Case Title: The Oriental Insurance Company Limited versus Smt. Samya, Sinty & Anr.
Case No.: S.B. Civil Misc. Appeal No. 46/2002
Decided on: 01/05/2023
Coram: HON’BLE MR. JUSTICE RAJENDRA PRAKASH SONI
Facts of the case:
On 19.09.1996 at about 2.15 p.m. when Suraj Karan @ Suraj Mal Mali was on his way to duty to the mill of his employer and reached near the Vivekanand School, he was hit by a speeding bus as a result of which he got injured. He was immediately taken to the hospital but he died within a short time. The legal heirs of the deceased filed an application for compensation under Section 140 and 166 of the Motor Vehicle Act, 1988 (for short “the act”). The appellant insurance company filed the written statement with a specific plea that the driver was holding the licence for driving the H.G.V. (Heavy Goods Vehicle) only where as he was driving a bus which was a Heavy Passenger Vehicle.
The owner has pleaded existence of insurance policy of the vehicle involved and fixing of liability upon the insurance company. Whereas the insurance company has denied manner of the accident, negligent driving by the bus driver and also taken a plea about non-existence of valid driving licence of the bus driver.
The driver of the offending vehicle was issued driving licence prior to the amendment made in the act by Act 54 of 1994.
Judgement:
The direction of the impugned judgment directing only the insurance company to pay the compensation is liable to be modified. Accordingly, the appeal is partly allowed and the award dated 16.07.2001 is modified to the extent that appellant insurance company shall pay the compensation to the claimants and shall recover the same from the owner of the vehicle. No costs. The appeal stands allowed to the above extent.
There being violation of specified condition, the insurer is held liable to pay the compensation.
The tribunal ought not to have absolved the owner of the tribunal because he was guilty of breach of the terms and conditions of the policy. Since, the involved vehicle was insured therefore, both the vehicle owner and the insurance company were liable for joint and several liability to pay the compensation.
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Written by: Mahima Saini
