ORIENTAL INSURANCE COMPANY LTD Vs. DALIM MAWLICH

JUDGEMENT

(1.) THE sole question which calls for consideration in this appeal under section 173, Motor Vehicles Act, 1988 ("the act" for short) is whether the appellant-insurer is liable to pay the compensation awarded to the claimant when the insured vehicle was under requisition by the Deputy commissioner (Election), R-Bhoi District, nongpoh for election duty ?

(2.) THE facts relevant for resolving the controversy may be briefly stated. The respondent No. 2 is the registered owner of the Tourist Bus bearing registration No. ML-05/b-3704, which, along with its driver, was requisitioned by the respondent No. 5 for election duty on 22-9-1999. It appears that when the vehicle was driven by the respondent No. 3, who was the conductor of the bus and did not even possess a driving licence, it met with an accident on 22-9-1999 at about 9 p. m. at Nongpoh by hitting a pedestrian, namely. Willingstone Mawlieh (the deceased) which resulted in his death. The accident was reported to the Nongpoh police Station, which registered it as nongpoh P. S. Case No. 88 (9) 1999 u/s. 279/ 304-S, IPC against the respondent No. 3. The deceased was 25 years old at the time of his death, and was working as the driver of one auto-rickshaw belonging to one Elvin mawlieh and drew a salary of Rs. 3,000/-per month. The claimant, who is the mother of the deceased, filed a claim petition before the Motor Accident Claims Tribunal, Ri-Bhoi district, which was registered as MAC Case no. 28 of 1999. Notices were served upon the owner and conductor of the vehicle as well as the insurer and the State of meghalaya. All the respondents except the respondent No. 3 contested the claim petition. After the trial, the Tribunal passed the judgment and award dated 26-4-2007 awarding a compensation of Rs. 3,67,000/-together with interest @ 7. 5% per annum for a period of three years from the date of filing the claim petition and directing the insurer to satisfy the award.

(3.) NO cross-appeal has been preferred by the claimant or the Deputy Commissioner (Election), Ri-Bhoi District on the quantum of compensation so awarded. There is no dispute at the bar that the offending vehicle was insured with the insurer and further that when the accident resulting in the death of the deceased took place, the offending vehicle was under requisition by the State government through the respondent No. 5 for election duty. It is the contention of Mr. V. K. Jindal, the learned senior counsel for the insurer, that the owner of the offending vehicle could not be held liable to satisfy the award inasmuch as he himself was then not in control or custody thereof and that if the owner cannot be held liable to satisfy the award, the insurer, whose liability is co-extensive with the liability of the owner cannot, a fortiori, be held liable to satisfy the award either. He strongly relies on the latest decision of the Apex Court in National insurance Co. Ltd. v. Deepa Devi, (2008) 1 scc 414 : (AIR 2008 SC 735) to buttress his submission. He, therefore, submits that the impugned judgment and award, in so far as it saddles the insurer with the liability to satisfy the award, is unsustainable in law, and is liable to be set aside and the respondent No. 5 should be directed to satisfy the award. He also urges this Court to direct the respondent No. 5 to refund a sum of Rs. 50,000/- already paid by the insurer to the respondent No. 1 in terms of the settlement arrived at between them before the Lok adalat and to direct the Registry to refund the statutory deposit of Rs. 25,000/- to the insurer. Confronted with the decision of the apex Court cited by the learned senior counsel for the appellant, Mr. N. D. Chullai, the learned State counsel, prays for granting liberty to the respondent No. 5 to recover the awarded amount from the owner of the offending vehicle.