The New India Assurance Co. Ltd vs Yasin Ansari
2022 Latest Caselaw 2308 Jhar

       IN THE HIGH COURT OF JHARKHAND AT RANCHI
                              M.A No. 341 of 2015
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The New India Assurance Co. Ltd. .... .... Appellant(s).

                                    Versus
       1. Yasin Ansari
       2. Samina Khatoon
       3. Masruddin Ansari                              .... .... Respondent(s)
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       CORAM : HON'BLE MR. JUSTICE ANANDA SEN.
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       For the Appellant(S) : Mr. S.Ojha, Advocate
                              Ms. Kritika Kumari, Advocate
                              Ms. Riya Kumari, Advocate
      For the Respondent      : Md. Zaid Ahmed, Advocate

9/28.06.2022

This appeal is at the instance of insurer of the offending vehicle challenging the award dated 04.02.2015 passed by District Judge, XI-cum MACT Judge, Dhanbad in Title (M.V.) Case No. 108 of 2011 whereby Insurance Company was directed to satisfy the award.

2. The owner was noticed but he did not chose to appear, thus the court proceeded ex-party against him.

3. Counsel for the appellant submits that when admittedly in paragraph no.14 of the impugned judgment the Tribunal has concluded that the tractor which is the offending vehicle, was being driven without a permit at the time of accident, the "right of recovery" should have been granted in favour of the appellant-Insurance Company. Another ground which the appellant has taken is that on account of "Future Prospect" 50% enhancement has been awarded in place of 40%. These are the only two grounds raised by the appellant-Insurance Company challenging the award.

4. The manner of accident, involvement of the tractor bearing Registration No. JH11F 2406 and the fact that vehicle was duly insured with the appellant, is not disputed. The income of the deceased, dependency etc. are also not disputed. Thus I am not entering into those aspects which are not disputed and not argued in this appeal.

5. To consider the first issue about the violation of the condition of policy as the vehicle was being driven without a permit, I find that in paragraph no.14 of the impugned judgment the Tribunal arrived at a conclusion that offending vehicle i.e tractor at the time of accident was being driven without a permit. After holding such the Tribunal relied upon the judgment of the co-ordinate bench of this Court in the case of The Branch Manager, Branch Office, National Insurance Company Ltd., Gumla Vs. Sabnam Khatoon & Ors. reported in 2014(4) JBCJ 29 (HC) thus directed the Insurance Company to pay the amount of compensation.

6. I have gone through the aforesaid judgment, so relied upon by the Tribunal. The aforesaid judgment has got no relevance with the facts of this case. In the case of The Branch Manager, Branch Office, National Insurance Company Ltd., Gumla (Supra) which the coordinate bench of this Hon'ble Court has decided, there was permit of the offending vehicle and the condition of the permit was violated. In this case there is no permit at all, thus the aforesaid judgment could not have been relied upon on the facts of this case. Since the offending vehicle, the tractor, was driven without a permit, this Court is of the opinion that the owner of the vehicle has violated the terms and condition of the policy. That being the case, the principle of "Pay and Recover" should be applied in this case, thus I direct the Insurance Company to satisfy the award and thereafter recover the same from the owner of the vehicle.

7. The another ground taken by the Insurance Company is that on account of 'Future Prospects' 50% enhancement has been awarded in place of 40%. It is true that in terms of the judgment of the National Insurance Company Limited Vrs. Pranay Sethi & Ors. reported in (2017) 16 SCC 680 considering the age of the deceased 40% should have been awarded but from the computation of the compensation and paragraph no. 17 of the impugned award, I find that on account of conventional head only Rs.27,500/- has been awarded in place of Rs.70,000/-. Thus, this Court feels that the difference will not be a considerable amount and in-fact the difference would be approximately Rs.10,000/- to Rs.12,000/-. Thus, I am not inclined to interfere with the quantum as assessed by the Tribunal.

8. In view what has been held above, this appeal is partly allowed only to the effect that Insurance Company is given the right to recover the amount of compensation from the owner of the vehicle.

9. Accordingly the instant appeal stands partly allowed.

10. Statutory amount deposited by the Insurance Company before the Registrar, be refunded to them.

(ANANDA SEN , J) anjali/cp2