Branch Manager vs Arjun Prasad Mondal
2021 Latest Caselaw 2005 Jhar

             IN THE HIGH COURT OF JHARKHAND AT RANCHI
                   (Civil Miscellaneous Appellate Jurisdiction)
                          M.A. No. 101 of 2020
                                ......

Branch Manager, Bajaj Allianz General Insurance Co. Ltd. Dhanbad...... Appellant Versus

1.Arjun Prasad Mondal

2.Pawan Kumar Gupta

3.Binay Kumar Gupta

4. Birendra Prasad .......Respondents ..........

      CORAM:        HON'BLE MR. JUSTICE KAILASH PRASAD DEO
                    (Through : Video Conferencing)
      For the Appellant                  : Mr. Alok Lal, Advocate
      For the Respondents                :
                                         ..........
03/Dated: 23/06/2021.

Heard learned counsel for the appellant- Bajaj Allianz General Insurance Co. Ltd.

The instant appeal has been preferred by the appellant- Bajaj Allianz General Insurance Co. Ltd. against the award dated 28.11.2019 passed by learned District Judge-XII-cum-Motor Accident Claims Tribunal Judge, Dhanbad in Motor Accident Claim Case No.305 of 2017, whereby the claimants namely,

1.Arjun Prasad Mondal, 2.Pawan Kumar Gupta and 3.Binay Kumar Gupta have been awarded compensation to the tune of Rs.7,69,930/- and the amount paid under Section 140 of the MV Act which is Rs.50,000/- has to be deducted, as such, now total compensation amount is Rs.7,19,930/- to the claimant No.1. The payment shall be made through A/C payee cheque in favour of claimant no.1 only within two months, failing which compensation amount shall carry interest @ 6% per annum from the date of filing i.e. 11.12.2017. The award has been passed against the opposite party no.1 i.e. New India Assurance Co. Ltd. However, the defendant -Insurance Company shall have right to recovery from defendant No.1 (owner of offending Auto) as there is breach of terms of insurance policy.

Mr. Alok Lal, learned counsel for the appellant- Insurance Company has assailed the impunged award on two grounds :-

(i) It is a case of hit and run;

(ii)The contributory negligence has not been ascertained by the learned Tribunal.

To buttress his argument, learned counsel for the appellant has relied upon Exhibits 1 and 2 i.e. certified copy of the FIR and certified copy of the chargesheet brought on record and marked without objection. Certified copy of

FIR and Certified copy of chargesheet shows that unknown offending truck hit the auto-rickshaw bearing registration No.JH-10AT-8043 from the back in which the deceased (Lalita Devi) was travelling, as such, it was a case of hit and run and truck was not made the party and thus the compensation has to be paid from the Solatium fund of the State and there is no liability of the Insurance Company.

Learned counsel for the appellant in support of his submission has relied upon the judgment in the case of Nishant Singh vs. Oriental Insurance Company Ltd. reported in 2018 (6) SCC 765 at Para-14 which reads as follows :-

"14. The next question is whether the Tribunal should have at least answered the issue of contributory negligence of the truck driver in favour of the appellant claimants? The question of contributory negligence would arise when both parties are involved in the accident due to rash and negligent driving. In a case such as the present one, when the Maruti car was following the truck and no fault can be attributed to the truck driver, the blame must rest on the driver of the Maruti car for having driven his vehicle rashly and negligently. The High Court has justly taken note of the fact that the driver and owner of the Maruti car, as well as insurer of that vehicle, had not been impleaded as parties to the claim petition. The Tribunal has also taken note of the fact that in all probability, the driver and owner of the Maruti car were not made party being close relatives of the appellants. In such a situation, the issue of contributory negligence cannot be taken forward."

Learned counsel has thus, submitted that since the truck has not maintained distance while hiting the tempo from back side, as such, contributory negligence ought to have been decided by the learned Tribunal against the offending vehicle truck, which hit the tempo from the back side.

Learned counsel for the appellant in support of submission has also relied upon the judgment in the case of Oriental Insurance Company Ltd. Vs. Premlata Shukla, reported in (2007) 13 SCC 476 para 14, which is profitably quoted hereunder:-

"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."

Learned counsel for the appellant has further submitted that these are admitted documents between the parties, as such, the learned Tribunal ought to have decided the contributory negligence for such accident.

