Branch Manager vs Sushma Devi
2023 Latest Caselaw 608 Jhar

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            IN THE HIGH COURT OF JHARKHAND, RANCHI
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M.A. No. 177 of 2017

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Branch Manager, United India Insurance Co. Ltd., Palace Hotel Building, South Gandhi Maidan, Patna-800001, represented through its Senior Divisional Manager, Ranchi Divisioin, United India Insurance Co. Ltd., Vyapar Bhawan, Lalji Hirji, Main Road, Ranchi, P.O. Ranchi, P.S. Kotwali, District-Ranchi .... Appellant

-- Versus --

1.Sushma Devi, wife of late Bharat Raut

2.Ranjit Kumar, son of late Bharat Raut

3.Vandana Kumar, son of late Bharat Raut,

4.Rakhi, daughter of late Bharat Raut

5.Kajal, daughter of late Bharat Raut

6.Shashi Kumar, son of late Bharat Raut

7.Rajun Kumar, son of late Bharat Raut, All are resident of village Narodih, P.S. Chakai, District Jamui, Bihar, presently C/o Yogal Kishore Raut, Simaria, P.O. and P.S. Jasidih, District Deoghar, Jharkhand ..... Claimants/Respondents

8.Managing Director, Bihar State Road Transport Corporation, Parivahan Bhawan, Birchand Patel Marg, P.O. G.P.O., PS. R.Block, Patna (Bihar) .... Opposite Party No.1/Respondent

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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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       For the Appellant          :-   Mr. G.C. Jha, Advocate
       For Resp.BSRTC             :-   Mr. Pankaj Kumar, Advocate
       For Resp.Nos.1 to 7        :-   Mr. Abhay Kumar Tiwari, Advocate
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13/06.02.2023      Heard Mr. G.C.Jha, the learned counsel appearing on behalf

of the appellant/insurance company, Mr. Pankaj Kumar, the learned

counsel appearing on behalf of the respondent-BSRTC/respondent No.8

and Mr. Abhay Kumar Tiwari, the learned counsel appearing for the

respondent nos.1 to 7.

Being aggrieved by and dissatisfied with the judgment/

Award dated 25.11.2016, passed by learned District Judge No.1 cum

M.A.C.T., Deoghar in Motor Vehicle Accident Claim Case No.2/2006,

whereby the learned Tribunal has been pleased to award Rs.6,08,850/-

with interest @ 7.5 % per annum from 16.01.2006 from the date of filing

till its realization the present appeal has been filed.

The accident took place on 12.05.2005 and on the basis of

Fardbeyan of Surendra Raut (Informant) the police case was registered

who stated that he along with his cousin Bharat Raut were going to their

village in a Bus No.BR-02C-7452 belongs to Bihar State Road Transport

Corporation (BSRTC). The bus was on the way from Deoghar to Nawada

Via Jamui. Many passengers were sitting on the roof top. The

informant/Surendra Raut and his cousin boarded the bus and sat on the

roof of bus. The bus crossed under the newly constructed Rail Over

bridge, the deceased Bharat Raut was hit by the part of the Over Bridge

on his head, inspite of making hulla, the driver did not stop the bus and

proceeded the vehicle and he fell down on the road and died on the spot.

The accident took place due to wrong and negligent driving of the bus by

its driver on the basis of the Fardbeyan the FIR registered and the charge

sheet has been submitted on that background and the claim application

was filed on behalf of the claimants.

The learned Tribunal after going through the evidence on

record has been pleased to award a sum of Rs.6,08,850/-.

Mr. G.C.Jha, the learned counsel appearing for the

appellant/ insurance company submits that it is an admitted position that

the deceased and others were travelling sitting on the roof top of the bus

in question and if such a situation is there, the recovery was required to

be directed against the owner of the vehicle in question and in that view

of the matter, the learned Tribunal erred in not providing that liberty of

recovery from the owner and accordingly, the award is required to be

modified to that extent. He further submits that the Full Bench of this

Court has decided this issue in Giriraj Prasad Agrawal v. Parwati Devi and

Kali Paharin and Others, reported in 2005 ((3) T.A.C. 115 (Jhar.) and he

placed reliance on the paragraph nos.32 to 33 of the said judgment

which are quoted below:

"32. After giving my anxious consideration on the provisions of law and ratio decided by the Supreme Court in the decisions referred to hereinabove, I come to the following conclusion:

(i) Carrying passengers more than covered by the insurance policy though amounts to committing breach of terms of policy, the Insurance Company cannot be absolved from its liability to pay compensation with respect to the persons exceeding the number covered by the policy. In case Insurance Company is permitted to raise defence of limited liability on the basis of terms of policy, object of Section 147 would stand frustrated. Even otherwise, alleged breach of terms of policy by the insured may be an offence under the provisions of the Act, but surely that does not fall under Section 149 (2) (a) of the Act.

