Jharkhand High Court
Future Generali India Insurance ... vs Kokil Singh & Others on 2 August, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Civil Miscellaneous Appellate Jurisdiction)
M.A. No. 300 of 2018
........
Future Generali India Insurance Co. Ltd..... ..... Appellant
Versus
Kokil Singh & Others .... ..... Respondents
CORAM: HON'BLE MR. JUSTICE KAILASH PRASAD DEO
(Through : Video Conferencing)
............
For the Appellant : Mr. Alok Lal, Advocate.
For the Respondents :
........
05/02.08.2021.
Heard, learned counsel for the appellant, Mr. Alok Lal.
Appellant - Future Generali India Insurance Company Limited
has preferred this appeal against the award dated 19.12.2017 passed
by learned District Judge-VII-cum-Motor Accident Claims Tribunal,
Dhanbad in Motor Accident Claim Case No. 01/2015, whereby the
claimants namely, (1) Kokil Singh, son of Late Chhetradhar Singh
and (2) Sarifa Devi, wife of Sri Kokil Singh, have been awarded
compensation to the tune of Rs. 6,48,000/- + Rs. 70,000/- = Rs.
7,18,000/- to be paid within 30 days from the date of award, failing
which penal interest @ 9% per annum shall be paid to the claimants.
However, the amount already paid under Section 140 of Motor
Vehicles Act in T. (M.V.) Suit No. 16/14 on 19.12.2014 shall be
deducted from the compensation amount.
Learned counsel for the appellant, Mr. Alok Lal has submitted
that there is delay of 39 days in preferring the appeal, for which I.A.
No. 4677/2018 has been preferred, mentioning therein the delay in
processing the file. Further, I.A. No. 5990/2020 has been preferred
under Order XLI Rule 5(5) of the C.P.C. for stay of Execution Case
No. 93/2019, pending in the court of learned District Judge-VII-cum-
Motor Accident Claims Tribunal Judge, Dhanbad.
Learned counsel for the appellant has assailed the impugned
award on the ground that Rule 3 (b) of Central Motor Vehicle Rules,
1989 has not been considered by the learned Tribunal, which reads
that "such person is accompanied by an instructor holding an
effective driving License to drive the vehicle and such instructor is
sitting in such a position to control or stop the vehicle."
Learned counsel for the appellant has submitted that learned
Tribunal has to consider all aspects of the matter in view of Section
169(2) and Section 134 (c) of the Motor Vehicles Act, as such, the
impugned award may be set aside. Section 169(2) and Section 134
(c) of the Motor Vehicles Act reads as follows:-
169. Procedure and powers of Claims Tribunals.--
(1) ...................................................
(2) The Claims Tribunal shall have all the powers of a Civil Court for the
purpose of taking evidence on oath and of enforcing the attendance of witnesses
and of compelling the discovery and production of documents and material
objects and for such other purposes as may be prescribed; and the Claims
Tribunal shall be deemed to be a Civil Court for all the purposes of section 195
and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).
(3) ..........................................................
134. Duty of driver in case of accident and injury to a person. - When
any person is injured or any property of a third party is damaged, as a result of
an accident in which a motor vehicle is involved, the driver of the vehicle or
other person in charge of the vehicle shall-
(a) ..........................................................................
(b) ..........................................................................
[(c) give the following information in writing to the insurer, who has
issued the certificates of insurance, about the occurrence of the accident,
namely:---
(i) insurance policy number and period of its validity;
(ii) date, time and place of accident;
(iii) particulars of the persons injured or killed in the accident;
(iv) name of the driver and the particulars of his driving licence.
Explanation.--For the purposes of this section the expression driver includes the
owner of the vehicle.]
After going through the record, it appears that neither such
plea has been taken by the Insurance Company with regard to
driving licence nor with regard to Rule 3(b) of the Central Motor
Vehicle Rules, rather the Insurance Company has taken a plea that
driver of the Discover Motorcycle bearing registration no. JH-10AG-
9483 was not holding a valid and effective driving licence and he
was not qualified for obtaining such driving licence.
In absence of any specific peadings and evidence brought /
adduced before the learned Tribunal, this Court cannot allow the
appellant to enlarge scope in view of judgment passed by the Apex
Court in the case of Ramchandra Vs. Regional Manager United
India Insurance Company Limited reported in 2013 12 SCC 84
(Para-26). Para-26 of aforesaid judgment is profitably quoted
hereunder:-
"26. Hence, at the stage of appeal before the High Court, we
find no legal justification for the High Court to leave it open to
the insurance company to realize the amount of compensation
beyond Rs.32,091/- from the insured/owner as the plea of the
respondent/insurance company althrough was that the claimant
is not entitled to any compensation beyond the extent of liability
under the Workmen's Compensation Act and the
respondent/insurance company had not taken the alternative plea
either before the tribunal or the High Court that in case the
claimant is held entitled to compensation beyond the extent of
liability under the Workmen's Compensation Act, the same was
not payable as no extra premium was paid by the insured/owner
under the policy of insurance. The insurance company had failed
to raise any plea before the courts below i.e. either the Motor
Accident Claims Tribunal or the High Court and it did not even
contend that in case the claimant is entitled to any compensation
beyond what was payable under the Workmen's Compensation
Act, it is the insured owner who was liable to pay as it had no
contractual liability since the insured/owner of the vehicle had
not paid any extra premium. Thus, this plea was never put to test
or gone into by the Motor Accident Claims Tribunal since the
insurance company neither took this plea nor adduced any
evidence to that effect so as to give a cause to the High Court to
accept this plea of the insurance company straight away at the
appellate stage."
Accordingly, this Court finds that Insurance Company has not
made such pleading before the learned Tribunal nor adduced any
evidence, as such, the submissions made by learned counsel for the
appellant that Section 134 (c) and Section 169 (2) of the Motor
Vehicles Act has not been considered by the learned Tribunal is not
sustainable in the eyes of law as no steps have been taken by the
Insurance Company before the learned Tribunal to bring on record the
plea and evidence with regard to issue raised before this Court.
Accordingly, the appeal, being devoid of merit, is dismissed.
I.A. No. 4677/2018 and I.A. No. 5990/2020 are hereby closed.
The statutory amount deposited by the appellant at the time of
preferring the appeal shall be remitted to the learned Tribunal within a
period of four weeks from today by the learned Registrar General of
this Court, so as to indemnify the part of the award and the balance
amount of award shall be indemnified to the claimants by the
Insurance Company within a reasonable period as the accident is of
dated 22.10.2013.
(Kailash Prasad Deo, J.)
Sunil/-
