Jharkhand High Court
The Branch Manager vs Jamirul Sk on 23 February, 2022
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Misc. Appeal No. 146 of 2011
The Branch Manager, National Insurance Company Ltd., Ranchi
.... .... Appellant
Versus
1. Jamirul Sk.
2. Surfatun Bibi
3. Md. Rafik
4. Md. Jarrar Hussain
.... .... Respondents
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CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY
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For the Appellant : Mr. G.C. Jha, Advocate
For the Respondents : M/s Shashi Kr. Verma & Pawan Kr. Pathak, Adv.
Oral Order
24 / Dated : 23.02.2022
1. This appeal has been preferred by the Insurance Company
against the judgment and award of compensation passed in MACT Case
No. 29 of 2009 by the District Judge-cum-MACT, Pakur whereby and
whereunder, a compensation of Rs.2,25,000/- has been awarded under
Section 166 of the M.V. Act with interest at the rate of 6% per annum
from the date of filing of the application for the death of one Md. Islam in
a motor vehicle accident involving a tractor bearing Registration No. JH
16A- 2165.
2. The appeal has been preferred mainly on the ground that it is
the consistent case of the claimants that the accident took place when the
deceased was standing by the road side involving Tractor No. JH 16A-
2165. It has also come in the FIR (Ext.1) being Pakur (Mufassil) P.S. Case
No. 26 of 2009 under Sections 279 and 304A of IPC against the driver of
the Tractor No. JH 16A- 2165. The police on investigation found the case
true and submitted the charge-sheet (Ext.2) against Asmat Ansari, driver
of the offending tractor bearing registration No. JH 16A-2165. It is further
submitted that the offending vehicle i.e. tractor was not insured and,
therefore, in order to make out the claim case a further story was
developed that the accident took place with the trailer bearing Registration
No. JH 16A 2490 which was attached with the tractor and the deceased
was hit by this trailer. Both the parties, i.e. claimants, the owner of the
tractor as well as the trailer are resident of the same village and the said
trailer is only insured by the Insurance Company through its office at
Murshidabad, West Bengal. There is no whisper in the FIR that there was
a trailer attached to the tractor and the accident took place with it.
3. Learned Tribunal without considering this aspect of the matter
that the tractor was not insured, has fastened the liability for paying
compensation on the Insurance Company only on the basis of the fact that
the trailer was under the insurance cover of the appellant Insurance
Company. It is submitted that this is glaring instance as to how the cases
are manufactured and built up to bring false cases. Claimant no.1 who is
the informant of the case who lodged the FIR has not come forward to
depose and considering the facts and circumstances of the case this is a fit
case for drawing an adverse inference under Section 114 (g) of the Act.
4. Learned counsel for the respondents/claimants submits that
admittedly the tractor was not insured but the trailer was insured at the
relevant time of accident. P.W.1 who is the eye witness to the accident has
specifically stated that the accident took place and the deceased was hit by
the trailer and not the tractor and, therefore, the claimants are entitled to
be compensation from the insurer of the tractor.
5. This is a unique case where the offending vehicle i.e. the tractor
is admittedly not insured, but the award of compensation has been made
against the insurer of the trailer. The very short question that falls for
determination is that in this case is whether the owner of the tractor or the
insurer of the trailer shall be liable to pay the compensation amount?
6. The argument raised on behalf of the Insurance Company
merits consideration on the following scores:
Firstly, there is no mention of trailer being attached to the
tractor in the F.I.R.
Secondly, claimant no.1 has not come forward to depose and
support his case.
Thirdly, it is inconceivable that the owner of the vehicle was
prompt enough to get his trailer insured but not tractor. In any case the
rash and negligent driving can only be with respect to a tractor and not a
trailer, because a trailer cannot be driven without a tractor. As per the
claimants case as supported by the claimants' witnesses as well as DW 1
examined on behalf of the owner of the tractor, the accident was caused
by the trailer when it was attached with the tractor. There cannot be
separate liability for the tractor and the trailer regarding the negligence of
the driver of the vehicle. Once negligence is established on the part of the
driver of the offending tractor, it is the owner of the vehicle who is
primarily liable to compensate the victim. Here there is nothing on record
to suggest that the tractor was insured therefore the owner of the vehicle is
primarily liable to pay the compensation amount.
Under the aforesaid facts and circumstances of the case, it is the
owner of the tractor respondent no.4-Jarrar Hussain and O.P. No. 2 before
the Tribunal who is liable to pay the compensation amount to the
claimants.
Judgment and award of compensation against the appellant
Insurance Company is set aside. The respondent no.4 is directed to pay the
compensation amount to the claimants as awarded by the learned
Tribunal. The Insurance Company is at liberty to recover the
compensation amount, if any, paid to the claimants from the respondent
no.4 the owner of the tractor.
The appeal is allowed.
The Insurance Company is permitted to withdraw the statutory
amount.
(Gautam Kumar Choudhary, J.)
AKT
