The Branch Manager vs Atiya Parween
2021 Latest Caselaw 2397 Jhar

          IN THE HIGH COURT OF JHARKHAND AT RANCHI

                   [Civil Miscellaneous Appellate Jurisdiction]
                          M.A. No. 517 of 2019
        The Branch Manager, National Insurance Company Limited, Ranchi
                                                   .... .. ...          Appellant(s)
                               Versus
        1.Atiya Parween, W/o Late Kafil Ahmed Ansari
        2.Kaushar Tasneem, D/o Late Kafil Ahmed Ansari
        3.Aftab Alam, S/o Late Kafil Ahmed Ansari
        4.Soheba Tasneem, D/o Late Kafil Ahmed Ansari
        5.Md. Muslim Ansari (Father of the deceased)
        6.Khairun Nisha (Mother of the deceased)
        Respondent nos.2, 3 and 4 are minor represented through their mother and natural
        guardian, i.e. Respondent no.1.
        All R/o of Masjid Mohalla, Sirka, P.O. Argada, P.S. Ramgarh, District Ramgarh-
        829101
        7.Navin Kumar Sen Gupta, S/o Sadhan Sen Gupta, Resident of Ranchi Road
        Railway Station, P.O. Marar, P.S. Mandu, District- Ramgarh, (Owner of Tempo
        No.JH-02AC-5686)
        8.Mr. Chhatu Mahto, S/o Antu Mahto, Resident of Murarm Kala, P.O.+P.S. &
        District- Ramgarh, (owner of Indigo Car No.JH-01AQ-3734).
                                                             .. ... ... Respondent(s)
                                      ...........

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

      For the Appellant(s)      :     Mr. Manish Kumar, Advocate.
      For the Respondent(s)     :
                                      ..........

04/ 19.07.2021. Heard, Mr. Manish Kumar, learned counsel for the appellant.

The instant Misc. Appeal has been preferred by the appellant- National Insurance Company Limited against the Award dated 12.06.2019, passed by learned Presiding Officer, Motor Vehicles Accident Claims Tribunal, Hazaribag, in Motor Accident Claim Case No.25 of 2016, whereby the claimants namely, 1.Atiya Parween, W/o Late Kafil Ahmed Ansari, 2.Kaushar Tasneem, D/o Late Kafil Ahmed Ansari, 3.Aftab Alam, S/o Late Kafil Ahmed Ansari, 4.Soheba Tasneem, D/o Late Kafil Ahmed Ansari, 5.Md. Muslim Ansari (Father of the deceased) and 6.Khairun Nisha (Mother of the deceased) have been awarded compensation to the tune of Rs.29,95,888/- together with interest @ 6% per annum from the date of settlement of issue till its payment within 30 days from this order which has been passed against the O.P. No.3 (Owner of Indigo Car No.JH-01AQ-3734) as well as against O.P. No.1 (owner of Tempo No.JH-02AC-5686) and on his behalf against the insurer O.P. No.2 (National Insurance Company Limited) in proportion of 13:7 (65% : 35% respectively) of total compensation awarded failing which the Interest rate would be @ 9% per annum thereafter (after 30 days of the award) till date of realization.

O.P. No.3 (Owner of Indigo Car No.JH-01AQ-3734) is directed to pay 65% of total awarded amount i.e. Rs.19,47,327/- together with interest @ 6% per annum from the date of settlement of issue i.e. Since 04.09.2018 within 30 days and if failed to make payment within that time then with interest of 9% per annum be calculated thereafter till final realization.

O.P. No.2 -National Insurance Company Limited- Insurer of offending Tempo bearing registration No.JH-02AC-5686, is directed to pay the 35% of total award amount i.e. Rs.10,48,560/- together with interest @ 6% per annum from the date of settlemtn of issue, i.e. Since 04.09.2018 within 30 days and if failed to make payment within that period then with interest of 9% per annum calculated thereafter till final realization.

It was further directed that O.P. No.2- National Insurance Company Limited may recover the awarded amount after payment to the claimants from O.P. No.1- Navin Kumar Sen Gupta- owner of Tempo- JH02C-5686, for the breach of terms condition committed by him.

Mr. Manish Kumar, learned counsel for the appellant-National Insurance Company Limited has submitted that the appellant is aggrieved by the impugned Award, on the ground that it is a case of head-on collision between two vehicles i.e. Tempo bearing Registration No.JH-02AC-5686 insured before the National Insurance Company Limited, which was hit by Indigo Car bearing Registration No.JH-01-AQ-3734.

Mr. Manish Kumar, learned counsel for the appellant has further submitted, that the First Information Report was lodged against Indigo Car vide Ramgarh P.S. Case No.87 of 2015 dated 23.03.2015 on the basis of fardeyan of Md. Kaisar Imam, who has been examined as CW-3 and the FIR has been brought on record as Exhibit-1. After investigation, the Police has submitted charge-sheet vide Charge- sheet No.431/2015 (Exhibit-2) against the driver of one of the offending vehicles, Dhaneshwar Mahto, Indigo Car bearing Registration No.JH01AQ-3734 under Sections 279, 337, 304A IPC, holding him prima-facie culpable for rash and negligent driving and causing hurt and death of the deceased.

