Jharkhand High Court
The New India Assurance Company ... vs Sandeep Kumar on 14 July, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
[Civil Miscellaneous Appellate Jurisdiction]
M.A. No. 330 of 2018
The New India Assurance Company Limited, Hazaribagh
.... .. ... Appellant(s)
Versus
1.Sandeep Kumar, Minor, S/o Chandrika Yadav
2.Rajendra Yadav, S/o Peman Yadav .. ... ... Respondent(s)
With
M.A. No. 336 of 2018
The New India Assurance Company Limited, Hazaribagh
.... .. ... Appellant(s)
Versus
1.Shama Parween, W/o Md. Muzabir
2.Rajendra Yadav, S/o Peman Yadav .. ... ... Respondent(s)
...........
CORAM :HON'BLE MR. JUSTICE KAILASH PRASAD DEO
(Through :-Video Conferencing)
.........
For the Appellant(s) : Mr. Manish Kumar, Advocate [In both the appeals]
For the Resp.No.2/Owner : Mr. Rahul Dev, Advocate [In both the appeals]
..........
05/14.07.2021. Both the aforesaid Misc. Appeals are arising out of common accident, as
such, both are being heard together and disposed of by a common judgment.
Heard, Mr. Manish Kumar, learned counsel for the appellant- The New India
Assurance Company Limited and Mr. Rahul Dev, learned counsel for the
owner/respondent No.2.
Mr. Manish Kumar, Learned counsel for the appellant- The New India
Assurance Company Limited has submitted that both the aforesaid Misc. Appeals
have been preferred against the common judgment dated 16.02.2018, in M.A.C. Case
No.77 of 2012 and M.A.C. Case No.78 of 2012, passed by Motor Accident Claims
Tribunal-cum-District Judge-IV, Chatra whereby, claimant, Shama Parween, W/o
Md. Muzabir (in M.A.C. Case No.77 of 2012) has been awarded compensation to the
tune of Rs.75,143/- and claimant, Sandeep Kumar (minor in M.A.C. Case No.78 of
2012) has been awarded a sum of Rs.4,41,363/-. So far interest is concerned, the
compensation amount be paid along with simple interest @6% per annum from the
date of filing of application in the court till the date of actual payment to both the
claimants separately on the awarded compensation amount.
Mr. Manish Kumar, learned counsel for the for the appellant- The New India
Assurance Company Limited has submitted that Insurance Company has preferred
both the appeals on limited grounds, that even after taking a plea in the written
statement, that owner of the offending vehicle is bound to get valid permit of vehicle
within the meaning under Section 66 of the Motor Vehicles Act, but the owner of the
said vehicle knowingly and intentionally used the offending vehicle beyond or
without route permit and committed breach of contract and on the basis of that
learned Tribunal has framed issue No.V in both the claim applications, as they are
arising out of a common accident, which took place on 20.07.2011 causing injury to
Shama Parween (in M.A.C. Case No.77 of 2012) and Sandeep Kumar (in M.A.C.
Case No.78 of 2012) caused by mini bus bearing Registration No.JH-13A-0426.
Issue No.V, has been framed as "was the driver of the offending vehicle valid
and effective driving licence at the time of accident and was there any violation of
the terms and conditions of the insurance policy?
Mr. Manish Kumar, learned counsel for the appellant has further submitted
that though the owner has been noticed by the learned Tribunal and has also appeared
before the learned Tribunal as O.P. No.1 and claimed that the vehicle was insured
with the New India Assurance Company Limited vide policy
No.54070131100200001485 dated 03.08.2010 valid from 03.08.2010 to 02.08.2011
covering the date of accident i.e. 02.07.2011, as such, the vehicle was duly insured,
but the owner of the vehicle, namely, Rajendra Yadav, S/o Peman Yadav, R/o Village
Parsoni, P.S.- Itkhori, District- Chatra, has not filed any document with regard to
permit or with regard to non-violation of terms and conditions of the policy, as
envisaged under Section 149(2) of the M.V. Act, which may profitably be quoted
hereunder :-
"149. Duty of insurers to satisfy judgments and awards against
persons insured in respect of third party risk- .......
(2) No sum shall be payable by an insurer under sub-section (1) in
respect of any judgment or award unless, before the commencement of the
proceedings in which the judgment or award is given the insurer had notice
through the court or, as the case may be, the Claims Tribunal of the bringing of
the proceedings, or in respect of such judgment or award so long as execution is
stayed thereon pending an appeal; and an insurer to whom notice of the bringing
of any such proceedings is so given shall be entitled to be made a party thereto
and to defend the action on any of the following grounds, namely:-
(a) that there has been a breach of a specified condition of the policy,
being one of the following conditions, namely:-
(i) a condition excluding the use of the vehicle-
(a) for hire or reward, where the vehicle is on the date of the
contract of insurance a vehicle not covered by a permit to ply for
hire or reward, or
(b) for organised racing and speed testing, or
Mr. Rahul Dev, learned counsel appearing for the respondent No.2 /Owner of
the offending vehicle, in both the Misc. Appeals has submitted that no such permit
has been filed before the learned Tribunal nor the same is being filed here as there
was no
specific issue framed by the learned Tribunal so as to satisfy the learned Tribunal on
this issue, as such, the learned Tribunal has rightly found that there was no violation
of terms and conditions of the policy.
