India Insurance Company Limited Vs. Serjerao and Ors  Insc 1146 (14 November 2007)
Arijit Pasayat & P. Sathasivam
out of S.L.P. (C) No.9417 of 2005) With C.A. No.5202/2007 @ S.L.P.(C)
No.9418/2005 C.A. No.5203/2007 @ S.L.P.(C) No.9419/2005 C.A. No.5204/2007 @
S.L.P.(C) No.9420/2005 C.A. No.5205/2007 @ S.L.P.(C) No.9421/2005 C.A.
No.5207/2007 @ S.L.P.(C) No.9422/2005 and C.A. No.5208/2007 @ S.L.P.(C)
No.9423/2005 Dr. ARIJIT PASAYAT, J.
Challenge in these appeals is to the order passed by a learned Single Judge of
the Bombay High Court, Aurangabad Bench dismissing the writ petitions filed by
the appellant (described hereinafter as `the Insurance Company'). The
controversy lies within a very narrow compass.
respondents were travelling in the Trolly attached to a Tractor as labourers.
They claimed to have suffered injuries because the Tractor with the Trolly in
each case met with an accident. Petitions claiming compensation under the Motor
Vehicles Act, 1988 (in short `the Act') were filed along with application under
Section 140 of the Act. Order was passed by the learned Additional District
Judge and Ex-officio Member, Motor Accident Claims Tribunal, Latur (in short
`the MACT') on the principle of no fault liability. The Insurance
took the stand that it had no liability in respect of the persons travelling in
the Trolly and the owner of the Tractor is liable to pay compensation. This
plea was rejected by the MACT. Appeal in terms of Section 173 of the Act in
each case was preferred before the High Court. Learned Single Judge,
prima-facie, was of the view that the appeal was not maintainable.
Nevertheless, he referred the matter to the Division Bench, which, it appears
referred it to a Full Bench.
the matter was pending consideration by the Full Bench, execution proceedings
were filed. Therefore, writ petitions were filed before the High Court. The
High Court, by the impugned order in each case, dismissed the writ petitions
holding that though arguable questions were involved, the writ petitions did
not deserve consideration.
support of the appeals, learned counsel for the appellant-Insurance Company
submitted that the appeals in terms of Section 173 of the Act were maintainable
and in any event, the Insurance Company has no liability in respect of the
persons travelling in trollies attached to the Tractors.
There is no appearance on behalf of the respondents when the matter was called.
far as the question of maintainability aspect is concerned, the issue is
concluded by a judgment of this Court Anr. (2007 (8) SCALE 77).
paragraphs 16 to 19 of the judgment, it was observed as follows:
The question which is required to be considered is what would be the meaning of
the term award when such a contention is raised. Although in a given
situation having regard to the liability of the owner of the vehicle, a claim
Tribunal need not go into the question as to whether the owner of the vehicle
in question was at fault or not, but determination of the liability of the
insurance company, in our opinion, stands on a different footing. When a
statutory liability has been imposed upon the owner, in our opinion, the same
cannot extend the liability of an insurer to indemnify the owner, although in
terms of the insurance policy or under the Act, it would not be liable therefor.
a given case, the statutory liability of an insurance company, therefore,
either may be nil or a sum lower than the amount specified under Section 140 of
the Act. Thus, when a separate application is filed in terms of Section 140 of
the Act, in terms of Section 168 thereof, an insurer has to be given a notice
in which event, it goes without saying, it would be open to the insurance
company to plead and prove that it is not liable at all.
Furthermore, it is not in dispute that there can be more than one award
particularly when a sum paid may have to be adjusted from the final award.
in view the provisions of Section 168 of the Act, there cannot be any doubt
whatsoever that an award for enforcing the right under Section 140 of the Act
is also required to be passed under Section 168 only after the parties
concerned have filed their pleadings and have been given a reasonable
opportunity of being heard. A Claims Tribunal, thus, must be satisfied that the
conditions precedent specified in Section 140 of the Act have been
substantiated, which is the basis for making an award.
Furthermore, evidently, the amount directed to be paid even in terms of
Chapter-X of the Act must as of necessity, in the event of non- compliance of
directions has to be recovered in terms of Section 174 of the Act. There is no
other provision in the Act which takes care of such a situation. We, therefore,
are of the opinion that even when objections are raised by the insurance
company in regard to its liability, the Tribunal is required to render a
decision upon the issue, which would attain finality and, thus, the same would
be an award within the meaning of Section 173 of the Act.
far as the question of liability regarding labourers travelling in trollies is
concerned, the matter was considered Mohan and Ors. (2007 (7) SCALE 753) and it
was held that the Insurance Company has no liability. In view of the aforesaid
two decisions of this Court, we set aside the impugned order in each case and
remit the matters to the High Court to consider the matters afresh in the light
of what has been stated by this Court in Smt. Yallwwas case (supra) and Brij
Mohans case (supra).
appeals are accordingly disposed of with no order as to costs.