Divisional Manager vs Chanda Devi & Others
2021 Latest Caselaw 1305 Jhar

      IN THE HIGH COURT OF JHARKHAND AT RANCHI
            (Civil Miscellaneous Appellate Jurisdiction)
                   M.A. No. 05 of 2018
                            ........

Divisional Manager, the New India Assurance Company Ltd.

                                             .... ..... Appellant
                              Versus
Chanda Devi & Others                         .... ..... Respondents

CORAM: HON'BLE MR. JUSTICE KAILASH PRASAD DEO
            (Through : Video Conferencing)
                                  ............
For the Appellant                 : Mr. Manish Kumar, Advocate.
For the Respondents               :
                                  ........
05/16.03.2021.

Learned counsel for the appellant, Mr. Manish Kumar has submitted, that the New India Assurance Company Limited has preferred this appeal against the award dated 03.06.2017 passed by learned District Judge-XVI - cum - P.O., M.A.C.T, Dhanbad in M.V. Claim Case No.25/2016, whereby the claimants (1) Chanda Devi, (2) Raj Kumar Rawani, (3) Kamdeo Rawani (minor represented by natural guardian mother claimant no.1), (4) Lata Devi and (5) Bali Rawani have been awarded compensation to the tune of Rs.47,78,819.40/- alongwith interest @ 6% per annum from the date of filing of this case i.e. 23.01.2016 within a period of 60 days of passing this award, failing which penal interest @ 9% per annum shall be charged after expiry of the aforesaid 60 days till its realization. The apportionment of the total compensation amount shall be as follows:-

a. 25 per cent of the total compensation amount of Rs.4778819.40/- with proportionate interest @ 6% per annum shall be paid to the plaintiff no.1 / claimant no.1 through cheque / demand draft.

b. 25 per cent of the total compensation amount of Rs.4778819.40/- with proportionate interest @ 6% per annum shall be paid to the plaintiff no.2 / claimant no.2 through cheque / demand draft.

c. 25 per cent of the remaining compensation amount Rs.4778819.40/- with proportionate interest @ 6% per annum shall be fixed deposited in favour of plaintiff no.3 / claimant no.3 in any nationalized bank or State Bank of India or Post

Office for the period till he attaints majority, of course subject to renewal from time to time and the aforesaid fixed deposit cannot be withdrawn without prior permission of the Court. The aforesaid fixed deposited cannot be mortgaged pledged etc. d. 12.50 per cent of the total compensation amount of Rs.4778819.40/- with proportionate interest @ 6% per annum shall be paid to the plaintiff no.4 / claimant no.4 through cheque / demand draft.

e. 12.50 per cent of the total compensation amount of Rs.4778819.40/- with proportionate interest @ 6% per annum shall be paid to the plaintiff no.5 / claimant no.5 through cheque / demand draft.

Learned counsel for the appellant has submitted that no relief is being sought against the quantum of compensation amount payable to the claimants, but the entire liability, which has been fasten upon the Insurance Company is in contradiction to the material available on record with regard to issue No. VI i.e. Whether the offending vehicle Pay loader no. OR-23D-3238 had valid permit to ply the same on the date and place of the accident in question? Which the learned Tribunal has wrongly decided in para-12 of the impugned judgment without considering the written statement filed by the Insurance Company, defendant no.2 particularly para-17, which may profitably be quoted hereunder:-

"17. That, road permit, driving licence, fitness certificate registration Book, P.S.V. Badge etc of the offending vehicle should be directed to be produced and proved by the owner, failing which it shall be presumed that there is statutory violation of the conditions of policies contemplated u/s. 149 of the M.V. Act and as such, this defendant will not stand in law to indemnify the awarded amount of compensation, is at all in future."

Learned counsel for the appellant has further submitted that annexure -1 at page no.18 will clearly demonstrate that permit was in

the name of Harbaksh Bulk Movers Pvt. Ltd. and it was only permissible for all motorable roads in the State of Odisha, which has been written in bold letters.

