ORIENTAL INSURANCE CO. LTD.versusVIMLA DEVI & ORS.

                                      (2009] 1 S.C.R. 1073


                              ORIENTAL INSURANCE CO. LTD.                        A
                                               v.
                                     VIMLA DEVI & ORS.
                             (Civil Appeal Nos. 815-817 of 2009)
                                     FEBRUARY 9, 2009
--.,-                                                                            B
                         [DR. ARIJIT PASA YAT AND ASOK KUMAR
                                      GANGULY, JJ.]
  •         i'

                      Motor Vehicles Act, 1988:
                       s. 166 - Compensation claimed by heirs of passengers      c
                  - Tribunal and High Court held that though offending vehicle
                  was goods commercial vehicle, it was insured for goods as
                  well as for passengers - Plea of insurer that no premium was

        -   .     received in respect of non fare paying passengers - Matter
                  remitted to Tribunal to consider original documents relating
                  to payment of premium.
                                                                                 D


                      The MACT and the High Court held that the offending
                  vehicle was the subject matter of insurance for goods as
                  well as for passengers, though it was a goods
                  commercial vehicle.                                            E

                       In appeals to this Court, appellant-insurer contended
                  that the original records produced by it clearly showed
            ;.,   that no premium was received in respect of any non fare
                  paying non employees and both the MACT and the High            F
                  Court erroneously held that the premium was paid for
                  passengers as admittedly the vehicle was a goods
                  commercial vehicle.
                      Partly allowing the appeals and remitting the matter
                  to MACT, the Court                                             G

 -~                   HELD: The MACT and the High Court appear to have
                  proceeded on erroneous premises that the premium was
                  also paid in respect of goods and also in respect of
                  passengers. MACT would consider the original
                                           1073                                  H
    1074         SUPREME COURT REPORTS             [2009] 1 S.C.R.


A documents relating to payment of premium. [Para 4]                   --
    (1075-F-G]
        CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.
    815-817 of 2009.
        From the final Judgment and Order dated 31.8.2004 of the
8
    High Court of Uttaranchal at Nainital in A.O. Nos. 03 & 01 of
    2004 and 462 of 2003.
        Vishnu Mehra and B.K. Satija for the Appellant.
        The Judgment of the Court was delivered by
c          DR. ARIJIT PASAYAT, J.1. Leave granted.
         2. Challenge in these appeals is to the order passed by a
   Division Bench of the Uttaranchal High Court. Three appeals
  filed by the appellant against the common judgment and award
0 dated 10.10.2003 passed by Motor Accidents Claims Tribunal,
   District Judge, Tehri Garhwal (in short the 'MACT') were
  dismissed. It is the case of the claimants who filed a Claim
   Petition under Section 166 of the Motor Vehicles Act, 1988 (in
  short the 'Act') that because of rash and negligent driving of
E the driver of the vehicle i.e. UP .07-F-4885 the vehicle fell into
  a ditch resulting in the death of three persons namely, Sohan
  Singh, Uttam Singh and a boy Rakesh Singh aged about 12
  years. The dependants of the deceased filed three Claim
  Petitions for compensation. The appellant-Oriental Insurance
  Company took the stand the accident occurred due to
F mechanical failure of the vehicle and in any event the insurance
  company had no liability as the offending vehicle was being
  driven in violation of the terms and conditions of the policy and
  the driver of the offending vehicle did not have a valid driving
  license. The MACT took the view that the policy was operative
G for a period from 5.7.1999 to 4.7.2000 and since the accident
  occurred on 13.4.2000 it was within the validity period. The
  MACT also noticed that the driver's license was valid during
  the period of time when the accident occurred. The MACT and
  the High Court held that the vehicle was the subject matter of
H insurance for goods as well as for passengers, though it was
         ORIENTAL INSURANCE CO. LTD. v. VIMLA DEVI &               1075
                ORS. [DR. ARIJIT PASAYAT, J.]
      a goods commercial vehicle. MACT did not accept the stand           A
      of the appellant-Insurance company holding that no premium
      was paid for any passenger. The High Court also accepted the
      said view.
           3. In support of the appeals, learned counsel for the
      appellant submitted that the original records produced by the       B
      insurance company clearly show that no premium was received
      in respect of any non fare paying non employees. It was the
> t
      stand of learned counsel for the appellant that both the MACT
      and the High Court erroneously held that the premiums were
      paid for the goods as well as for the passengers. In fact no        c
      premium was paid for passengers as admittedly the vehicle
      was a goods commercial vehicle. The appeal survives in
      respect of respondent No.9. The details of premium paid by
      the owner have been indicated in the policy that the following
      amounts were paid:                                                  D
             Third party liability       Rs.2,779.00
             Third Party Property Damage Rs. 75.00
             NFPE                        Rs. 50.00
             Driver                      Rs. 15.00                        E
             Coolie                      Rs. 15.00
           4. The MACT and the High Court appear to have
      proceeded on erroneous premises that the premium was also
      paid in respect of goods and passengers. In the aforesaid
                                                                         F
      circumstances we think it appropriate to remit the matter to the
      MACT to consider the original documents relating to payment
      of premium which have been summarized in the paper book
      the amount of premium paid, and determine the person from
      whom the recovery is to be made. Without expressing any
      opinion on the merits, we remit the matter to MACT for taking G
      ~ decision. It shall permit the appellant to produce such material
      or evidence which according to it has relevance.
             5. The appeals are allowed to the aforesaid extent.
      D.G.                                     Appeal partly allowed.     H