National Insurance Co. Ltd. vs Rakesh Sharda
2021 Latest Caselaw 3931 Jhar

                    Miscellaneous Appeal No. 13 of 2016
    Against the judgment and Award dated 21.09.2015, passed by Sri Sanjay Kumar
    Chandhariyavi, District Judge-III-cum-Motor Vehicle Accident Claims Tribunal,
    Jamshedpur in Compensation Case No. 134 of 2011.

    National Insurance Co. Ltd., Divisional Office,
    East Singhbhum, Jamshedpur.....................                        Appellant
                                      Versus
    1. Rakesh Sharda
    2. Raju Sah.....................                                       Respondents
                                       ......
   For the Appellant             : Mr. Debesh Ch. Ghosh, Advocate
   For the Respondent             : Mr. Amit Kr. Das, Advocate
                                 : Mr. J.N.Upadhyay, Advocate
                                      ......
                                     PRESENT
                       The Hon'ble Mr. Justice Ananda Sen
                                  JUDGMENT

By Court This appeal has been preferred by the appellant National Insurance Co. Ltd. against the Award dated 21.09.2015, passed by the District Judge-III-cum- Motor Vehicle Accident Claims Tribunal, Jamshedpur in Compensation Case No. 134 of 2011.

2. The claimant claimed compensation amount to the tune of Rs. 12,30,000/- from the owner and the insurer of the offending vehicle bearing Registration No. JH05-AB-5260, on the ground that the said vehicle was being driven rashly and negligently, due to which he met with an accident and sustained several injuries. It is the case of the claimant that he was riding a Scooty on 05.05.2010, when the offending vehicle being a Bus came at a high speed, which was being driven rashly and negligently, dashed the claimant resulting in several injuries including fracture of leg. It is the case of the claimant as he sustained several injuries, he is entitled to receive compensation, as claimed. He also claimed that he has suffered 20% permanent disability due to the accident.

3. The insurance company appeared and admitted that the offending vehicle was insured with the insurance company, but the vehicle was not authorized to carry any passenger and the vehicle did not have a valid permit. The insurance company has also taken a plea that the injured claimant was also at fault as he was driving the Scooty in a rash and negligent manner. As per them, since there was head on collision, the victim is also responsible for the said accident. They have also taken a plea that the driver of the offending vehicle was not authorized to drive vehicle.

4. The owner also appeared before the Tribunal, but did not file any show cause.

5. On behalf of the claimant, claimant and one Sanjay Kumar

Sharda was examined. The claimant also exhibited some documents. Ext. 1 is the certified copy of the FIR, Ext.2 is the certified copy of Charge Sheet, Ext.3 is Disablement certificate, Ext. 4 is Medical Bills, Ext.5 is Discharge Summery, Ext.6 and Ext.6/1 is Income Tax Return.

On behalf of the Insurance Company one witness namely Arun Kumar Tiwary has been examined. Insurance company has also exhibited some documents. Ext. A is Investigation Report, Ext.-B is DL Verification, Ext.-C is Registered letter dated 03.09.2011, Ext.-D is letter dated 20.07.2011, Ext.-E is letter dated 19.07.2011 and Ext.-F is Disability certificate.

6. On the pleadings and the documents, five issues were framed, which are as follows:-

(I) Whether the case is maintainable?

(II) Whether the Applicant Rakesh Sharda has received injuries in a motor vehicle accident due to rash and negligent driving by driver of Bus no. JH-05AB-5260?

(III) Whether the owner of vehicle no. JH-05AB-5260 has violated terms and conditions of the insurance policy.

(IV) Whether the applicant is entitled to get any compensation, if so, what should be quantum of compensation?

(V) Whether the applicant is entitled to get any other relief or reliefs?

7. The Tribunal decided the issue No. (II) in favour of the claimant, holding that the Bus, which is the offending vehicle, was being driven in rash and negligent manner. The Tribunal also held that there was no contributory negligence in the instant case. The issue no. (III) is also of importance. The Tribunal on the point of permit has held that on the issue of valid permit, relying on a judgment of the Hon'ble Supreme Court in the case of "Narcinva V. Kamat and Another- versus- Alfredo Antonio Doe Martins and Others, reported in (1985) 2 SCC 574", has held that the insurance company has failed to make out a case that there was violation of terms and conditions of the insurance policy and thereby held that the insurance company is liable to pay the amount of compensation and has got no right to recovery on the said amount from the owner.

