United India Insurance Co. v. Ram Kumar And ORS.

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HIGH COURT OF CHHATTISGARH '

Sinqle Bench:Hon'ble shri Justice San-iav K.

Agrawal Miscellaneous Appeal No.235 l \ United India Insurance Appellant Company Ltd.

Versus

Respondents , Dhaneshwari others 'b $ Miscellaneous Appeal No.237 oi United India Insurance Company Ltd.

Appellant .

versus Indal others Respondents Miscellaneous Appeal No.239 United India Insurance Company Ltd.

Appellant versus Respondents Ram Kumar others Miscellaneous Appeal No.240 ppellant United India Insurance Company Ltd.

versus Respondents Matrania others Miscellaneous Appeal No.238 United India Insurance Company Ltd.

Appellant

Versus

Respondents Urmila others Appeals under Section Motor Vehicles Act,

Appearances counsel all appeals:

Shri Shailendra Sharma, counsel appellant/United India Insurance CompanyvLtd.

Shri Upendra Bharat Shri Neeraj Choubey, counsel respondent/owner Ghanshyam Das Agrawal.

Shri Atanu l Ghosh, counsel respondents/claimants .

None appears respondent/driver Baba alias Raj eshwar .

ORAL

ORDER

M '

(Passed l"

January, 2014) (1) These appeals were heard analogously are disposed this common order they arise out one same accident common questions fact law are involved therein.

For sake convenience, Miscellaneous Appeal No.235/2002 taken-up lead case, Miscellaneous Appeal No.235/2002 arises out common award dated 2611-2001 passed lst Additional Motor Accidents Tribunal, Baikunthpur, Link Court Surajpur, District Surguja (henceforth 'the Tribunal') Claim Case No.173/200l.

(2) accident question occurred 6-5-1999 account rash negligent driving Mini Truck bearing registration NoKMP 0935.

On date accident, offending truck owned respondent Ghanshyam Das Agrawal, insured with appellant United India Insurance Company Limited being driven respondent Baba alias Rajeshwar.

(3) Miscellaneous Appeal No.235/2002 arises out impugned award passed Claim Case No.1j3/2001 preferred dependents deceased Sukhlal, who died accident question.

Miscellaneous Appeal No.237/2002 arises out impugned award passed 'Claim Case No.l24/2001 preferred injured Indal.

Miscellaneous Appeal No.239/2002 Vi arises out impugned award passed Claim Case No.122/2001 preferred injured'

Ramkumar.

Miscellaneous Appeal No.240/2002 arises out impugned award passed Claim Case No.1lO/2001 preferred injured Matrania.

Miscellaneous Appeal No.238/2002 arises out impugned award passed Claim Case No.168/2001 preferred dependents deceased Shivshankar, who died accident question.

(4) Tribunal awarded compensation under:

Miscellaneous Miscellaneous Appeal Number;Appeal out arises Claim Case Number Death or Injury Case Compensation Awarded by Tribunal Sl.

ENo.

R) l 235/2002 l73/2001 Against Death Sukhlal 180000 237/2002 124/200l Injury Case 25000'

239/2002 122/200l Injury Case 15000 240/2002 110/2001 'injury Case 12000'

l 238/2002 168/2001 Against Death Shivshankar 200000 V

(5)'

Tribunal has, impugned.

award, hel'd that appellant/insurance company has failed to iprove breach any condition policy inaurance and, therefore, appellant/insurance conipany liable make payment compensation .

I V;

(6) Shri Shailendra Sharma, learned counsel appearing forappellant/insurance company would submit that impugned award fastening liability payment compensation appellant/insurance company'is bad law there overwhelming evidence record prove breach conditions policy insurance.

(71) On other hand, Shri Upendra Bharat Shri f Ne'eraj Choubey, learned counsel appearing '2:

.

respondent/owner Shri Atanu Ghosh, learned counsel appearing respondents/claimants would support impugned award stating that insurance company has failed prove alleged breach conditions policy insurance.

(8) A bare perusal written statement filed insurance company before Tribunal would show that insurance company has simply taken a plea that offending truck

unauthorisedly being plied date accident with consent respondent/owner.

(93) respondent/owner has entered witness-box anid deposed that he had not permitted carrying paissengers marriage son'of Gangaram, applicant/claimant Claim t Case No.160/2001.

Gangaram has been eéamined Claim Case No.l60/200l which he has clearly stated that he never met respondent/owner Ghanshyam Das Agrawal'.

