The New India Assurance Company ... vs Sabira Begum W/O Lae Zahiruddin ...
2021 Latest Caselaw 9846 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


 
Court No. - 19
 
Case :- FIRST APPEAL FROM ORDER No. - 1387 of 2009
 
Appellant :- The New India Assurance Company Ltd.Digiha Chungi Naka
 
Respondent :- Sabira Begum W/O Lae Zahiruddin And Others
 
Counsel for Appellant :- M.S.Kotwal,Ashish Kumar Srivastava,Ved Prakash
 
Counsel for Respondent :- Himanshu Kumar Srivastava
 
Along with
 
Case :- FIRST APPEAL FROM ORDER No. - 1427 of 2009
 
Appellant :- Jhothu Alias Nankau
 
Respondent :- The New India Assurance Comp. Ltd. Bahraich And Ors.
 
Counsel for Appellant :- A.R.Khan,Aasif Razzak Khan,Ved Prakash
 
Counsel for Respondent :- M.L.Kotwal
 
Along with
 
Case :- FIRST APPEAL FROM ORDER No. - 687 of 2014
 

 
Appellant :- Jhothu Alias Nankau
 
Respondent :- Islamulla And Ors.
 
Counsel for Appellant :- Ashutosh Bajpai
 
Counsel for Respondent :- Himanshu Kumar Srivastava,Ved Prakash,Zafar Aziz
 
Hon'ble Jaspreet Singh,J.

1. This is a batch of three appeals F.A.F.O. No. 1387 of 2009; F.A.F.O. No. 1427 of 2009 and F.A.F.O. No. 687 of 2014 which arise out of a single accident wherein two persons lost their lives.

2. Another F.A.F.O. which is filed by the owner of the vehicle who has assailed the award dated 29.03.2014 passed by the MACT/District Judge, EC Act, Bahraich passed in Claim Petition No. 67/70/2010 (Islamullah and Others Vs. Jothu @ Nankau and Another). This claim petition was filed by the legal heirs claiming compensation in respect of the death of Smt. Jaituna. The F.A.F.O. No. 1427 of 2009 has again been filed by the owner of the vehicle against the award dated 14.09.2009 passed by the MACT/Additional District Judge, E.C. Act, Bahraich in Claim petition No. 106/17/2003 filed by the legal heirs on account of death of Sri Zahiruddin. While F.A.F.O. No. 1387 of 2009 has been filed by the Insurance Company being aggrieved against the award dated 14.09.2009 passed by the MACT/ADJ, E.C. Act, Bahraich in M.A.C.P. No. 106/70/2003.

3. Thus, it would be seen that the two appeals have been preferred by the owner of the vehicle whereas one appeal has been preferred by the Insurance Company. In so far as the F.A.F.O. No. 1427 of 2009 and F.A.F.O. No. 1387 of 2009 is concerned, both have been filed against the same award dated 14.09.2009 in MACP No. 106/70/2003. The owner has assailed the award on the ground that the vehicle in question was duly insured and there was no violation of the policy conditions. In such a situation, the award ought to have been passed against the Insurance Company and by granting the right of recovery to the Insurance Company, Tribunal has erred in law. Whereas the Insurance Company has preferred the F.A.F.O. No. 1387 of 2009 primarily on the ground that it was a case where admittedly the tractor-trolley in question was being driven without the registration number which was in violation of the policy conditions, inasmuch as, Section 39 of the Motor Vehicles Act prohibits the use of a vehicle in public place without the registration number, hence, this being a fundamental breach of the policy conditions, the right of recovery was inappropriately granted by the Tribunal, hence, the award ought to have been fastened completely on the owner.

4. It is in this view of the matter that all the three appeals were connected and have been heard together and are being decided by this common judgment.

