Jharkhand High Court

Lal Mohan Yadav Son Of Sri Lochan ... vs Chedan Yadav on 19 September, 2022

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                                                                       M.A. No. 231 of 2011


IN THE HIGH COURT OF JHARKHAND AT RANCHI
              M.A. No.231 of 2011
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Lal Mohan Yadav son of Sri Lochan Yadav, resident of Opposite A.S. College, Droupadi Sadan, Satrang Gate, P.O. + P.S. and District- Deogher.

.... .... .... Appellants Versus

1. Chedan Yadav S/o, Surem Yadav, R/o 50/1 "L' Road Belgachia Liluah, P.O. Howarah (W. Bengal). Driver of Bolero Vehicle- JH-15B

2. I.C.I.C.I. Bank Ltd. Ashirbad Mansion, 2nd Floor, Plot No.1794, Main Road, Opp. Tirath Apartment, P.O. & Dist. Ranchi Jharkhand (Financer of the Vehicle)

3. I.C.I.C.I. Lomband General Insurance Company, I.C.I.C.I. Bank Towers, Randra Kurla, Complex, P.O. Mumbai-400051 Registered Head Office at Insurer regarding Insurance of Bolero DS BSTR No.JH 15B 6465.

4. I.C.I.C.I. Lombard General Insurance Company Ltd., Ashirbad Mansion, 2nd Floor, Plot No.1794, Main Road, Opp. Tirath Apartment, P.O. & Dist. Ranchi Jharkhand

5. Smt. Gunjari Devi (widow) w/o late Mohan Paswan

6. Aaditya Kr. Paswan (minor son) late Mohan Paswan

7. Smt. Chhedani Devi (mother) w/o Sri Sevak Paswan

8. Sevak Paswan (father) S/o Sri Budhan Paswan All residents of village- Matldih, P.O.+ P.S. Chakai, Dist. Jamui (Bihar) .... .... .... Respondents

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For the Appellants : Mr. Mohan Kumar Dubey, Advocate For the Respondents : Mr. Ankit Vishal, Advocate : Mr. Bibhash Sinha, Advocate : Mr. Arvind Kr. Lall, Advocate

PRESENT HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY

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By the Court:-

1. Heard the parties.

2. This appeal has been preferred against the judgment and

award dated 08.08.2011 passed by the learned Additional District Judge-

cum-Motor Accident Claim Tribunal, Giridih in Title (M.V.) Claim Case

No.29 of 2006, whereby and where under, the learned Tribunal has

awarded a sum of Rs.3,30,640/- with interest thereon to be paid by the

opposite party nos.3 and 4- insurance company to the claimants and has

M.A. No. 231 of 2011

also given the opposite party nos.3 and 4 the right to recover the amount

paid by them to the claimants from the owner of the vehicle being the

opposite party no.1 before the Tribunal who is the appellant herein as

inter alia offending vehicle though was insured as a private vehicle but

was plied as a commercial vehicle for hire and reward, without any

permit for the same, in violation of the terms and conditions of the

insurance policy.

3. The brief facts of the case is that on 05.03.2006, while the

deceased Mohan Paswan along with his relatives were travelling as

occupant of the offending Bolero vehicle, the said vehicle met with an

accident and turned turtle inter alia causing the death of Mohan Paswan.

4. The insurance company opposed the claim application before

the Tribunal.

5. On the basis of rival pleadings of the parties, the learned

Tribunal settled the following six issues :-

(i) Is the application of the claimants maintainable?

(ii) Whether the claimants got valid cause of action for

the present claim?

(iii) Whether the death of late Mohan Paswan caused

due to rash and negligent driving of Bolero no. JH 15 B

6465 on 05.03.2006 at 4 P.M. on pitch road in village

Pathala Nawadih, Giridih Jmua Road, P.S. Giridih (M),

District Giridih?

(iv) Whether the deceased was aged about 26 years 6

months private tutor and was earning Rs.4000/- per

month?

(v) Whether the O.Ps owner and driver possessed all the

M.A. No. 231 of 2011

vehicular documents such as R.C. Book, Insurance

policy, driving licence etc. as required U/S 149 (2) of

M.V. Act, 1988?

(vi) Whether the applicants are entitled for claim? If so,

from whom and to what extent?

