National Insurance Company ... vs Smt. Mita Devi & Others
2021 Latest Caselaw 613 Jhar

IN THE HIGH COURT OF JHARKHAND AT RANCHI
            (Civil Miscellaneous Appellate Jurisdiction)
                   M.A. No. 374 of 2014
                          ........

National Insurance Company Limited .... ..... Appellant Versus Smt. Mita Devi & Others .... ..... Respondents

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

For the Appellant : Mr. Pratyush Kumar, Advocate For the Respondent Nos. 1 to 3 : Mrs. Lokeshwari Banerjee, Advocate For the Respondent No. 6 : Mr. Kumar Vivek, Advocate.

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14/09.02.2021.

Heard, learned counsel for the appellant, Mr. Pratyush Kumar, learned counsel for the respondent nos. 1 to 3, Mrs. Lokeshwari Banerjee and learned counsel for the respondent no. 6, Mr. Kumar Vivek.

Appellant - National Insurance Company Limited has preferred this appeal against the Award dated 07.03.2014 passed by learned District Judge-III-cum-Motor Vehicles Accident Claims Tribunal, Jamshedpur in Compensation Case No. 21/2010, whereby the claimants namely, Smt. Mita Devi, Minor Ramesh Kumar Singh and Minor Rakesh Kumar Singh (minors are represented through their mother and natural guardian Smt. Mita Devi), have been awarded compensation to the tune of Rs. 4,50,800/- along with interest @ 9% per annum from the date of filing of the claim application with certain conditions.

Learned counsel for the appellants has submitted that the appeal has been preferred by Insurance Company on the ground that there was statutory violation of terms and conditions of the permit.

Learned counsel for the appellant has submitted that it is not a case of no permit, rather it is a case of misuse of permit, as such, right of recovery may be granted in favour of the National Insurance Company Limited from the owner of the offending vehicle.

Learned counsel for the appellant has further submitted that the learned Tribunal has not considered the overloading of the passengers in the vehicle as the vehicle was insured for four persons but there were 10 persons on the vehicle at the time of accident.

Learned counsel for the appellant has submitted that the learned Tribunal has framed Issue No. V i.e. Whether there is breach of terms and conditions of the insurance policy?

The same has been discussed along with Issue No. VI at page no. 4 & 5 of the impugned judgment, which may be profitably quoted:-

"Issue No. V Whether there is breach of terms and conditions of the insurance policy and Issue No. VI Whether the OP Insurance Co. Ltd. is liable to indemnify the liability of owner of the said vehicle? On the above mentioned issues first of all I take up statement of D.W.1 Vishwajeet Mukherjee. As per the witness alleged accident took place beyond the permit area. It has also been submitted that as per the terms and conditions of the Insurance Policy driver of the Tempo should have obtained badge, however no badge has been produced by the said driver and there is no endorsement of Badfe Number on the D.L of Dashrath Ram. So there is violation of terms and conditions of the Insurance Policy and permit condition. As per cross-examination of this witness investigation report has been prepared by O.P. Sahay and this witness neither got verified DL or permit. This witness has also accepted in cross examination that he has not visited Bhula Village and he has no documentary information regarding distance from Sakchi Taxi Stand to Bhula Village. As per this witness he got information regarding distance from the local person. This witness has also accepted that on photocopy of the permit DTO has not proved any endorsement. So from the above mentioned statement of the D.W.1 opposite parties has attempted to establish violation of permit due to absence of Badge and driving of the vehicle beyond the permit limit. It has been held by the Hon'ble Court in United India Insurance Company versus Usha Kiran Sharma (2003) 4 JLJR 475 and that requirement of badge is not necessary for the validity of the driving license and it is regulatory provisions in the Bihar Motor Vehicle Rules. So, I find that mere absence of Badge would not result into violation of terms and conditions of the Insurance Policy. As per the above mentioned decision of the Hon'ble Court Badge is only for the regulatory purpose and even in absence of Badge driving license of the concerned driver would be valid. So, I find that driver was having a valid driving license in spite of absence of Badge. So far as, case of the Insurance Company that Tempo was being used beyond the permit limit is concerned in the cross examination itself it has been accepted by the DW-1 that he has no personal information regarding distance between