(ii) The insurer can avoid its liability only if the conditions specified in Section 149 (2) are satisfied, and not otherwise. The statute recognizes no other condition for an insurer to escape its liability except those given in Section 149 (2) whatever the terms and conditions between the insurer and the insured may be. The terms of contract between the insured and the insurer determining their rights and liabilities towards each other are not and should not be confused with the statutory liability of the insurer for the third party risk. If there is a breach of contract on the part of the insured, the insurer may proceed against the insured. As far as third party risk is concerned, the liabilities being statutory, it cannot be overridden by terms of the contract of insurance between the parties.

33. I, therefore, hold that the decision of the learned Single Judge in Oriental Insurance Company Ltd. v. Jashmani Kongari, 2001 (1) J.L.J.R. 178 is not correct and is hereby overruled. The decision given by the Division Bench in Bholla Nath Yadav v. Hemwati & others, 2002 (2) J.L.J.R. 411 is affirmed."

Mr. Jha, the learned counsel for the appellant/ insurance

company submits that the insurance company moved before the Hon'ble

Supreme Court against the judgment of the Full Bench in Civil Appeal

No.2421 of 2008 and the order of the Full Bench was modified to the

extent that the insurance company is entitled to recover the amount in

question from the owner. On this ground he submits that the award is

required to be modified on that ground, which is his first prayer. He

further submits that the learned Tribunal has erred in calculating the

amount under the head consortium, love and affection head to the tune

of Rs.3,25,000/- which is against the mandate of law which is required to

be reduced to Rs.70,000/- in view of the judgment rendered in the case

of "National Insurance Co. Ltd. v. Pranay Sethi", (2017) 16 SCC 680. On

these grounds, he submits that the appeal of the insurance

company/appellant may kindly be allowed.

On the other hand, Mr. Pankaj Kumar, the learned counsel

appearing on behalf of the respondent no.8 /BSRTC who is the owner of

the vehicle in question submits that the issues have been framed by the

learned Tribunal and the learned Tribunal has answered the issues and

submits that the vehicle in question was insured and no interference on

that count is required to be done.

Mr. Abhay Kumar Tiwary, the learned counsel appearing on

behalf of the respondent nos.1 to 7/claimants submits that so far the

calculation part is concerned, the leaned Tribunal has rightly calculated

the same.

In view of the above submission of the learned counsels

appearing on behalf of the parties, the Court has gone through the

judgment/ award of the learned Tribunal and finds that admittedly, the

deceased Bharat Raut was travelling on the roof top of the bus in

question and identical was the situation in the case of Giriraj Prasad

Agrawal(supra) before the Full Bench and in that view of the matter, the

same was modified by the Hon'ble Supreme Court in Civil

Appeal No.2421 of 2008 to the extent that the insurance company will

pay the amount in question to the claimant and is entitled to recover the

same from the owner. Thus, the first argument made on behalf of the

appellant/ insurance company, the appellant/ insurance company has

succeeded. So far the calculation is concerned, that is also not in

accordance with law. There is no head of love and affection and care of

children and the learned Tribunal has granted under the head

consortium, love and affection to the tune of Rs.3,25,000/-. In light of

the judgment rendered in the case of "National Insurance Co. Ltd. v.

Pranay Sethi" (supra) is required to be paid and 10% is required to be

added after every three years. Considering that the award is not satisfied

till date, the amount of Rs.70,000/- shall carry enhancement of 10% in

view of "Pranay Sethi"(supra).

Accordingly, this appeal is allowed with direction that the

appellant/ insurance company shall satisfy the award in favour of the

claimants within six weeks from the date of receipt/ production of a copy

of this order with liberty to recover the same from the owner of the

vehicle in question. The consortium amount is fixed at Rs.70,000/- plus

10% and on that part the compensation is modified to the above extent.

The rest of the award of the learned Tribunal is kept intact.

The award shall be satisfied within the aforesaid period.

The statutory amount deposited by the appellant/ insurance

company will be transmitted back to the learned Tribunal and the same

shall be utilized in satisfying the award in favour of the claimants within

the aforesaid period.

With the aforesaid modification to the above extent only,

M.A. No.177 of 2017 stands disposed of.

Pending petition, if any, also stands disposed of.

Let the L.C.R be sent to the learned court concerned

forthwith.

( Sanjay Kumar Dwivedi, J.) SI/satendra