The Tribunal thereafter, assessed the compensation as Rs. 3,30,000/- and directed the payment of the same to the claimant.

8. Being aggrieved by the aforesaid Award, the insurance company has challenged the same by filing this appeal.

9. Counsel appearing on behalf of the insurance company submits that the specific plea was taken that the vehicle was being driven without a valid permit. He submits that when the aforesaid specific plea was taken, it was the duty of the owner of the vehicle to produce the permit and the onus was not upon the insurer. He further submits that in view of the fact

that the vehicle was being driven without a valid permit, right of recovery should be given to the insurance company. He submits that in view of the latest judgment of the Hon'ble Supreme Court in the case of "Amrit Paul Singh and Another- versus- Tata AIG General Insurance Company Limited and Others, reported in (2018) 7 SCC 558", it is the owner, who had to produce the permit and not the insurance company. He submits that the aforesaid judgment is of the year 2018 and thus the same should be applied in the instant case. He further submits that the Tribunal has wrongly assessed the loss of income as Rs. 1,60,000/-. He submits that there is nothing on record to suggest that there was a loss of income of the injured-claimant. He further submits that even if loss of income is accepted, no interest could have been granted on the aforesaid amount as this loss of income is a future happening for which interest cannot be granted.

10. Counsel appearing on behalf of the owner of the vehicle submits that admittedly, the vehicle was insured, thus the insurance company was rightly directed to pay the compensation to the claimant. He submits that in view of the judgment passed in the case of "Narcinva V. Kamat" (supra), it was the duty of the insurance company to come up with a proof that the vehicle was being driven without a permit and since the insurance company has not come up with any proof to that effect, now the insurance company cannot claim a right of recovery.

11. Counsel appearing on behalf of the claimant submits that the Tribunal has correctly assessed the compensation, which needs no interference. He submits that the medical bills were proved and so is the disability which the Tribunal considered to be 10% though the medical report suggests that there was 20% disability of the right lower limb.

12. After hearing counsel for the parties, I have gone through the lower court records also. The claimant has adduced evidence in support of his claim. AW-1, who is the claimant himself, has supported the factum of accident. In para-3, he stated that because of the rash and negligent driving of the offending Bus bearing registration no. JH05-AB-5260, the accident had occurred. He produced the medical bills and certificates. He also stated in Para-11 that he is suffering from permanent disability. He also stated that he was treated in Hospital at Tata Steel. Income tax returns were also filed. Claimant's witness no. 2 Sanjay Kumar Sharda also supported the claim of the claimant. He supported the fact that the injured was treated in hospital and he sustained injuries. He also proved several documents in relations to the treatment of the claimant. So far as documentary evidence is concerned, Ext.-1 is FIR and Ext.-2 is charge

sheet. Ext.-3 is disability certificate, which suggests that the claimant became 20% disable of the right lower limb. Report also suggests that the condition of the claimant is likely to improve. The income tax returns and computation of income has also been produced and has been marked as exhibits.

13. The insurance company has filed several documents. One of the documents, which is exhibited as Ext.-A is the Investigation Report. Though the same was accepted with objection, yet in the said report in Para-7(j), it was mentioned against permit-"Nil". This suggests that the Bus did not have the permit. The Investigator also concluded, in his conclusion that the Bus was running on the road without permit. Ext.-C is a letter written by the insurance company to the owner of the vehicle. In the said letter, the insurance company demanded to produce the permit of the vehicle and the driving license of the driver. The insurance company, in para-8 of the written statement, made a statement and called upon the owner to produce the road permit and the other documents of the vehicle and made statement that in absence of those, it shall be presumed that there was violation of the condition of the policy. It is also pertinent to mention here that the insurance company was granted leave to contest the claim on merits in terms of Section 170 of the Motor Vehicle Act.

