Jharkhand High Court
The New India Assurance Company ... vs Shamim Khan @ Chigu Khan on 14 December, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
M.A. No.436 of 2015
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The New India Assurance Company Ltd. through Divisional Manager, B.P.
Agarwalla Building, P.O. and P.S. Dhansar, District Dhanbad, represented
through its Asst. Manager, duly constituted attorney of the New India
Assurance Company Ltd., Ranchi Division, Sethi Corporate Building, Pee Pee
Compound, Main Road, Ranchi.
... Appellant
-versus-
1. Shamim Khan @ Chigu Khan
2. Nazara Khatoon
3. Md. Ismail Khan
4. Manoj Kumar ... Respondents
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CORAM : HON'BLE MR. JUSTICE ANANDA SEN
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For the Appellant : Mr. G.C. Jha, Advocate
For the Respondent: Mr. Rjiv Karan, Advocate
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4/ 14.12.2021 Heard learned counsel for the appellant and the learned counsel
appearing for the claimant-respondent.
2. This case has been listed today under the heading "For Orders"
for filing requisites for service of notice upon respondent No.4, who is owner of
the offending vehicle. Both the parties, i.e., counsel for the appellant-Insurance
Company and the claimant-respondents agree for final hearing of the case at
this stage itself. After going through the record, I am of the opinion that no
useful purpose will be served to direct the appellant to serve notice upon the
respondent No.4 in view of the nature of the order, which I intend to pass.
3. Appellant-Insurance Company has challenged the award dated
29.06.2015 passed by the District Judge XII-cum-M.A.C.T., Judge, Dhanbad in
T (MV) S. No.31 of 2012. Only one ground has been taken by the Insurance
Company while assailing the award. It is the case of the Insurance Company
that there is a violation of the terms of policy, thus, the owner of the vehicle is
liable to pay the compensation amount and not the Insurance Company.
Counsel for the Insurance Company submits that the vehicle was
being driven without a permit and further at the relevant time the vehicle was
being driven by the driver, who was not having a valid licence. He submits that
the Tribunal has answered the issues in favour of the Insurance Company and
that being so, the Tribunal should have directed the owner to pay the amount,
absolving the Insurance Company.
5. To counter this, counsel appearing for the claimant-respondents
submits that though the Tribunal, on this count has held that the vehicle was
being driven without a permit and by a person not having a valid driving
licence, yet the Tribunal has protected the interest of the Insurance Company
and has given liberty to recover the amount from the owner of the vehicle. He
submits that admittedly, when the vehicle was insured with the Insurance
Company, in view of several judgments of the Hon'ble Supreme Court, the
Tribunal has granted the right of recovery. He submits that no fault can be
found in the impugned judgment and award.
6. Considering the limited issue, which surfaces in this appeal, I find
that admittedly the vehicle bearing registration No. JH 10NA 9611, was being
driven rashly and negligently, met with an accident, resulting in death of
Saidoon Bibi. Vehicle was admittedly insured with the appellant Insurance
Company. Issue Nos.4 and 5 relates to validity of driving licence and the
permit. Learned Tribunal, after going through the documents and evidence,
concluded that the vehicle was being driven without a permit. It was also
concluded that the driver of the vehicle was not having a valid licence. The
Tribunal also drew adverse inference against the owner and driver of the
offending vehicle in respect of driving licence. In view of the adverse inference,
it was held that the vehicle was being driven by the driver, who had no valid
and effective licence at the material time of the accident. Tribunal has also
held that neither the owner produced nor pleaded that the licence was valid
and effective. Tribunal, thereafter, ordered that the Insurance Company is
directed to pay the amount and recover the same from the owner of the
vehicle. This right to recovery has been given to the Insurance Company,
which, according to this Court, protects the interest of the Insurance Company.
Hon'ble Supreme Court in several cases, including the case of National
Insurance Company Limited versus Swaran Singh & Others reported in
(2004) 3 SCC 297, in similar circumstances has directed the Insurance
Company to pay the amount and recover the same from the owner of the
vehicle.
7. Considering the fact that right to recovery has been given and
interest of the Insurance Company has been protected, I am not inclined to
entertain this appeal as no fault can be found in the impugned judgment. This
appeal is dismissed. Insurance Company is directed to withdraw the statutory
amount deposited at the time of filing of this appeal by it before this Court.
(Ananda Sen, J.)
Kumar/Cp-02
