Branch Manager vs Sushila Oraon & Another
2021 Latest Caselaw 870 Jhar

IN THE HIGH COURT OF JHARKHAND AT RANCHI
            (Civil Miscellaneous Appellate Jurisdiction)
                   M.A. No. 463 of 2014
                          ........

Branch Manager, Oriental Insurance Co. Ltd. ..... Appellant Versus Sushila Oraon & Another ..... ..... Respondents

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

For the Appellant : Mr. Alok Lal, Advocate For the Respondent No. 2 : Mr. Kripa Shankar Nanda, Advocate ........

08/23.02.2021.

Heard, learned counsel for the appellant-Oriental Insurance Company Limited, Mr. Alok Lal and learned counsel for the Ganpati Baraik, Owner of the Offending Vehicle Tractor bearing registration no. B.R.41/3951, Mr. Kripa Shankar Nanda.

Learned counsel for the appellant has submitted that the Oriental Insurance Company Limited has preferred this appeal against the award dated 16.04.2014 passed by learned District Judge- cum-Motor Accident Claims Tribunal, Simdega in M.A.C.C. Case No. 18 of 2009, whereby the claimant namely, Sushila Oraon, Wife of Manmashih Oraon, for herself and on behalf of her minor children namely, Praveen Oraon, Hariyani Oraon, Kalen Oraon, Pramila Oraon and Halen Oraon, all resident of Village - Garja, Girja Toli, P.S. - Simdega, District - Simdega, have been awarded compensation to the tune of Rs. 4,99,500/- to the paid within two months from the date of order i.e. 16.04.2014, failing which the claimants shall realize the same amount from O.P. No. 2 along with penal interest of 12% per annum from the date of order to the date of payment.

Learned counsel for the appellant has submitted that the learned Tribunal has not considered the material brought on record. The learned Tribunal has not considered Exhibit-4&5 i.e. Xerox copy of registration certificate book and Xerox copy of insurance certificate in correct prospective.

Learned counsel for the appellant has placed reliance upon the judgment passed by the Apex Court in the case of National Insurance Co. Ltd. Vs. Chinnamma and Others reported in (2004)

8 SCC 697. Para-16 & 17 of the said judgment are re-produced hereunder:-

16. A tractor fitted with a trailer may or may not answer the definition of goods carriage contained in Section 2(14) of the Motor Vehicles Act. The tractor was meant to be used for agricultural purposes. The trailer attached to the tractor, thus, necessarily is required to be used for agricultural purposes, unless registered otherwise. It may be, as has been contended by Mrs. K. Sharda Devi, that carriage of vegetables being agricultural produce would lead to an inference that the tractor was being used for agricultural purposes but the same by itself would not be construed to mean that the tractor and trailer can be used for carriage of goods by another person for his business activities. The deceased was a businessman. He used to deal in vegetables. After he purchased the vegetables, he was to transport the same to market for the purpose of sale thereof and not for any agricultural purpose. The tractor and trailer, therefore, were not being used for agricultural purposes. However, even if it be assumed that the trailer would answer the description of the "goods carriage" as contained in Section 2(14) of the Motor Vehicles Act, the case would be covered by the decisions of this Court in Asha Rani (supra) and other decisions following the same, as the accident had taken place on 24.11.1991, i.e., much prior to coming into force of 1994 amendment.

17. For the reasons aforementioned, the impugned judgments cannot be sustained which are set aside accordingly. This appeal is allowed. In the facts and circumstances of this case, there shall be no order as to costs.

Learned counsel for the appellant has further relied upon the judgment passed by the Apex Court passed in the case of Oriental Insurance Co. Ltd. Vs. Brij Mohan and Others reported in (2007) 7 SCC 56 with regard to gratuitous passenger.

Learned counsel for the appellant has further relied upon the judgment passed by the Apex Court in the case of New India Assurance Co. Ltd. Vs. Asha Rani and Others reported in (2003) 2 SCC 223.

Learned counsel for the appellant has further placed reliance upon the judgment passed by the Apex Court passed in the case of Shivaraj Vs. Rajendra and Another reported in (2018) 10 SCC 432 and has submitted that vehicle was insured under the Krishi Package Policy and the deceased was gratuitous passenger, as such it was incumbent upon the learned Tribunal to pass order against the owner of the vehicle as even right of recovery is not in consonance with the judgment referred, rather entire liability should be upon the Owner of the Offending Vehicle.

