Jharkhand High Court
National Insurance Company ... vs Kuresha Khatoon on 16 November, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
M.A. No. 154 of 2016
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National Insurance Company Limited, duly represented through its Deputy
Manager, National Insurance Company Limited, Jharkhand Legal Cell, Kutchery
Road, Ranchi ...Appellant(s).
Versus
1. Kuresha Khatoon
2. Shahbana Khatoon
3. Nisar Ansari
4. Jaan Mohammad
5. Rajan Main @ Abdul Jabbar ... Respondent(s)
CORAM : HON'BLE MR. JUSTICE ANANDA SEN.
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For the Appellant(s) : Mr. Pratyush Kumar, Advocate.
Ms. Archna Kumari, Advocate.
For the Respondents : Mr. A.K. Sahani, Advocate.
: Mr. Ajit Kumar, Advocate
12/16.11.2021: Heard the counsel appearing on behalf of the appellant-Insurance
Company and Mr. A.K. Sahani, learned counsel appearing on behalf of the owner
of the offending vehicle.
This appeal has been filed by the National Insurance Company Ltd.
challenging the award dated 15.10.2015 passed by District Judge, IIIrd cum-
Presiding Officer, Motor Accident Claims Tribunal, Bermo at Tenughat, Bokaro in
Motor Accident Claim Case No. 72 of 2007.
The main ground which the appellant Insurance Company has taken is that
they are not liable to indemnify the owner of the vehicle as there was violation of
condition of the policy. Counsel appearing on behalf of the Insurance Company
argues that though the vehicle, which is the goods carrying vehicle i.e. the tractor,
was duly insured with the National Insurance Company Ltd. but the deceased who
admittedly was travelling in the said vehicle, was a passenger. He submits that
since the deceased was a passenger in the goods carrying vehicle who died in
accident, he was a gratuitous passenger and thus there was a violation of the
condition of the policy, so the liability should be upon the owner of the vehicle and
not upon the Insurance Company. He further submits that a specific plea was taken
by the Insurance Company that the vehicle was being driven by a person who did
not have a valid driving license. He submits that the driving license which was
produced was forged and fake document and on that ground also the Insurance
Company is not liable to indemnify the owner.
Mr. A.K. Sahani, learned counsel appearing on behalf of the owner of the
vehicle argues that though the vehicle involved in the accident was a tractor (goods
carrying vehicle) yet the deceased was employed by the owner of the tractor who
was going to fetch some material. He submits that admittedly the vehicle was being
driven in a rash and negligent manner which resulted in an accident causing death
of the deceased. He submits that on the aforesaid facts it cannot be said that the
deceased was gratuitous passenger. He submits that the driver was having a valid
driving license and the Insurance Company failed to prove that the driving license
was fake. He submits that the certificate of the District Transport Officer was not
proved as per law. He submits that the application of the Insurance Company to
admit the said document as evidence was dismissed on 01.12.2014 by the
Tribunal, which was not challenged by filing any revision or any application under
article 226/227 of the Constitution. He submits that Insurance Company accepted
the said order and now they cannot be allowed to challenge the same. He further
submits that some documents were produced by the Insurance Company claiming
that the said documents suggest that the driving license of the driver was fake but
it was incumbent upon the Insurance company to prove those documents, which
they failed to do so.
After hearing the parties, I find that the only dispute which is raised and
needs to be considered in this appeal is whether on the aforesaid argument and
on the facts of the case, any right to recovery should be given to the Insurance
company or not.
This accident claim arises out of an accident involving a Tractor bearing
Registration No. JH 09C 4754. It is the case of the claimant that the deceased who
was not the driver, was travelling in the said tractor to bring a generator. The
deceased was going to Kathara to get the said generator set. It is the case of the
claimant that the said tractor was being driven in a rash and negligent manner as
a result of which when the vehicle reached near Gayatri Colony Crossing, the
deceased who was a passenger in the said tractor fell down, because of the jerk,
and came under the rear wheels of the tractor resulting in his death.