5. To put the controversy in a perspective, briefly, the facts giving rise to the instant appeals are being noticed as under;-

6. It is the case of the claimants that on 28.05.2003, Sri Zahiruddin was going towards Nawabganj in relation to his vocation on a cycle and while he reached Katua crossing under P.S. Nawabganj, a tractor Swaraj 724 having Chassis No. W.T.P. -10400002200 and Engine No. 381312/01 N 3043 was being driven rashly and negligently and hit the cyclist Zahiruddin who expired on the spot. It was further urged that Sri Zahiruddin could earn Rs. 5,000/- per month from the business of bakery and was 39 years of age and in this context the Claim Petition No. 106/70/2003 was filed.

7. Similarly, in respect of the same accident, another claim petition was filed bearing No. 67/70/2010 by Islamullah and Others being the legal heirs of Smt. Jaituna and it was alleged that on 28.05.2003 Smt. Jaituna wife of Badkau was travelling on the tractor-trolley along with other persons as part of marriage procession. It was further stated that as the tractor-trolley reached Village Patparganj, the driver of the tractor turned the tractor suddenly, as a result it turned turtle. In the said claim petition, it was alleged that Sri Zahiuruddin expired on the spot and while Smt. Jaituna and others were severely injured. While Smt. Jaituna was being taken to the District Hospital, she expired on the way. In this claim petition too tractor-trolley with Chassis No. W.T.P. -10400002200 and Engine No. 381312/01 N 3043 was involved.

8. Notices were issued to the owner Jothu @ Nankau as well as New India Insurance Company Ltd. Both the claim petitions were tried separately, inasmuch as, the claim petition relating to the death of Sri Zahiruddin came to be decided on 14.09.2009 whereas the claim petition relating to the death of Smt. Jaituna was decided on 29.03.2014.

9. In the claim petition relating to the death of Smt. Jaituna, the owner and the Insurance Company contested the claim petition and filed their separate written statements. The owner Sri Jothu in his written statement denied the factum of the accident and also raised a plea that the claim petition was highly excessive. It was further urged that Smt. Jaituna was not travelling in the tractor nor she sustained any injury nor she died as a consequence of the accident.

10. It was also stated that on 28.05.2003, the said tractor was being driven by Sri Jothu namely Sri Abdul Kalam who was a proficient driver having a valid license. It was also stated the said license was valid till 05.03.2023. The fact that the Tractor with Chassis No. W.T.P. -10400002200 and Engine No. 381312/01 N 3043 belonged to Sri Jothu and it had the registration number as U.P. 40H 7949. He also stated that the tractor in question was duly insured for the period 26.02.2002 to 27.02.2003 and thus, if at all, any liability arise, the same was liable to be indemnified by the Insurance Company.

11. The Insurance Company also took the general defence denied that no liability can be fixed on the Insurance Company unless it is established that the vehicle in question was being driven in accordance with the policy conditions and the driver had a valid and effective license.

12. On the basis of the pleadings of the parties, the Tribunal framed four issues. While dealing with the issue no. 1, it came to the conclusion that the tractor driver was driving the vehicle rashly and negligently as a result, the tractor-trolley turned turtle. In the aforesaid accident Smt. Jaituna sustained injuries and ultimately she succumbed to her injuries. It also came to the conclusion that the tractor was being driven contrary to the policy conditions, inasmuch as, the trolley was carrying persons for a marriage procession. It also came to the conclusion that the tractor-trolley bearing Chassis No. W.T.P. -10400002200 and Engine No. 381312/01 N 3043 was the Tractor Swaraj-724 and this very tractor with the aforesaid Chessis Number was insured with the Insurance Company and there was no question raised on the validity of the driving license. Thereafter considering the evidence on record, the Tribunal awarded a sum of Rs. 1,27,500/- along with 6% interest in favour of the claimant and it further recorded a finding that since the tractor was being utilized for carrying persons for a marriage procession and was being utilized for non-agricultural purposes, hence, the liability of the award was fastened on the owner by means of award dated 29.03.2014. This award dated 29.03.2014 has been assailed in F.A.F.O. No. 687 of 2014.

13. In so far as the claim petition relating to Sri Zahiruddin is concerned, in the aforesaid claim petition as well, the owner and the Insurance Company filed their written statement raising similar plea and the Tribunal on the basis of the pleadings raised 7 issues.