14. From the aforesaid documents on record, it is clear that a plea that the vehicle was being plied without permit was taken by the insurance company. Be it noted that the owner though appeared did not file any written statement/show cause nor produced any documents. A question has been raised that the vehicle was being plied without a permit, it was the duty of the owner to produce the permit. The Hon'ble Supreme Court in the case of "Amrit Paul Singh" (supra), while dealing with an issue of not having a permit, in Para- 24 has held that "use of a vehicle in a public place without a permit is a fundamental statutory infraction". In the aforesaid case, a plea was also taken that the vehicle was being driven without a permit and the owner of the vehicle did not produce the permit. While dealing with the issue, in the same paragraph, the Hon'ble Supreme Court has held that "that apart the insurer had taken the plea that the vehicle in question had no permit. It does not require the wisdom of the "Tripitaka", that the existence of a permit of any nature is a matter of documentary evidence. Nothing has been brought on record by the insured to prove that he had a permit of the vehicle. In such a situation, the onus cannot be cast on the insurer."

15. From the aforesaid judgment of the Hon'ble Supreme Court now it

is established that the owner of the vehicle (insured) has to prove that the vehicle is being driven with a valid permit and the onus cannot be upon the insurer. The Hon'ble Supreme Court in the aforesaid judgment, relying on the principle laid down in the case of "National Insurance Co. Ltd. -versus- Swaran Singh & Others, reported in (2004) 3 SCC 297, has held that the insurance company is entitled to have right to recover the amount of compensation from the owner.

16. In the instant case the fact is somewhat the same. A plea was taken by the insurance company that the vehicle was being driven without permit. The insured, i.e. the owner of the vehicle though appeared before the Tribunal but did not chose to file a written statement nor did produce the permit. He could have easily produced the permit, if he at all possessed the same. In terms of the aforesaid judgment of "Amrit Paul Singh" (supra), it was the duty of the insured to produce the permit and the onus was upon the owner to prove the case. In the instant case, the owner failed to do so. Thus, an adverse inference is drawn against the owner to the effect that the vehicle was being driven without a permit.

17. In view of what has been held above and in view of the judgment, I find that the finding of the Tribunal that it was the insurance company who had to prove that the vehicle was being driven without a permit, is not correct. The judgment which was relied upon by the Tribunal was dealing with an effective driving license, whereas the Hon'ble Supreme Court in the case of "Amrit Paul Singh" (supra), was dealing with an issue of valid permit, which is exactly the case herein. Further, the judgment of "Amrit Paul Singh" (supra), is of a later date, i.e. a subsequent judgment and is on the issue involved in this case on facts. Thus, relying on the judgment of the Hon'ble Supreme Court in the case of "Amrit Paul Singh" (supra), this Court holds that the insurance company has a right to recover the amount of compensation from the owner of the vehicle.

18. So far as factum of compensation is concerned, I find that there are sufficient materials to show that the injured had sustained injuries and was hospitalized. There is also evidence to suggest that the injured spent huge amount on medical bills. The disability certificate suggests disability to the extent of 20%, but the situation can improve. The Tribunal considered all the documents and has assessed disability to the extent of 10% so far as loss of income is concerned and only granted Rs.1,60,000/- under the aforesaid head. So far as the compensation on account of transportation, special food, medical bills, pain and suffering loss of amenities is concerned, I find that there is nothing to disagree with the

finding arrived at by the Tribunal. Thus, I hold that the amount of Rs.3,30,000/- assessed as compensation is just and fair which needs no interference.

19. Considering what has been held above, this miscellaneous appeal is partly allowed by giving a right to the insurance company to recover the amount of compensation, to be paid to the claimant, from the owner of the vehicle. The insurance company is directed to pay the entire amount alongwith interest to the claimant within three months from today. So far as factum of compensation is concerned, the same is not interfered with.

The amount of statutory deposit, which was deposited by the insurance company before this Court, is directed to be refunded to the insurance company.

(Ananda Sen, J)

Jharkhand High Court, Ranchi st Dated the 21 October 2021;

NAFR/Mukund/c.p. -2