Deepak Kumar vs Damiyanus Toppo & Others
2021 Latest Caselaw 1437 Jhar

IN THE HIGH COURT OF JHARKHAND AT RANCHI
           (Civil Miscellaneous Appellate Jurisdiction)
                  M.A. No. 142 of 2018
                         ........

Deepak Kumar                            .... ..... Appellant
                             Versus
Damiyanus Toppo & Others                .... ..... Respondents

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

For the Appellant : Mr. Prashant Kumar Rahul, Advocate.

For the Respondents           :
                                     ........
06/22.03.2021.

Heard, learned counsel for the appellant, Mr. Prashant Kumar Rahul.

Deepak Kumar, owner of the offending vehicle bearing registration no. JH-03C-9318 is the appellant before this Court.

Learned counsel for the appellant has submitted that though the Issue No. V with regard to Insurance Coverage is decided in favour of the Owner as the vehicle was found insured before the New India Assurance Company Limited, but the learned Tribunal while deciding Issue No. VI (Whether the terms and conditions of the aforesaid insurance policy of the offending vehicle involved in an accident has been violated or not ?) has given wrong finding.

Learned counsel for the appellant has submitted that vehicle was insured under the comprehensive policy, which cover the deceased and other persons travelling in the private vehicle and the appellant has not given his vehicle to the driver to use it as commercial vehicle on hire reward basis, as such, liability to indemnify the award ought to have been given to the Insurance Company instead of Owner of the Vehicle.

From perusal of impugned award, it appears that the learned Tribunal has fasten the liability upon the owner of the vehicle on the ground that the instant vehicle was registered as private vehicle, which was being plied by the owner as commercial vehicle without following requirements of law for Commercial Vehicle. The Commercial vehicle certainly does not cover the deceased within the ambit of insurance policy issued by the Company. As it was not covered under limited liability, as no additional premium was paid in the policy to cover under any contractual liability. So, the deceased is not covered under statutory liability or under contractual liability for any amount of

compensation, though the claimants and his witnesses have stated in their evidence that the vehicle was taken on hire and reward basis for Rs. 1200/- for the purpose of attending the marriage ceremony and they were returning through the vehicle and in the meantime, the vehicle met with an accident. They have also paid Rs. 200/- as advance.

From perusal of the impugned award, it appears that there is violation of terms and condition of the policy and the learned Tribunal has rightly considered the judgment passed by the Apex Court in the case of United India Insurance Co. Vs. Tilak Singh reported in (2006) 4 SCC 404 and also in Oriental Insurance Co. Ltd. Vs. Sudhakaran K.V. and others reported in (2008) 7 SCC 428. Exhibit-6 makes it more clear that vehicle was not insured for hire or reward and no extra premium was paid for other occupants / passengers. The evidence of the claimants is consistent, that they have engaged this vehicle on hire and reward basis for Rs. 1200/- and they have also paid Rs. 200/- as advance.

Under the aforesaid circumstances, this Court does not find any merit in this appeal so as to interfere with the impugned award preferred by the Owner.

Accordingly, the instant miscellaneous appeal is dismissed. The statutory amount deposited by the appeal shall be remitted by the Registrar General of this Court to the learned Tribunal for indemnifying the part of the award.

The balance amount shall be indemnified by the Insurance Company (appellant) as the occurrence is dated 07.07.2009.

The Executing Court is directed to ensure that the award must be satisfied within a reasonable time as the occurrence is of dated 07.06.2009 when deceased Martina Khalkho died in motor vehicle accident leaving behind (1) Damiyanus Toppo, (2) Ashunta Toppo, (3) Ashish Toppo, (4) Josheph Toppo, (5) Marshel Toppo and (6) Nitish Toppo, all minors are represented through their father / legal guardian i.e. claimant no. 1 namely, Damiyanus Toppo as claimants.

(Kailash Prasad Deo, J.) Sunil/-