14. In the claim petition relating to Sri Zahiruddin, the Tribunal recorded a finding that on 28.05.2003, the Tribunal recorded a finding that on 28.05.2003, the tractor was being driven rashly and negligently and had hit Sri Zahiruddin who expired on the spot. It also found that the said tractor was insured with New India Insurance Company for a period 24.03.2003 to 23.03.2004 and that the driver had a valid license. Considering the quantum, the Tribunal awarded a sum of Rs. 3,21,500/- to the legal heirs of Sri Zahiruddin by means of award dated 14.09.2009 and this award has been challenged both by Jothu and the Insurance Company in F.A.F.O. No. 1427 of 2009 and F.A.F.O. No. 1387 of 2009 respectively.

15. The submission of owner in both the appeals i.e. F.A.F.O. No. 1427 of 2009 and F.A.F.O. No. 687 of 2014 is that the vehicle  was being driven in accordance with the policy conditions. There was no violation and it is not established that the tractor in question was duly insured by the Insurance Company and for the said reason the finding recorded by the Tribunal in the case relating to the death of Smt. Jaituna holding that the tractor was being utilized for the purposes other than agriculture is incorrect as well as the fact that in the other claim petition i.e. relating to the death of Sri Zahiruddin, it was held that the driver was driving rashly and negligently and there was no finding to the fact that the tractor was being utilized for any other purposes other than agriculture. In the aforesaid circumstances, in both the cases, the award ought to have been passed against the Insurance Company and while granting the right to recovery to the Insurance Company in the case related to the death of Zahiruddin, the Tribunal has erred in law.

16. On the other hand, the learned counsel for the Insurance Company has submitted that though there are two separate findings in two separate claim petitions, though, arising out of the same accident wherein in one case it has been held that the tractor was being utilized for a purpose other than agriculture whereas in the other case, it has been held that the accident occurred on account of rash and negligent driving of the tractor but the fact remains that in both the claim petitions, the tractor has been described with Chassis No. W.T.P. -10400002200 and Engine No. 381312/01 N 3043 meaning thereby that the tractor did not possess the registration number.

17. It has further been submitted that even though for a moment, if it is ignored regarding the two findings in two separate claim petitions, yet, one thing is common in both the cases that the tractor has been described with Engine No. and Chassis No. and admittedly as it would be evident from the admission of the owner as well as the driver who is the son of Jothu that on the date of the accident the tractor did not possess the registration number.

18. The learned counsel for the appellant-insurance company submits that Section 39 of the Motor Vehicles Act clearly states that no person shall drive any vehicle and no owner of a motor vehicle shall cause a permit to the vehicle to be driven in any public place or at any other place unless the vehicle is registered in accordance with this chapter and the certificate of registration has not been suspended or cancelled and the vehicle carries a registration mark displayed in the prescribed manner. It is thus submitted that apparently, there is a violation of the policy conditions and the tractor was being driven without the registration number and in the aforesaid case the tractor could not be treated to be driven in accordance with the policy conditions, hence, the award in the case of Zahiruddin also ought to have been passed against the owner and it was not the case where right to recover ought to have been given and as such to that extent the Insurance Company has assailed the award passed in the case of Zahiruddin.

19. The learned counsel for the claimant on the other hand has merely submitted that because of the ongoing litigation between the Insurance Company and the owner, it is the claimants to have suffered and despite the accident having taken place in the year 2003, yet, they have not received the claim amount, hence, it has been urged that whosoever may indemnify the award, the claimants be granted the fruits of the award.

20. The Court has considered the rival submissions and has also perused the material available on record.

21. Without delving deeper into the rival contentions of the parties whether the tractor was being utilized for a purpose other than agriculture or not, a fact which stares at the face of the record is that the tractor in question which was involved in the accident on 28.05.2003 did not bear the registration number.

22. The learned counsel for the owner-appellant could not dispute the fact that the tractor in question which now bears the number as 40 H 4979 has the following Chassis No. W.T.P. -10400002200 and Engine No. 381312/01 N 3043.

