Jharkhand High Court
Icici Lombard General Insurance ... vs Shila Devi on 4 September, 2025
2025:JHHC:26824
IN THE HIGH COURT OF JHARKHAND AT RANCHI
M.A. No. 120 of 2012
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ICICI Lombard General Insurance Company Limited, having its
office at Zenity House, Keshavrao, Khadey Marge, Opposite
Race Course, Mahalaxmi, Mumbai-400034, through its
Manager (Legal) Rajesh Kumar Satopathy, son of Late Govinda
Chandra Satopathy, P.O. & P.S.-CDA, District-Cuttak.
... ... Appellant
Versus
1. Shila Devi, wife of Late Kailash Singh;
2. Priti Kumari, daughter of Late Kailash Singh;
3. Niraj Kumar Singh, son of Late Kailash Singh;
4. Lalpari Devi, mother of Late Kailash Singh;
All residents of Sector-IX/C, Qr. No.1112, P.O.-Section-IX,
P.S.-Harla, District-Bokaro. ........ Claimants/Respondents
5. Amlesh Kumar Singh, son of Late Punyadeo Singh, resident
of Gujarat Colony Chas, near-St. Mary's School, P.O. & P.S.-
Chas, District - Bokaro. ... ... Respondent
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For the Appellant : Mrs. Swati Shalini, Advocate
For the Res. Nos.1-4 : Mr. Vivek Sharma, Advocate
For the Res. No.5 : Mr. Manoj Kumar Choubey, Advocate
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PRESENT
HON'BLE MR. JUSTICE ARUN KUMAR RAI
JUDGMENT
C.A.V. on 09.05.2025 Pronounced on 04.09.2025
1. Heard Mrs. Swati Shalini, learned counsel appearing
on behalf of the appellant and Mr. Vivek Sharma, learned
counsel for the respondent nos. 1 to 4 (claimants) as well as
Mr. Manoj Kumar Choubey, learned counsel appearing on
behalf of the respondent no.5 (owner of the vehicle).
2. The instant miscellaneous appeal is preferred against
the award dated 02.05.2012 passed by learned Principal
District Judge-cum-Motor Accident Claim Tribunal, Bokaro in
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M.V. Claim Case No.04/2011 whereby and whereunder, the
learned Tribunal has awarded a sum of Rs.16,01,600/- with
interest thereon at the rate of 6% per annum from the date of
filing the case till its realization and directed the insurance
company to pay the compensation amount within a month to
the claimants from the date of award.
3. The brief facts of the case are that, on 01.11.2010, the
deceased, namely, Kailash Singh was going to his native village
from Bokaro on TVS Motorcycle bearing registration no.
JH09M 9313 which was knocked down from the backside by
the unknown truck near Koderma Ghati and Kailash Singh
succumbed to injury. An F.I.R. regarding aforesaid incident
was lodged being Koderma P.S. Case No. 421/2010 under
Sections 279 and 304-A of I.P.C.
4. Thereafter, the claimants filed an application under
Section 166 of Motor Vehicles Act (M.V. Act) arraying owner of
the vehicle having registration no. JH09M 9313 and insurer of
the said motorcycle as non-applicants/respondents.
5. During course of inquiry vide order 21.11.2011,
learned Tribunal debarred insurance company from filing W.S.
6. In support of their claim, claimants got examined two
witnesses A.W.-1 (P.W.-1 written in impugned Award) Shila
Devi who happens to be wife of deceased and A.W.-2 (P.W.-2
written in impugned Award) Jairam Singh. These two witnesses
reiterated the incident and A.W.-1 Shila Devi brought on record
the following documents:
Ext.-1 : C.C. of F.I.R. of Koderma P.S. Case No. 421/10
Ext.-2 : C.C. of charge sheet of Koderma P.S. Case No.
Ext.-3 : Photocopy of post mortem report of deceased
Kailash Singh
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Ext.-4 : Attested copy of death certificate of deceased
Kailash Singh
Ext.-5 : Driving licence of deceased Kailash Singh
Ext.-6 : Pay Slip of deceased for the month of September
Ext.-7 : Photocopy of pay slip of deceased for the month of
November 2010
Ext.-8 : Gate pass of deceased, and
Ext.-9 : PAN card of deceased.
