New India Assurance Co. Ltd. Vs. Dharam Singh Bhai and ors. - Court Judgment

Excerpt:
- - 18. the driver and owner of the truck as well as the insurance company did not lead any evidence. 3, the tribunal held that burden to prove this issue was on the insurance company which led no evidence and, thus, failed to prove this issue and, therefore, it was decided against the insurance company, 5. i have heard learned counsel for the parties, perused the judgment and award impugned as also the available record. he further contended that insurance company failed to produce any evidence before the tribunal to substantiate its contention and, therefore, the tribunal was justified in holding the insurance company liable for the compensation. the test in such a situation would be who would fail if no evidence is led. the answer is obvious, that the party on whom the burden to prove lay must fail, i. not only this, the insurance company failed to produce the policy even before this court. it was further held that the use of the words 'third party' therefore, in chapter xi of the act clearly refers to the intention of the legislature to point out to a party which is neither the first party nor the second party to a contract of insurance. the use of words 'third party' clearly indicates that it refers to a party who is neither the first party nor the second party to a contract of insurance and, therefore, the expression 'third party' includes everyone be it a person travelling in the vehicle itself or otherwise. so far as judgments relied on by learned counsel for the insurance company are concerned, they clearly deal with the insurance policies, which were on record of those cases. more so, in the instant case, the insurance company has failed to place the policy on record.h.r. panwar, j.1. this appeal and the cross-objection are directed against the judgment and award dated 13.5.1999 passed by motor accidents claims tribunal, udaipur (hereinafter referred to as 'the tribunal'), whereby the tribunal awarded compensation of rs. 84,582 in favour of respondent-claimant no. 1 dharam singh bhai (for short 'the claimant' hereinafter) against the appellant new india assurance co. ltd. (for short 'the insurance company' hereinafter) and respondent nos. 2 and 3 holding them liable jointly and severally.2. aggrieved by the judgment and the award impugned, the insurance company has filed the present appeal and feeling dissatisfied with the quantum of compensation assessed and awarded by the tribunal, the claimant has filed the cross-objection seeking enhancement of compensation.3. briefly stated, facts to the extent they are relevant and necessary for the decision of the appeal and cross-objection are that on 21.10.1994, marble slabs owned by the claimant were loaded in the truck bearing registration no. rj 27-g 1487 to be transported from chittorgarh to palanpur (gujarat). the said truck was owned by respondent no. 2 khemraj and was driven by its driver respondent no. 3 dayalal. on the relevant date, the truck was insured with the appellant insurance company. on 21.10.94 at about 10.30 p.m. while the said truck was plying on udaipur-ahmedabad road, at that time, another truck no. dli g-a 4949 came from opposite direction. it was alleged that respondent no. 3 dayalal was driving truck no. rj 27-g 1487 rashly and negligently due to which it collided with truck no. dli g-a 4949. as a result of the collision, truck no. rj 27-g 1487 turned turtle and marble slabs loaded in the truck owned by claimant-respondent no. 1 were broken into pieces and as such, according to the claimant, he sustained loss of rs. 94,975. a claim petition was filed by the claimant against the driver, owner and the insurance company of the truck no. rj 27-g 1487. before the tribunal, the insurance company filed the written statement, however, the driver and owner of the said truck did not choose to file the written statement.4. on the pleadings of the parties, the tribunal framed as many as 4 issues. issue no. 3 was cast on the pleadings of the insurance company and the burden to prove this issue was also placed on the insurance company. the claimant had appeared as a witness before the tribunal and stated that vide exhs. 2 and 3, he purchased marble slabs from m/s. j.b. marbles and granites, chittorgarh, costing him rs. 29,431 and from mansoori marbles, chittorgarh at a price of rs. 57,650. he further stated that vide bilty exh. 3, the afore noticed marble slabs (green) were being transported in the truck no. rj 27-g 1487 from chittorgarh to palanpur on hire. he placed on record the spot photographs, exh. 6 (total 9 photographs). he has also proved the report of surveyor shayam m. heerani, exh. 5 and fee receipt for conducting survey and the assessment of losses, exh. 4; notice demanding compensation exh. 7 (in gujarati language); of which english translation, exh. 8; receipt, exh. 9; postal receipts, exh. 10; acknowledgment of which, exh. 11; certified copies of police investigation papers, exh. 12; f.i.r., exh. 13; site map, exh. 14; seizure memo of the truck, exh. 15; mechanical inspection report, exh. 16; registration certificate of truck, exh. 17; driving licence of respondent no. 3, exh. 18. the driver and owner of the truck as well as the insurance company did not