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Smt. Prafulla Kumari Pradhan and ors. Vs. the Orient Paper Mills Ltd. and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles;Civil
CourtOrissa High Court
Decided On
Case NumberMisc. Appeal Nos. 166, 167 and 168 of 1978
Judge
Reported inAIR1984Ori149; 1984(I)OLR223
ActsMotor Vehicles Act, 1939 - Sections 95, 95(2) and 96
AppellantSmt. Prafulla Kumari Pradhan and ors.
RespondentThe Orient Paper Mills Ltd. and ors.
Appellant AdvocateP.K. Misra, Adv.
Respondent AdvocateN.C. Panigrahi, Adv.
DispositionAppeals dismissed
Cases ReferredMangilal v. Parasram
Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot..........an insured as if the insurer is the judgment-debtor in respect of the liability. the limit of insurer's liability, however, cannot exceed the sum assured payable under the policy or if the sum assured is not specified or the specified sum is less than the sum payable under sub-section (2) of section 95, then the maximum liability will be that as laid down in that sub-section. but if the sum specified exceeds the sum as fixed under section 95 (2), the maximum liability shall be the sum specified in the policy. thus it is amply clear that the provisions of the section relate to the liability of the insurer which arises only when the insured has incurred liability, but not independent of it. a claimant is. therefore, entitled to recover from the insurer the amount of compensation which.....
Judgment:

G.B. Patnaik, J.

1. These three appeals arise out of three different miscellaneous cases wherein the Second Motor Accident Claims Tribunal passed orders on the same date, namely 30-6-1978 and the point in issue is also the same and, therefore, all these three appeals were heard together and are being disposed of by this common judgment.

2. Miscellaneous Appeal No. 166 of 1978 arises out of Miscellaneous Case No. 57 of 1976 wherein the claimants are the wife, the minor daughters' and the parents of the deceased Kanhu Charan Pradhan. Miscellaneous Appeal No. 167 of 1978 arises out of Misc. Case No. 56 of 1976 wherein the wife and minor children of deceased Purandar Mallik are the claimants. Miscellaneous Appeal No. 168 of 1978 arises out of Miscellaneous Case No. 85 of 1976 wherein the wife and minor children of deceased Gumani Bchera are the claimants.

3. All these cases arise nut of one and the same accident which took place on 22-5-1976 at about 4 P.M. near village Takara. The truck bearing number ORS 3712 belonging to the Orient Paper Mills came with a high speed being driven rashly and negligently without blowing horn and crushed over a number of persons out of whom four died on the spot and others were injured. In Miscellaneous Case No. 57 of 1976, the deceased was a forest guard and the claimants claimed compensation to the tune of Rs. 85,000. In Miscellaneous Case No. 56 of 1976, the deceased was a skilled labourer and compensation to the tune of Rs. 50,000 was claimed by the claimants. In Miscellaneous Case No. 85 of 1976, the deceased was a student and compensation to the tune of Rs. 30,000 had been claimed by the claimants.

4. During the continuance of the claim proceedings, the respective claimants in each of the three cases entered into a compromise with the owner of the truck, namely, the Orient Paper Mills Limited and received certain compensation upon filing compromise petitions before the Tribunal, The Tribunal recorded the compromise after hearing the counsel for the parties in each of the cases and directed that the claim as against the said Orient Paper Mills, the owner of the truck, be dismissed on full satisfaction. After recording the aforesaid finding, the Tribunal further recorded that the claimants could not continue the proceedings any further against the insurance company. In these three appeals, the said order of the Tribunal has been challenged.

5. Mr. K. Misra, the learned counsel for the appellants has urged before me that by entering into a compromise with the owner of the truck, the liability of the insurance company or any other person liable to pay compensation on account of the accident will not be absolved and, therefore, the proceedings should have been continued as against the remaining opposite parties. He reiterates that in view of the specific term in the compromise petition that the claimants have entered into the compromise in full and final satisfaction of their claim against the owner of the truck without prejudice to their claim for any additional amount they will be entitled to from the insurance company, as per statutory liability, the order of the Tribunal is unsupportable and it must be held that the proceedings should continue. In support of such submission, the learned counsel has, however, not been able to cite any authority.

6. Chanter VIII. Motor Vehicles Act, deals with 'Insurance of Motor Vehicles against Third-party Risks' and makes provision for compulsory insurance in respect of third-party risks. These provisions were inserted on the recommendations of the Motor Vehicles Insurance Committee and have been adapted mostly from the English Law. The necessity for insurance against third-party risks was felt and provision for compulsory insurance was made as injured persons or the dependents of those killed in accidents found it difficult to realise damages or compensation from the owner or driver of a vehicle who had no means to satisfy the claims. Under the provisions of the Motor Vehicles Act, a vehicle cannot be used in a public place unless there is in force in relation to the use of the vehicle a policy of insurance in compliance with the requirements of the provisions contained in Chapter VIII. Section 95 deals with the policy of insurance and the limits of liability. Under the policy of insurance, the risk of a person who has incurred liability for the death or bodily injury or damage to the property of a third-party is the insurer. The insurance will come into play and will be enforced when the insurer will incur the liability.such liability being a vicarious one making the owner of the vehicle responsible for the negligent act of his driver. The liability of the insurer arises out of the provisions contained in Section 96. The provisions contained in Section 96 are analogous to Section 10 (1) of the English Road Traffic Act. 1934, and by the said provision statutorily the liability of the insurer to pay the claimant directly has been declared, even though there is no privity of contract between the insurer and the claimant. The provision enacts that the insurer is bound to pay to the person entitled to the benefit of the decree against an insured as if the insurer is the judgment-debtor in respect of the liability. The limit of insurer's liability, however, cannot exceed the sum assured payable under the policy or if the sum assured is not specified or the specified sum is less than the sum payable under Sub-section (2) of Section 95, then the maximum liability will be that as laid down in that sub-section. But if the sum specified exceeds the sum as fixed under Section 95 (2), the maximum liability shall be the sum specified in the policy. Thus it is amply clear that the provisions of the section relate to the liability of the insurer which arises only when the insured has incurred liability, but not independent of it. A claimant is. therefore, entitled to recover from the insurer the amount of compensation which he is in law entitled to obtain from the insured subject to the statutory limits of liability of the insurer. The aforesaid conclusion of mine gets support from the Full Bench decision of the Madhva Pradesh High Court in the case of Mangilal v. Parasram, AIR 1971 Madh Pra 5 (FB).

7. In the present case, the claimants having squared off their claim against the owner of the vehicle, namely the insured, are, therefore, not entitled to pursue against the insurer any further and the tribunal, therefore, was amply justified in rejecting their prayer to proceed with the case against the insurance company. In the result, therefore. I find no merits in these appeals which are accordingly dismissed, but without any order of costs.


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