Learned counsel for the Owner of the Offending Vehicle, Mr. Kripa Shankar Nanda has submitted that whatever argument has been made by the learned counsel for the appellant to assail the impugned award has not been agitated before the learned Tribunal. The written statement filed by the Insurance Company has been referred in para-4 of the impugned award, which may kindly be considered. O.P. No. 2, the Insurer, has appeared and filed written statement and it is the case of this opposite party that the claim petition as framed is not maintainable being false and frivolous. The claimants have no cause of action against this opposite party, and the claim petition is bad for non-joinder of necessary party as the driver of the vehicle has not been impleaded as a party. The deceased himself was negligent as he was standing in the middle of the Tractor and Trailer, and the terms and conditions of the general policy have not been followed and the insured has vitiated the terms of policy. The amount of compensation claimed is excessive.

Learned counsel for the Owner of the Offending Vehicle has categorically stated that nothing has been agitated with regard to the policy, nature of policy nor any evidence has been adduced by the Insurance Company to establish that the vehicle was not insured for the untoward incident. The appellant - Insurance Company has not adduced any evidence before the learned Tribunal with regard to gratuitous passenger, rather as per the case of the Insurance Company as referred in para-4 of the impugned award, it is the case of road accident where the deceased died as in the written

statement, the Insurance Company has categorically stated that the deceased himself was negligent as he was standing in the middle of the tractor and the trailer.

Learned counsel for the Owner of the Offending Vehicle has thus submitted that unless the contrary evidence is brought on record by the Insurance Company, even though the issue has been framed, the appellant cannot agitate these issues before this Court, as such, the impugned order which has been passed by the learned Tribunal considering the vehicle to be properly insured does not require any interference by this Court.

Learned counsel for the appellant - Insurance Company has replied that since the quantum of compensation has not been assailed by the Insurance Company, as such, whatsoever amount has been awarded by the learned Tribunal to the claimants that remain intact in view of the judgment passed by the Apex Court in the case of Ranjana Prakash & Others Vs. Divisional Manager & Another reported in 2011 (14) SCC 639 (Para-8), where an appeal is filed challenging the quantum of compensation, irrespective of who files the appeal, the appropriate course for the High Court is to examine the facts and by applying the relevant principles, determine the just compensation.

Learned counsel for the Owner of the Offending Vehicle has submitted that since learned counsel for the appellant has not assailed the quantum of compensation, as such this Court may not touch the quantum awarded by the learned Tribunal as no appeal has been preferred by the claimants for enhancement of the compensation.

Considering the rival submissions of the parties, it appears to the Court that the grounds which has not been assailed by the Insurance Company before the learned Tribunal is being agitated before this Court without leave to agitate the same.

From perusal of the impugned order, it appears that nature of insurance policy has not been agitated by the Insurance Company before the learned Tribunal, rather as per the written statement, the

Insurance Company has taken a plea that the deceased was himself negligent as he was standing in the middle of tractor and trailer.

Under the aforesaid circumstances, the judgment, which have been referred by the learned counsel for the appellant, are not coming in help to the appellant as unless and until the Insurance Company establishes the case that there is violation of terms and condition of the policy then the ratio laid down by the Apex Court in the aforesaid judgments is only applicable.

In the present case, nothing has been shown before this Court to establish that there was any ground taken by the Insurance Company before the learned Tribunal which are being agitated herein. Accordingly, this Court is satisfied with the impugned judgment, which does not require any interference by this Court.

Before parting with the judgment, this Court feels that an accident took place on 03.07.2005 when the deceased died, the claim application was filed by the poor lady in the year 2009, which was decided in the year 2014 and till date, the Insurance Company is not taking steps for indemnifying the award to the poor lady in benevolent legislation, rather the matter is kept pending since 2014 to 2021 when this matter is taken up for hearing.

Accordingly, this Court expect that the Insurance Company will be in generous in satisfying the award as more than 16 years have elapsed from the date of accident.

Accordingly, the instant miscellaneous appeal is dismissed. The statutory amount which has been deposited by the appellant at the time of preferring the appeal shall be remitted to the learned Tribunal by Registrar General of this Court within four weeks from today. The balance amount along with interest shall be paid by the Insurance Company in accordance with law.

So far with respect to interest of 12% is concerned, this Court finds that no reason has been assigned by the learned Tribunal with regard to the interest that why it has not been granted from the date of filing of the claim application in view of Section 171 of the Motor Vehicles Act. Accordingly, considering it to be just and proper, as no

reason has been assigned by the learned Tribunal, this Court is not inclined to interfere with the same.

(Kailash Prasad Deo, J.) Sunil/-