Sakchi Taxi Stand and Bhula Village. On the basis of mere guess work one cannot held that there was violation of terms and conditions of the permit. It has been held by the Hon'ble Apex Court in National Insurance Company Ltd. Vs. Swarn Singh and Ors. (2004) 3 SCC 297 "The expression 'breach' occurring in sec. 96(2)(b) means infringement or violation of a promise or obligation. As such the insurance company will have to establish that the insured was guilty of an infringement or violation of a promise. The insurer has also to satisfy the Tribunal or the court that such violation or infringement on the part of the insured was willful. If the insured has taken all precautions by appointing a duly licensed driver to drive the vehicle in question and it has not been established tha it was the insured who allowed the vehicle to be driven by a person not duly licensed, then the insurance company cannot repudiate its statutory liability under sub- section (1) of Section 96....." So, in the light of the above mentioned decision of the Hon'ble Apex Court Insurance Company is not only required to plead but also bound to establish breach of violation of terms of Insurance policy however I find that O.P. Insurance Company has failed to establish violation of terms and conditions of the Insurance Policy. Accordingly, I find that Insurance Company is liable to indemnify the liability of the Insurer which may be awarded by this tribunal. Accordingly, these issues were decided against the OP Insurance Company and in favour of the applicants."

Learned counsel for the appellant has thus submitted that the Insurance Company may be given right of recovery from the owner of the offending vehicle, who has violated the terms and conditions of the insurance policy.

Learned counsels for the claimants, Mrs. Lokeshwari Banerjee and learned counsel for the respondent no. 6, Mr. Kumar Vivek have opposed the prayer and have submitted that the accident took place on 01.01.2010 by the Tempo bearing registration no. JH-05AA-3015, which caused death of Manoj Kumar Singh, husband of claimant no. 1 Smt. Mita Devi and father of claimant nos. 2 & 3, Minor Ramesh Kumar Singh and Minor Rakesh Kumar Singh. Since more than 11 years have elapsed till date, the Insurance Company has not indemnified the compensation and the poor claimants are the sufferers.

Learned counsel for the claimants has submitted that the issues which have been agitated by the learned counsel for the appellant before this Court have never been proved before the learned Tribunal and these facts have been mentioned in page-4&5 of the impugned judgment by the learned Tribunal while discussing Issue No. V and Issue No. VI. The same may be profitably quoted hereunder:-

"So, in the light of the above mentioned decision of the Hon'ble Apex Court Insurance Company is not only required to plead but also bound to establish breach of violation of terms of Insurance policy however I find that O.P. Insurance Company has failed to establish violation of terms and conditions of the Insurance Policy. Accordingly, I find that Insurance Company is liable to indemnify the liability of the Insurer which may be awarded by this tribunal. Accordingly, these issues were decided against the OP Insurance Company and in favour of the applicants."

Learned counsel for the claimants has submitted that the learned Tribunal has taken note of the fact that the Insurance Company is not only require to plead but also bound to establish breach of violation of terms of Insurance Policy, which has not been done by the Insurance Company by adducing any evidence, as such, this Court may not interfere with the same, rather may enhance the interest because of delay.

After hearing learned counsel for the parties and on the basis of materials brought on record including the findings recorded by the learned Tribunal while deciding Issue No. V, it appears to this Court that though the same is assailed by the appellant before this Court, but no substance has been brought on record by the appellant Insurance Company before the learned Tribunal regarding the same, as such, the same remains not proved by the appellant.

Accordingly, this appeal, being devoid of merit, is hereby dismissed.

It appears that vide order dated 23.11.2015 passed by the Coordinate Bench of this Court, the appellant - Insurance Company has deposited the principal amount in favour of the claimants in terms of award passed by the learned Tribunal, as such, balance amount accrued because of interest shall be paid by the Insurance

Company within a reasonable period as the accident was of dated 01.01.2010 and much time has been elapsed.

The statutory amount deposited by the appellant for filing the appeal shall be remitted to the learned Tribunal so as to indemnify the balance amount.

(Kailash Prasad Deo, J.) Sunil/-