United India Insurance Company ... vs Nilu Devi
2023 Latest Caselaw 1087 Jhar

                                            1                        M.A. No. 08 of 2015




            IN THE HIGH COURT OF JHARKHAND, RANCHI
                              ----

M.A. No. 08 of 2015

----

United India Insurance Company Limited through Divisional Manager, Rajhans Mansion, Bank More, P.O. and P.S. Bank More, Dhanbad .... Appellant

-- Versus --

1.Nilu Devi

2.Kauleshwar Paswan

3.Sita Devi .... Claimant nos.1,2 and 3 respectively

4.Bhupendra Nath Pandey .... Current Owner/O.P.No.1

5.Varahi Coal Carriers Pvt. Ltd. .... Erstwhile Owner/O.P.No.3 .... .... Respondents

----

CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

---

For the Appellant/Insurance Company :- Mr. Alok Lal , Advocate For the Respondent Nos. 1, 2 and 3 :- Mr. Saibal Kumar Laik, Advocate For the Respondent No.4 :- Mr. H.K.Shikarwar, Advocate

----

16/13.03.2023 Heard Mr. Alok Lal, the learned counsel appearing on behalf

of the appellant/ Insurance Company, Mr. Saibal Kumar Laik, the learned

counsel appearing on behalf of the respondents /claimant nos.1,2 and 3,

respectively and Mr. H.K.Shikarwar, the learned counsel appearing on

behalf of the respondent no.4/ Current Owner-O.P.No.1.

Notice upon the respondent no.5 has been validly served by

way of paper publication/substituted service of notice, however, on

repeated call nobody has responded on behalf of the respondent no.5.

Being aggrieved and dissatisfied with the Award dated

26.08.2014 passed by learned District Judge Cum M.A.C.T Judge-VII,

Dhanbad in Title (M.V.) Suit No.166 of 2002, the appellant/ Insurance

Company has preferred this appeal.

The case of the claimants/plaintiffs is that on 11.7.2002,

while the deceased Manoj Kumar Paswan was going towards Katras on

his motorcycle bearing registration no.JH10B-5078 and at about 8.30 a.m

when he reached at Panchgarhi Bazar (Katras) in front of Khaitan Towers,

a dumper bearing number BR17G-4435 coming at a high speed dashed

the motorcycle as a result of which Manoj Kumar Paswan died on spot

and that the accident took place due to rash and negligent driving of the

driver of the vehicle in question and there was no fault on behalf of the

deceased. It is further stated that the deceased was aged 21 years and

he was working as a private coal loading supervisor for private coal

merchants and he was earning Rs.3900/- per month at the rate of

Rs.150/- per day (except Sunday) and altogether the claimants have

claimed a compensation of Rs.7 lacs under section 166 of the M.V. Act.

The learned Tribunal after framing of the issues and

submission of the learned counsel for the defendants had been pleased

to allow a sum of Rs.5,26,600/- as a compensation to be paid

[Rs.5,76,600/- (-) Rs.50,000/-] which was paid under section 140 of the

Motor Vehicles Act thus the compensation amount comes to

Rs.5,26,600/- along with interest @ 9 % per annum from the date of

filing of the application till the date of realization of the amount.

Aggrieved with this, the appellant/ Insurance Company has preferred this

appeal.

Mr. Alok Lal, the learned counsel appearing on behalf of the

appellant/ Insurance Company submits that both the issue of filing of the

permit has been taken by the appellant/ Insurance Company but, the

learned Tribunal has not dealt with this aspect of the matter and in that

view of the matter, the appellant/ Insurance company is entitled to

pay/satisfy the awarded amount and to recover it from the owner of the

vehicle in question. He submits that there is direct judgment on this issue

rendered in the case of "Pappu vs. Vinod Kumar Lamba". On this ground,

he submits that the appeal may kindly be allowed.

On the other hand, Mr. Shikarwar, the learned counsel

appearing on behalf of the respondent no.4/ Current Owner-O.P.No.1

submits that the ground of permit was taken by the appellant/ Insurance

Company but the same was not pressed and accordingly the issue was

decided against the appellant/ Insurance Company and there is no

illegality in the finding of the learned Tribunal.

Mr. Laik, the learned counsel appearing for the respondent/

claimants submits that the learned Tribunal has dealt with the point

argued on behalf of the appellant/ Insurance company as issue no.4.

In view of the above submission of the learned counsels

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

judgment of the learned Tribunal and finds that the permit issue has

been dealt by the learned Tribunal as issue no.4 and the respondent no.4

who is the owner of the vehicle in question has filed the written

statement stating that the valid permit was there.

The appellant/ Insurance company had filed a petition on

20.2.2012 seeking direction upon the owner to produce the permit of the

offending vehicle but without serving the copy of the same to the earlier

owner or the present owner and the said petition was never moved by

the appellant/ Insurance company and in that view of the matter that

issue was decided against the appellant/ Insurance company.

The Court finds that the learned Tribunal has rightly dealt

with that issue and the onus lies upon the Insurance company when theh

plea was taken by the owner that permit was there that too a petition

was filed it was incumbent upon the Insurance company to place that

petition for calling of the permit and in that view of the matter, the Court

finds that there is no illegality in the impugned Award. The judgment

relied by Mr. Alok Lal, the learned counsel appearing on behalf of the

appellant/ Insurance company is not helping the appellant/Insurance

company in view of the fact that the owner has already appeared in this

case and has taken the plea of permit and the appellant/ Insurance

company has not pressed that issue, accordingly, M.A. No.08 of 2015 is

dismissed.

Mr. Laik, the learned counsel appearing on behalf of the

respondent nos.1,2 and 3/claimant nos.1,2 and 3, respectively fairly

submits that the Award has already been satisfied.

In view of such submission of Mr. Laik, the learned counsel,

the statutory amount deposited by the appellant/ Insurance company

shall be transmitted back to the appellant/ Insurance company.

Let the L.C.R be sent back to the learned Tribunal forthwith.

Pending petition if any also stands disposed of accordingly.

( Sanjay Kumar Dwivedi, J.)

SI/;