Future Generali India Insurance ... vs Madhumita Tiwari & Others
2021 Latest Caselaw 2396 Jhar

      IN THE HIGH COURT OF JHARKHAND AT RANCHI
           (Civil Miscellaneous Appellate Jurisdiction)
                    M.A. No. 597 of 2019
                           ........

Future Generali India Insurance Co. Ltd. .... ..... Appellant Versus Madhumita Tiwari & Others .... ..... Respondents

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

For the Appellant                 : Mr. Alok Lal, Advocate.
For the Respondents               :
                                      ........
04/19.07.2021.

Heard, learned counsel for the appellant, Mr. Alok Lal. The appellant - Future Generali India Insurance Co. Ltd. has preferred this appeal against judgment dated 19.12.2018 passed by learned District Judge-I, Jamshedpur in Compensation Case No.97/2017, whereby the claimants namely, Madhumita Tiwari, wife of Late Vishal Tiwary and Smt. Asha Tiwary, wife of Kamakhya Tiwari have been awarded compensation to the tune of Rs. 67,90,000/- along with interest @ 6% per annum from the date of filing of the claim application within 30 days of the order and the amount, if paid to the applicants under Section 140 of the Motor Vehicles Act as ad- interim compensation, shall be deducted from the awarded amount.

Learned counsel for the appellant, Mr. Alok Lal has assailed the impugned award on the ground that the vehicle bearing registration No.JH-05AM-4004 was registered in the name of Kamakhya Tiwari. The deceased (Vishal Tiwary) was his son, who was occupant of the Tyota Fortuner vehicle and on 26.09.2016, Vishal Tiwary (deceased) and one Shashidhar Diwedi were going to Delhi from Allahabad by a Tyota Fortuner bearing registration no. JH-05AM-4004, which was driven by Harish Chandra Dubey, but the said vehicle dashed a big truck, which was standing on Yamuna Express way on 26.09.2016 at about 12.30 A.M. to 1.00 A.M. midnight and the deceased Vishal Tiwary, who was sitting in the front seat besides the driver had lost his life.

Learned counsel for the appellant has submitted that deceased Vishal Tiwary was son of Kamakhya Tiwari, owner of the vehicle, as such, he is not a third party.

Learned counsel for the appellant has relied upon judgment passed by the Apex Court in the case of New India Assurance Company Limited Vs. Sadanad Muki & Others reported in (2009) 2 SCC 147 (Para-8) and Ningamma & Another Vs. United India Insurance Company Limited reported in (2009) 13 SCC 710 (Para-

33) and has submitted that in both the cases, owner of the vehicle died and they have not been given compensation.

After going through the aforesaid judgments, this Court has found the facts of the present case is different than that cases. In the aforesaid cases, the owners were driving the motorcycle themselves, but the case in hand, the vehicle stands in the name of Kamakhya Tiwari, in which his son Vishal Tiwary was occupant and the vehicle was driven by driver namely, Harish Chandra Dubey, as such, the facts of the cases of Ningamma (Supra) and Sadanand Muki (Supra) are not relevant for the present case.

Learned counsel for the appellant has further assailed the impugned award on the ground that in the written statement they have taken a plea that driver of the offending vehicle, Harish Chandra Dubey was not possessing valid and effective licence on the date accident, though the owner of the vehicle Kamakhya Tiwari, O.P. No.1 has appeared before the learned Tribunal on 05.12.2017, but he has not filed any show cause or written statement and as such, it is very difficult for the Insurance Company to prove the fact so as to get right of recovery and to that effect, learned counsel for the appellant has further relied upon judgment passed by Apex Court in the case of Pappu Vs. Vinod Kumar Lamba reported in (2018) 3 SCC 208. Paras -11, 12 & 13 of which may be profitably quoted hereunder:

"11. The question is: whether the fact that the offending vehicle bearing No. DIL 5955 was duly insured by Respondent 2 insurance company would per se make the insurance company liable?

12. This Court in National Insurance Co. Ltd. [National Insurance Co. Ltd. v. Swaran Singh, (2004) 3 SCC 297 : 2004 SCC (Cri) 733] has noticed the defences available to the insurance company under Section 149(2)(a)(ii) of the Motor Vehicles Act, 1988. The insurance company is entitled to take a

defence that the offending vehicle was driven by an unauthorised person or the person driving the vehicle did not have a valid driving licence. The onus would shift on the insurance company only after the owner of the offending vehicle pleads and proves the basic facts within his knowledge that the driver of the offending vehicle was authorised by him to drive the vehicle and was having a valid driving licence at the relevant time.