Mr. Rahul Dev, learned counsel appearing for the respondent No.2 has further
submitted that a person may have permit and he has not filed the same because
specific issue has not been framed, but the vehicle was insured and the driver was
having a valid licence, as such, the owner cannot be made liable to pay the
compensation.
Mr. Manish Kumar, learned counsel for the appellant has further submitted
that the learned Tribunal has framed issue with regard to violation of terms and
conditions of the policy and no finding has been given by the learned Tribunal, rather
on the basis of driving licence, the learned Tribunal has passed an order, that there is
no violation of terms and conditions of the policy and the Insurance Company is
liable to pay /indemnify the Award. This finding of the learned Tribunal is itself bad
in law as once the learned Tribunal has framed an issue with regard to violation of
terms and conditions of the policy, it was incumbent upon the learned Tribunal to
consider all the defence available to the Insurance Company under Section 149(2) of
the M.V. Act, as such, in absence of any permit produced by the owner of the
offending vehicle, at least the right of recovery may be granted in favour of the
Insurance Company after satisfying the Award to the claimants from the owner of the
offending vehicle.
Mr. Manish Kumar, learned counsel for the appellant in support of his
submission has relied upon the judgment passed by the Apex Court in the case of
Amrit Paul Singh and Another vs. Tata AIG General Insurance Company Limited and
Others, reported in (2018) 7 SCC 558 at Para-24, which may profitably be quoted
hereunder :-
"24. In the case at hand, it is clearly demonstrable from the materials brought on
record that the vehicle at the time of the accident did not have a permit. The
appellants had taken the stand that the vehicle was not involved in the accident.
That apart, they had not stated whether the vehicle had temporary permit or any
other kind of permit. The exceptions that have been carved out under Section 66
of the Act, needless to emphasise, are to be pleaded and proved. The exceptions
cannot be taken aid of in the course of an argument to seek absolution from
liability. Use of a vehicle in a public place without a permit is a fundamental
statutory infraction. We are disposed to think so in view of the series of
exceptions carved out in Section 66. The said situations cannot be equated with
absence of licence or a fake licence or a licence for different kind of vehicle, or,
for that matter, violation of a condition of carrying more number of passengers.
Therefore, the principles laid down in Swaran Singh [National Insurance Co.
Ltd. v. Swaran Singh, (2004) 3 SCC 297 : 2004 SCC (Cri) 733] and Lakhmi
Chand [Lakhmi Chand v. Reliance General Insurance, (2016) 3 SCC 100 :
(2016) 2 SCC (Civ) 45] in that regard would not be applicable to the case at
hand. That apart, the insurer had taken the plea that the vehicle in question had
no permit. It does not require the wisdom of the "Tripitaka", that the existence of
a permit of any nature is a matter of documentary evidence. Nothing has been
brought on record by the insured to prove that he had a permit of the vehicle. In
such a situation, the onus cannot be cast on the insurer. Therefore, the Tribunal
as well as the High Court had directed that the insurer was required to pay the
compensation amount to the claimants with interest with the stipulation that the
insurer shall be entitled to recover the same from the owner and the driver. The
said directions are in consonance with the principles stated in Swaran
Singh [National Insurance Co. Ltd. v. Swaran Singh, (2004) 3 SCC 297 : 2004
SCC (Cri) 733] and other cases pertaining to pay and recover principle."
After hearing learned counsel for the parties and perusing the materials
available on record including the impugned Award and since both the claim
applications have been decided by the learned Tribunal jointly as they are arising out
of a common accident, as such, both the Misc. Appeals are being disposed of by a
common judgment.
From perusal of issue No.V, it appears that the learned Tribunal has taken note
of with regard to validity of the licence of the driver of the offending vehicle at the
time of accident as well as the violation of terms and conditions of the policy. No
discussion has been made with regard to second part of issue No.V i.e. with regard to
violation of terms and conditions of the policy, which was incumbent upon the
learned Tribunal to do the same as per the provisions of Section 149(2) M.V. Act.
Since the owner has not produced any chit of paper before the learned Tribunal
that vehicle has all the documents including the permit nor the owner has filed said
document before this Court in appeal, as such, this Court has reason to believe that
there is violation of terms and conditions of the policy, as such, it was incumbent
upon the learned Tribunal to give right to recover the compensation amount to the
Insurance company from the owner of the offending vehicle after satisfying the
Award. Accordingly this Court gives liberty to the Insurance Company to recover the
amount of compensation paid to the claimants and recovered the same after
satisfying the award to the claimants from owner of offending vehicle, namely,
Rajendra Yadav (owner of Tata 407 No.JH-13A-0426).
Both the aforesaid Miscellaneous Appeals stand allowed.
The appellant- The New India Assurance Company Limited is given right to
recover the compensation amount awarded by the learned Tribunal after satisfying to
the claimants from the owner of the offending vehicle.
The statutory amount deposited by the appellant- The New India Assurance
Company Limited in both the appeals shall be remitted to the learned Tribunal by the
Registrar General of this Court within a period of four weeks from today so as to
satisfy part of the awarded amount.
The balance amount shall be satisfied by the appellant- The New India
Assurance Company Limited within a reasonable time, as the accident is of dated
02.07.2011.
(Kailash Prasad Deo, J.)
sandeep