Mr. Manish Kumar, learned counsel for the appellant has further submitted that since in FIR and charge-sheet, it has only been alleged against Indigo Car, as such, there was no negligence on the part of the Tempo Driver, which was insured before the National Insurance Company Limited, as such, the appellant- National Insurance Company Limited has wrongly been saddled with 35% of the awarded amount i.e. Rs.10,48,560/- with interest which may be set aside by directing the

claimants to recover the entire amount from owner of the offending vehicle i.e. Indigo Car bearing Registration No.JH-01-AQ-3734.

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 Oriental Insurance Company Limited vs. Prem Lata Shukla, reported in 2007 (13) SCC 476 at Paras 13-15 which may profitably be quoted herein-below :-

"13. However, the factum of an accident could also be proved from the First Information Report. It is also to be noted that once a part of the contents of the document is admitted in evidence, the party bringing the same on record cannot be permitted to turn round and contend that the other contents contained in the rest part thereof had not been proved. Both the parties have relied thereupon. It was marked as an Exhibit as both the parties intended to rely upon them.

14. Once a part of it is relied upon by both the parties, the learned Tribunal cannot be said to have committed any illegality in relying upon the other part, irrespective of the contents of the document having been proved or not. If the contents have been proved, the question of reliance thereupon only upon a part thereof and not upon the rest, on the technical ground that the same had not been proved in accordance with law, would not arise."

15.A party objecting to the admissibility of a document must raise its objection at the appropriate time. If the objection is not raised and the document is allowed to be marked and that too at the instance of a party which had proved the same and wherefor consent of the other party has been obtained, the former in our opinion cannot be permitted to turn round and raise a contention that the contents of the documents had not been proved and, thus, should not be relied upon. In Hukam Singh (supra), the law was correctly been laid down by the Punjab and Haryana High Court stating;

"8.Mr. G.C. Mittal, learned counsel for the respondent contended that Ram Pratap had produced only his former deposition and gave no evidence in Court which could be considered by the Additional District Judge. I am afraid there is no merit in this contention. The Trial Court had discussed the evidence of Ram Pratap in the light of the report Exhibit D.1 produced by him. The Additional District Judge while hearing the appeal could have commented on that evidence and held it to be inadmissible if law so permitted. But he did not at all have this evidence before his mind. It was not a case of inadmissible evidence either. No doubt the procedure adopted by the trial court in letting in a certified copy of the previous deposition of Ram Pratap made in the criminal proceedings and allowing the same to be proved by Ram Pratap himself was not correct and he should have been examined again in regard to all that he had stated earlier in the statement the parties in order to save time did not object to the previous deposition being proved by Ram Pratap himself who was only cross-examined. It is not a case where irrelevant evidence had been let in with the consent of the parties but the only objection is that the procedures followed in the matter of giving evidence in Court was not correct. When the parties themselves have allowed certain statements to be placed on the record as a part of their evidence, it is not open to them to urge later either in the same Court or in a court of appeal that the evidence produced was inadmissible. To allow them to do so would indeed be permitting them both to appropriate and reprobate."

As such, once the FIR and the charge-sheet has been admitted by the parties and marked as Exhibits 1 and 2, it was incumbent upon the learned Tribunal to fasten the liability upon the offending vehicle i.e. Indigo Car and not upon the tempo, as such, this finding is bad in law.

Mr. Manish Kumar, learned counsel for the appellant has further submitted that though the right of recovery has been granted in favour of the Insurance Company to recover the same from the owner of the Tempo, namely, Navin Kumar Sen Gupta bearing Registration No.JH02AC-5686, for breach of terms committed by him, but while giving such right of recovery, the learned Tribunal has not given absolute right, which will be apparent from para 25 at page 28 of the impugned award, on the ground that owner has been noticed, which was duly served, but none appeared on behalf of the owner, which resulted that instant case proceeded ex-parte against him vide order dated 07.07.2017 and the learned Tribunal has held that Insurance Company requires to prove that owner has consciously allowed his vehicle to be driven by a person, who did not have due and proper driving licence. On proof of these facts only the Insurer may succeed in its defence.

Mr. Manish Kumar, learned counsel for the appellant has further submitted that once such plea has been taken in the written statement by the Insurance Company that there is violation of terms and conditions of the policy by the owner. It has been further submitted that though the owner has been noticed but owner has not appeared, as such, it was incumbent upon the learned Tribunal to secure the attendance of the owner by taking legal re-course otherwise, such right of recovery will generate multiplicity of suit. The right of recovery has been granted to the Insurance Company, but it is wrong to award compensation upon the tempo because of Exhibits-1 and 2 i.e. FIR and charge-sheet, which was submitted against the owner of the offending vehicle i.e. Indigo Car.

Mr. Manish Kumar, learned counsel for the appellant has further submitted that there is delay of 21 days in preferring the instant appeal and for condonation of the same, I.A. No.9944 of 2019 has been preferred before this Court.

