Jharkhand High Court
National Insurance Co. Ltd. vs Hazara Khatoon on 24 November, 2021
1
Miscellaneous Appeal No. 168 of 2015
[arising out of Award dated 18.11.2014 passed by
District Judge II cum Addl. Claim Tribunal, Chatra
in Claim Case No.14 of 2010]
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National Insurance Co. Ltd., Divisional Office, Ranchi Patna Road, Prince
Hotel Campus, Near Civil Court Hazaribag, PO PS and District Hazaribag.
... ... Appellant
-versus-
1. Hazara Khatoon
2. Md. Jiyaul
3. Md. Tafjul
4. Md. Hidayatullah
5. Md. Asgar
6. Md. Imdad
7. Saiyad Abdul Majid
... ... Respondents
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For the Appellant : Mr. Alok Lal, Advocate
For the Respondents : Mr. Vijay Kumar Sharma, Advocate
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PRESENT
HON'BLE MR. JUSTICE ANANDA SEN
THROUGH VIDEO CONFERENCING
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JUDGMENT
RESERVED ON 20.10.2021 PRONOUNCED ON 24.11.2021
This appeal under Section 173(1) of the Motor Vehicles Act,
1988 has been filed by the Insurance Company, challenging the
judgment and award dated 18.11.2014 passed by the District Judge II
cum Additional Claim Tribunal, Chatra in Claim Case No.14 of 2010.
2. Deceased, Md. Anwar along with others were travelling in a
Bolero Pick-up van bearing registration number JH 10T 5436 and was
coming from Belgada to Gonia Market to purchase tomatoes. There
were several villagers along with him. About 500 yards away from
Gonia, the vehicle, which was being driven rashly and negligently,
turned turtle, resulting in injuries sustained by passengers and it is the
case that the deceased, who was also a passenger of the said vehicle,
after being treated in a hospital for ten days, died.
3. On account of death of Md. Anwar, his widow and sons
preferred a claim application under Section 166 of the Motor Vehicles
Act, which was numbered as Claim Case No.14 of 2010. On notice,
opposite parties had appeared and filed their respective written
statement. The owner of the vehicle pleaded that the deceased was
never a trader and the monthly income claimed by the claimants is not
correct. They had also taken a plea that deceased was not travelling in
the vehicle nor died in the said accident. It has been stated that the
driver of the offending vehicle had a valid driving licence to drive the
vehicle in question and the vehicle was also insured with National
Insurance Company Ltd., which was valid from 29.07.2009 to
28.07.2010. Be it noted that the accident had occurred on 14.10.2009.
4. The Insurance Company had also filed separate written
statement and admitted that the vehicle was insured with them at the
time of accident, but, had taken a plea that they are not liable to
indemnify the owner as the vehicle was a goods carrying vehicle and not
a passenger vehicle. It is submitted that goods carrying vehicle was
carrying passengers, which was not permissible according to the terms
and conditions of the policy. It is their case that there is gross violation of
condition of policy the claimants are not entitled to receive any amount
by way of compensation from the Insurance Company, rather, it is the
owner, who should be saddled with the liability.
5. On the basis of the aforesaid pleadings, Tribunal framed
five issues, which were as follows: -
(i) Whether the claim case is maintainable?
(ii) Whether deceased Md. Anwar S/o Liyakat Mian
R/O Village Belgada, P.S. Simariya, Dist. Chatra died
in motor accident due to rash and negligent drive of
vehicle (pick up van) bearing registration No. JH-
10T-5436?
(iii) Whether the vehicle involved in the accident is
owned by O.P. No.1 and insured by O.P. No.2 at the
time of accident?
(iv) Whether the driver of the offender vehicle
having valid and effective driving license at the time
of accident and whether there was breach of
condition of the policy?
(v) Whether claimants are entitled to get
compensation if so from whom and to what extent?
6. The parties led evidence. The claimants have examined
four witnesses and exhibited the FIR, Chargesheet, Postmortem Report,
Documents of Insurance, Documents of Registration of the vehicle and
the Driving Licence. Neither the owner of the vehicle nor the insurer
examined any witness nor produced any documents. The Tribunal, after
considering the evidence, led by the parties, have held that the
deceased died due to the accident involving the offending vehicle, which
was being driven in rash and negligent manner.
