Jharkhand High Court
Satyadeo Kumar Kanwar vs United India Insurance Company ... on 16 March, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
M.A. No. 510 of 2014
With
I.A. No. 5892 of 2018
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Satyadeo Kumar Kanwar .... Appellant(s)
Versus.
1. United India Insurance Company Limited, represented by its local branch
at Giridih.
2. Prabhu Yadav
3. Tuntun Yadav.
4. Girendra Yadav
5. Mahadeo Mahto ... Respondent(s).
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CORAM: HON'BLE MR. JUSTICE ANANDA SEN
THROUGH VIDEO CONFERENCING.
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For the appellant(s): Mr. Vijay Kr. Roy, Advocate.
For the Insurance Co: Mr. G.C. Jha, Advocate.
For Resp. Nos. 2 to 4 Mr. Arvind Kumar Lall, Advocate.
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I.A. No.5892 of 2018
15/16.03.2021: In view of the submission made by the appellant(s) and the ground
assigned herein, this interlocutory application, filed for condoning the delay of 13
days in filing this appeal, is allowed. Consequently, the delay in filing the instant
appeal is condoned.
M.A. No. 510 of 2014
The lawyers have no objection with regard to the proceeding, which has
been held through video conferencing today at 11:00 A.M. They have no
complaint in respect of the audio and video clarity and quality.
2. Heard the counsel for the parties.
3. In this appeal, the appellant-owner has challenged the
judgment/award dated 8.9.2014 passed by the Principal District Judge-cum-P.O.
MVACT. Giridih in M.V. Claim Case No. 33/2011 by which, the Tribunal has
awarded and directed to recover the paid amount from the owner of the offending
vehicle.
4. Learned counsel for the appellant submits that on wrong notion, the
right of recovery of the amount to the insurance company has been given by the
Tribunal. He further submits that there is no evidence to suggest that the vehicle
got dis-balanced and the accident has taken place because of the overloading of
the vehicle. He also submits that the accident was not caused because of
overloading and the ground of overloading cannot be a condition for allowing the
Insurance Company to recover the amount, which the Insurance Company will
indemnify from the owner of the vehicle.
5. Learned counsel for the Insurance Company submits that during the
evidence, it has come that the vehicle i.e. the Trekker in question was
overloaded and since it was overloaded, it can be presumed that it was dis-
balanced and met with an accident, resulting in death of the deceased, who was
a pedestrian. He further submits that overloading of the vehicle amounts to
violation of the terms and condition of the policy and thus the Tribunal has rightly
given the right of recovery of amount to the Insurance Company, from the owner
of the vehicle.
6. From the judgment and record, I find that the deceased along with
her father was going to her in-laws house. When they reached near Karodih
under Jamua Police Station, she met with an accident. A Trekker bearing
Registration No. BR 23A-2471, which was coming from Giridih, dashed her. It is
alleged that the vehicle was being driven in rash and negligent manner and as a
result of the injury, she sustained, she died. Thereafter, the trekker fled away
towards Chitardih. On the aforesaid allegation, a case was registered against the
driver as Jamua P.S. Case No. 268/2007 for the offence under Sections 279 and
304A IPC. The claimant(s) claimed Rs.4,47,00/- as compensation.
7. The Tribunal after framing issues and recording the evidence
granted an amount of Rs.4,39,000/-as compensation along with interest. Further
the two issues were framed as to whether the Insurance Company is liable to
indemnify the liability of the insured i.e. the owner of the trekker and whether
there is violation of condition of Section 149(2) of the M.V. Act on the part of the
owner of the vehicle or not.
8. While answering both the issues the court held that there was
violation of the terms and condition of Section 149(2) of the M.V Act on the part
of the offending vehicle and the issue was decided against the owner. Further,
since the vehicle was overloaded, which is a violation of the policy of the
Insurance Company, the Insurance Company was given the right to recover the
compensation amount, which they will pay to the victim. Aggrieved by this part of
the judgment/award dated 8.9.2014, the appellant-owner has approached this
Court.
9. Since the issue is limited in this case, I am not entertaining on the
issues as to whether the amount of compensation is just or proper or not. From
the judgment, I find that only on the ground that the vehicle was overloaded, the
Tribunal has ordered that the amount of compensation which the Insurance
Company pays to the victim can be recovered by the Insurance Company from
the owner of the vehicle. While going through the judgment, I find that the
Insurance Company has not led any evidence. Further I do not find any material
to suggest that the accident had occurred because of overloading of the vehicle.
10. As per submission of the counsel for the Insurance Company, the
vehicle was overloaded and therefore, it can be presumed that the vehicle got
dis-balanced and hit the pedestrian, who was the deceased. This submission of
the counsel for the Insurance Company is not acceptable as there is no evidence
which suggests that because of overloading, the vehicle got dis-balanced. For
the sake of argument, if it is accepted that the vehicle got dis-balanced then
there was possibility that after hitting the deceased, the vehicle would have
turned turtle, but the same has not happened. It is the case that the vehicle hit
the deceased and then fled away from the place of occurrence. Further, if the
vehicle was overloaded and it got dis-balanced, then there would have been
other persons injured because of impact of the accident, some persons of the
vehicle would have also sustained injury, but this was also not the case. Further
there is no finding by the Tribunal that the accident occurred solely because of
overloading.
11. Considering the aforesaid fact, this Court is of the opinion that the
accident cannot be attributed to overloading rather, the accident was caused
because of rash and negligent driving of the vehicle. Further be it noted that the
deceased was a pedestrian.
12. Thus, I find and hold that the right of recovery of the amount, which
has been given to the Insurance Company was not proper. Thus, the part of the
finding, so far as issue No. 5 is concerned to the effect that the Insurance
Company will have the right to recover the compensation amount, which has
already been paid, is set aside.
13. This appeal is allowed to the extent indicated above.
Anu/-CP-2 (ANANDA SEN, J.)
