Jharkhand High Court
The Oriental Insurance Company ... vs Vijay Kumar Sharma on 19 January, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Civil Miscellaneous Appellate Jurisdiction)
M.A. No. 135 of 2014
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The Oriental Insurance Company Ltd., Ranchi ...... Appellant (s)
Versus
1. Vijay Kumar Sharma
2. Santosh Kumar Sharma
3. Devi Sharan
4. Shivchand Patnaik
5. Md. Shakil ......Respondent(s)
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CORAM: HON'BLE MR. JUSTICE KAILASH PRASAD DEO
(Through :-Video Conferencing)
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For the Appellant(s) : Mr. G.C. Jha, Advocate
For the Resp. Nos.1 to 3 : Mr. Anjani Kumar, Advocate
Mr. Chandrajit Mukherjee, Advocate
For the Resp. No. 5 Mr. Nisith Kr. Sahani, Advocate
Mrs. Gouri Debi, Advocate
For the Resp. No. 4 Mr. J.N. Upadhyay, Advocate
......
07/Dated: 19/01/2021. I.A. No.2353 of 2018
Learned counsel for the appellant has submitted that there is delay of 6 days
in filing the appeal and for condonation of the same, I.A. No.2353 of 2018 has
been filed, but no counter-affidavit has been filed by the Insurance Company, as
such, considering it to be a benevolent legislation the delay in preferring the
appeal of 6 days may be condoned.
After hearing learned counsel for the parties and on the basis of materials
brought on record, it appears that reason shown for delay of 6 days is acceptable
to this Court as no counter-affidavit has been filed. As such, the delay of 6 days in
preferring the appeal is hereby condoned.
Accordingly, I.A. No.2353 of 2018 stands allowed.
M.A. No.135 of 2014
Heard, learned counsel for the parties.
Appellant- the Oriental Insurance Company Ltd. has preferred this appeal
against the award dated 19.12.2013 passed by learned Principal District Judge-
cum- Motor Vehicle Accident Claim Tribunal, Seraikella in Compensation Case
No.07 of 2008 whereby the claimants, Vijay Kumar Sharma, Santosh Kumar
Sharma and Devi Sharan have been awarded a compensation to the tune of
Rs.2,04,500/- along with interest @ 6% per annum from the date of admission of
compensation case i.e. 13.01.2009 till the date of its realization after deducting
the amount, if already paid to the claimants under Section 140 of MV Act.
Learned counsel for the appellant- Insurance Company has submitted that
learned Tribunal has not adjudicated the issues properly, though a plea was taken
in the written statement by the Insurance Company with regard to violation of
Section 149(2) of MV Act as there is violation of terms and conditions of the
Insurance Policy.
Learned counsel for the appellant has placed reliance upon page no.3 of the
impugned judgment at bottom of para 5 i.e. "On verification it was found that
Lohardaga D.T.O. Informed that no driving licence was issued in the name of
Md. Shakil who is driver and as such the driving licence was false and fake and
hence the applicants are not entitled to get any compensation under Section 166
of the M.V. Act and therefore, the claim is liable to be dismissed against this
answering opposite party."
Learned counsel for the appellant has submitted that eight issues have been
framed of which issue Nos.5, 6 and 7 are relevant, which have been discussed at
paras 11 and 12 of the impugned judgment.
Learned counsel for the appellant has further submitted that Insurance
Company has brought evidence which has also been mentioned at para 11 of the
impugned judgment:- "It was argued on behalf of the Insurance Company that
the driver had false licence at the time of occurrence and for that he had adduced
oral evidence as well as documentary evidence. DW-1 Sanjay Prasad Sahu was a
Surveyor and he has stated that in the Serial of Lohardaga 629/93, no driving
licence was issued against Md. Shakil. In cross-examination this witness has
admitted that signature was not done before him and there is no register. I also go
through Ext.A and Ext. B. Ext. A is the report of the insurer and Ext.B is the letter
of District Transport Office, Lohardaga but there is no register to show that on
Serial No.6293 no driving licence was issued in the name of driver Md. Shakil. In
this way, it can not be said that the driver had false licence."
Learned counsel for the appellant has further submitted that under the
aforesaid circumstances, it was incumbent upon the learned Tribunal to pass an
order of right of recovery in favour of the Insurance Company from the owner of
the offending vehicle, who has violated the terms and conditions of the policy, as
such, the award passed against the Insurance Company is not sustainable in the
eyes of law.
Learned counsel for the owner, Mr. J.N. Upadhyay has submitted that the
learned Tribunal has rightly passed the order after considering the materials
available on record. The Insurance Company has brought a document, which has
not been accepted by the learned Tribunal and learned Tribunal has specifically
given reasoning for not accepting the same, which has been mentioned at para 11.
Further there is no evidence on this point that owner knowingly appointed the
driver with false driving licence. In such circumstances, the insurer of the
offending vehicle is reliable.
Learned counsel for the owner, Mr. J. N. Upadhyay in support of his
submission has put reliance upon the judgment passed by the Hon'ble Apex Court
in the case of Nirmala Kothari vs. United India Insurance Company Limited,
reported in (2020) 4 SCC 49 para 12 of which 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."
Learned counsel for the owner has thus submitted that no interference is
required in this case.
Learned counsel for the driver, Mr. Nisith Kr. Sahani has nothing to say on
the issues.
Learned counsels for the Claimants/respondents, Mr. Anjani Kumar and Mr.
Chandrajit Mukherjee have submitted, on the query made by this Court from the
learned counsel for the claimants, whether any appeal for enhancement has been
preferred in this matter or not? Leaned counsel has specifically stated that no
appeal has been preferred by the claimants for enhancement of the award.
Under the aforesaid circumstances, following the ratio of the judgment
passed by the Apex Court in the case of Ranjana Prakash & Ors. vs.
Divisional Manager & Anr., reported in 2011 (14) SCC 639 para 8 of which is
profitably quoted hereunder:-
"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. If the compensation determined by it is higher than the
compensation awarded by the Tribunal, the High Court will allow the appeal, if
it is by the claimants and dismiss the appeal, if it is by the owner/insurer.
Similarly, if the compensation determined by the High Court is lesser than the
compensation awarded by the Tribunal, the High Court will dismiss any appeal
by the claimants for enhancement, but allow any appeal by the owner/insurer
for reduction. The High Court cannot obviously increase the compensation in
an appeal by the owner/insurer for reducing the compensation, nor can it
reduce the compensation in an appeal by the claimants seeking enhancement of
compensation."
As such, this Court in absence of any appeal for enhancement is not
looking into the claim application of the claimants.
Further, the issue raised by the Insurance Company is not sustainable in the
eyes of law in view of the judgment passed by the Apex Court in the case of
Nirmala Kothari (supra).
Accordingly, the instant appeal being devoid of merit is hereby dismissed.
The statutory amount deposited by the appellant at the time of filing of the
instant appeal shall be remitted to the court below for disbursement of the
award before the learned Tribunal and it is expected that the appellant shall
indemnify the rest award within a reasonable time as the occurrence is of the
year, 2008.
I.A. No.6537 of 2015 is hereby closed as final order has been passed in main
appeal itself.
(Kailash Prasad Deo, J.)
sandeep/R.S-
