National Insurance Company ... vs Shanti Hembrum & Others
2021 Latest Caselaw 2973 Jhar

IN THE HIGH COURT OF JHARKHAND AT RANCHI
            (Civil Miscellaneous Appellate Jurisdiction)
                   M.A. No. 468 of 2018
                          ........

National Insurance Company Limited .... ..... Appellant Versus Shanti Hembrum & Others .... ..... Respondents

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

For the Appellant               : Mr. Pratyush Kumar, Advocate
For the Respondents             :
                                 ........
04/18.08.2021.

Heard, learned counsel for the appellant, Mr. Pratyush Kumar. Appellant - National Insurance Company Limited has preferred this appeal against the award dated 26.03.2018 passed by learned Motor Vehicle Accident Claim Tribunal-cum-District Judge- III, Deoghar in Motor Vehicle Accident Claim Case No. 15/2002, whereby the claimants namely, (1) Shanti Hembrum, wife of Late Bhim Soren, (2) Rukmani Soren, daughter of Late Bhim Soren, (3) Rekha Kumari, daughter of Late Bhim Soren, (4) Arbin Soren, son of Late Bhim Soren and (5) Ajay Soren, son of Late Bhim Soren (Claimant nos. 2 to 5 are minors and they are represented by their mother and natural guardian Claimant no. 1 Shanti Hembrum), have been awarded compensation to the tune of Rs. 7,12,000/-, out of which Rs. 50,000/- has already been indemnified by the Insurance Company under Section 140 of the Motor Vehicles Act as ad interim compensation and thus, a total sum of Rs. 6,62,000/- along with simple interest @ 7.5% per annum has been awarded to the claimants to be paid within 30 days from the date of the order, failing which, the National Insurance Company Limited shall be liable to make payment to the claimants of the aforesaid sum with interest @ 12 % per annum till the payment is made.

Learned counsel for the appellant, Mr. Pratyush Kumar has assailed the impugned award on three counts:-

(i) That the learned Tribunal has not considered the contributory negligence on the part of the deceased, who was trying to take lift from a Dumper bearing registration no. BR-12B-6918 on 03.06.1999 and in that process, he fell down and crushed by the said Dumper,

which was duly insured before the National Insurance Company Limited vide Policy No. 171004/98/6701288 Dumka dated 15.01.1999 valid from 15.01.1999 to 14.01.2000, whereas the accident took place on 03.06.1999.

(ii) That the driving licence of the driver of the offending vehicle was fake and to that effect, D.W.-1 Barun Kumar Singh has been examined on behalf of the Insurance Company.

(iii) That the offending vehicle has no permit.

Learned counsel for the appellant has further submitted that the learned Tribunal has not considered Exhibit-8, which is certificate issued by the District Transport Officer, Munger, vide Memo No. 900 dated 04.10.2008.

Learned counsel for the appellant has thus submitted that the impugned judgment may be set aside and if it is allowed, the right of recovery may be granted in favour of the Insurance Company to recover the same from the owner of the offending Dumper bearing registration no. BR-12-6918 after indemnifying the award to the claimants.

Learned counsel for the appellant has further submitted that there is delay of 35 days in preferring the appeal and for condonation of same, I.A. No. 7000/2018 has been preferred.

From perusal of the impugned award, it appears that nothing has been brought on record to substantiate that the deceased Bhim Soren was trying to climb over the moving Dumper bearing registration no. BR-12-6918, even in the evidence of the claimant Shanti Hembrum, who was eye witness to the occurrence, nothing has been elucidated by the appellant - Insurance Company. No plea has been taken by the Insurance Company before the learned Tribunal with regard to framing of issue of contributory negligence, as such, this Court, in view of the 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), is not inclined to interfere with the same. 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 although 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."

So far the driving licence of driver of the offending Dumper is concerned, though the Insurance Company has examined Barun Kumar Singh as D.W.-1, but Exhibit-8 purported to be issued from the District Transport Officer, Munger (Bihar) vide Memo No. 900 dated 04.10.2008 has not been proved in accordance with law or in consonance with Rule 23 of Motor Vehicles Rules, 1992, as such, in view of the judgment passed by the Apex Court in the case of Nirmala Kothari vs. United India Insurance Company Limited, reported in (2020) 4 SCC 49, the insurance company has failed to prove that owner is guilty of willful negligence while employing the driver, this Court is not inclined to accept the submission made by learned counsel for the Insurance Company.

Para-12 of the aforesaid judgment is profitably quoted herein:-

"12. While hiring a driver the employer is expected to verify if the driver has a driving licence. If the driver produces a licence which on the face of it looks genuine, the employer is not expected to further investigate into the authenticity of the licence unless there is cause to believe otherwise. If the employer finds the driver to be competent to drive the vehicle and has satisfied himself that the driver has a driving licence there would be no breach of Section 149(2)(a)(ii) and the insurance company would be liable under the policy. It would be unreasonable to place such a high onus on the insured to make enquiries with RTOs all over the country to ascertain the veracity of the driving licence. However, if the insurance company is able to prove that the owner/insured was aware or had notice that the licence was fake or invalid and still permitted the person to drive, the insurance company would no longer continue to be liable."

So far permit is concerned, the plea which has been raised by the learned counsel for the Insurance Company is that on the date of accident, the permit has been expired, but that has not contributed to the accident. Accordingly, in nutshell, this Court is not inclined to interfere with the impugned award.

Accordingly, the miscellaneous appeal, being devoid of any merit, is hereby dismissed.

I.A. No. 7000/2018 is hereby closed, as the appeal has already been dismissed.

The statutory amount deposited by the Insurance Company at the time of preferring the appeal under Section 173 of the Motor Vehicles 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.

The balance amount shall be indemnified to the claimants by the Insurance Company within a reasonable period as per the award passed by the learned Tribunal, as the accident is of dated 03.06.1999 and more than 22 years have elapsed.

(Kailash Prasad Deo, J.) Sunil/-