Jharkhand High Court
General Manager vs Ganesh Nayak Son Of Late Bhola Nayak on 2 April, 2025
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
2025:JHHC:10508
IN THE HIGH COURT OF JHARKHAND, RANCHI
MA No. 01 of 2024
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General Manager, Liberty Videocon General Insurance Co. Ltd Issuing
(now known as liberty General Insurance Company Limited) Office 10th
Floor, TOWER - A Peninsula Business Park, Ganpath Rao Kadam Marg, PO
and PS Lower Parel, Mumbai, Maharashtra (Policy Servicing Officer at GDR
SIDDHA 3rd Floor, N.Road, PO and PS Bistupur, Town Jamshedpur, District
Singhbhum East through its authorized signatory Shreyas Thakur,
Manager, Legal of Liberty General Insurance Company Limited having its
office at Unit No.306 to 310 3rd floor, Naurang House, Plot No.21, K.G.
Marg, PO and PS Connaught Place, District New Delhi -110001
.... Appellant
-- Versus --
1.Ganesh Nayak son of late Bhola Nayak, resident of Panchayat Birbans
PO Kalabira (Kolabira) Jamera, P.S. Kolabira District Saraikela Kharsawan
at present residing at P.O. Jangalpur, P.S. Jangalpur, P.S. Govindpur,
District Dhanbad ... Plaintiff/Claimant
2.Santosh Kumar Yadav son of Premnath Yadav resident of House No.204,
Sastri Nagar Block No.2, Kadma, PO and PS Kadma, District Singhbhum
East, permanent resident of c/o Rajesh Kumar Yadav at Bahalda, PO ,PS
and Dist. Mayurbhanj, Orissa (Owner)
.... Defendant No.1/OP No.2/Respondent
With
----
General Manager, Liberty Videocon General Insurance Co. Ltd Issuing
(now known as liberty General Insurance Company Limited) Office 10th
Floor, TOWER - A Peninsula Business Park, Ganpath Rao Kadam Marg, PO
and PS Lower Parel, Mumbai, Maharashtra (Policy Servicing Officer at GDR
SIDDHA 3rd Floor, N.Road, PO and PS Bistupur, Town Jamshedpur, District
Singhbhum East through its authorized signatory Shreyas Thakur,
Manager, Legal of Liberty General Insurance Company Limited having its
office at Unit No.306 to 310 3rd floor, Naurang House, Plot No.21, K.G.
Marg, PO and PS Connaught Place, District New Delhi -110001
.... Appellant
-- Versus --
1.Padmabati Nayak @ Padmabati Devi, wife of Balram Nayak, resident of
Panchayat Birbans PO Kolabira (Kolabira) Jambeda, P.S. Kolabira District
Saraikela Kharsawan at present residing at Kurchi, PO and PS Govindpur,
District Dhanbad
....... Plaintiff/ Claimant
2.Santosh Kumar Yadav, son of Premnath Yadav, resident of House
No.204, Sastri Nagar Block No.02, Kadma, PO and PS Kadma District
Singhbum East, Permanent Resident of C;o Rajesh Kumar Yadav at
Bahalda, PO and PS and Dist. Mayurbhanj, Orrisa (Owner)
.... Defendant No.1/O.P.No.2
----
MA No. 01 of 2024 with
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Appellant :- Mr. Alok Lal, Advocate
For the OP/State :- Mr.Jitendra Tripathi, Advocate
:- Mr. Arun Kumar, Advocate
For the resp No.2 :- Mr. Ashish Kr. Thakur, Advocate
:- Mr. Kabisha Goenka, Advocate
----
09/02.04.2025 Both the appeals are arising out of the same accidents and there are
two deceased, and in view of that these two appeals have been heard together
with consent of the parties.
2. Heard Mr. Alok Lal, the learned counsel for the appellants and Mr.
Jitendra Tripathi, the learned counsel for the claimants and Mr. Ashish Kr.
Thakur, the learned counsel for respondent No.2 who is the owner of the
vehicle in question.
3. These appeals have been preferred against the Award dated
19.08.2023 passed by the learned Principal District Judge-cum-P.O. M.AC.T
Dhanbad in Motor Accident Claim Case Nos. 134/135 of 2018.
4. Mr. Alok Lal, the learned counsel appearing for the appellants in both
the cases submits that the Insurance Company has preferred both these
appeals against the Award on the ground that in spite of finding that the driver
was not having a valid driving license in spite of that, the direction was made to
pay and recover the same from the owner of the vehicle in question and he
submits that in all the cases that direction cannot be there, and as such, that
Award is required to be modified. On this issue he relied in the case of Balu
Krishna Chavan v/s The Reliance General Insurance Company Ltd.&
ors. reported in 2022 Live Law(SC)932. On the same issue he further relied
on the judgment passed by the co-ordinate Bench of this Court in M/s
National Insurance Company Limited, Chaibasa Branch, Chaibasa,
District-West Singhbhum v/s Smt. Munaka Devi and Ors. in M.A. No.
