Jharkhand High Court

The Branch Manager vs Sudama Devi on 24 July, 2021

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             IN THE HIGH COURT OF JHARKHAND AT RANCHI
                            M.A. No. 17 of 2016
                                     ----
The Branch Manager, M/s New India Assurance Company Ltd., Laxmi Cinema
Complex, Main Road, Hazaribagh, through its Asst. Manager and duly
constituted attorney of The New India Assurance Company Ltd., Ranchi
Division, Sethi Corporate, 2nd Floor, Pee Pee Compound, PO PS Hindpiri,
District Ranchi.
                               ...          ...        Appellant
                                  -versus-
   1. Sudama Devi
   2. Nand Kishore Thakur
   3. Parmeshwar Thakur
   4. Sanju Kumari
   5. Gunja Kumari
   6. Raju Kumar Ram          ...            ...       Respondents
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           CORAM : HON'BLE MR. JUSTICE ANANDA SEN
                THROUGH VIDEO CONFERENCING
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           For the Appellants :  Mr. Ganesh C. Jha, Advocate
           For the Respondents : Mr. Deepak Kumar, Advocate
                                  ----
                                ORDER

RESERVED ON 15.07.2021 PRONOUNCED ON 24.07.2021

18/24.07.2021 In this appeal, the appellants have prayed for setting aside the award dated 22.09.2015 passed by the Motor Vehicles Accident Claims Tribunal, Hazaribagh in Claim Case No.94 of 2007, by which the Tribunal has award compensation amount of Rs.11,57,182/- to the claimants and directed the Insurance Company to pay the amount of compensation to the claimants.

2. I have heard the counsel for the Insurance Company, the counsel for the owner of the vehicle and the counsel for the claimants.

3. The only grievance of the Insurance Company-appellant is that the deceased was a roof top passenger, thus, the Insurance Company is not liable to reimburse the owner. It is the alternative prayer of the Insurance Company that right of recovery should have been given to the Insurance Company, to recover the amount of compensation already paid, from the owners of the offending vehicle. It is submitted that the Tribunal has wrongly fastened the liability of payment of compensation, ignoring the aforesaid fact, which would be apparent from the First Information Report itself.

4. Counsel for the owner, by relying upon a judgment of this Court in the case of Giriraj Prasad Agrawal versus Parwati Devi and Kali Paharin reported in 2005 3 JLJR 24 (Jhr) has argued that there is nothing in the deposition of the witnesses to conclude that the deceased was a roof top passenger. He submits that even if the deceased was a roof top passenger, in view of the judgment of Full Bench of this Court, it is the Insurance Company, who has to indemnify the owner, when admittedly, the vehicle was insured.

5. The claimants submit that they are entitled to the compensation amount, which has been awarded. They submit that they are entitled for a compensation at an enhanced rate, but, the counsel admitted that they have neither filed cross objection nor filed separate appeal claiming enhancement.

6. Considering the submission of the parties and the fact that there is no appeal for enhancement by the claimants, nor there is any cross objection, the issues, which fall for consideration in this appeal are as under: -

(I) Whether the deceased was a roof top passenger? (II) Whether the Insurance Company is liable to indemnify the owner of the vehicle and/or right to recovery should be given to the Insurance Company?

7. Since this is the only controversy in this appeal, I am not entering into the other aspects, i.e., the factum of accident, involvement of the offending vehicle, age of the deceased etc., which are admitted, nor I am entering into the quantum, since there is no challenge to the quantum.

8. To consider the aforesaid issues, I have gone through the evidence. Three witnesses were examined in this case on behalf of the claimants. Claimant Witness No.1, Parmeshwar Thakur, who is the son of the deceased Doman Thakur. He stated that on 29.08.2006, they were travelling in a vehicle bearing registration No. JH 12B 2323 from Koderma Railway Crossing to Kuju. When the vehicle reached near Parwati Nurshing Home, the deceased fell from the vehicle as the vehicle was being driven rashly and negligently. Deceased was admitted to the Parwati Nurshing Home, where he died on 29.08.2006. Nowhere in his evidence, this witness has stated that the deceased was a roof top passenger. He remained silent on this issue, though he admitted that his father fell down from the vehicle. In paragraph 7, he admitted that Tilaiya

Police Station Case No.391 of 2006 for offences under Sections 279/304A of the Indian Penal Code was instituted for this accident. In cross examination, he admitted that there were 15-16 passengers on that vehicle in the model name "SAVARI". In his cross examination, he stated that he was sitting inside the vehicle, but, kept mum as to where his father was sitting. From the aforesaid evidence, it is quite clear that he is an eye witness to the occurrence. C.W.2 is Sudama Devi, who is the wife of the deceased. Admittedly, she is not the eye witness to the occurrence, thus, she has not narrated anything as to where the deceased was sitting in the vehicle. C.W.3 is also a co-passenger with the deceased and C.W.1, who stated that he was travelling in the said vehicle, which met with an accident. At paragraph 9, he stated that the deceased fell from the vehicle as the vehicle was being driven in a rash and negligent manner. From the aforesaid evidence, I find that he also does not whisper as to where the deceased was sitting, but, from his evidence, it is clear that the deceased fell from the vehicle. Thus, from the evidence of C.W.1 and C.W.3, the fact which emerges is that the deceased fell from the vehicle. Both these witnesses are silent on the point as to where the deceased was sitting.