From the aforesaid statement in the claim application this Court finds that it
is an admitted case of the claimant that the deceased was travelling in the said
tractor. Now the question is whether the deceased was a gratuitous passenger or
not. C.W. 1 is Kuresha Khatoon who is the claimant and the mother of the
deceased. She in para 3 of the examination- in -chief has stated that the deceased
along with one Mohammad Aiyaz was sitting and travelling in the said tractor and
was going towards Kathara more to bring a generator. In cross examination in para
11 she stated that the deceased was a labourer working in Ranchi. She never
stated that this deceased was employed by the owner of the tractor. Aiyaz Ansari
is also a witness. He also stated that the accident occurred because of rash and
negligent driving by the driver of the tractor. He admitted that he along with the
deceased was travelling in the said tractor and was going to kathara. This fact has
been derived from para 3 of his statement. He also in para 6 has stated that they
were going to bring a generator. This witness in para 4 of his evidence has stated
that the deceased was a labourer. Further from para 11 of cross examination I find
that he has stated that he along with the deceased with the consent of the driver
of the tractor travelled in the tractor as a passenger and was sitting on the engine
of the tractor. This witness also in his entire evidence has not stated the fact that
the deceased was employed by the owner of the tractor. Another witness is one
Mohammad Kuddus Ansari who is P.W. 3 and father of P.W. No.2, Aiyaz Ansari.
This witness in para 10 of his cross examination has stated that the deceased and
his son were employed and was working as Mazdoor in the said tractor. These are
the only evidence which is available on record to find out whether the deceased
was a gratuitous passenger or not. After going through the said evidence it is quite
clear and is admitted that the deceased was travelling in the said tractor and was
going to get a generator set. It is also admitted that the deceased was sitting on
the engine of the tractor. This clearly suggests that no trailor was attached with the
said tractor. The argument of the learned counsel appearing on behalf of the
respondent that the deceased was working as mazdur (Labourer) in the said
tractor cannot be accepted by this Court as the statement to the aforesaid effect
of P.W. No. 3 cannot be relied upon. Though P.W. 3 has stated that his son and
the deceased were employees and were working as labourer with the said tractor
yet the son of P.W. 3 who is P.W. 2 has not whispered the aforesaid fact. P.W. 2
merely stated that the deceased was a labourer. On conjoint reading of the
statement of the P.W. 1, 2, 3 it is clear that the deceased was travelling in the said
tractor as a passenger and was going to Kathara to get one generator set. Further
it is admitted that the deceased was sitting on the engine of the said tractor. This
clearly suggest that the deceased was a gratuitous passenger travelling in the said
tractor without any authority. Thus, I have no hesitation to hold that the deceased
was a gratuitous passenger in the said tractor.
Carrying passenger in the tractor is violation of the condition of Insurance
Policy. Be it noted that it is not the case of any of the parties that the Insurance
Policy permitted the tractor to carry passenger.
The Hon'ble Supreme Court in the case of Manager, National Insurance
Company Ltd. versus Saju P. Paul & Another reported in (2013) 2 SCC 41 and
Shivaraj Versus Rajendra & Another reported in (2018) 10 SCC 432 has held
on the fact of the case that when a gratuitous passenger suffered injury or died
because of the accident, it is the Insurance Company who has to pay the amount
of compensation so assessed by the Tribunal and recover the same from the
owner. This Court is of the opinion that the said principle should be applied in this
case also. From the impugned award, I find that no right to recovery has been
given to the Insurance Company to recover the amount from the owner. Since the
deceased was gratuitous passenger travelling in the said tractor, which is goods
carrying vehicle, which is a violation of the policy, in view of the judgment of the
Hon'ble Supreme Court, right to recovery should be granted to the appellant
National Insurance Company Ltd. Thus on aforesaid ground right to recovery is
given to the appellant. Appellant is at liberty to proceed and file appropriate
proceeding to recover the said compensation amount from the owner of the vehicle.
The other contention has been raised in respect of the driving license of the
driver of the tractor. It is the contention of the Insurance Company that the driver
of the tractor did not possess a valid driving license and the license which was
produced is fake. Even if for the sake of argument this Court comes to a finding
that the license is fake, then also liberty may be granted to the Insurance Company
to get the amount of compensation recovered from the owner of the vehicle. This
relief has already been granted while deciding the earlier issue. Thus this Court is
not inclined to enter into the dispute as to whether the driving license of the driver
was fake or not.
Thus this appeal is allowed with a liberty to the Insurance Company to file
an appropriate proceeding to recover the compensation amount from the owner of
the vehicle, who is respondent no. 4 herein.
Rajnish/c.p. 2 (ANANDA SEN, J.)