315 of 2009. He further submits that the quantum of compensation is also
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not rightly calculated and there is negligence on part of the deceased
themselves, in view of that also the award is bad in the eye of law. He
submitted that the person who was driving the vehicle in question was not
having license and in view of that the liability cannot be fastened upon
Insurance Company. He also relied upon the judgment of Hon'ble Delhi High
Court in the case of Rehmani Begum and Ors. v/s Krishan Pal and Ors.
in M.A.C App No. 954 of 2017 and CM. Appl. No. 39162 of 2017.
5. On the other hand, Mr. Jitendra Tripathi the learned counsel appearing
on behalf of the claimants submitted that the learned Court has rightly passed
the award and has threadbare discussed the materials on record. He submits
that so far the negligence on the part of pillion rider is concerned, that ground
has not been taken before the learned court concerned and in view of that, the
learned Tribunal has not framed any issue on the same. He submits that the
accident has taken place and that has been proved and in view of that, the
learned court has rightly passed the order. According to him, the charge-sheet
has been submitted against the driver of the truck, and as such the accident
has been proved and on these grounds, he submits that there is no illegality in
the impugned order that the accident has taken place.
6. Mr. Ashish Kr. Thakur, the learned counsel appearing on behalf of the
owner of the vehicle submits that the owner has not appeared before the
learned court and, in view of that, presumption has been drawn against the
owner of the vehicle and he submits that driver of the vehicle has been
acquitted by the court. He submits that the eye-witness is not the credential
witness.
7. In view of the above submissions of the learned counsels appearing
on behalf of the parties and after going through the materials on record, it
transpires that the said claim has been instituted stating that on 08.11.2017
about 8:00 a.m. one Paresh Nayak(hereinafter referred to as the deceased) and
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his friend Sudharshan Nayak who were returning home by a motorcycle No. JH-
05BV/9243, at about 6:30 p.m. when they reached at Dugni School near
Bajrang Bali Temple, P.S & District Saraikela, a truck no. 0R-11J/5725 being
driven rashly and negligently by its driver dashed against the motorcycle
resultantly both of them sustained severe injuries and died on the spot. It was
disclosed that the deceased was the mason/raj-mistri as well as tiles mistry and
was earning Rs.700/- per day. The said truck was insured with the appellant
herein with policy no. 2013-300501-16-1000370-00-000. The learned Tribunal
has framed seven issues to decide the said claim case. PW-3, Sri Krishna Nayak
and he has claimed to be an eye-witness of the alleged accident and has filed
his affidavit stating about the accident. PW-4 was the head of the village and
he has stated that they were working as tiles fitting mistri and was earning
Rs.700/- per day. PW-5 is said to be ward member of the said area and the
deceased persons had worked in his house as tiles mistri. Thus, by way of the
said evidence, it has been proved that they were the skilled persons and were
earning Rs.700/- per day and if a skilled work is being done, like mason and
fitting of tiles, then Rs.700/- per day earning cannot be ruled out and that has
been proved. The accident has taken place and in view of that, FIR has been
registered and charge-sheet has been submitted against the driver of the truck
in question and in view of that the accident has also been proved. The said
truck was insured with the appellant herein which has also been an admitted
position which has not been denied by either of the parties and that has been
taken care of by the learned Tribunal. However, the learned tribunal has found
that the driver of the erring truck was not having a valid driving license and in
view of that, the right of recovery after payment has been kept open by the
insurance company.
8. Though the driver of the offending vehicle was not possessing the
driving license and that is the finding of the learned Tribunal and in view of that
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the recovery has been granted to the Insurance company by the learned
Tribunal and view of the judgment of the Hon'ble Supreme Court in the case
of National Insurance Company Limited v. Swarn Singh reported in
(2004) 3 SCC 294 the insurance company cannot be exonerated from the
liability to pay and recover.
9. So far as the argument of Mr. Alok Lal, the learned counsel appearing
on behalf of the appellant/Insurance Company with regard to negligence on
part of the deceased is concerned, that is required to be proved by leading
evidence before the learned Tribunal and the Insurance company has failed to
do so before the learned Tribunal. Mere absence of fake or invalid driving
license or disqualification of the driver for driving at the relevant time are not in
themselves defense available to the insurer against either insured or the third
party. To avoid its liability towards the insured, the insurance company has to
prove that the insured is the guilty of negligence and failed to exercise the
reasonable care in the matter of fulfilling the condition of the policy regarding
use of vehicles by a duly licensed driver or one who has not disqualified driving
at the relevant time, that has not been proved, and as such, the contentions of
the learned counsel for the appellant is not being accepted by this Court.
10. In view of the above discussions, the Court finds that there is no
illegality in the Award. As such these appeals are dismissed.
11. The statutory amount deposited before this Court by the Insurance
Company in both the cases, shall be transmitted back to the learned court
concerned which will be utilized in satisfying the award within six weeks.
12. If any amount remains after satisfying the award, in terms of the
award, the excess amount, if any, will be returned back to the Insurance
Company.
(Sanjay Kumar Dwivedi, J.)
SI/Abha/
MA No. 01 of 2024 with
