Jharkhand High Court
The Branch Manager vs Atika Devi on 2 January, 2023
1 Miscellaneous Appeal No. 261 of 2014
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Miscellaneous Appeal No. 261 of 2014
The Branch Manager, Bajaj Allianz General Insurance Company
Limited, 504, Mahabir Tower, Opp. Church Complex, Main Road, P.O.
Ranchi (Main), P.S. Chutia, District- Ranchi, Jharkhand 834001 through
its Senior Executive, T.P. Claims, Kaushal Kishore Mishra, S/o S.C.
Mishra, Senior Executive, Bajan Allianz General Insurance Company
Limited ... Appellant
-Versus-
1. Atika Devi, W/o Lt. Nimay Mandal, r/o Vill.- Torai, P.O. Torai P.S.
Hiranpur, Dist.- Pakur
2. Uttam Mandal, S/o Late Nimay Mandal, resident of Village & P.O.Torai,
P.S. Hiranpur, District- Pakur ... Respondents
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Appellant : Mr. Alok Lal, Advocate
For Respondent No.1 : Mr. Shashi Kumar Verma, Advocate
For Respondent No.2 : Mr. Md. Yasir Arafat, Advocate
-----
14/02.01.2023 Heard Mr. Alok Lal, learned counsel for the appellant, Mr. Shashi
Kumar Verma, learned counsel for respondent no.1 and Mr. Md. Yasir Arafat,
learned counsel for respondent no.2.
2. This appeal has been filed challenging the validity and legality of the
judgment/award dated 22.04.2014 passed in MACT Case No.34 of 2012 by
the learned Principal District Judge cum Motor Vehicle Accident Claim
Tribunal, Pakur, whereby, the award has been delivered with direction to the
appellant to pay Rs.12 Lakhs along with interest @ 7% per annum from the
date of institution of the suit dated 01.03.2012.
3. Respondent no.1 filed an application seeking compensation under
Section 166 of the Motor Vehicle Act, 1988 for the death of her husband
Late Nimay Mandal. In the said application, respondent no.1 stated that her
husband was standing near a bridge at Piyarsola on 17.12.2011 at 03:00
P.M. when a Tractor bearing no. JH-16A-6314, which was being driven by
driver Nepal Mandal dashed the deceased leading to his death. It was
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further stated in the application that her husband was aged 44 years and he
was doing business of tractor, pumping set, bricks and cultivation and was
earning Rs.22,000/- per month. The claimant claimed a compensation of
Rs.15 Lakhs. Pursuant to that claim, the learned court has decided the said
claim in MACT Case No.34 of 2012 vide judgment/award dated 22.04.2014
and considering the rival submissions of the parties, he has come to that
conclusion and passed the award to pay compensation of Rs.12 Lakhs along
with interest @ 7% per annum from the date of institution of the suit dated
01.03.2012 by the appellant, which is under challenge in this appeal.
4. Mr. Alok Lal, learned counsel for the appellant has attacked the said
award on the ground that the driver was not having valid license and the
deceased was the owner of the tractor in question and he was standing at
the public place and in that view of the matter, third party claim cannot be
claimed. On these two grounds, he challenged the said award. He relied
upon the judgment passed by this Court in The New India Assurance
Company Limited v. Chhaya Rani Dey in M.A. No.2 of 2017; [2019 0
Supreme (Jhk) 94] and submits that this issue has been decided by this
Court. He further relied upon the judgment passed by the Hon'ble Supreme
Court in New India Assurance Company Limited v. Sadanand Mukhi
and Others; [(2009) 2 SCC 417]. By way of relying on these judgments,
he submits that the issue has already been settled and award is required to
be interfered by this Court.
5. On the other hand, Mr. Shashi Kumar Verma, learned counsel for
respondent no.1 submits that the learned court has discussed the entire
facts including the statements as well as evidence and thereafter has
passed the judgment/award. He further submits that there is no illegality in
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the judgment/award.
6. Mr. Md. Yasir Arafat, learned counsel for respondent no.2 submits that
the owner is already insured and the said benefit is required to be provided
to the deceased, as has been held by several High Courts including the
Madhya Pradesh High Court in National Insurance Co. Ltd. v. Kishore
Kumar Lalwani; [2006 0 Supreme (MP) 1097] . On this ground, he
submits that there is no requirement to interfere with the judgment/award
passed by the learned court.
7. In view of the above submission of the learned counsel appearing on
behalf of the parties, the Court has gone through the materials on record
including the judgment/award dated 22.04.2014 and finds that admittedly
the deceased was the owner of the tractor in question and he was insured
as the owner of the said tractor bearing No. JH-16A-6314. The learned court
has framed the issue in paragraph no.7 of the judgment and after going
through the evidence of the witnesses as well as the documentary evidence,
the learned court has come to that conclusion. The learned court has
considered the driving license whether it was effective or not on the date of
accident in paragraph no.10 of the said judgment/award and after going
through the license of the driver and looking into the validity of the said
driving license, the learned court has held that on the date of accident the
driving license was valid and the offending vehicle was insured. Thus, the
argument of Mr. Alok Lal, the learned counsel appearing on behalf of the
appellant, so far as driving license is concerned, is negated by the Court. So
far as the argument with regard to the third party risk is concerned, it is not
in dispute that the tractor in question was insured and the owner was also
insured and he was standing at the public place and the said tractor has hit
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and pursuant to that, the owner of the vehicle had died. The learned court
has considered the documents as well as the exhibits and has come to that
conclusion and has considered about the liability of the insurance company
with regard to the third party risk of owner at paragraph no.21 of the said
judgment/award considering Section 147 of the Motor Vehicles Act. It is
immaterial that when the owner was already insured and he was dashed by
the concerned tractor and he was not on board of the said tractor and he
was dashed at the public place and pursuant to that, he has died, he will be
treated as third party in view of Section 147 of the Motor Vehicles Act. So
far as the judgment relied by Mr. Alok Lal, the learned counsel appearing on
behalf of the appellant in case of New India Assurance Company Limited v.
Chhaya Rani Dey (supra) is concerned that was interfered with in view of
the fact that the motor-cycle was being driven by the deceased and in view
of the policy contents, that order was passed. Thus, that judgment is not
helping the appellant. Under Section 147 of the said Act, that covers the
third party risk which has been considered by the Hon'ble Supreme Court in
the case of New India Assurance Company Limited v. Sadanand Mukhi and
Others (supra) which has been relied by Mr. Alok Lal, the learned counsel
appearing on behalf of the appellant wherein it has been held that by taking
an 'Act policy' the owner of a vehicle fulfills his statutory obligation as
contained in Section 147 of the Act. The liability of the insurer is either
statutory or contractual. If it is contractual its liability extends to the risk
covered by the policy of insurance. Admittedly, the deceased was not on
board. He was standing at the public place and thus, he can be treated as
third party and as such that judgment is not helping the appellant.
8. In view of the aforesaid facts, reasons and analysis, this Court finds
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that there is no illegality in the impugned judgment/award and, accordingly,
this appeal is dismissed.
9. The statutory amount deposited by the appellant shall be released in
favour of Atika Devi (respondent no.1).
(Sanjay Kumar Dwivedi, J.)
Ajay/