Learned counsel for the appellant has further placed Section 66 (3)

(m), Section 77, Section 79 (2) and Section 82 of the Motor Vehicles Act, 1988, which reads as follows:

" Section 66 (3) (m) to any transport vehicle which, owing to flood, earthquake or any other natural calamity, obstruction on road, or unforeseen circumstances, is required to be diverted through any other route, whether within or outside the State, with a view to enabling it to reach its destination;

77. Application for goods carriage permit.--An application for a permit to use a motor vehicle for the carriage of goods for hire or reward or for the carriage of goods for or in connection with a trade or business carried on by the applicant (in this Chapter referred to as a goods carriage permit) shall, as far as may be, contain the following particulars, namely:--

(a) the area or the route or routes to which the application relates;

(b) the type and capacity of the vehicle;

(c) the nature of the goods it is proposed to carry;

(d) the arrangements intended to be made for the housing, maintenance and repair of the vehicle and for the storage and safe custody of the goods;

(e) such particulars as the Regional Transport Authority may require with respect to any business as a carrier of goods for hire or reward carried on by the applicant at any time before the making of the application, and of the rates charged by the applicant;

(f) particulars of any agreement, or arrangement, affecting in any material respect the provision within the region of the Regional Transport Authority of facilities for the transport of goods for hire or reward, entered into by the applicant with any other person by whom such facilities are provided, whether within or without the region;

(g) any other particulars which may be prescribed.

79. (2) The Regional Transport Authority, if it decides to grant a goods carriage permit, may grant the permit and may, subject to any rules that may be made under this Act, attach to the permit any one or more of the following conditions, namely:--

(i) that the vehicle shall be used only in a specified area, or on a specified route or routes;

(ii) that the gross vehicle weight of any vehicle used shall not exceed a specified maximum;

(iii) that goods of a specified nature shall not be carried;

(iv) that goods shall be carried at specified rates;

(v) that specified arrangement shall be made for the housing, maintenance and repair of the vehicle and the storage and safe custody of the goods carried;

(vi) that the holder of the permit shall furnish to the Regional Transport Authority such periodical returns, statistics and other information as the State Government may, from time to time, prescribe;

(vii) that the Regional Transport Authority may, after giving notice of not less than one month,--

(a) vary the conditions of the permit;

(b) attach to the permit further conditions;

(viii) that the conditions of the permit shall not be departed from, save with the approval of the Regional Transport Authority;

(ix) any other conditions which may be prescribed.

82. Transfer of permit.--(1) Save as provided in sub-section (2), a permit shall

not be transferable from one person to another except with the permission of the transport authority which granted the permit and shall not, without such permission, operate to confer on any person to whom a vehicle covered by the permit is transferred any right to use that vehicle in the manner authorised by the permit.

(2) Where the holder of a permit dies, the person succeeding to the possession of the vehicle covered by the permit may, for a period of three months, use the permit as if it had been granted to himself: Provided that such person has, within thirty days of the death of the holder, informed the transport authority which granted the permit of the death of the holder and of his own intention to use the permit: Provided further that no permit shall be so used after the date on which it would have ceased to be effective without renewal in the hands of the deceased holder.

(3) The transport authority may, on application made to it within three months of the death of the holder of a permit, transfer the permit to the person succeeding to the possession of the vehicles covered by the permit: Provided that the transport authority may entertain an application made after the expiry of the said period of three months if it is satisfied that the applicant was prevented by good and sufficient cause from making an application within the time specified."

Learned counsel for the appellant has further submitted that in view of the judgment passed by the Apex Court Amrit Paul Singh and Another Vs. Tata AIG General Insurance Company Limited and Others reported in (2018) 7 SCC 558 as well as Pappu Vs. Vinod Kumar Lamba reported in (2018) 3 SCC 208, the learned Tribunal ought to have given right to recover in favour of the Insurance Company as the Insurance Company has been wrongly fasten with the liability.

Learned counsel for the appellant has submitted, that there is delay of 116 days in preferring the appeal and for condonation of the same, I.A. No.175/2018 has been filed, as such, notice may be issued to respondent No.6, Virendra Kumar Nishad, S/o Mani Lal Nishad, R/O H.N.87, Khas Jeenagora, P.S.- Tesra, District- Dhanbad, 826001 (Jharkhand) owner of the pay loader No. OR-23D-3238.

Learned counsel for the appellant has submitted that no relief has been sought for with regard to computation of compensation against the claimants.

Considering such submissions, since no relief has been sought for against the claimants, the appellant-Insurance Company is directed to indemnify the award in terms of the award passed by the learned Tribunal as mentioned in paras-17 and 18 of the impugned judgment, within a period of 60 days from today and to file an affidavit before this Court that the said amount has been deposited before the learned Executing Court / learned Tribunal.

In the meantime, let notice be issued upon respondent no.6, Virendra Kumar Nishad, S/o Mani Lal Nishad, R/O H.N.87, Khas Jeenagora, P.S.- Tesra, District- Dhanbad, 826001 (Jharkhand), owner of the pay loader No. OR-23D-3238, 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 a period of two weeks.

Let the appeal be listed after appearance of the owner of the vehicle or receipt of service report.

(Kailash Prasad Deo, J.) Jay/-