Jharkhand High Court
Manish Kumar vs Birendra Ram on 24 November, 2021
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
M. A. No. 211 of 2018
1. Manish Kumar
2. Aashish Tarway
3. Smt. Pinki Kumari
4. Smt. Rinki Kumari
... ... Appellants
-versus-
1. Birendra Ram
2. The New India Assurance Company Ltd., through Branch Manager,
Giridih Branch, Samanta Complex, First Floor, Court Road, Giridih.
... ... Respondents
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CORAM : HON'BLE MR. JUSTICE ANANDA SEN
THROUGH VIDEO CONFERENCING
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For the Appellant : Mr. Arvind Kumar Lall, Advocate
For the Respondents : Mr. Manish Kumar, Advocate
Mr. Bibhash Sinha, Advocate
----
ORDER
RESERVED ON 26.10.2021 PRONOUNCED ON 24.11.2021
This appeal under Section 173(1) of the Motor Vehicles Act,
1988 has been filed by the claimants, challenging the judgment and
award dated 09.01.2018 passed by the District Judge II cum Motor
Accident Claims Tribunal (MACT), Giridih in Motor Accident Claim Case
No.44 of 2014, whereby the Tribunal has dismissed the claim
application filed by the claimants.
2. Claimants claimed an amount of Rs.15,50,000/- by way of
compensation on account of death of Reena Devi, i.e., mother of the
claimants. It is the case of the claimants that on 03.03.2014, their
mother Reena Devi was travelling in a motorcycle bearing registration
number JH 11C 8208, which was being driven by her husband Birendra
Ram. It is stated that when the motorcycle reached near the tree, the
deceased suddenly fell down in a ditch causing grievous injury. She was
brought to a nursing home at Giridih for treatment, where she was
treated. She was thereafter brought to Bokaro General Hospital where
she died on 14.03.2014. It has been asserted that the deceased was a
house wife and was also a tailor and was earning Rs.10,000/- per
month. It has also been submitted that Rs.5000/- per month should be
treated to be the value of her gratuitous services to the family members
as house wife.
3. The Insurance Company and the owner (father of the
claimants) appeared and filed their written statement. The Insurance
Company admitted that the motor cycle was duly insured with New India
Assurance Company Ltd. and the policy was valid at the time of
accident. The Insurance Company had taken a plea that since the wife
of the owner died in the accident, thus, it cannot be said that the
deceased was a third party, so the claimants are not entitled to receive
any amount. The owner of the motorcycle stated that he had a valid
driving licence to drive the said motorcycle, which was valid till
16.06.2016. It is the case of the owner that since the vehicle was duly
insured, the Insurance Company has to indemnify the owner.
4. On the basis of the pleadings of the parties, Tribunal framed
six issues, which are as under: -
(i) Is this claim application a Third Party claim?
(ii) Whether the deceased of this claim application
namely Reena Devi was a Pillion Rider on
Motorcycle no. JH-11C-8208 belonging to an being
driven by her husband Sri Birendra Ram at relevant
time?
(iii) Whether the liability of Insurer towards a pillion
Rider is a limited liability as per terms and
conditions of policy of Insurance
no.54070231130100000643 effective from 06.06.2013
to 05.06.2014?
(iv) Whether the deceased namely late Reena Devi
being wife of registered owner of vehicle no. Jh-
11C-8208 (Hero Honda Motorcycle) being a Pillion
rider died due to rash and negligent driving of
motorcycle by her husband Birendra Ram?
(v) Whether the claimants, deceased Reena Devi
and the O.P. owner of insured vehicle are all
members of one and the same family?
(vi) Whether the deceased being wife of First party
owner of the accidented motorcycle have valid
cause of action for this claim?
5. Three witnesses were examined on behalf of the claimants
whereas the opposite parties examined two witnesses. Following
documents were exhibited on behalf of the claimants:-
Ext. 1 to 1/a are Death Certificates
Ext.2 is Bill
Ext.3 is certified copy of Final Form.
Ext.4 is certified copy of F.I.R. of U.D. case.
Ext.5 to 7 are True copies of P.M. report, Inquest report
and dead body challan.
X to X/3 marked for identification are photo copies of R.C.
Book, D.L., Insurance Policy, Hospital treatment
document.
The opposite party No.2 also filed following documents,
which were marked exhibits: -
Ext.A is R.C. Book
Ext.B is D.L.
Ext. C is collection receipt-cum-Adjustment voucher
Ext. D is Insurance Policy
Ext. E is Original receipt of payment of Rupees One
Lakh.
6. The Tribunal, after hearing the parties, came to a
conclusion that the claimant deceased and the owner are members of
the same family and the claimants have received Rs.1,00,000/- on
account of death of the deceased from the Insurance Company on
account of personal accident. The Tribunal further held that since
deceased is not a third party, rather a pillion rider for which Insurance
Company had limited liability to the tune of Rs.1,00,000/-, the claim is,
thus, not maintainable. The Tribunal, thus, dismissed the claim
application.
7. The only question, which needs to be decided in this appeal
is, as to whether the deceased, who was pinion rider, can be said to be
third party or not, on the facts of the case. The fact that the deceased
was the wife of the owner and driver of the motorcycle is admitted. The
Tribunal has held that since the deceased is the wife of the owner and
injured, she cannot be treated to be a third party. Thus, the claim is
limited to only Rs.1,00,000/-, which is the personal accident sum
assured.
8. To decide the liability of the Insurance Company, I have
gone through the insurance policy. The insurance policy clearly
suggests that the same is a "Two Wheeler Package Policy". The
Tribunal has also held that the policy is a package policy. From the
policy, it is also clear that own damage premium has also been paid by
the insured. This clearly suggests that the policy was not an "Act only"
policy, rather it was a comprehensive policy, which covers the own
damage of the insured. The Hon'ble Supreme Court in the case of
National Insurance Company Ltd. versus Balakrishnan & Another
reported in (2013) 1 SCC 731 has held that the Insurance Company is
liable to pay the compensation in case of comprehensive / package
policy, but, not in the case of Act only policy. In the instant case, the
policy, which is on record and has not been denied by the parties,
clearly suggests that the policy is a package policy and own damage
premium has also been paid. That being so, since the vehicle was duly
insured, liability has to be fastened upon the Insurance Company. The
conclusion, which the Tribunal has arrived to the effect that the
deceased is not a third party is not applicable in this case.
9. Thus, I hold that the findings arrived at by the Tribunal is not
correct and needs to be set aside. Thus, the impugned award dated
09.01.2018 passed by the District Judge II cum Motor Accident Claims
Tribunal (MACT), Giridih in Motor Accident Claim Case No.44 of 2014, is
set aside. Matter is remanded to the District Judge II cum Motor
Accident Claims Tribunal (MACT), Giridih to proceed with the Motor
Accident Claim Case No.44 of 2014, and decide the amount of
compensation, which the claimants are entitled for, on the basis of the
evidence led. Parties will be at liberty to lead further evidence. Since the
claim case is of 2014, it is expected that the Tribunal will take up the
claim case and will try to dispose of the case as expeditiously as
possible and preferably within a period of three months from today.
10. This appeal, accordingly, stands allowed. Lower Court
Records be sent back to the Tribunal.
(Ananda Sen, J.)
Kumar/Cp-02