lead any evidence. on appreciation of evidence, the tribunal held that due to rash and negligent driving of truck no. rj 27-g 1487 by its driver respondent no. 3, the property owned by the third party claimant was damaged for which the tribunal assessed the loss/damage at a sum of rs. 83,582 and added to that rs. 1,000 for costs of claim petition and awarded rs. 84,582. thus issue nos. 1, 2 and 4 were decided. while deciding issue no. 3, the tribunal held that burden to prove this issue was on the insurance company which led no evidence and, thus, failed to prove this issue and, therefore, it was decided against the insurance company,5. i have heard learned counsel for the parties, perused the judgment and award impugned as also the available record.6. the only point argued by the learned counsel for the insurance company is that the tribunal fell in error in holding the insurance company liable for the compensation. he contended that the liability of the insurance company is governed by section 147(2)(b) of the motor vehicles act, 1988 (for short 'the act' hereinafter). he further contended that insurance company cannot be held liable for the damage caused to the goods, which was carried in the said truck as the insurance company is under no statutory obligation to cover any contractual liability. lastly, he contended that the claimant is not a third party and insurance company cannot be made liable to indemnify the insured for the compensation to be paid to the claimant.7. section 145(e) of the act defines property which includes goods carried in the motor vehicle, roads, bridges, culverts, causeway, trees, posts and milestones. section 145(g) of the act defines the words 'third party' which includes the government.8. learned counsel for the claimant contended that no such plea was taken by the insurance company in its written statement filed before the tribunal regarding contractual liability. he further contended that insurance company failed to produce any evidence before the tribunal to substantiate its contention and, therefore, the tribunal was justified in holding the insurance company liable for the compensation.9. learned counsel for the insurance company relied on judgment of himachal pradesh high court in national insurance co. ltd. v. ramesh kumar, 1999 acj 1305 (hp) and the judgment of karnataka high court in oriental insurance co. ltd. v. k. buden sab, 2002 acj 139 (karnataka).10. i have carefully gone through the judgment of the tribunal. before the tribunal, counsel for the insurance company contended that the insurance company has no objection for awarding damages to the extent of the actual loss caused to the property of claimant, i.e., to the extent of rs. 87,082. this express concession made by the counsel for the insurance company binds the appellant insurance company.11. in state of maharashtra v. ramdas shrinivas nayak, air 1982 sc 1249, hon'ble supreme court held that the judges' record was conclusive. neither the lawyer nor litigant may claim to contradict it, except before the judge himself, but nowhere else. it was further held by their lordships that the court is bound to accept the statement of the judges recorded in their judgment, as to what transpired in court. it cannot allow the statement of judges to be contradicted by statements at the bar or by affidavit and other evidence. thus, the contention raised by the learned counsel for insurance company is contrary to the record of the tribunal which is based on the admission made by the counsel of insurance company and thus, the contention raised cannot be sustained.12. the dispute raised by the insurance company is with regard to the amount claimed by the claimant for fee of surveyor, expenses of photographs, etc. in the written statement filed by the insurance company before the tribunal, the insurance company admitted that the said truck owned by respondent no. 2 khemraj was insured with the insurance company on the relevant date of accident. the accident has not been disputed in reply to para 9 of the claim petition. the insurance company admitted the said accident in the written statement. the only point raised by the insurance company was that the driver of the truck no. rj 27-g 1487 was not alone negligent but the driver of the other truck which came from opposite direction bearing no. dli g-a 4949 was also negligent and without impleading the driver, owner and insurer of that truck, the claim petition filed by the claimant is not maintainable. on this pleading, the tribunal framed issue no. 3. insurance company did not lead any evidence to prove this issue. the burden to prove issue no. 3 was squarely placed on the shoulders of the insurance company. the test in such a situation would be who would fail if no evidence is led. the answer is obvious, that the party on whom the burden to prove lay must fail, i.e., the insurance company [vide narcinva v. kamat v. alfredo antonio doe martins, 1985 acj 397 (sc)]. before the tribunal, the insurance company did not produce the policy. not only this, the insurance company failed to produce the policy even before this court. the cover note by which the said truck was insured by the appellant insurance company is placed on record. on perusal of the cover note, it reveals that respondent no. 2, the