Branch Manager vs Arti Devi & Others
2021 Latest Caselaw 1114 Jhar

IN THE HIGH COURT OF JHARKHAND AT RANCHI
            (Civil Miscellaneous Appellate Jurisdiction)
                   M.A. No. 568 of 2019
                          ........

Branch Manager, National Insurance Company Limited & Another .... ..... Appellants Versus Arti Devi & Others .... ..... Respondents

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

For the Appellants : Mr. Niraj Nayan Mishra, Advocate.

For the Respondents      :
                                    ........
04/05.03.2021.

Heard, learned counsel for the appellants, Mr. Niraj Nayan Mishra.

The National Insurance Company Limited has preferred this appeal against the award dated 26.08.2019 passed by learned District Judge-II-cum-Presiding Officer, Motor Accident Claims Tribunal, Bokaro, whereby claimants namely, Arti Devi and Mantu Rajwar have been awarded compensation to the tune of Rs. 7,36,000/- along with interest @ 6% per annum from 15.07.2016 to be paid within 90 days, failing which interest @ 8% shall be paid.

Learned counsel for the appellants has submitted that the appeal has been preferred by the National Insurance Company Limited on the ground that the owner of the offending vehicle had no valid permit at the time of accident, as such, in view of 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 (Para-24), the onus ought to have been shifted upon the owner of the offending vehicle.

Learned counsel for the appellants has submitted that in such view of the matter right of recovery ought to have been granted by the learned Tribunal in favour of the Insurance Company as the Owner of the vehicle has not proved that he had valid permit for plying the vehicle.

After hearing learned counsel for the appellants and perused the impugned order, it appears that the Insurance Company as well as Owner of the vehicle has appeared and filed their written statement. The owner of the vehicle has categorically stated that the offending

bus bearing registration no. JH-09Q-9277 was registered and on 04.01.2016, he has paid Rs. 50,000/- to the Mantu Rajwar, father of the deceased Amrit Rajwar and on 20.01.2016, in presence of B.D.O., Chas, the owner has paid Rs. 4,50,000/- by way of cheque, though vehicle was insured vide Policy No. 170405/31/14/607000/3084.

(appellants herein) have appeared before the learned Tribunal and has submitted that the vehicle was duly insured vide Policy No. 17040131136700012132 for the period from 19.01.2015 to 18.01.2016, but the owner of the offending vehicle has no permit and fitness certificate and as such there is violation of Section 147 & 149(2) of the Motor Vehicles Act.

On the basis of such pleadings, learned Tribunal has framed Issue Nos. 4 & 5, which reads as under:-

4. D;k nq?kZVuk ds fnu o le; iz'uxr LVkj cl la- - JH-09Q- 9277 ds pkyd /kekZ yksgkj (foi{kh la-&2) ds ikl oS/k ,oa izHkkoh MªkbZfoax ykbZlasl miyC/k Fkk\

5. D;k nq?kZVuk ds fnu o le; iz'uxr okgu ds ifjpkyu gsrq mlds iathd`r Lokeh ds ikl oS| ,oa izHkkoh ijfeV miyC/k Fkk\ Both the issues have been decided by the learned Tribunal separately at para-12 & 13 of the impugned order respectively.

So far issue no. 4, which has been decided in para-12 of the impugned order is concerned, the learned Tribunal has held that as per oral and documentary evidence and Exhibit-3, it appears that on the date and time of accident, the driver Dharma Lohar of the offending bus bearing registration no. JH-09Q-9277 had valid driving license issued on 24.06.1980, which was valid and effective till 27.06.2018, which has been brought on record as mark-X/5 as the vehicle met with the accident on 03.01.2016. Thus, decided the issue in favour of the claimants.

So far issue no. 5 is concerned, on the basis of the material available on record, the learned Tribunal has submitted that none of the parties have produced any document with regard to the permit, as such, on the basis of facts and circumstances and available oral and

documentary evidence, Issue No. 5 decided accordingly. From perusal of the judgment referred by learned counsel for the appellants, it appears that reliance has been placed upon para-24, which is profitably quoted hereunder:-

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 (supra) and Lakhmi Chand (supra) 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 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 (supra) and other cases pertaining to pay and recover principle.

From perusal of the above judgment, it appears that exceptions carved out in under Section 66 of the Act, needless to emphasis are to be pleaded and proved though 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 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.

Under the aforesaid circumstances, let notice be issued to the owner of the offending vehicle namely, Vivek Kataruka, resident of P.N. Ghosh Street, Puruliya, P.O. + P.S. - Puruliya, District - Puruliya, At present resident of Bye Pass Road, Chas, P.O. & P.S. - Chas, District - Bokaro, being the owner of the Offending Vehicle No. JH-09Q-9277 under both process i.e. under registered cover with A/D as well as under ordinary process, for which requisites etc., must be filed within two weeks.

However, in view of the judgment passed by the Apex Court in the case of Amrit Paul Singh & Another (Supra), the appellant - Insurance Company has not preferred any appeal against the quantum of award awarded to the claimants, as such, in view of the judgment passed by the Apex Court in the case of Amrit Paul Singh & Another (Supra), the Insurance Company is directed to indemnify the award within a period of 60 days from today along with interest in terms of order passed by learned Tribunal.

Learned counsel for the appellants has submitted that the said amount has already been deposited before the learned Executing Court.

Accordingly, the Executing Court is directed to disburse the same to the claimants after proper verification.

However, this shall be listed after appearance of the owner of the vehicle.

In the meantime, Office is directed to call for the lower court records.

(Kailash Prasad Deo, J.) Sunil/-