If a question of fraud or misrepresentation arises by and between the insurer and the insured, the third party claimant is not concerned therewith. A vehicle is required to be compulsorily insured in terms of the provisions of the Motor Vehicles Act, 1988. Keeping in view the aforementioned provisions, we are of the opinion that the learned tribunal has committed an error in going into the issue raised by the respondent No. 1. In our opinion, if according to the respondent No. 1, the contract of insurance did not come into force on 18-2-1992 and the certificate of insurance was wrongly granted either by reason of any mistake or fraud committed by either of the parties or by its officers, the remedy of the respondent No. 1 may be to initiate a separate proceeding for realisation of the amount so paid by it from the owner of the vehicle, but keeping in view the letter and spirit of the Motor Vehicles Act, we are of the opinion that a third party claimant should not suffer therefore.
IN THE HIGH COURT OF CALCUTTA
Misc. Appeal No. 7 of 1995
Decided On: 31.07.1996
V. Ravi Vs. New India Assurance Company Ltd. and Ors.
Hon'ble Judges/Coram:
S.B. Sinha and S.K. Tiwari, JJ.
Author: S.B. Sinha, J.
Citation: MANU/WB/0032/1997, 1998ACJ598, AIR1997CAL242.
1. This appeal is directed against an award dated 14-8-1995 passed by the Motor Accident Claims Tribunal in MACT Case No. 5 of (sic) whereby and whereunder the said learned tribunal awarded a sum of Rs. 14,000/- in favour of the claimants in respect of an accident which took place in between 6 p.m. and 7 p.m. on 18-2-1992, but held the owner of the vehicle liable therefore.
2. This appeal having been filed by the owner and involving a question as to whether the appellant or the respondent No. 1 --(insurer) was liable to pay the aforementioned awarded amount, we are not concerned with the fact of the matter, suffice it to say that admittedly the appellant is the owner of a truck bearing registration No. AN 5101. The said truck met with an accident in between 6p.m. and 7 p.m. on 18-2-1992, as a result whereof a little girl was ran over and the house belonging to the claimant was damaged According to the appellant, earlier insurance in respect of the vehicle in question expired on 16th or 17th Feb. 1992, and he entered into a contract of insurance with the respondent No. 1 at 10 a.m. on 18-2-1992. In its written statement the respondent No. 1 (opposite party No. 2 before the tribunal) alleged:
"The opposite party No. 2 further states that in view of 64V(1) of the Insurance Act the risk on the part of the insurer commences only on the payment of the premium by the insured and not as per the date of certificate of insurance, inadvertently typed by the typist and given in favour of the opposite party No. 1. Hence the opposite party No. 2 states that it is an unfortunate situation which has arisen in this case which the opposite party No. 1 is now trying to take advantage of, which is most unethical."
3. On the basis of the aforementioned pleadings, the learned trial Judge framed several issues out of which we are concerned with issue No. 3, which reads thus:
"Is the O. P. No. 2 liable to pay any amount of compensation claimed?"
4. The said issue No. 3 was decided against the appellant and in favour of respondent No. 1 herein.
4A. Mr. Nag appearing on behalf of the appellant has raised a question in support of this appeal. Learned counsel submits that from a perusal of the oral as also the documentary evidences, it would appear that the appellant had been able to show that the contract of insurance took place at 10 a.m. on 18-2-1992 and the same was valid up to 17-2-1993. Learned counsel submits that although the other documents produced by the respondent No. 1 show that the premium was paid on 19-2-1992, but the evidence on record would clearly show as to under what circumstances, receipt of payment of the insurance premium was dated 19-2-1992 although the premium was actually paid on 18-2-1992. Learned counsel further submits that the aforementioned issue No. 3 ought not to have been framed keeping in view the provisions of Order 8, Rule 2 read with Order 6, Rule 4 of the Code of Civil Procedure, in as much as, the respondent No. 2 did not give particulars of fraud or misrepresentation on the part of the appellant so as to make the contract of insurance violable.
5. Having heard the learned counsel for the parties, we are of the opinion that in view of the provision of Section 149 of the Motor Vehicles Act, 1988, the insurer is under a statutory obligation to indemnify the owner of a vehicle after a certificate of insurance has been issued under sub-section (3) of Section 147 of the said Act. It was not and could not have been disputed before us that the certificate of insurance which was marked as Exl.A/1 was signed on 18-2-1992. In the written statement, as noticed hereinbefore, only plea of typographical error had been raised. We have examined the original certificate of insurance and it appeared that the concerned officer had also put his signature on 18-2-1992. In view of the statutory provisions contained in Section 149 of the Motor Vehicles Act, 1988, there cannot be any doubt, a statutory liability of the respondent No. 1 arises so as to make it liable to indemnify the owner to the extent of the loss suffered by it. Motor Vehicles Act, 1988, so far as the same relates to awarding of compensation for the loss of life or property or sufferance of bodily injury by a third party, being a benevolent statute, the said provision should be construed in favour of the claimant and against the insurance company. Section 149, as noticed hereinbefore, in clear and unequivocal terms imposes a statutory liability upon the insurer If a question of fraud or misrepresentation arises by and between the insurer and the insured, the third party claimant is not concerned therewith. A vehicle is required to be compulsorily insured in terms of the provisions of the Motor Vehicles Act, 1988. Keeping in view the aforementioned provisions, we are of the opinion that the learned tribunal has committed an error in going into the issue raised by the respondent No. 1. In our opinion, if according to the respondent No. 1, the contract of insurance did not come into force on 18-2-1992 and the certificate of insurance was wrongly granted either by reason of any mistake or fraud committed by either of the parties or by its officers, the remedy of the respondent No. 1 may be to initiate a separate proceeding for realisation of the amount so paid by it from the owner of the vehicle, but keeping in view the letter and spirit of the Motor Vehicles Act, we are of the opinion that a third party claimant should not suffer therefore.
6. We, therefore, have no other option but to allow this appeal and set aside the award of the tribunal to the extent mentioned hereinbefore and direct that instead and place of the appellant, the awarded sum shall be paid by the respondent No. 1 herein to the claimant-respondent Nos. 2 and 3 herein subject to the condition that it will be at liberty to recover any amount paid on behalf of the appellant to the claimants, in accordance with law. We further make it clear that any observation made by us was only for the purpose of disposal of this appeal, and if in future any proceedings suit is initiated/filed by the respondent No. 1 against the appellant, the concerned court shall consider the same on its own merits without in any way being influenced by this judgment. Any amount deposited by the appellant may now be refunded. We, however, hope and trust that the respondent No. 1 being a public sector undertaking, shall pay the awarded amount to the claimants as early as possible and preferably within a period of 2 months from date, failing which it will be open to the claimants to get the awarded amount realised in accordance with law. In the facts and circumstances of this case, there will be no order as to costs.
S.K. Tiwari, J.
7. I agree.
8. Appeal allowed.
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