owner of the said truck paid additional premium of rs. 75 for covering unlimited risk to third party property damage. the fact has not been disputed by the learned counsel for the insurance company. the contention raised by the counsel for the insurance company is that the claimant is not a third party. the words 'third party' has been defined in the act. section 145(g) of the act defines the words 'third party' which includes the government. however, in ordinary dictionary, the meaning of 'third party' is the party other than the party to the contract who is incidentally involved. in webster's encyclopedic unabridged dictionary, the words 'third party' mean 'any party to an incident who is incidentally involved'. in concise oxford dictionary, the expression 'third party' means covering damage or injury suffered by a person other than the insured. in legal glossary, 1992 edn., government of india's publication, the expression 'third party' means the person who is not party to a contract of agreement or any matter in which actual parties are concerned. the 'third party' means one who is stranger to the transaction. in the instant case, the insurance company is first party and the insured is the second party. other than these two, every person is a third party including the claimant who has incidentally suffered the damage on account of negligence of respondent no. 3. more so, section 145(g) of the act makes it more clear that the expression 'third party' includes government.13. in krishi upaj mandi samittee v. shanker, 1993 air scw 762, hon'ble supreme court has held that the words 'means and includes' in such definition is to be given a wider meaning and is not exhaustive or restricted to the items contained or included in such definition.hon'ble supreme court in new india assurance co. ltd. v. rula, 2000 acj 630 (sc), has held that the contract of insurance in respect of motor vehicle has, therefore, to be construed in the light of the provisions of sections 146, 147 and 149 of the act. the manifest object of this provision is to ensure that third party, who suffers injuries due to use of motor vehicle, may be able to get damages from the owner of the vehicles and recoverability of the damages may not depend on the financial condition or solvency of the driver of the vehicle, who had caused the injuries. their lordships further held that any contract of insurance under chapter xi of the motor vehicles act, 1988 contemplates a third party who is not a signatory or a party to the contract of insurance but is, nevertheless protected by such contract.a similar view was taken by the apex court in new asiatic insurance co. ltd. v. pessumal dhanamal aswani, 1958-65 acj 559 (sc), wherein their lordships held that the right of the third party to get indemnified can be exercised only against the insurer of the vehicle. it is further made clear that the third party is not concerned and does not come into the play at all in the matter of payment of premium.14. in national insurance co. ltd. v. faqir chand, 1996 acj 111 (j&k;), jammu and kashmir high court held that a contract of insurance has two parties to it, the insurer and the insured. these are the contracting parties of the contract as the first party and the second party. any party, therefore, which is not a contracting party to the policy of insurance will automatically be referred to and called as a third party because it is neither the first party (the insurer) nor the second party (the insured) or vice versa. it was further held that the use of the words 'third party' therefore, in chapter xi of the act clearly refers to the intention of the legislature to point out to a party which is neither the first party nor the second party to a contract of insurance. the expression 'third party' would include everyone. the similar view was taken by madhya pradesh high court in new india assurance co. ltd. v. riaz mohammed, 1996 acj 655 (mp), wherein it has been held that the expression 'third party' obviously means other than the 'first party' the insurer and the 'second party' the insured.15. this court in abdul jabbar v. kesar, 1998 (1) tac 187 (rajasthan), held that the expression 'third party' should include everyone be it a person travelling in vehicle itself or any other vehicle or one walking on the road. under the 'third party' insurance policy, the insurer undertakes to insure the insured and indemnify him against all the risks and in relation to all claims lodged against it by a third party. narrowing the concept, scope and ambit of expression 'third party' and consequently, excluding the passengers in the vehicle itself from the operation and purview would not only defeat the very purpose of taking out the insurance policy, but the very object of the act which makes it a mandatory requirement of law that all the vehicles/owners of the vehicles must be compulsorily insured against third party risks.16. this court has taken a similar view in national insurance co. ltd. v. nirmala bai, 2000 acj 932 (rajasthan), wherein this court held that the expression 'third party' means that normally and ordinarily, contract of insurance has two parties to it, the insurer and the insured, therefore, any party other than the contracting party of the contract of insurance becomes and