Tribunal, after appreciating evidence available record, held that date accident, respondent/owner offending truck out station driver offending truck charge offending truck Gangaram had hired offending truck without consent respondent/owner offending truck.

As such respondent/owner did not have any information with regard alleged use offending truck carrying passengers.

Tribunal further held that driver offending truck not examined driver remained ex parte before Tribunal.

Resultantly, Tribunal held that the passengers were being carried without there being any consent respondent/owner and, therefore, insurance company cannot escape from its liability.

'

65$ ~» \ (11'0)A bare perusal written statement fiiled insurance company would ifurther sh§ow that insurance company has not taken spjecific plea that offending truck being plied breach terms policy insurance.

Unspecific plea raised that the'

deceased injured '- persons were unauthorisedly travelling offending truck date accident .

Separate written statements have been filed g insurance company claim cases.

It incumbent upon insurance company take a specific plea written statements with regard breach terms up policy insurance.

Apart from this, it found established before Tribunal that respondent/driver used offending truck carrying passengers, if any, without knowledge consent respondent/owner, which clear from statement Gangaram who examined Claim Case No.160/2001.

Not only this, respondent/driver offending truck, who could be best witness explain position, has not been examined.

@ (11) Supreme Court, S.V.Nagaraju v.

M/s Oriental Insurance Co.

Ltd.

Divisional Officer, Has'sanl, referring its earlier decision Skandia Ins'urance Co.

Ltd.

v.

Kokilaben Chandravadanz, \ obéerved thus:

§ '

"7.

It plain from terms Insurance Policy that insured vehicle entitled carry workmen, excluding "driver.

If these workmen when travelling vehicle, are assumed not have increased any risk from point view Insurance Company occurring an accident, how could' those added persons be said have contributed causing it poser, keeping apart load it carrying.

Here, it nobody's case that driver insured vehicle responsible accident.

In fact, it was not disputed that encoming vehicle had collided head-on against insured vehicle, which resulted damage.

Merely lifting a person or two, or even three, driver or cleaner vehicle, without knowledge owner, cannot be said be such a fundamental breach that owner should, all events, be denied indemnification.

misuse vehicle somewhat irregular though, but not so fundamental nature so put an end contract, unless some factors existed which, themselves, had gone contribute causing accident.

In instant case, however, we find no such contributory factor.

In Skandia's case (supra) this Court paved way towards reading down Contractual Clause observing follows (at pp.

ll9l AIR):

"...

When option between opting a View which will relieve distress misery victims accidents or their dependants one hand equally plausible view which will reduce profitability insurer regard occupational hazard undertaken him way l 1996 AIR SCW AIR SC

business activity, there hardly any choice.

Court cannot put opt former View.

Even if one were make a I strictly doctrianairs approach, very't'same conclusion would emerge assistance doctrine 'reading down'

exclusion clause light 'main purposes'

provision so that 'exclusion clause'

highlighted earlier.

effort must be harmonise two instead allowing exclusion clause snip successfully at main purposes.

theory which needs no support supported Carter's "Breach Cpntract"

vide paragraph 251.

To quote:

Notwithstanding general ability contracting parties agree exclusion clauses which operate define obligations there exists a rule, usually referred "main purpose rule", which may limit application wide exclusion misuses defining a premiser's contractual obligations.

For example, Siva v.

Marasteen & Co.

[1993 AC (387)], Lord Malsbury L.C.

stated:

It seems us that construing this document, which a contract carriages between parties, one must first instance look at whole instrument not at one part it only.

Looking at whole instrument, seeing what one must regard its main purpose, one must reject words, indeed whole provisions;

if they are inconsistent with what one assumes be main purpose contract.

Although this rule played a role development doctrine fundamental breach, continued validity rule acknowledged when doctrine rejected by House Lords Suissee Atlantigua Societod'

Armament Ravities S.A.

v.

M.V.

Battarossecha Kolen Sontrals, (1967 I AC 361) .

Accordingly, wide exclusion clauses will be read down extent which they are inconsistent with main purpose, or object contract."

'

(2) Thus, any stretch imagination, finding Tribunal holding that alleged breach terms policy insurance has

not been proved insurance company, cannot be faulted with finding so arrived at hereby affirmed.

(13) Consequently, all appeals are hereby i dismissed.

No order costs.

Sd/- Sanjay K. Agrawal Judge l r