UNITED INDIA INSURANCE CO LTD Vs. RAMANI

JUDGEMENT

(1.) An interesting question regarding the interpretation of the provisions of the Motor Vehicles Act arises in this case as to whether, for the negligence of an employee of the owner, other than the driver of a motor vehicle, the insurance company with whom the vehicle is insured is liable to indemnify the owner of the vehicle for the compensation due to a third party for the death or bodily injury caused in the course of use of the vehicle. In an accident involving a stage carriage owned by the 5th respondent in M.A.C.A. No. 2010/2007, which happened on 29.12.1995, one Jayaprakash died. The motor vehicle was owned by the 5th respondent in M.A.C.A. No. 2010/2007. The 6th respondent was the driver and the 7th respondent was the door checker of the vehicle. There was a dispute between the deceased, who was a passenger in the bus, and the door checker, in which other passengers in the vehicle also interfered. The vehicle was a stage carriage, in which, passengers were being carried for hire. In the course of the dispute, the door checker pushed the deceased out of the bus and the deceased again boarded the bus while the vehicle was moving. The door checker again pushed the deceased out of the bus and in the course of that action, the deceased was run over by the vehicle and died. Respondents 1 to 4 herein, who are the mother and unmarried sisters of deceased Jayaprakash, filed O.P.(M.V). No. 191/1998 before the Additional Motor Accidents Claims Tribunal, Ernakulam, claiming compensation for the death of Jayaprakash. The Tribunal, on the basis of evidence adduced before him, came to the conclusion that the accident happened on account of the composite negligence of the driver of the vehicle as well as the door checker of the vehicle. The Tribunal apportioned the negligence as between the driver of the vehicle and the door checker of the vehicle in the ratio 50:50 and thereafter assessed total compensation of Rs. 3,75,500/-. The insurance company was directed to pay the entire compensation to the claimants, with right to recover 50% of the same from the owner and the door checker. Aggrieved by the award of the Tribunal, the insurance company has filed M.A.C.A. No. 2010/2007 and the owner and door checker have filed M.A.C.A. No. 1453/2008. The insurance company challenges the award both on the question of their liability to indemnify the owner of the vehicle as well as the quantum of compensation. The contention is that insofar as the accident did not occur on account of any negligence on the part of the driver of the vehicle, the insurance company is not liable to indemnify the owner. It is contended that the accident occurred only because the door checker pushed the deceased out of the bus and not because of any negligence on the part of the driver of the vehicle. It is further contended that the pushing out of the deceased from the bus cannot be considered as an action in the course of use of the motor vehicle as such and therefore, the insurance company is not liable to indemnify the owner for the death of the deceased. It is also pointed out that in the criminal case charged in respect of the death of the deceased, the charge was only against the door checker for offences punishable under Sections 324 and 304 of the Indian Penal Code, which does not relate to negligent use of the vehicle as such, which is also a ground to disclaim liability by the insurance company. M.A.C.A. No. 1453/2008 is filed by the owner and the door checker contending that the criminal court has acquitted the door checker in the criminal case and as such, there is no negligence either on the part of the driver or on the part of the door checker and, therefore, they are entitled to disclaim liability for the death of the deceased. It is further contended that, assuming that there is any negligence either of the driver or the door checker, both of them are employees of the owner and insofar as the accident occurred on account of the use of the motor vehicle insured with the insurance company, the insurance company is certainly liable to indemnify the owner for the compensation payable to the claimants as awarded by the Tribunal. The right of the insurance company to recover the compensation paid by them arises only if there is violation of policy conditions mentioned in Section 149(4) of the Motor Vehicles Act, which is absent in this case is the contention.

(2.) We have considered the rival contentions in detail.

(3.) We shall first consider the question of negligence itself. The facts leading to the death of Jayaprakash are not in dispute before us. There was an altercation inside the bus among the deceased, other passengers in the bus and the door checker. In the course of that altercation, the door checker pushed Jayaprakash out of the bus. After alighting he again boarded the bus, when the driver took the vehicle forward. The door checker again pushed him out of the bus while the vehicle was moving. In that process, the deceased went under the vehicle and he was run over by the vehicle, resulting in his death. The question is as to whether the death is in the course of the use of the vehicle and as to whether there was negligence on the part of either the driver or the door checker. We do not think that there can be any doubt that the accident occurred in the course of the use of the vehicle. Admittedly, the deceased was travelling in the vehicle as a passenger. The vehicle was one used for transporting passengers for hire. When there is a dispute between the door checker and the passengers of the bus and one of the passengers is pushed out of the bus, the accident is certainly in the course of the use of the vehicle itself.