ORIENTAL INSURANCE CO LTD Vs. MEMBER M A C T KAMRUP

JUDGEMENT

(1.) The brief facts giving rise to the Letters Patent Appeal at the behest of the insurance company may be noticed: Respondent Piarjan Bibi preferred a claim petition before M.A.C.T., Kamrup, Guwahati in the year 1995 claiming compensation on account of the death of her husband, who died in an accident while he was travelling in a bus owned by respondent No. 3. The further facts, which are not disputed, are that the bus in question in which the husband of claimant was travelling was insured with the present appellant. It was the case of the insurance company that the company is not liable to pay any compensation, inasmuch as, there was violation of the terms of the insurance policy as the deceased was travelling on the roof of the bus when the accident occurred on account of which he died. According to the insurance company, if a passenger or a person travels on the roof of the bus, which amounts to violation of the terms of the permit and when the accident occurred for such violation the insurance company is not liable. The Tribunal after going into the evidence, awarded a compensation of Rs. 1,75,000 with interest at the rate of 12 per cent from the date of the claim petition till deposit was made. Against the award of the M.A.C.T. the insurance company filed M.A. (F) No. 101 of 1996 in this court, which was dismissed on 22.2.2001.

(2.) While dealing with the point raised by the appellant that insurance company was not liable as there was violation of the terms and conditions of the policy, the learned single Judge observed as under: "...The only ground which is urged on behalf of the appellant is that the deceased was travelling on the rooftop of the bus and it is urged that it is a breach of the policy and as such the insurance company is not liable. This aspect of the matter has been decided by a catena of decisions and if any authority is required, one may have a look at the recent decision of the Apex Court reported in Sohan Lal Passi v. P. Sesh Reddy, 1996 ACJ 1044 (SC), wherein the Apex Court has pointed out as follows: 'The Tribunals and courts have to be conscious of the fact that right to claim compensation by heirs and legal representatives of the victims of the accident is not defeated on technical grounds. Unless it is established on the materials on record that it was the insured who had wilfully violated the condition of the policy by allowing a person not duly licensed to drive the vehicle when the accident took place, the insurer shall be deemed to be a judgment-debtor in respect of the liability in view of subsection (1) of section 96 of the Act.' It is common knowledge in India that person because of lack of proper transport has to travel like that and if the insurance company wants to avoid such liability, it must incorporate specific clause in the policy to that effect so that the owner of the vehicle is put on guard and without that being done, the insurance company cannot escape the liability and accordingly the appeal shall stand dismissed. However, I leave the parties to bear their own costs."

(3.) Hence the present L.P.A. at the behest of the insurance company.