13. In the present case, Respondent 1 owner of the offending vehicle merely raised a vague plea in the written statement that the offending Vehicle No. DIL 5955 was being driven by a person having valid driving licence. He did not disclose the name of the driver and his other details. Besides, Respondent 1 did not enter the witness box or examine any witness in support of this plea. Respondent 2 insurance company in the written statement has plainly refuted that plea and also asserted that the offending vehicle was not driven by an authorised person and having valid driving licence. Respondent 1 owner of the offending vehicle did not produce any evidence except a driving licence of one Joginder Singh, without any specific stand taken in the pleadings or in the evidence that the same Joginder Singh was, in fact, authorised to drive the vehicle in question at the relevant time. Only then would onus shift, requiring Respondent 2 insurance company to rebut such evidence and to produce other evidence to substantiate its defence. Merely producing a valid insurance certificate in respect of the offending truck was not enough for Respondent 1 to make the insurance company liable to discharge his liability arising from rash and negligent driving by the driver of his vehicle. The insurance company can be fastened with the liability on the basis of a valid insurance policy only after the basic facts are pleaded and established by the owner of the offending vehicle that the vehicle was not only duly insured but also that it was driven by an authorised person having a valid driving licence. Without disclosing the name of the driver in the written statement or producing any evidence to substantiate the fact that the copy of the driving licence produced in support was of a person who, in fact, was authorised to drive the offending vehicle at the relevant time, the owner of the vehicle cannot be said to have extricated himself from his liability. The insurance company would become liable only after such foundational facts are pleaded and proved by the owner of the offending vehicle."

Learned counsel for the appellant has thus submitted that since Insurance Company has pleaded the fact, as such, it was incumbent upon the owner to file such document, so as to give right of recovery in favour of the Insurance Company and to this effect, learned counsel for the appellant has also relied upon the judgment of Hon'ble Apex Court passed in the case of Amrit Paul Singh and Another Vs. Tata AIG General Insurance Company Limited and Others reported in (2018) 7 SCC 558. Paras- 11 & 24 of the aforesaid judgment are re-produced below:-

"11. A distinction has to be made between 'route permit' and 'permit' in the context of Section 149 of the Act. Section 149(2) provides the grounds that can be taken as defence by the insurer.

It enables the insurer to defend on the ground that there has been breach of a specific condition of the policy, namely, (i) a condition that excludes 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 organized racing and speed testing, or (c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or (d) without sidecar being attached where the vehicle is a motor cycle. That apart, it also entitles the insurer to raise the issue pertaining to a condition that excludes driving by a named person or persons or by any person who is not duly licensed or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification or that excludes liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotion. A further defence that can be availed of by the insurer is that the policy is void on the ground that it has been obtained by nondisclosure of the material fact or by representation of act which is false in the material particular.

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 appellant and after going materials available on record, it appears that since, the Insurance Company has not brought any evidence to prove his pleading, as such, only by making a statement in the written statement, the

Insurance Company is not entitled to get right of recovery. The Insurance Company may take leave of this Court to file an application before the court below to prove that owner has violated the terms and condition of the policy and may take finding with regard to right of recovery of compensation amount paid to the claimants from owner. But, in this appeal, the Insurance Company has not taken such plea before the learned Tribunal and in view of the judgment passed by the Apex Court in the case of Ramchandra Vs. Regional Manager United India Insurance Company Limited reported in 2013 12 SCC 84 and and in view of the provisions of Order XII Rule 4 CPC, a plea, which was never put to test or gone into by the Motor Vehicle Accident Claim Tribunal. The Insurance Company has not adduced any evidence to that effect so as to give a cause at the appellate stage i.e. before the High Court to accept this plea straightway. Para-26 of aforesaid judgment is profitably quoted hereunder:-

"26. Hence, at the stage of appeal before the High Court, we find no legal justification for the High Court to leave it open to the insurance company to realize the amount of compensation beyond Rs.32,091/- from the insured/owner as the plea of the respondent/insurance company althrough was that the claimant is not entitled to any compensation beyond the extent of liability under the Workmen's Compensation Act and the respondent/insurance company had not taken the alternative plea either before the tribunal or the High Court that in case the claimant is held entitled to compensation beyond the extent of liability under the Workmen's Compensation Act, the same was not payable as no extra premium was paid by the insured/owner under the policy of insurance. The insurance company had failed to raise any plea before the courts below i.e. either the Motor Accident Claims Tribunal or the High Court and it did not even contend that in case the claimant is entitled to any compensation beyond what was payable under the Workmen's Compensation Act, it is the insured owner who was liable to pay as it had no contractual liability since the insured/owner of the vehicle had not paid any extra premium. Thus, this plea was never put to test or gone into by the Motor Accident Claims Tribunal since the insurance company neither took this plea nor adduced any evidence to that effect so as to give a cause to the High Court to accept this plea of the insurance company straight away at the appellate stage."

Accordingly, this Miscellaneous Appeal, being devoid of merit, is hereby dismissed.

I.A. No.5988/2020 filed for condonation of delay of 243 days is accordingly closed, as the appeal has already been dismissed on merit.

The statutory amount deposited by appellant-Insurance Company at the time of preferring the appeal shall be remitted to the learned Tribunal by the learned Registrar General within a period of four weeks' from today, so as to indemnify part of the award to the claimants and rest of the award shall be indemnified by the Insurance Company to the claimants within a reasonable period as the accident is of dated 26.09.2016.

(Kailash Prasad Deo, J.) Sunil-Jay/-