance and recover the awarded amount over and above the excess statutory liability from the owner and driver. This, as per their Lordships, is the view which has been holding the field for a long time as stated in para 96. Para 96 reads as under:

It is, therefore, evident from the discussions made hereinbefore that the liability of the insurance company to satisfy the decree at the first instance and to recover the awarded amount from the owner or driver thereof has been holding the field for a long time.

8. The above view seems to have been taken in view of the fact that the award in favour of the claimants may not remain illusionary and that they should get the actual benefit of the award in terms of money compensation. Since the legislation itself is a beneficial one the interpretation has to be made which will go towards achieving the said object. In this view of the matter the remedy available to the insurance company whose liability is joint and several with the other respondents is to make good the payment under the award if it is executed against it and in case it is required to pay any amount in excess of its statutory liability it would be open to the insurance company to recover such excess amount from the other respondents.

9. As held by their Lordships of Apex Court, this is the view which has been holding the field for a long time and in this view of the matter while maintaining that the limit of liability of the insurance company appellant would remain as provided under the statute it would be open to the claimants to recover the amount from any of the respondents as their liability is joint and several and in the event of the insurer paying any amount in excess of the statutory limits it would be free to recover the same from the other respondents.

10. Consequently, this appeal fails and is hereby dismissed. In the facts and circumstances of this case, the parties shall bear their own costs.