Jharkhand High Court
Branch Manager Through Its Divisional ... vs Chandra Devi Wife Of Late Jhaksu Yadav on 18 March, 2025
Author: Gautam Kumar Choudhary
Bench: Gautam Kumar Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Misc. Appeal No.84 of 2016
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Branch Manager through its Divisional Manager, United India Insurance Co.
Ltd. Branch Office, Deoghar Hotel Prabha Building, Main Market, P.O. &
P.S. Deoghar, District Deoghar .... .... .... Appellant
Versus
1. Chandra Devi wife of late Jhaksu Yadav
2. Subhash Kumar minor son of Late Jhaksu Yadav
3. Shobhi Kumari minor daughter of Late Jhaksu Yadav
Claimant Nos.2 and 3 being represented through their mother
Claimant No.1
4. Nima Mahto father of Late Jhaksu Yadav
5. Mako Devi mother of Late Jhaksu Yadav
All are resident of Village Salgati, P.O. Jhilghat, P.S. Mohanpur,
District Deoghar
6. Sanjeev Kumar Pandey son of Binod Bihari Pandey, resident of Jalsar
Road, P.O. and P.S. Deoghar, District Deoghar, Jharkhand
7. Mahadev Kumar Pal son of Sadananand Pal, resident of Village and P.O.
Guhiajori, P.S. Dumka (Mufassil), District Dumka (the driver of offending
bus) .... .... .... Respondent
CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY
For the Appellant : Mr. Ajay Kumar Pathak, Advocate
For the Respondent Nos.1-5 : Ms. Saumya Pandey, Advocate
For the Respondent No.6 : Mr. Sumeet Gadodia, Advocate
Mr. Prakhar Hari, Advocate
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Order No.17 / Dated : 18.03.2025
Insurance Company is in appeal against the award of compensation
under Section 166 of the Motor Vehicle Act in Motor Accident Claim Case
No.26/2012 whereby and whereunder the liability has been fixed on the
Insurance Company to pay compensation amount.
2. The facts of the case are not much in dispute and the appeal is
mainly preferred on the ground that as per the FIR and fardbeyan (Exhibit 1
and 2), the deceased was travelling on the roof top of the offending vehicle.
3. It is argued that the deceased died due to his own negligence as he
was travelling on the roof top of the bus and therefore, liability could not
have been fastened on the Insurance Company as the insured was being
plied in breach of terms of the insurance policy. It is further argued that
there is breach of term of insurance policy when the owner permits
passenger to travel on the roof top. There is fundamental breach of
insurance policy in view of the judgment of full Bench of this Court in the
case of Giriraj Prasad Agrawal Versus Parwati Devi & Others, 2025 SCC
OnLine Jhar 199.
4. Owner of the vehicle was debarred by the Tribunal from filing
written statement and he has not appeared before this Court.
5. FIR is not a substantive piece of evidence, but it cannot be
completely ignored when it has been adduced into evidence on behalf of the
claimant. From the FIR (Exhibit 1), it is evident that deceased was travelling
at the time of accident on the roof of the vehicle. P.W. 2 has himself deposed
that his son was travelling on the roof top when the accident took place. This
part of his deposition remains undemolished in the cross-examination.
There is no contrary evidence to hold otherwise. It can be reasonably
inferred that at the time of accident, deceased was travelling on the roof of
the bus.
6. In view of the ratio laid down by this Court in Giriraj Prasad Agrawal
(supra) and by the Division Bench of this Court in National Insurance
Company Ltd Vs Most. Budhani Kisku and Anr., (2008) 1 JCR 366, where
the owner permits passengers to travel on the roof top of the vehicle, there is
a fundamental breach of insurance policy and the Insurance Company shall
not be liable to pay the compensation amount.
7. Impugned award of compensation is modified to the extent that the
Insurance Company shall have right of recovery against the owner of
vehicle.
8. Under the circumstance, miscellaneous appeal is allowed.
Interlocutory Application, if any, is disposed of. Statutory amount be
remitted to tribunal to be returned to the Insurance Company.
(Gautam Kumar Choudhary, J.)
Anit
