Oriental Insurance Co. Ltd. ... vs Karmi Loharin Wife Of Late Mani ...
2022 Latest Caselaw 3658 Jhar

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                                                                         M.A. No. 286 of 2008


IN THE HIGH COURT OF JHARKHAND AT RANCHI
              M.A. No.286 of 2008
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Oriental Insurance Co. Ltd. Branch Office Novelty Hotel, Palmergung, Post. P.O. & Dist. Lohardaga .... .... .... Appellant Versus

1. Karmi Loharin wife of late Mani Lohra

2. Thumri Devi wife of Biplu Lohra

3. Pushpa Kumari daughter of late Mani Lohra

4. Rupa Kumari daughter of late Mani Lohra

5. Sona Kumari daughter of late Mani Lohra (Applicant nos. 4 to 6 are minors and they are being represented through their natural guardian) All residents of Village Nawadih, Kisko, P.S. Kisko, Dist. Lohardaga

6. Nehra Oraon son of late Chama Oraon, & Ors. Proprietor Kisan Package resident of Village Bakshi, P.O. Kisko, P.S. & Dist. Lohardaga (Opp. Party No.1)

7. Branch Manager, Ranchi Kchetrya Gramin Bank, Kujra Branch, Village Patratoli, P.S, P.O. & Dist. Lohardaga

.... .... .... Respondents

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    For the Appellant          : Mr. Alok Lal, Advocate
    For the Respondents        : None

                                PRESENT
               HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
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 By the Court:-
          1.       Heard the parties.

2. No one turns up on behalf of the respondents in-spite of

repeated calls. Hence, this appeal is heard ex-parte against the said

respondents.

3. This appeal has been preferred against the judgment and

award dated 30.05.2008 passed by the Additional District Judge-I-

cum-P.O-Motor Vehicle Accident Claim Tribunal, Lohardaga in

Compensation Case No.12 of 2002 whereby and where under the

learned Tribunal has awarded a sum of Rs.1,20,000/- to the claimants.

4. The brief facts of the case is that the deceased- Mani Lohra

M.A. No. 286 of 2008

aged about 30 years, who used to earn Rs.2,000/- per month, while

travelling in the offending tractor as the labourer of the tractor and to

used to unload Murom soil, the offending tractor being driven rashly

and negligently met with an accident in which the deceased fell down

from the tractor and the tractor ran over him resulting in fatal injuries

to the deceased and he died on his way to being taken to the hospital

and criminal case was also registered. Before the Tribunal, the

insurance company did not file the written statement within the

stipulated time. Hence, the insurance company was debarred from

filing the written statement but later on the opposite parties filed their

written statement but did not take any steps for acceptance of written

statement.

5. Considering the materials in the record, the Tribunal

formulated the following four issues:-

(i) Is the suit as framed maintainable?

(ii) Have the claimants valid cause of action for

the case?

(iii) Was the deceased died in a motor accident

due to the rash and negligent driving of the

offending vehicle?

(iv) Are the claimants entitled to the claimed

amount and if so, from whom and up to what

extent?

6. The learned Tribunal considered the evidence of P.W.1 and

also the documents proved being the FIR, copy of the postmortem

report, insurance paper and driving licence of the driver- Dhani

M.A. No. 286 of 2008

Lohara which have been marked Exts. 1, 2, 3 and 4 respectively. The

opposite parties did not adduce any evidence but the opposite party

no.3 filed the report with regard to the driving licence of the driver-

Dhani Lohara which was marked Ext. A. The learned Tribunal

considered the evidence in the record and came to the conclusion that

the deceased died in a motor vehicle accident due to rash and

negligent driving of the driver of the offending vehicle and the claim

petition is maintainable. It was further held that there is valid cause of

action for filing this claim application and ordered that the claimants

are entitled to compensation of Rs.1,70,000/- but since the claimants

have already received Rs.50,000/- in respect of application under

Section 140 of Motor Vehicle Act, directed the appellant-insurance

company to pay Rs.1,20,000/- to the claimants.

7. Mr. Alok Lal, learned counsel for the appellant assisted by

Mr. Santosh Kumar, submits that the learned Tribunal failed to

consider the fact that the deceased was travelling in the tractor

insured under Kissan Pakage policy for using the tractor for

agricultural purposes but it is admitted fact that the driver was

driving the tractor loaded with Murom so it cannot be said that the

tractor was used for agricultural purposes. Hence, the insurance

company is not liable to pay the compensation amount. It is next

submitted by the learned counsel for the appellant that since both the

applications under Section 140 of Motor Vehicle Act and under

Section 166 of the Motor Vehicle Act were given the same number i.e.