can be called a third party. the use of words 'third party' clearly indicates that it refers to a party who is neither the first party nor the second party to a contract of insurance and, therefore, the expression 'third party' includes everyone be it a person travelling in the vehicle itself or otherwise. the expression 'any person' used in section 147(b)(i) would undoubtedly include an occupant of the vehicle, so in the case, the property of any person would include the property of the occupant of the vehicle or any other person. thus, in the instant case, undoubtedly, the claimant was not the party to the contract of insurance and, therefore, the claimant was neither first party nor the second party to the contract, which is obvious as the first party is insurer and the second party is insured and, therefore, the claimant cannot be excluded from the ambit of expression of 'third party'.17. the judgment relied on by the learned counsel for the insurance company in national insurance co. ltd. v. ramesh kumar, 1999 acj 1305 (hp), is based on the provisions of the motor vehicles act, 1939 (for short 'the old act') as in that case the accident took place by the vehicle involved therein on the intervening night of 17/18.9.1988 and on the relevant date of accident, the provisions of old act was applicable and the insurance, which was produced on record and marked as exh. r-1, provides no liability of the insurance company to third party in respect of damage to the goods under transport. in the old act, the word 'property' has been defined under section 93(bb). 'property' includes roads, bridges, culverts, causeways, trees, posts and milestones. the definition of 'property' underwent drastic change in the new act as noticed above. section 145(e) defines the word 'property' includes goods carried in the motor vehicle. thus, the words 'includes goods carried in the motor vehicle' were not earlier on the statute (old act), whereas in the new act, the definition of the word 'property' has been extended by incorporating the aforesaid language. in the instant case, the accident took place on 21.10.1994 after the new act came into force and, therefore, the instant case is governed by the provisions of new act and the definition of 'property' is provided under section 145(e) of the act. more so, in national insurance co. ltd. v. ramesh kumar (supra), being governed by the old act, there was clear provision in the policy which provides for no liability of the insurance company to third party in respect of damage to the goods under transport. after coming into force of new act, this condition cannot be and should not be incorporated in the policy as incorporating such condition in policy would run contrary to section 145(e) of the act and, therefore, firstly in the instant case neither the insurance company placed the policy on record nor provide it by evidence but even otherwise if such condition is incorporated in the policy, then it is contrary to the statutory provisions of section 145(e) of the act and, therefore, has to be read down.18. section 147 provides requirements of policies and limits of liability which reads as under:'147. requirements of policies and limits of liability.--(1) in order to comply with the requirements of this chapter, a policy of insurance must be a policy which--(a) is issued by a person who is an authorised insurer; and(b) insures the person or classes of persons specified in the policy to the extent specified in sub-section (2)--(i) against any liability which may be incurred by him in respect of the death of or bodily injury to any person, including owner of the goods or his authorised representative carried in the vehicle or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place;(ii) against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place:provided that a policy shall not be required--(i) to cover liability in respect of the death, arising out of and in the course of his employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment other than a liability arising under the workmen's compensation act, 1923 (8 of 1923), in respect of the death of, or bodily injury to, any such employee--(a) engaged in driving the vehicle, or(b) if it is a public service vehicle engaged as a conductor of the vehicle or in examining tickets on the vehicle, or(c) if it is a goods carriage, being carried in the vehicle, or(ii) to cover any contractual liability.explanation.--for the removal of doubts, it is hereby declared that the death of or bodily injury to any person or damage to any property of a third party shall be deemed to have been caused by or to have arisen out of, the use of vehicle in a public place notwithstanding that the person who is dead or injured or the property which is damaged was not in a public place at the time of the accident, if the act or omission which led to the accident occurred in a public place.'19. a plain reading of section 147(1)(b)(i), which provides insurance of person or classes of persons specified in the policy to the extent specified in sub-section (2) against any liability which may be incurred by the insured in respect of the death of or bodily injury to any person including the owner of the goods or his authorised representative carried in the vehicle or damage to