Jharkhand High Court
Meena Marandi vs Munuraj Tudu on 10 October, 2023
M.A. No.321 of 2020
IN THE HIGH COURT OF JHARKHAND AT RANCHI
M.A. No.321 of 2020
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1. Meena Marandi, aged about 25 years, wife of late Prakash Tudu
and
2. Dulad Murmu, aged about 49 years, wife of Suraj Tudu, Both are
resident of Village-Bhatondha, P.O.-Kathoun, P.S.-Poraiyahat,
District-Godda .... .... .... Claimants/Appellant(s)
Versus
1. Munuraj Tudu, son of Late Karu Tudu, Residnet of Village-
Bhatondha, P.O.o-Kathoun, P.S.-Poraiyahat, District-Godda
(Driver and owner of Motorcycle No.JH-17K-9866) and
2. Divisional Manager, National Insurance Company Limited,
Sumrit Mandal Complex, Tilak Manjhi, Jail Road Bhagalpur,
P.O.+P.S+District-Bhagalpur(Bihar)
(Insurer of Motorcycle No.JH-17K-9866)
.... .... ....Opposite Parties/Respondent(s)
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Coram: HON'BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA
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For the Appellants : Mr. Purnendu Kumar Jha, Advocate
For the Resp. No.1 : Mr. Sanjay Kumar Dubey, Adv.
For the Resp. No.2 : Mr. Alok Lal, Adv.
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CAV On Dated- 12/09/2023 Pronounced On 10 /10/2023
Heard learned counsel for the parties.
2. The appellants have preferred this appeal against the award
dated 25.09.2020 passed by Sri Satya Prakash Sinha, learned Principle
District Judge-cum-Presiding Officer, Motor Accident Claims
Tribunal, Godda in Motor Accident Claim Case No.25 of 2018,
whereby and whereunder while deciding issue Nos.5 and 6
regarding violation of terms and conditions of the insurance policy
by offending motorcycle bearing Reg. No.JH-17K-9866, instead of
fastening the liability upon the insurance company, the Learned
Tribunal has directed the owner of the motorcycle namely Munuraj
Tudu(respondent No.1) to satisfy the awarded amount of
Rs.12,67,215/- along with interest @ 6 % per annum.
Factual matrix
3. On 31.01.2018, one Prakash Tudu along with his friend
Munuraj Tudu (O.P. No.-1/respondent No.1) were returning on
motorcycle bearing Reg. No.JH-17K-9866 after fetching village fair
and reached near Dhamsai village more, a motorcycle coming from
opposite direction dashed in the motorcycle of the O.P. No.1, due to
which Prakash Tudu sustained severe injuries and died. FIR was
lodged by Munuraj Tudu the owner -cum-driver of the said
M.A. No.321 of 2020
motorcycle for the offence under Sections 279, 304(A) of IPC vide
Pathargama P.S. Case No.12 of 2018 against the driver of unknown
motorcycle. Later on, a claim case was instituted by the
claimants/appellants. Both the respondents contested the case and
award was passed by Learned Tribunal to the tune of Rs.12,67,215/-
(Rupees twelve lakhs sixty seven thousand and two hundred fifteen)
with interest.
4. Learned counsel for the appellants assailing the award has
submitted that the learned tribunal has failed to consider that
respondent No.2(insurer) could not be exonerated from the liability
of payment of compensation amount payable to the third
party/victim at the first then to recover from the insured in case of
violation of any terms and conditions of the policy. The appellants
are sufferer of the unfortunate accident of the deceased, who was
sole bread winner of his family and recovery of compensation
amount awarded in this case from the owner of the motorcycle is not
feasible for the claimants/appellants. Learned counsel for the
appellants has placed reliance upon the judgment the case of
Shamanna & Anr. Vs. Divisional Manager, Oriental Insurance Co.
Ltd. & Ors. reported in 2018 (3) T.A.C 677 (S.C), wherein the Hon'ble
Apex Court has reiterated the principle of "pay and recover" as per
Swarn Singh Case where driver did not possess driving license and
there is breach of policy conditions.
5. Per contra- No objection has been raised by learned counsel
for the respondent No.1 against the contentions of the appellants but
on behalf of the respondent No.2-National Insurance Company
Limited, it is urged that the appellants are not aggrieved parties from
the award which has been passed in their favour and they have not
filed execution proceedings for realization of the award amount
against the respondent No.1. There is no plea of the appellants that
there is apprehension that the award could not be satisfied by the
respondent No.1. Hence, this appeal is not maintainable at the
instance of claimants/appellants.
