New India Assurance Company ... vs Dilip Soren & Anr
2022 Latest Caselaw 325 Jhar

      IN THE HIGH COURT OF JHARKHAND AT RANCHI
                      (Civil Writ Jurisdiction)
                     W.P.(C) No. 3696 of 2007
                         ........

New India Assurance Company Limited .... ..... Petitioner Versus Dilip Soren & Anr. .... ..... Respondents

CORAM: HON'BLE MR. JUSTICE KAILASH PRASAD DEO (Through : Video Conferencing) ............

For the Petitioner : Mr. Manish Kumar, Advocate. For the Respondents : Mr. Ranish Kumar, Advocate.

........

12/08.02.2022.

Heard, learned counsel for the parties.

Learned counsel for the petitioner, Mr. Manish Kumar has submitted that the writ petition has been filed for quashing the order and award dated 08.03.2007 and 16.03.2007 respectively passed in P.LA. Case No.76 of 2006 by the Permanent Lok Adalat, Jamshedpur. The writ petition has been preferred by the Insurance Company only to the extent that the award has been passed in favour of the claimant - Dilip Soren to the tune of Rs.1,62,000/- payable within one month of this order, failing which there shall be interest @ 14% per annum. However, O.P.-Insurance Company is at liberty to recover the amount so paid to the applicant from the insured on proving that insured had breached the terms and conditions of the policy.

Learned counsel for the petitioner has submitted that in terms of order dated 01.05.2008 notice has been issued to the respondents. Thereafter respondent No.2 appeared through Vakalatnama. Again notice has been issued upon respondent No.1 vide order dated 05.03.2012, which has been validly served upon respondent No.1, but he has not appeared though proper indulgence has been given by this Court and the Co- ordinate Bench of this Court in terms of the order dated 15.10.2019, 21.11.2019 as well as 16.11.2021, but till date the claimant namely Dilip Soren, S/o Late Salkhan Soren, resident of -H.No.677, Old Sitaram Dera, Oraon Bastee, P.O.-Agrico, P.S.- Sitaramdera, Jamshedpur, District- East Singhbhum has not appeared and respondent No.2 Dudh Nath Singh owner of the offending vehicle has appeared pursuant to the direction passed by this Court and represented by learned counsel, Mr. Ranish Kumar.

Learned counsel for the petitioner has submitted that so far the proceeding is concerned, the O.P. No.1 (owner)-Dudh Nath Singh has appeared before the court of Permanent Lok Adalat, Jamshedpur and filed written statement, but thereafter he did not appear nor brought any evidence on record, as such, it is apparent from the impugned award passed by the Permanent Lok Adalat that liability is of the owner of the vehicle with regard to the breach of terms and conditions of the policy, which has not been assailed by the owner of the offending vehicle -Dudh Nath Singh by filing any Misc. Appeal under Section 173 of the Motor Vehicles Act or writ petition before this Court.

Learned counsel for the petitioner has further submitted that in the writ petition preferred by the New India Assurance Company Limited with respect to limited prayer that this liability is of the owner and if the Insurance Company is to pay. Though owner is appearing and owner has to discharge his liability, then also right of recovery may be granted in absolute terms, but the Permanent Lok Adalat has granted on the ground that Insurance Company shall again prove that insured has committed breach of terms and conditions of the policy.

So far the claimant is concerned, with regard to the interest @ 14% per annum, the same is also contrary to the judgment as held by the Apex Court in the case of Dharampal and Sons Vs. U.P. State Road Transport Corporation reported in (2008) 12 SCC 208. As the claimant has not appeared even after notice, which has been validly served, as such, this Court may consider the same.

Learned counsel for the owner of the offending vehicle, Mr. Ranish Kumar has submitted, that from perusal of the F.I.R., it appears that there was no breach of terms and conditions of the policy, rather the injured has sustained because the slag has fallen down upon his body, while he was collecting the iron ores as such, this Court may consider and set aside the impugned award.

After hearing learned counsel for the parties, it appears that even after valid service of notice claimant has not appeared before this Court. The reason which has been assigned by learned Permanent Lok Adalat is just and proper, but unnecessarily learned Permanent Lok Adalat has

passed an order that after indemnifying the award, the Insurance Company is at liberty to recover the amount so paid to the applicant (claimant) from the insured on proving that there is breach of terms and conditions of the policy.

This Court considers that such observation made by the Permanent Lok Adalat is bad in law, as the owner of the offending vehicle has been duly informed, but he did not laid any evidence before the learned Permanent Lok Adalat.

Since, the Insurance Company has been directed in a benevolent legislation to indemnify the award, accordingly, this Court does not interfere in the same and direct the Insurance Company to indemnify the same to the claimant and recover the same from owner of the offending vehicle in execution case as per judgment passed by the Apex Court in the case of Oriental Insurance Company Limited Vs. Nanjappan & Others reported in (2004) 13 SCC 224.

So far the interest is concerned; it appears that learned Permanent Lok Adalat has excessively granted interest, which ought to have been @ 7.5% per annum in view of the judgment passed by the Apex Court in the case of Dharmpal (Supra).

Since this order is being passed prejudicial to the interest of the claimant as the claimant even after notice and valid service twice, has not appeared before this Court. Accordingly, the instant writ petition is allowed with a direction, that New Indian Assurance Company shall indemnify the awarded amount along with interest @ 7.5% per annum from the date of filing of the claim application till the date of indemnifying the award to the claimant and recover the same from owner of the offending vehicle as there is a violation of terms and conditions of the policy because no evidence has been brought by the owner even after appearance before the learned Permanent Lok Adalat.

I.A. No.1891/2008 is hereby disposed of.

(Kailash Prasad Deo, J.) Jay/