23. Thus, in view of the aforesaid, it is not disputed that the tractor involved in the accident which has been described all along with its Chassis No. W.T.P. -10400002200 and Engine No. 381312/01 N 3043 is the one which now bears as 40 H 4979. It is also not disputed this very tractor is the Swaraj 724 and it is with the instant Chassis and Engine No. that the Insurance Company had issued the cover note.

24. It will also be relevant to notice the statement of the Jothu, the owner of the tractor himself where he admitted that his tractor did not have the registration number on the date of the incident. This shall be evident from the cross-examination of Jothu held on 20.03.2009, a copy of which is available on record as Paper No. A-63. From the perusal of the evidence of Abdul Kalam who is the son of Jothu and was driving the aforesaid tractor whose evidence and cross-examination was held on 04.08.2009 bearing Paper No. A-68 in the record of the Tribunal also admits the fact that the Tractor did not have the registration number and that the registration number was taken only in the year 2009 while the tractor was purchased in the year 2002.

25. In this view of the matter, coupled with the mandate as contained in Section 39 of the Motor Vehicles Act, 1988 which reads as under for the ease of reference:-

"39. Necessity for registration.--No person shall drive any motor vehicle and no owner of a motor vehicle shall cause or permit the vehicle to be driven in any public place or in any other place unless the vehicle is registered in accordance with this Chapter and the certificate of registration of the vehicle has not been suspended or cancelled and the vehicle carries a registration mark displayed in the prescribed manner: Provided that nothing in this section shall apply to a motor vehicle in possession of a dealer subject to such conditions as may be prescribed by the Central Government."

26. It would be clear that even though it may not have been clearly established that the tractor was being utilized for any other purpose other than agriculture but the owner and his son who were examined as witnesses before the Tribunal and having admitted that the tractor in question did not have the registration number which was only taken by them in the year 2009 whereas the accident was held on 28.05.2003.

27. In the aforesaid circumstances, there is a clear violation of the mandate of Section 39, hence, it cannot be said that the tractor was being driven in accordance with the policy conditions. Thus, the submission of the learned counsel for the appellant is misconceived.

28. This Court is not ready to accept the contention that the tractor was being driven in accordance with the policy conditions. Thus, the appeals filed by the owner do not have any merit and are liable to be dismissed. As far as the appeal preferred by the Insurance Company is concerned, the law of pay and recover has been well settled right from decision of the Apex Court in the case of National Insurance Company Ltd. Vs. Swaran Singh reported in 2004 (3) SCC 297 which has also been considered in the case of Kulwant Singh and Others Vs. Oriental Insurance Company Limited reported in 2015 (2) SCC 186.

29. In this view of the matter where the Insurance Company had issued the cover note and this fact not being disputed, hence, this Court does not find that the Tribunal has committed any error in granting the right to recover as the right of the third parties have to be safeguarded.

30. In light of the decision of the Apex Court in the case of Swaran Singh (Supra) and Kulwant Singh (Supra), the submission of the Insurance Company does not impress the Court.

31. In view of what has been discussed above, this Court is of the considered view that all the three appeals preferred by the Jothu (two appeals bearing No. 687 of 2014 and 1427 of 2009) as well as the appeal preferred by the Insurance Company bearing F.A.F.O. No. 1387 of 2009 are dismissed.

32. In the facts and circumstances, there shall be no order as to costs. It is, however, provided that whatever amount has been deposited by the appellants before this Court including the statutory amount shall be remitted to the Tribunal to be released in favour of the claimant and the remaining sum shall also be deposited by the Insurance Company before the Tribunal within a period of six weeks from today to be released in favour of the claimants and thereafter the Insurance Company shall have the right to recover the aforesaid sum from the owner in accordance with law.

33. The record of the Tribunal shall also be remitted to the Court concerned within a period of one week from today.

(Jaspreet Singh, J.)

Order Date :- 09.08.2021

Asheesh