9. There are documentary evidence, which were produced before the Court. The main documentary evidence on this point is Exhibit 1, which is the First Information Report in Tilaiya Police Station Case No.391 of 2006 registered under Sections 279 and 304 of the Indian Penal Code. The author of the said first information report is Parmeshwar Thakur, who is the son of the deceased and C.W.1. In his deposition, he has admitted the fact that this first information report was registered. When I go through the fardbeyan, I find that in the fardbeyan, he has narrated how the accident had occurred. He categorically stated that as the jeep, i.e., the vehicle involved in the accident was overloaded, his father was directed to sit on the roof top and he managed to sit inside the vehicle. The jeep, when reached near Parwati clinic and where there was a turning of the road, his father fell down from the roof top and sustained injury resulting in his death. This fardbeyan is the very first statement of C.W.1, which clearly suggests that the deceased was a roof top passenger. Knowing the fact that the deceased was a roof top passenger and making the said statement in the fardbeyan, said witness very cleverly did not whisper the said fact

while deposing before the Court as C.W.1. Thus, I have no hesitation to hold that the deceased was a roof top passenger.

10. Now, the question is when the deceased is roof top passenger, owner of the vehicle, by referring to the judgment of this Court in the case of Giriraj Prasad Agrawal versus Parwati Devi and Kali Paharin reported in 2005 3 JLJR 24 submits that it is the Insurance Company, who has to pay the amount of compensation.

11. Insurance Company submits that since there is violation of terms and conditions of the policy, they are not liable to pay the amount even if they are directed to pay the amount, they should be given the right to recover the said amount from the owner.

12. The Full Bench of this Court in the case of Giriraj Prasad Agrawal versus Parwati Devi and Kali Paharin reported in 2005 3 JLJR 24 at paragraph 32 thereof has come to the following conclusion: -

(i) Carrying passengers more than covered by the Insurance Policy though amounts to committing breach of terms of policy, the Insurance Company cannot be absolved from its liability to pay compensation with respect to the persons exceeding the number covered by the policy. In case Insurance Company is permitted to raise defence of limited liability on the basis of terms of policy, object of Section 147 would stand frustrated. Even otherwise, alleged breach of terms of policy by the insured may be an offence under the provisions of the Act, but surly that does not fall under Section 149(2)(a) of the Act.

(ii) The insurer can avoid its liability only if the conditions specified in Section 149(2) are satisfied, and not otherwise. The statute recognizes no other condition for an insurer to escape its liability except those given in Section 149(2) whatever the terms and conditions between the insurer and the insured may be. The terms of contract between the insured and the insurer determining their rights and liabilities towards each other are not and should not be confused with the statutory liability of the insurer for the third party risk. If there is a breach of contract on the part of the insured, the insurer may proceed against the insured. As far as third party risk is concerned, the liabilities being statutory, it cannot

be overridden by terms of the contract of insurance between the parties.

After concluding as above, the Full Bench held that the Insurance Company is liable to pay compensation assessed by the Motor Accident Claims Tribunal.

13. The aforesaid judgment rendered by the Full Bench of this Court was challenged before the Hon'ble Supreme Court in Civil Appeal No.2421 of 2008 and the Hon'ble Supreme Court observed and held as under: -

We were taken through the award passed by the Tribunal, as well as the reasons in the order of the High Court. In view of the limited notice and the fact that in this appeal, there is no need to go into other aspects, leaving the question of law to be decided in an appropriate case, we permit the appellant-Insurance Company to recover the awarded amount from the respondent No.1- insured.

14. Thus, from the aforesaid judgment of the Hon'ble Supreme Court, which arises from a judgment of the Full Bench of this Court, which is relied upon by both the parties, I find that the right to recover the awarded amount from the owner of the vehicle has been given to the Insurance Company, where the deceased was a roof top passenger.

15. Considering the order of the Hon'ble Supreme Court (supra), I dispose of this appeal permitting the Insurance Company to pay the amount of compensation to the claimants and recover the awarded amount from the owner of the offending vehicle. The statutory amount deposited in this Court be refunded to the Appellant-Insurance Company.