The Tribunal further held that the deceased was earning
Rs.5000/- per month and was aged about 45 years. The Tribunal also
held that the vehicle was duly insured at the time of accident with the
National Insurance Company Ltd. Considering all these aspects and
applying '14' as multiplier, the Tribunal awarded compensation to the
tune of Rs.7,62,944/-.
On the issue of violation of terms and conditions of policy,
the Tribunal, on the evidence led by the parties, has categorically held
that the deceased were gratuitous passengers of the vehicle and thus,
gave Insurance Company the right to recover the compensation amount
from the owner of the vehicle, after making payment to the claimants.
7. Aggrieved by the aforesaid award, the Insurance Company
has preferred this appeal. The only contention raised by the counsel
appearing on behalf of the Insurance Company is that since the Tribunal
has specifically held that there is violation of the conditions of policy and
the deceased along with others were gratuitous passengers in a goods
carrying vehicle, the Tribunal should have directed the Insurance
Company to pay the entire amount of compensation. He submitted that
in this type of cases, where there is gross admitted violation of the terms
and conditions of policy, principle of right to recovery is not applicable
and it is the owner, who has to pay the entire amount.
Learned counsel for the Insurance Company refers to the
following judgments of the Hon'ble Supreme Court in support of his
contention: -
(i) (2013) 11 SCC 554 [National Insurance
Company Limited versus Savitri Devi &
Others]
(ii) (2008) 2 SCC 595 [Deddappa & Others versus
Branch Manager, National Insurance Co.
Ltd.]
(iii) (2008) 7 SCC 425 [United India Insurance
Company Limited versus Serjerao & Others]
(iv) (2008) 5 SCC 403 [National Insurance
Company Limited versus Prema Devi &
Others]
(v) (2007) 9 SCC 486 [New India Assurance Co.
Ltd. versus Vedwati & Others]
8. Counsel appearing on behalf of the owner, submitted that
admittedly the vehicle was insured with the appellants. He submitted
that when the vehicle was insured with the Insurance Company, it is the
duty of the Insurance Company to pay the amount of compensation. He
submits that the interest of the Insurance Company has been
safeguarded in the impugned award of the Tribunal, whereby the right to
recovery has been granted in favour of the Insurance Company. He
submits that since right to recover has been granted, this appeal should
be dismissed. In support of his contention, he refers to a judgment of the
Hon'ble Supreme Court in the case of Manura Khatun & Others
versus Rajesh Kumar Singh & Others reported in (2017) 4 SCC 796.
9. After hearing the counsel for the parties, I find that the only
contention, which needs to be decided in this appeal is, as to whether
the owner should be directed to pay the amount of compensation or the
Insurance Company be directed to pay and recover the amount from the
owner, as has been directed in the award.
10. From the evidence led by the parties and from the findings
arrived by the Tribunal, it is clear that the deceased was a gratuitous
passenger in a goods carrying vehicle. This finding has not been
challenged either by the owner or by the claimants by filing any other
appeal or in this appeal. This finding of fact, thus, does not need any
interference in absence of any challenge. The fact that the vehicle was
insured at the time of accident with the appellant is also an admitted
fact. The Tribunal has held that the Insurance Company should pay the
amount of compensation and recover the same from the owner of the
vehicle.
11. From the judgment passed by the Tribunal, I find that the
interest of the Insurance Company has been protected. In the case of
Manura Khatun & Others versus Rajesh Kumar Singh & Others
reported in (2017) 4 SCC 796, which was also dealing with the
gratuitous passengers, the Hon'ble Supreme Court has considered
several judgments of the Hon'ble Supreme Court and has directed the
Insurance Company to pay the amount of compensation and recover the
same from the owner. The fact that in this case also the deceased was
gratuitous passenger and the vehicle was duly insured with the
Insurance Company. Relying upon the aforesaid judgment of the
Hon'ble Supreme Court, I am of the opinion that no illegality has been
committed by the Tribunal in directing the Insurance Company to pay
the amount of compensation and recover the same from the owner.
Since the right to recover the amount has already been given to the
Insurance Company, from the owner of the vehicle, I find no merit in this
appeal. This appeal is, accordingly, dismissed. The statutory amount
deposited by the appellant-Insurance Company at the time of filing of
this appeal be refunded to the Insurance Company.
(Ananda Sen, J.)
High Court of Jharkhand
Ranchi
Dated, the 24th day of November, 2021
Kumar/Cp-02