Considering the submissions of the learned counsel for the appellant and perusing the impugned Award, it appears that the learned Tribunal has held that offending tempo bearing Registration No.JH2AC-5686 was duly insured before the O.P. No.2- National Insurance Company Limited, on the date of accident and there is breach of terms and conditions of the policy by its owner and driver of the tempo. Accordingly, the learned Tribunal has given right to recover, in favour of the Insurance Company to recover 35% of the Awarded amount from the owner of the tempo, namely, Navin Kumar Sen Gupta, S/o Sadhan Sen Gupta, R/o Ranchi Road Railway Colony, P.O. Marar, P.S. Mandu, District- Ramgarh (Owner of Tempo No.JH-2AC-5686), after indemnifying the award to the claimants.

The only issue which has been agitated by the counsel for the appellant is whether this 35% of the liability which has been fastened upon the National Insurance Company Limited, insurer of the tempo bearing registration no.JH02AC- 5686 to recover the same from the owner of the vehicle is justified in the facts and circumstances of the case, where the FIR and charge-sheet have been submitted only against the owner of the Indigo Car bearing Registration No.JH01AQ-3734, namely, Mr. Chhatu Mahto, S/o Anthu Mahto, R/o Muram Kala, P.S. Ramgarh, District- Ramgarh (Onwer of Indigo Car No.JH-01AQ-3734).

This Court has perused the impugned Award, it appears that the learned Tribunal has considered this aspect of the matter and discussed the same in Para-11 while discussing Issue No.III, on the ground that of-course the driver of the Indigo Car was largely responsible for causing the said accident, but the driver of the tempo also appears to have also share some negligence in the said accident, which is obvious from the fact, which has been marked X/1, which is screen report of ownership and description of tempo i.e. three-wheeler with seating capacity for only four persons. However, as per the FIR itself, the tempo was definitely carrying more than four persons on it, as the informant in the FIR has mentioned that deceased was travelling with Wakil Ahmad, Md. Asif Ansari and others, besides them there must be a driver. It appears from the Ext.-1, First Information Report, which has been relied by the learned counsel for the appellant by placing the judgment passed by the Apex Court in the case of Premlata Shukla (supra), that the owner of the tempo has also violated the terms and conditions of the policy, as such, there was negligence on the part of the owner of the tempo also.

The another issue which has been considered by the learned Tribunal is on the basis of the evidence adduced by the witnesses, that tempo has not taken any precaution to avoid such accident and that is the reason the learned Tribunal has imposed 65% liability upon the owner of the Indigo Car bearing Registration No.JH01AQ 3734 and 35% liability on the tempo bearing Registration No.JH2AQ- 5686, which was duly insured before the appellant- Insurance Company.

The issue which has been raised by the learned counsel for the appellant- National Insurance Company Limited, can be agitated by the owner of the tempo, if he is aggrieved by such finding. If a Police case is lodged against one vehicle and the charge-sheet has been submitted against the said vehicle, it is not going to change the fact so as adjudicated by the learned Tribunal, on the basis of the evidence adduced by the claimants and other party, as such, FIR and the charge-sheet which have been relied upon by the learned Tribunal and also in view of the judgment passed by the

Apex Court in the case of Mangla Ram vs. Oriental Insurance Company Limited & Ors., reported in (2018) 5 SCC 656 at para 27, which may profitably quoed be hereunder:-

"27. ...........This Court in a recent decision in Dulcina Fernandes [Dulcina Fernandes v. Joaquim Xavier Cruz, (2013) 10 SCC 646 : (2014) 1 SCC (Civ) 73 : (2014) 1 SCC (Cri) 13] , noted that the key of negligence on the part of the driver of the offending vehicle as set up by the claimants was required to be decided by the Tribunal on the touchstone of preponderance of probability and certainly not by standard of proof beyond reasonable doubt. Suffice it to observe that the exposition in the judgments already adverted to by us, filing of charge- sheet against Respondent 2 prima facie points towards his complicity in driving the vehicle negligently and rashly. Further, even when the accused were to be acquitted in the criminal case, this Court opined that the same may be of no effect on the assessment of the liability required in respect of motor accident cases by the Tribunal."

As such, no legality has been committed by the learned Tribunal.

Considering the same, this Court is not inclined to interfere with the impugned judgment.

Accordingly, the instant Miscellaneous Appeal preferred by the appellant- National Insurance Co. Ltd. being devoid of merit is hereby dismissed.

However, the right of recovery which has been granted to the appellant- National Insurance Company Limited to recover 35% of the awarded amount from the owner of the tempo bearing Registration No.JH02AC-5686 shall remain uninterferred by this Court.

The statutory amount deposited by Insurance Company before this Court at the time of the filing of the appeal shall be remitted to the learned Tribunal by the learned Registrar General of this Court, within a period of four weeks from today so as to disburse the same to the claimants after notice and due verification

The balance amount of the award shall be satisfied by the Insurance Company within a reasonable time, as the accident is of dated 22.03.2015.

I.A. No.9944 of 2019 stands closed.

(Kailash Prasad Deo, J.) Sandeep/