United India Insurance Company ... vs Rajila Khatoon & Others
2021 Latest Caselaw 2813 Jhar

       IN THE HIGH COURT OF JHARKHAND AT RANCHI
             (Civil Miscellaneous Appellate Jurisdiction)
                      M.A. No. 274 of 2019
                              ........

United India Insurance Company Ltd. .... ..... Appellant Versus Rajila Khatoon & Others ..... Respondents

CORAM: HON'BLE MR. JUSTICE KAILASH PRASAD DEO (Through : Video Conferencing) ............

For the Appellant                 : Mr. Alok Lal, Advocate
For the Respondents               : -----
                                  ........
02/10.08.2021.

Heard, Mr. Alok Lal, learned counsel for the appellant. United India Insurance Company Ltd. has preferred this appeal against the award dated 15.03.2019 passed by learned District Judge -II-cum-M.A.C.T. Giridih, in Motor Accident Claim Case No.36 of 2012, whereby the claimants namely, (1) Rajila Khatoon, w/o late Md. Noor Alam, (2) Ashima Khatun, D/o Md. Noor Alam,, (3) Md. Firoj, S/o Late Md. Noor Alam, and (4) Aabida Khatun, W/o Late Tahir Mian (Claimant nos. 2 and 3 namely Ashmia Khatun and Md. Firoj are minor and are represented through their mother and natural guardian claimant no. 1, Rajila Khatoon) have been awarded compensation to the tune of Rs.6,62,600/- along with simple interest @ 6% per annum from the date of award passed in claim case i.e 15.03.2019 till the reliazation of the same with certain condition that if the awarded amount is not paid within 60 days from the date of award the claimants shall be entitled for interest @ 9% per annum .

Mr. Alok Lal, learned counsel for the appellant has assailed the impugned award on the ground that the deceased, namely Md. Noor Alam was travelling on the roof of the bus which will be aparent from Ext-3, the certified copy of the F.I.R of Tundi P.S. Case No. 14 of 2011, but the tribunal has not granted right of recovery in the favour of the Insurance Company after indemnifing the award to the claimaints as such, right of recovery of the same from the owner of the offending vehicle, namely Bijoy Kumar Jaiswal, S/o Dwarika Prasad, R/o Whitty Bazar, Giridih, P.O., P.S. & District-Giridih owner of Bus bearing registration No. JH-11D-8121, may be granted.

Learned counsel for the appellant has further submitted that the learned tribunal has wrongly held that there was no violation of the terms and conditions of the insurance policy on the part of the owner while deciding

issue no.3 at para-12 of the impugned award. The insurance company has already paid Rs. 50,000/- to the claimants under Section 140 of the Motor Vehicle Act in Claim Case No. 24 of 2011, as such, this finding of the tribunal is bad in law.

It is further submitted by the counsel for the appelant that earlier a claim petition has also been filed under Section 140 of M.V. Act vide Claim Case No. 24 of 2011 in which insurance company has paid Rs.50,000/- to the claimants as such impugned award may be set aside.

Considering the submissions made by the counsel for the appellant and evidence brought on record, it is apparent that the insurance company appeared and filed his written statement before the learned Tribunal stating that there is no valid cause of action for the suit and denied about the involvement of the alleged Bus No. JH-11D-8121 in the alleged accident. Further admitted that appellant has already paid Rs.50,000/- to the claimants in Claim Case No. 24 of 2011, under Section 140 of the M.V. Act and admitted about the policy of the insurance of the Bus bearing registration No. JH-11D-8121. However it is further stated that the owner of the vehicle should be directed to produce all valid and effective vehicular papers including the policy of insurance and the driving licence of the driver, failing which it shall be presumed that there is violation of statutory terms and conditons of policy of insurance. It is further stated that the age, income and occupation of the deceased should be proved by the reliabe documentary evidence and the amount of compensation demanded by the claimants is imaginally and exorbitant. There is also contributary negligence on the part of deceased, as such the claim case is liable to be dismissed.

From perusal of the impugned award it appears issue Nos. 3 and 4 are framed such as:-

Issue No. (3) whether death of the deceased Md. Noor Alam was caused by injury sustained due to rash and neglegent driving by the driver of the offending vehicle i.e. Bus No. JH-11D-8121 on 10.03.2011 at 2:30 p.m and the deceased was aged about 30 years at the time of occurrence? Issue No. (4) whether the driver of the offending vehicle had a valid driving licence at the time of occurence and the offending vehicle was insured with with O.P. No. 3 - United India Insurance Company Ltd?

From perusal of the pleadings and evidence adduced by the claimants

PW-1, Rajila Khatun,(claimant No.1), PW-2, Aabida Khatun (claimant No.4) and PW-3 Md. Taiyab, it appears that the plea whatever has been assailed before this Court in miscellaneous appeal have not been agitated by the insurance company in the court below. There is no wishper in the written statement that deceased was travelling on the roof of the Bus, except the statement made in the fardbeyan by the informant Shankar Das, who has not been examined in this claim case either on behalf of the claimants or on behalf of the insurance company. Accordingly, certified copy of the FIR which has been brought on record as Ext.3, cannot be considered as substantive piece of evidence rather it can be a corroborative piece of evidence, subject to corrobation by the witnesses, which has not been done in this claim case.

In absence of any pleadings by the insurance company or in absence of any evidence adduced by the insurance company before the learned Tribunal, this Court cannot allow the insurance company to assail the finding recorded by the learned tribunal i.e. in paragraph-12 of the impugned judgment with regard to the violation of terms and conditions of the insurance policy on part of the owner of the vehicle in view of the judgment passed by the Apex Court in the case of Ramchandra Vs. Regional Manager United India Insurance Co. Ltd., reported in 2013 (12) SCC 84 at Para-26, which may profitably be quoted herein :-

"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 realise the amount of compensation beyond Rs 32,091 from the insured/owner as the plea of the respondent Insurance Company all through 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 Accidents 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 Accidents 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 straightaway at the appellate stage."

This court cannot allow the insurance company to travel beyond its pleadings and evidence. Accordingly, the appeal being devoid of merit is hereby dismissed, as the appellant- Insurance Company could not substantiate the plea taken before this Court by raising the same for adjudication before the tribunal, either in the written statement or by adducing evidence as Shankar Das has not been examined in this case, as such, corroborative piece of evidence was not proved beyond reasonable doubt and the FIR Ext.-3 is only with regard to the accident caused by the motor vehicle.

Accordingly appeal being devoid of merit is dismissed. The statutory amount deposited by the appellant at the time of preferring the appeal under Section 173 of the M.V. Act 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 to the claimants after due notice and verification and the balance amount of the award as awarded by the learned tribunal shall be indemnified to the claimants by the insurance company within a reasonable period as the accident is of dated 10.03.2011.

(Kailash Prasad Deo, J.) S.K/T.K