Anil Kumar vs. Roop Kumar Sharma and another

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Title of the case: Anil Kumar vs Roop Kumar Sharma & Another on 13 November, 2017

Citation: FAO No.152 of 2017

Court: The High Court of Punjab and Haryana

Bench: Hon’ble Mr. Justice Rajbir Sehrawat

Parties-

Appellant: Anil Kumar

Respondent: Roop Kumar Sharma and another                                           

Brief Facts:                

Kamal Sharma, along with 54 other pilgrims, left Kurukshetra to go to Haridwar, Ayodhya, Nepal and Jaga Nath Puri etc. They were in the Bus bearing registration No. UP-10B-0939, which was being driven by one Raju Karki, resident of Delhi. The bus was taken for journey after getting permission from 1 of 10 Regional Transport Controller, Haridwar as well as from Managing Director, Garhwal Vikas Nigam, Haridwar. On the intervening night, the bus was on its way to Kathmandu via Sonali. At about 2.00 AM, when the said bus, in which the deceased-Kamal Sharma was travelling along with other pilgrims, reached in the area of Chitwan, Village Vikas Samiti, the driver of the Bus lost control and the bus in question fell in Trishuli Nadi. All the 54 persons died in the accident. No dead body of any pilgrim could be traced as the said river was about 30 meters deep. On account of death of these persons, several claim petitions were filed, one of them was of Sona Devi and others. The present petition was filed by Roop Kumar Sharma on account of death of Kamal Sharma.

This is an appeal filed by the owner of the vehicle challenging the Award dated 01.12.2016 passed by Motor Accidents Claims Tribunal, Kurukshetra, in so far as it absolves the Insurance Company from the liability of payment of the compensation.

After hearing the counsel for the parties and perusing the record, the Tribunal determined the quantum of compensation to be Rs.4,34,500/-.

Argument of respondent:

The first argument of respondent was limitation for liability of insurance qua area of operation outside India has been defined by ‘India Motor Tariff’ and therefore, Insurance 8 of 10 Company cannot be held liable for any accident which occurred outside the territorial limits of Union of India and also relying upon the policy Ex. R-4, the Tribunal absolved the Insurance Company from making the 2 of 10 payment of the compensation on the ground that the policy did not cover the operation of the bus in Nepal.

For that purpose, the counsel relies upon the document Ex. R-7, which contains a specimen of the endorsement advised to be included in the policy. However, this document itself is not a legal document to exclude the statutory liability of Insurance Company. This is only a suggestion of the Advisory Committee. This was required to be included in the policy by individual Insurance Company, if at all considered appropriate and desirable by it, while insuring a vehicle. This document in itself is not sufficient to exclude the liability of the Insurance Company in an accident which occurred outside the territorial jurisdiction of India.

Argument of appellant:

First argument of appellant was that One can come across a thought that the Motor Vehicles Act extends only to ‘whole of India’ as per its section 1, so it does not cover the area outside India. However, this rational also does not exempt the Insurance Company from liability arising from the usage of the vehicle outside the 5 of 10 geographical area of the Union of India. This section also implies that the Act would be applicable to all the citizens and subjects of India qua all the Motor Vehicular aspects in India. It does not exclude the liablity of one citizen or entity of India qua the other citizen of India even if the same is incurred outside the geographical area of Union of India, particularly, when the liability is arising from the use of vehicle registered and insured in India.

So, there was no limitation for use of the vehicle in terms of geographical area; as per the policy issued for this vehicle, the schedule of which is also produced on record along with the cover note as Ex R-3. Therefore, the liability of the Insurance Company to indemnify the insured has also been made compulsory by the Act. Section 146 of the Motor Vehicle Act makes the provision for necessity of insurance of vehicle before taking it out on road.

A bare perusal of Sections 146 and 147 of the Act makes it clear that the insurance policy is attached to the ‘vehicle’ in question and not to Geographical expense of the area of operation of the vehicle in question.

The next argument of learned counsel for the appellant is that Ex. P-12 is permit of the said bus, which authorised the bus to travel to area of Nepal. Indian Parliament too has this power to legislate for extra- territorial causes and effects, as clarified by Article 245 of the Constitution of India., as contained in Sections 139 and 149 of the Motor Vehicles Act.

The bare perusal of the policy shows that the policy and the schedule produced on record by the appellant do not show any restriction of geographical area in terms of exclusion of the liability of the insurer. The policy produced on record by the appellant shows that this policy does not have any restriction against plying the vehicle outside India. In the name of limitation as to use, only organised racing, reliability test and speed testing have been excluded; in terms of 7 of 10 the Motor Vehicles Act. There is no such clause mentioned; as excluding liability of the Insurance Company; for an accident happening outside India.

Judgement:

As stated above, nothing has been placed on record by the Insurance Company to show that the insurance policy regarding this particular vehicle contained this stipulation and endorsement as advised by ‘India Motor Tariff’. Moreover, it is not on record; as to since when the respondent-Insurance Company started to follow this ‘India Motor Tariff’ Advisory, if at all, it follows the same.  Moreover, the competence of ‘India Motor Tariff’ to issue such instruction to limit the liability of Insurance Company in terms of geographical area has not been shown by the Insurance Company. No such instructions; which run counter to or dilute the liability of Insurance Company as defined under Sections 146 to 149 of the Act can be countenanced by the Court.

A perusal of the record also shows that all these objections were not even raised by the Insurance Company while filing the written statement. On the contrary, in the written statement, the Insurance Company has taken the stand that their liability is limited to the extent of Rs. 50,000/- only. Therefore, the argument of learned counsel for the Insurance Company, otherwise also, is beyond the pleadings. Hence, the same cannot be accepted by this Court.

In view of the above, the findings of the Tribunal, to the extent of the exclusion of the liability of the Insurance Company, and the consequent Award to that extent, is set aside. It is ordered that the liability to make the payment of the awarded amount shall be of the Insurance Company.

 Hence, the appeal is allowed.

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