After hearing learned counsel for the parties and on the basis of the materials available on record and perusing the judgment relied upon by the learned counsel for the appellant, perusing the impugned award and

perusing the issue no.7 - "whether this is a case of hit and run?" and issue no.8 -"whether out of two vehicle the driver of both vehicle were at fault or any one of them? Both issues have been dealt by the learned Tribunal at para 15 of the impugned Award, but while deciding the issue no.7, the learned Tribunal has held that said accident took place in a manner in which there was fault of the driver of the Auto Rickshaw and also the truck driver so it is being held that it is not a case of hit and run and while deciding issue no.8, the learned Tribunal has held that it was a fault of driver of Auto- rickshaw as he stopped his vehicle on busy road like GT road for taking passengers and the truck coming from the back side dashed the auto- rickshaw. The driver of the truck was also required to run his truck from a safe distance, but he also appears to have not done so and in a rash and negligent manner, dashed the auto-rickshaw due to which accident took place.

From perusal of the record, it appears that Insurance Company has not adduced any evidence except exhibiting the documents and not a single relevant evidence has been adduced before the learned Tribunal, as such, in absence of any plea taken by the Insurance Company of such nature, coupled with the fact that no relevant evidence adduced by the Insurance Company, the ground taken by the Insurance Company is of no help to the appellant- Insurance Company.

The Apex Court in the case of Khenyei vs. New India Assurance Co. Ltd. & Ors., reported in AIR 2015 SC 2261 corresponding 2015 (9) SCC 273 has decided the relevant issue at para 17, which reads as follows:-

"17 The question also arises as to the remedies available to one of the joint tort feasors from whom compensation has been recovered. When the other joint tort feasor has not been impleaded, obviously question of negligence of non-impleaded driver could not be decided apportionment of composite negligence cannot be made in the absence of impleadment of joint tort feasor. Thus, it would be open to the impleaded joint tort feasors after making payment of compensation, so as to sue the other joint tort feasor and to recover from him the contribution to the extent of his negligence. However, in case when both the tort feasors are before the court/tribunal, if evidence is sufficient, it may determine the extent of their negligence so that one joint tort feasor can recover the amount so determined from the other joint tort feasor in the execution proceedings, whereas the claimant has right to recover the compensation from both or any one of them."

(emphasis supplied) The same has again been reiterated in para 22 which reads as follows:-

"22. What emerges from the aforesaid discussion is as follows: 22.1. In the case of composite negligence, the plaintiff/claimant is entitled to sue both or any one of the joint tort feasors and to recover the entire compensation as liability of joint tort feasors is joint and several.

22.2. In the case of composite negligence, apportionment of compensation between two tort feasors vis-à-vis the plaintiff/claimant is not permissible. He can recover at his option whole damages from any of them.

22.3. In case all the joint tort feasors have been impleaded and evidence is sufficient, it is open to the court/Tribunal to determine inter se extent of composite negligence of the drivers. However, determination of the extent of negligence between the joint tort feasors is only for the purpose of their inter se liability so that one may recover the sum from the other after making whole of the payment to the plaintiff/claimant to the extent it has satisfied the liability of the other. In case both of them have been impleaded and the apportionment/extent of their negligence has been determined by the court/Tribunal, in the main case one joint tort feasor can recover the amount from the other in the execution proceedings.

22.4. It would not be appropriate for the court/Tribunal to determine the extent of composite negligence of the drivers of two vehicles in the absence of impleadment of other joint tort feasors. In such a case, impleaded joint tort feasor should be left, in case he so desires, to sue the other joint tort feasor in independent proceedings after passing of the decree or award."

From perusal of the records, it appears that there is no illegality in the impugned award and further the interest has been paid on lower side @ 6% per annum from the date of filing, which ought to have been @7.5% from the date of filing of the claim application in view of Section 171 of the MV Act as well as the judgment passed by the Apex Court in the case of Dharampal & Sons Vs. U.P. Transport Corporation, reported in (2008) 4 JCR 79 SC.

Accordingly, this Court is not inclined to interfere with the impugned award either by enhancing or by reducing the compensation amount in view 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.

Thus, the instant appeal being devoid of merit is hereby dismissed. The statutory amount deposited for preferring the appeal shall be remitted to the Court below by the learned Registrar General of this Court within a period of four weeks so as to be disbursed by the learned Tribunal to the claimants after notice and proper verification.

The appellant- Insurance Company is directed to indemnify the the balance amount within a reasonable period to the claimants as the occurrence is dated 10.09.2015.

So far right of recovery is concerned, which has been granted in favour of the appellant- Insurance Company against the owner of the offending auto-rickshaw and in absence of any appeal preferred by the auto-rickshaw the same remains intact as passed by the learned Tribunal.

(Kailash Prasad Deo, J.) sandeep