6. For the limited point raised in this appeal is regarding the right

to recover the compensation amount given to the insurance company

from the owner of the vehicle, for which only issue no. (v) is relevant.

7. The learned Tribunal on the basis of the Ext. 8- which is a

petition filed by the opposite party no.1 in the court of Chief Judicial

Magistrate, Giridih in Giridih (M) P.S. Case No.68 of 2006 dated

01.05.2006 for release of the offending vehicle and wherein in paragraph

no.2, it has been mentioned that the offending vehicle was the

commercial vehicle concluded that admittedly the offending vehicle in

question was used as a commercial vehicle and keeping in view the fact

that the cover note of the insurance policy- which was marked Ext. 12

shows that the offending vehicle was insured as a private vehicle which

cannot be plied for hire and reward whereas commercial vehicle was

plied for hire and reward, came to the conclusion that the insured owner

of the vehicle has violated the terms and conditions of the insurance

policy and gave the right to the opposite party nos.3 and 4- insurance

company to recover the compensation amount paid by it to the claimants

from the owner of the vehicle being the appellant-opposite party no.1.

8. Mr. Mohan Kumar Dubey, learned counsel for the appellant

submits that the learned Tribunal has failed to appreciate the evidence in

the record in its proper perspective and has wrongly decided the issue

no. (v) against the weight of evidence in the record and has also failed to

M.A. No. 231 of 2011

appreciate that the offending Bolero vehicle was a private vehicle and

was never used for commercial purposes. Hence, it is submitted that the

impugned judgment and award be modified by setting aside the portion

of the impugned judgment and award by which the opposite party nos.3

and 4- insurance company has been given the right to recover the

compensation amount to be paid by it to the claimants from the

appellant-opposite party no.1- owner of the vehicle.

9. Mr. Arvind Kumar Lall, learned counsel for the respondent

nos.5 to 8 submits that he has no submission to make in this appeal.

10. Mr. Bibhash Sinha, learned counsel for the respondent nos.2 to

4 on the other hand defended the impugned judgment and award passed

by the learned Tribunal and submits that though the opposite party no.1

has filed the written statement in the learned Tribunal but has not chosen

to adduce any evidence whatsoever. It is further submitted that the Ext. 8

which is a document on the record filed on behalf of the opposite party

no.1 through his Advocate in the court of Chief Judicial Magistrate,

Giridih in Giridih (M) P.S. Case No.68 of 2006 dated 01.05.2006 has no in

uncertain manner states that the offending vehicle was used as a

commercial vehicle and the owner is suffering irreparable loss because of

the said vehicle being kept in the police station and this portion of the

admission of the appellant-opposite party no.1- owner of the vehicle has

remained unchallenged and the learned Tribunal has rightly accepted the

same and as it is undisputed from the Ext.12- the cover note of the

insurance policy that the offending vehicle was insured as a private

vehicle which obviously shows that the same cannot be plied for hire and

reward but as admittedly, the appellant-opposite party no.1 was plying

the same for commercial purposes that is for hire and reward, hence the

M.A. No. 231 of 2011

learned Tribunal has rightly given the right to recover the compensation

amount to be paid by the opposite party nos.3 and 4 from the appellant-

opposite party no.1- owner of the vehicle. Hence, it is submitted that this

appeal being without any merit be dismissed.

11. 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 learned Tribunal has committed an error in

giving right to recovery of the compensation amount to be paid

by the opposite party nos.3 and 4 from the appellant-opposite

party no.1- owner of the vehicle?"

12. Now coming to the facts of the case, undisputedly, the Ext. 8

categorically states that the offending vehicle was used as a commercial

vehicle and the same has remained unchallenged. The appellant-opposite

party no.1 though filed the written statement but has not dared to enter

into the witness box to challenge the averments made in the Ext. 8 that

the vehicle in question was used as a commercial vehicle. Hence, there is

no illegality made by the learned Tribunal in accepting the fact that the

offending vehicle was used as a commercial vehicle which obviously

means that the vehicle was plied for hire and reward. There is no dispute

that Ext. 12 which is the cover note of the insurance policy shows that the

offending vehicle was insured as a private vehicle which means it cannot

be plied for hire or reward. Under such circumstances, this Court has no