Jharkhand High Court
Raj Kishore Mandal vs Sarita Devi on 7 April, 2022
IN THE HIGH COURT OF JHARKHAND AT RANCHI
M. A. No. 78 of 2009
Raj Kishore Mandal .... .... Appellant
Versus
1. Sarita Devi
2. Prem Prakash Sah
3. United India Insurance Company Limited, Deoghar
.... .... Respondents
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CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY
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For the Appellant : Mrs. J.K. Mazumdar, Advocate
For the Respondents : M/s Ashutosh Anand & Abhijeet Kumar, Advocates
C.A.V. ON 11.02.2022 PRONOUNCED ON 07 / 04 / 2022
1. Owner of the vehicle is in appeal before this court against the
judgment and award of compensation passed in Title Claim Suit no. 16/06
under section 166 of the M.V. Act, 1988 (hereinafter called M.V. Act)
whereby the appellant has been held liable to pay the compensation
amount on the ground that the deceased was travelling as a gratuitous
passenger on the vehicle.
2. As per the claimant's case deceased Mukesh Kumar Sah had
hired a Tempo bearing registration No.JH-04B-2318 for carrying rice and
sacrificial goats for offering puja in a temple. On the way it met with
accident due to rash and negligent driving by the driver of the vehicle
resulting in his death.
3. The Learned Tribunal held that the deceased was travelling as a
gratuitous passenger and awarded a compensation of Rs.1,55,000/- in
favour of the claimants to be paid by the owner of the vehicle (appellant)
to pay the compensation amount. It was held that the deceased was not the
owner of the goods.
4. The appeal is preferred on the grounds that vehicle was duly
insured with the Insurance Company and there was no violation of any
terms of the insurance policy. From the pleadings and evidence of the
claimant it is an established fact that the deceased was not a gratuitous
passenger, but was the owner of the goods being carried by the vehicle
and his case came squarely under Section 147 (1) (a) of the M.V. Act.
Even in a case of breach of terms of insurance policy, law on the point is
settled that the Insurance Company has to pay and recover from the
owner.
5. It is not in dispute that the deceased boy died in the accident
while he was taking rice and sacrificial goats to offer in the puja. P.W. 1
Badri Pd. Sah claimed himself to be an eye witness, to the accident has
deposed that Mukesh aged 14 years was going to offer puja. P.W. 2 has
deposed that the deceased along with his other family members were
going by the vehicle. The testimony of P.W 3 the father of the deceased is
also to the same effect.
6. What can be inferred from the combined reading of the
evidence of these witnesses is that the accident took place when the family
was moving on the tempo with articles and goods like rice and sacrificial
goat for offering puja when the father of the deceased was also travelling
on the same vehicle which was a commercial vehicle. The deceased being
a young boy of 12-14 cannot be said to be the owner of the goods, when
his father was also travelling in the same vehicle. A feeble and
unsuccessful attempt has been made to give the colour that the deceased
was the owner of the goods being carried in the vehicle, which is against
the evidence on record. I do not find any infirmity in the finding of the
Tribunal that the deceased was travelling as a gratuitous passenger in the
vehicle which was a commercial goods carrying vehicle resulting in the
breach of the terms of insurance policy. Under the circumstance in view
of Section 149(2) of the M.V. Act, the owner of the vehicle shall be
primarily liable to pay the compensation amount.
7. There is a long line of Judicial precedent wherein it has been
held that the Insurance Company cannot avoid third party liability on the
plea of breach of terms of insurance policy. To name a few, principle of
pay and recover has been affirmed in cases of breach in terms and
conditions of the insurance policy.Shivaraj v. Rajendra, (2018) 10 SCC
432, Manuara Khatun v. Rajesh Kr. Singh, (2017) 4 SCC 796.
The appeal is partly allowed with a direction to the Insurance
Company to pay the claimants as awarded by the Tribunal within a month
of this order, and recover the amount so paid to the claimants from the
owner of the vehicle (O.P. 1).
The appeal is partly allowed as at above.
(Gautam Kumar Choudhary, J.)
Jharkhand High Court, Ranchi
Dated the 7th April, 2022
AFR / Anit
