UNITED INDIA INSURANCE CO LTD Vs. VANIMEL PANCHAYAT

JUDGEMENT

(1.) This appeal is pre-ferred against the judgment and decree passed by the Subordinate Judge, Vadakara in O.S. No. 168 of 1994. It was a suit filed for damages. The lorry owned by the res-pondent No. 1 in the suit rammed into the bus shelter and thereby caused damage to the same. It is submitted that an agreement was entered into between the owner and the plaintiff whereby the owner of the lorry had undertaken to repair the shelter shed. Since he had committed breach of the same a suit is instituted for realization of the amount. The plaintiff also subsequently impleaded the insurance company of the lorry.

(2.) The defendant No. 1 would contend that there was a valid third party insurance for the vehicle and the insurance company has sanctioned Rs. 18,178 as cost for the construction of the bus shelter. The defend-ant No. 2 would contend that it is not a party to the agreement and so it cannot be made liable. It is also contended that the civil court has no jurisdiction to entertain the case. The learned trial court Judge had granted a decree against the insurance company and in favour of the plaintiff for a sum of Rs. 24,250 but it did not even make the respondent No. 1 in the suit lia-ble. Plaintiff has moved a cross-objection to make the respondent No. 1 also liable so that the insurance company can indemnify him.

(3.) At the outset the plaintiff has ap-proached the court fully bearing in mind the implications of sections 165 and 175 of the Motor Vehicles Act. Under section 165 of the Motor Vehicles Act a claim with respect to damage caused to the property of a third party comes within the jurisdiction of the Claims Tribunal constituted under the Act. Under section 175 when there is a jurisdiction conferred on the Tribunal the civil court shall not have the jurisdiction. A reference to section 147 of Motor Vehi-cles Act, 1988 and section 95 of the Motor Vehicles Act, 1939, is necessary. Under section 95 of the Act, 1939 the insurance liability was Rs. 2,000 and after amendment it has been enhanced to Rs. 6,000. The Tri-bunal's power to determine the damages had not been taken away at all. Therefore, after coming into force of Motor Vehicles Act and when there is a provision like sec-tion 165 enabling the Tribunal to determine the damage caused to the property of a third party section 175 will be squarely attracted and, therefore, there will be a bar of jurisdiction for the civil court. Most probably knowing the full implications of the same the plaintiff in para 3 has very cautiously pleaded the tortious liability of the defendant to the plaintiff was extin-guished when the defendant covenanted in the said agreement to repair the bus shelter defraying the cost. In para 7 also the cause of action mentioned is that the defendant breached the agreement dated 8.9.1993. So it is very clear the suit is based essentially on the breach of terms of the agreement, Exh. Al. When by virtue of Exh. Al the respondent No. 1 in the suit has undertaken to repair and has not complied with the terms and conditions of the agreement it is certain that he has committed the breach and for such breach he is liable. So the suit is of a nature where claim is made for the breach of terms of the agreement, namely, Exh. Al. The insurance company is not a party to Exh. Al and thereby for the breach of Exh. Al when a suit is filed the insur-ance company cannot be made a party or made liable. If the claim is under the pro-visions of the Motor Vehicles Act before a competent Tribunal along with the owner, driver and insurance company on the party array, the Tribunal would have decided that question regarding the tortious liability and then fixed the quantum. In such cases when the owner becomes vicariously liable for the act of his servant then by virtue of the terms and conditions of the policy the insurance company would be bound to indemnify the owner subject to the restric-tions of the amount unless a wider pre-mium is paid. But unfortunately this is a case where the claim is-not based on the provisions of the Motor Vehicles Act but only on the basis of an agreement which takes place subsequent to the accident between plaintiff and the defendant No. 1. The trial court has looked into the evidence and had arrived at a figure that Rs. 24,250 has to be paid by the defendant No. 2 for getting the property back into position. The finding of the trial court making the insurance company liable is incorrect and, therefore, has to be set aside and similarly exoneration of the defendant No. 1 from the liability has also to be set aside and the appeal has to be allowed by fixing the lia-bility on the defendant No. 1, namely, the owner of the vehicle.