any property of third party caused by or arising out of the use of the vehicle in a public place. thus, the policy of insurance covers the risk of damage to any property of a third party caused by or arising out of use of vehicle in public place. in the instant case, it has been established that the damage to the property owned by claimant was caused by arising out of use of the truck in question.20. in this view of the matter, i am of the considered opinion that the claimant is a third party. more so, the insurance company neither pleaded this fact nor it proved before the tribunal. it is settled law that court cannot record the finding on the basis of plea raised for the first time during the course of arguments until and unless the plea raised is specifically pleaded and proved by evidence.21. hon'ble supreme court in trojan & co. v. r.m.n.n. nagappa cheittiar, air 1953 sc 235, held that the decision of a case cannot be based on grounds outside the pleadings of the parties and it is the case pleaded that has to be found.22. in mohan lal v. anandibai, air 1971 sc 2177, apex court held that when there is no pleading in respect of fraud or antedating of document and no evidence is led to meet such pleas, the court cannot on the basis of the plea raised for the first time during arguments record any finding.23. in manna lal v. mool singh, 1986 rlr 986, this court held that court cannot make out a new case for any party. decision has to be passed within four corners of pleadings of parties. thus, the contention raised by learned counsel first time before this court regarding contractual liability as also the claimant being not third party, cannot be sustained on both counts, i.e., in absence of any pleading and proof as also being contrary to the settled principle of law is discussed above. before the tribunal, the insurance company had admitted its liability to the extent of the actual damage caused to the claimant as is evident from para 8 of the judgment of the tribunal. the insurance company is bound by its admission. even on perusal of memo of appeal, the insurance company admitted its liability to the extent provided under section 147(2)(b). section 147(2)(b) provides the liability of insurance company in respect of damage to any property of third party, a limit of rs. 6,000. the insurance company has not disputed its liability entirely but contended that the limits of its liability is to the extent of rs. 6,000 as provided under section 147(2)(b) of the act. undisputedly, the respondent no. 2, owner of the said truck, had paid additional premium of rs. 75 for covering risk of damage to the property of third party to unlimited extent in terms of indemnification. thus, admittedly the appeal is grounded on a basis contrary to the contract of insurance.24. the learned counsel for the appellant when confronted with the cover note, wherein the insurance company undertook the unlimited liability to the damage to third party property, the learned counsel for the insurance company contended that the insurance company is not at all liable. such contention is unfounded in view of the discussion made hereinabove and more particularly in view of section 145(e) of the act. so far as judgments relied on by learned counsel for the insurance company are concerned, they clearly deal with the insurance policies, which were on record of those cases. more so, in the instant case, the insurance company has failed to place the policy on record. even otherwise, if such condition is incorporated in the policy, then it is contrary to the provisions of section 145(e) of the act.25. in the case of oriental insurance co. ltd. v. k. buden sab, 2002 acj 139 (karnataka), the insurance company had placed on record the insurance policy and the terms of the policy had specifically excluded the loss if any occasioned while being conveyed. thus, in the instant case neither the insurance company produced the insurance policy nor it has proved any such exclusion clause. more so, there cannot be any such condition incorporated in the policy contrary to section 145(e) of the act. in absence of specific condition in the policy excluding the liability the cases relied on by learned counsel for the insurance company are not applicable to the facts of the present case in view of the above discussion. so far as cross-objection filed by the claimant is concerned, the tribunal has awarded the actual damages caused to the property of the claimant after considering the report of surveyor. in my considered opinion, the tribunal has rightly assessed the loss caused to the claimant. more so, it is settled law that in appeal quantum is interfered only when compensation awarded is either too low or too excessive. obviously, amount awarded by the tribunal cannot be said to be too low. hence, the cross-objection is devoid of any merit.26. no other point has been urged by the learned counsel for the parties.in view of the foregoing discussion, in the instant case obviously, the claimant has unnecessarily been dragged in further litigation and, therefore, it is a fit case to award exemplary costs.in view of the aforesaid discussion, the appeal filed by the insurance company fails and is dismissed with costs which is quantified at rs. 5,000. cross-objection is also dismissed.