Jharkhand High Court
Sharda Devi vs Most. Bibi Noorjida Wife Of Late Md. ... on 23 April, 2025
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
( 2025:JHHC:11972 )
IN THE HIGH COURT OF JHARKHAND AT RANCHI
M.A. No. 677 of 2017
Sharda Devi, wife of Dineshanand Jha, resident of Bilashi Town P.O. and P.S.
Deoghar Town, District-Deoghar
........ Appellant
Versus
1. Most. Bibi Noorjida wife of late Md. Jasim
2. Md. Basarat, son of late Md. Jasim
3. Md. Ahsan, son of late Md. Jasim
4. Md. Atahar, son of late Md. Jasim
5. Bibi Halima, daughter of late Md. Jasim
6. Bibi Saima, daughter of late Md. Jasim
Respondent nos. 2 to 6 are minor, represented through their natural moither-
Most. Bibi Noorjida
Respondent No.1 to 6 resident of village Ropani, P.S. Mohanpur, P.O. Jamuria,
District-Deoghar
7. Kamal Prasad Sah, son of Shree Sitaram Sah, resident of village Dhanipur, P.S.
Sarwa, District-Deoghar (Driver of the vehicle)
8. The Oriental Insurance Company Ltd. Dumka Branch, office at P.O. and P.S. P.S.
Dumka Town, District-Dumka
.................. Respondents
With
C.O. No. 08 of 2022
In
M.A. No. 677 of 2017
The Oriental Insurance Company Ltd. Dumka Branch, office at P.O. and P.S.
Dumka Town, District-Dumka
............ Appellant
Versus
1. Sharda Devi, wife of Dineshanand Jha, resident of Bilashi Town P.O. and P.S.
Deoghar Town, District-Deoghar
2.Most. Bibi Noorjida wife of late Md. Jasim
3. Md. Basarat, son of late Md. Jasim
4. Md. Ahsan, son of late Md. Jasim
5. Md. Atahar, son of late Md. Jasim
6. Bibi Halima, daughter of late Md. Jasim
7. Bibi Saima, daughter of late Md. Jasim
Respondent nos. 3 to 7 are minor, represented through their natural mother-
Most. Bibi Noorjida
All resident of village Ropani, P.S. Mohanpur, P.O. Jamuria, District-Deoghar
8. Kamal Prasad Sah, son of Shree Sitaram Sah, resident of village Dhanipur, P.S.
Sarwa, District-Deoghar (Driver of the vehicle)
.................. Respondents
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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( 2025:JHHC:11972 )
For the Appellant : Mr. Sudhir Sahay, Advocate (in M.A. No. 677/2017)
Mr. Manish Kumar, Advocate (in C.O. No. 08/2022)
For the Respondent-Insurance Company: Mr. Manish Kumar
(In M.A. No. 677/2017),
For the Respondent-Owner : Mr. Sudhir Sahay, Advocate
(in C.O. No. 08/2022)
15/Dated: 23/04/2025
Heard Mr. Sudhir Sahay, learned counsel for the appellant in M.A. No.
677 of 2017 and respondent in C.O. No. 08/2022 and Mr. Manish Kumar, learned
counsel for the appellant in C.O. No. 08/2022 and respondent in M.A. No. 677/2017.
2. M.A. No. 677 of 2017 has been preferred by the Owner of the Vehicle
being aggrieved and dissatisfied with the judgment and Award dated 15.07.2017
passed in Motor Accident Claim Case No. 3 of 2012 by learned M.A.C. Tribunal-cum-
District & Additional Sessions Judge-IV, Dumka whereby he has been pleased to allow
the claim to the claimant and directed the Insurance Company to pay 60 % and the
appellant herein 40% of the awarded amount in favour of the claimants.
3. Cross Objection being C.O. No. 08/2022 has been preferred by the
Insurance Company aggrieved with the said judgment and award on the ground of
right of recovery.
4. Mr. Sudhir Sahay, learned counsel for the appellant in M.A. No. 677 of
2017 and respondent in C.O. No. 08/2022 submits that the appellant herein is the
owner of the bus which was involved in the accident. He submits that 40% liability has
fastened upon the appellant which is not in accordance with law. He further submits
liability cannot be fastened upon the owner of the bus in view of the fact that persons
were traveling on the roof of the bus and he was not covered under the policy and in
view of that liability fastened upon the appellant herein is required to be modified. He
relied in the case of " Md. Dukhi @ Md. Dukhi Miyan and Another Vs. Parwati
Thakur and Another" in Misc. Appeal No. 315 of 2007. Relying on the above
judgment he submits that Coordinate Bench has exonerated the owner of the liability
( 2025:JHHC:11972 )
fastened in that case. On these grounds he submits that award may kindly be
modified.
5. Mr. Manish Kumar, learned counsel for the appellant in C.O. No. 08/2022
and respondent in M.A. No. 677/2017 submits that the learned tribunal has rightly
passed the said award however right to recovery to Insurance Company has not been
provided so far liability fastened upon the Insurance Company is concerned.
6. Issue in question was before the Full Bench of this Court in Giriraj
Prasad Agrawal Vs. Parwati Devi and others" reported in (2005) SCC Online
Jhar 199 wherein para 31 it has been held as under:-
" 31. 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."
7. The aforesaid judgement of the Full Bench of this Court was subject matter
before the Hon'ble Supreme Court in Civil Appeal No. 2421 of 2008 which was
disposed of by order dated 16.11.2014 which is as under-
" National Insurance Company Limited is the appellant. It
challenges the award passed by the Tribunal, affirmed by the High Court. On
3rd October, 2005, this Court while issuing notice, confined it to the
respondent No.1, namely, the owner of the vehicle, with reference to right
of the appellant to awarded amount from the insured.
Though, notice duly been served on the respondent No.1, the
reasons best known to him, he has not chosen to contest appeal by
engaging a counsel.
We were taken through the award passed by the Tribunal, as well as the
reasons in the order of the High Court. In view of the limited notice and the
fact that in this appeal, there is no need to go into other aspects, leaving
the question of law to be decided in an appropriate case, we permit the
( 2025:JHHC:11972 )
appellant-Insurance Company to recover the awarded amount from the
respondent No. 1-insured.
With the above direction, the appeal is disposed of."
8. In view of above, Full Bench judgment of this Court has been modified
by the Hon'ble Supreme Court to the effect that Insurance Company will recover the
awarded amount from the respondent no.1-insured and rest of the law point was kept
open by the Hon'ble Supreme Court to be decided in another case.
9. In view of above Full Bench judgment of this Court and the order of the
Hon'ble Supreme Court the issue in question so far present case is concerned, has
been set at rest for the time being.
10. In view of above the appellant-Sharda Devi cannot escape from her
liability in terms of the award. The judgement relied by Mr. Sahay of the Coordinate
Bench of this Court in Md. Dukhi @ Md. Dukhi Miyan (supra) the direction of the
Hon'ble Supreme Court was not considered in Civil Appeal No. 2421 of 2008 as such
that order is per-incuriam.
11. In view of above facts, reasons and analysis the appeal preferred by
Sharda Devi in M.A. No. 677 of 2017 is hereby dismissed.
12. The Cross Objection being C.O. No. 08/2022 preferred by the Insurance
Company is allowed to the effect that after payment of 60% of the awarded amount,
the Insurance Company will be entitled of recovery of the same from the owner of the
vehicle in question.
13. C.O. No. 08/2022 is allowed in above terms. Pending I.A, in both the
cases stands disposed of.
( Sanjay Kumar Dwivedi, J.)
Satyarthi/A.F.R