Learned counsel for the respondent No.2 has placed reliance
upon the judgment rendered in case of National Insurance Co. Ltd.
Vs. Vidhyadhar Mahariwala & Ors. reported in (2008) 12 Supreme
Court Cases 701 and in the case of National Insurance Co. Ltd. Vs.
M.A. No.321 of 2020
Smt. Madhumati & Ors. reported in 2013 0 Supreme(AII)1424/(2014)
3 ACC 113.
6. I have given anxious consideration to the rival contentions of
the learned counsel for the respective parties and perused the record
along with impugned order.
7. It appears that issue Nos.5 and 6 were settled by learned
Tribunal as under:-
Issue No.5- whether terms and conditions of the insurance
policy was violated?
Issue No.6- Whether the insurance company of the Splendor
Motorcycle bearing Reg. No.JH-17K-9866 is liable
to pay compensation?
Both the above issues were taken together for adjudication and
it was found that the vehicle of respondent No.1 was insured with
respondent No.2 which was valid and effective on the date of
accident. But the respondent No.1 who is owner-cum-driver of the
motorcycle was not possessing any valid driving license rather he
got a learner's license post-accident valid with effect for 26.03.2018 to
25.09.2018 which was considered to be violation of terms and
conditions of the insurance policy. The Learned Tribunal placing
reliance upon the judgment of Hon'ble Apex Court in the case of
National Insurance Company Limited Vs. Vidhyadhar Mahriwal
and Ors. reported in (2009) 1 JLJ (SC) 96, held that the owner of the
vehicle (O.P. No.1) has violated the terms and conditions of the
policy as he was not having any driving license, hence, insurance
company is not liable to pay the compensation amount.
8. The main point for determination in this appeal is that as to
whether the findings recorded by learned Tribunal on issues Nos.5
and 6, suffers from any illegality or infirmity?
9. Here, it is pertinent to discuss the doctrine of "pay and
recover" in case of third party risk which was propounded by
Hon'ble Apex Court in Swaran Singh's case and followed by Laxmi
Narayan Dutt's Case and again it was reiterated in Shamanna and
Anr. Vs. Divisional Manager, Oriental Insurance Co. Ltd. And Ors.
2018 (3) T.A.C. 677 (SC) or (2018) 9 SCC 650 wherein it was held that
the insurer had to indemnify the compensation amount payable to
third party under provisions of section 149 M.V. Act and the
M.A. No.321 of 2020
insurance company may recover from insured in case of breach of
policy conditions due to disqualification of driver or invalid driving
license of the driver. Elaborately considering the insurer's
contractual liability as well as statutory liability vis-à-vis the claim of
the third party, the Supreme Court issued detailed guidelines as to
how and under what circumstances, "pay and recover" can be
ordered, which still holds the filed, since the reference to larger
Bench in Parvathnein's Case disposed off by keeping the question of
law open to be decided in an appropriate case.
10. In view of aforesaid settled principle of law and the objective
of the Motor Vehicles Act, which is a social welfare legislation to
extend relief by compensation to victims of the accident out of use of
motor vehicle and for that end insurance of the vehicle against third
party risk has been made compulsory. The provision of compulsory
insurance coverage of all vehicles are with this paramount object and
provision of the Act have to be interpreted to achieve the said object.
In the instant case, there was a third party insurance of the
vehicle which was valid and effective on the date of accident, hence
the insurance company has statutory obligation to satisfy the award
at first and due to violation of terms and conditions of policy the
compensation amount so paid, may be recovered from insured.
11. Both the contentions of learned counsel for the respondent
No.2 regarding locus standi of the appellants/claimants to present
this appeal as well as principle laid down in the case of National
Insurance Company Limited Vs. Vidhyadhar Mahriwal and Ors.
(supra) are not applicable in the facts and circumstances of this case.
The claimants/appellants are the sufferer from the accidental death
of the deceased and beneficiary of award hence their interest is
paramount to be safeguarded. The Learned Tribunal by ignoring the
doctrine of "pay and recover" in case of third party risk as
propounded by Hon'ble Apex Court has committed serious illegality
while passing the impugned award.
12. In view of aforesaid discussions and reasons, impugned award
is modified to extent that the Insurance Company (respondent No.2)
shall satisfy the compensation amount and pay to the
claimants/appellants within two months from the date of this
judgment along with interest @ 6 per cent from the date of institution
M.A. No.321 of 2020
of claim petition till the date of payment and shall be at liberty to
realize the amount so paid from the respondent No.1, the insured.
Accordingly, this miscellaneous appeal is allowed.
(Pradeep Kumar Srivastava, J.)
Pappu/AFR/-