Compensation Case No.12 of 2002 and the appellant-insurance

company has filed the written statement in this case of course, in

M.A. No. 286 of 2008

respect of an application under Section 140 of Motor Vehicle Act, the

learned Tribunal ought to have considered the same in respect of an

application under Section 166 of Motor Vehicle Act also. Hence, it is

submitted by the learned counsel for the appellant that the insurance

company be absolved of the liability to pay the compensation amount.

8. Having heard the submissions made at the Bar and after

going through the materials in the record, the sole point for

determination that crop up in this appeal is:-

"Whether the insurance company is to be absolved of the

liability to pay the compensation amount to the claimants

and if yes, who is to pay the compensation to the claimants?"

9. Now coming to the facts of the case, undisputedly, the

tractor was involved in transportation of the Murom soil. There is no

material in the record to suggest that the Murom soil was transported

for any agricultural purposes and in that view of the matter as the

tractor was used for the purpose other than the one specified under

the policy (Ext.3) more specifically was being used for non-

agricultural purposes, the insured has violated the terms of the kissan

pakage policy, a copy of which has been kept as Ext. 3, hence the

insurance company is not liable to pay the compensation amount but

it is the insured owner of the vehicle who has to pay the compensation

amount.

10. In view of the settled principle of law as has been held by

Hon'ble Supreme Court of India in the case of Manuara Khatun &

Ors. v. Rajesh Kr. Singh & Ors., reported in (2017) 4 SCC 796, para-

22 of which reads as under:-

M.A. No. 286 of 2008

"22. Accordingly, the appeals succeed and are allowed. Impugned order is modified to the extent that Respondent 3 United India Insurance Co. Ltd. is accordingly directed to pay the awarded sum to the appellants (claimants). Thereafter Respondent 3 United India Insurance Co. Ltd. would be entitled to recover the entire paid awarded sum from the owner (insured) of the offending vehicle (Tata Sumo) Respondent 1 in these very proceedings by filing execution application against the insured."

As the policy of the insurance is not in dispute, this is a fit case

where the appellant-insurance company be directed to pay the

compensation amount of Rs.1,20,000/- over and above the amount

paid under Section 140 of Motor Vehicles Act by depositing the said

amount before the Tribunal to be paid to the respondent nos.1 to 5

who are the claimants in this appeal with a right to recover the same

from the owner of the tractor-trailer in the same proceeding. The sole

point of determination is answered accordingly.

11. In view of the discussions made above, the impugned

judgment and award dated 30.05.2008 passed by the Additional

District Judge-I-cum-Motor Vehicle Accident Claim Tribunal,

Lohardaga in Compensation Case No.12 of 2002 is modified by

absolving the insurance company of the liability to pay the

compensation amount and by holding that the owner of the vehicle is

liable to pay the remaining compensation amount of Rs.1,20,000/- to

the claimants, if already not paid and the appellant-insurance

company is given the right to recover the compensation amount of

Rs.1,20,000/- as awarded by the Tribunal from the owner of the

offending vehicle by way of execution of the order as per the law laid

down in paragraph no.26 of National Insurance Co. Ltd. v. Saju P.

Paul & Anr., reported in (2013) 2 SCC 41.

12. In the result, this appeal is disposed of with the aforesaid

M.A. No. 286 of 2008

modification of the impugned judgment and award dated 30.05.2008

passed by the Additional District Judge-I-cum-Motor Vehicle Accident

Claim Tribunal, Lohardaga in Compensation Case No.12 of 2002.

13. The Registrar General of this Court is directed to return

Rs.25,000/- if any, deposited by the appellant in connection with this

appeal to the concerned officer of the appellant-insurance company

upon the appellant satisfying that it has already paid the entire

claimed amount to the claimants within two months from the date of

this judgment failing which, the said amount be remitted to the

concerned Tribunal by appropriate mode after two months from the

date of this judgment.

14. No order as to costs.

15. Let a copy of this Judgment along with Lower Court Records

be sent back to the learned court below forthwith.

(Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 13th September, 2022 AFR/ Sonu-Gunjan/-