7. One Amlesh Kumar Singh, owner of the motorcycle
having registration no. JH 09M 9313 also adduced evidence as
O.P. No.-1 in the present inquiry and has stated that he is
owner of the said motorcycle and Kailash Singh while driving
his motorcycle met with an accident on 01.11.2010 and died.
He also brought on record the copy of registration certificate of
the said motorcycle and insurance paper issued by appellant
herein, qua the said vehicle. It is not in dispute that the said
motorcycle driven by the deceased was registered with
transport authority and was having valid insurance on the date
of incident.
8. After analyzing the materials available on record,
learned Tribunal passed an award dated 02.05.2012 in M.V.
Claim Case No.04/2011 whereby and whereunder, the learned
Tribunal has awarded a sum of Rs.16,01,600/- with interest
thereon at the rate of 6% per annum from the date of filing the
case till its realization and directed the insurance company to
pay the compensation amount within a month to the claimants
from the date of award.
9. Learned counsel for appellant-insurance company
raised one question of law before this Court that it is admitted
case of claimants that the motorcycle which was being driven
by deceased was hit by a truck from backside and the deceased
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was borrower/permissive user of the said motorcycle, as such,
deceased cannot be placed under the category of third party.
Therefore, the award dated 02.05.2012 passed by learned
Principal District Judge-cum-Motor Accident Claim Tribunal,
Bokaro in M.V. Claim Case No.04/2011 is liable to be set aside
on this score only.
10. To buttress her argument, learned counsel for the
appellant-insurance company relied upon the judgment
rendered by Hon'ble Supreme Court in "Ramkhiladi and
another vs. United India Insurance Company and another"
reported in (2020) 2 SCC 550 and submitted that present case
is fully covered by Ramkhiladi (supra) as the deceased in the
present appeal was borrower/permissive user of the motorcycle
from its owner and thus became owner of the said motorcycle
and, as such, claim compensation is governed by the terms of
the insurance policy.
11. Per contra, learned counsel for claimants submitted
that insurance company was debarred from filing W.S. during
inquiry and this issue was not agitated on behalf of insurance
company before Tribunal, therefore, insurance company
cannot be allowed to agitate this issue before appellate court.
Further, it has also been submitted on behalf of claimants that
in Ramkhiladi (supra) claim was made under Section 163-A of
M.V. Act and in the present case claim has been made under
Section 166 of M.V. Act, as such, ratio of Ramkhiladi (supra)
is not applicable in the present case.
12. After hearing both the learned counsels at length and
perusing the record of Tribunal, it transpires that the learned
Tribunal after passing of the award, vide its order dated
07.01.2014 corrected/modified the amount of award on the
application filed by the claimants to the tune of Rs.19,13,600/-
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and, as such, the appellant-Insurance Company in the present
appeal has assailed the above-mentioned amount of award.
13. Record of the Tribunal reveals that deceased Kailash
Singh was permissive user of the motorcycle having
registration no. JH09M 9313 and owner of the said motorcycle
was Amlesh Kumar Singh. From perusal of record, it transpires
that deceased was the real brother of owner of the motorcycle
having registration no. JH09M 9313.
14. The point of consideration before this Court in the
present case at the appellate stage is of two-fold. First issue,
that despite having an opportunity to agitate the issue of third
party before Tribunal, insurance company/appellant after
putting appearance before Tribunal has chosen to be passive,
therefore, whether the issue/plea not agitated by
appellant/insurance company before the Tribunal can be
considered directly at the appellate stage or not? And, second
issue is that whether the deceased was third party or not,
having limited liability in terms of insurance policy?
15. It would be apt for this court in the circumstances of
the present matter to look into both the above issues together;
however, it is apposite to began with the first issue.
16. Coming to the first issue, the material available on
record i.e. FIR (vide Ext.1), Final Form (vide Ext.2) clearly
shows that there was no negligence on the part of the deceased
as it is very evident from these documents as well as assertions
of claimant that motorcycle was hit from backside by unknown
truck. It has also come in the evidence that deceased was
having valid driving license. Post mortem report (vide Ext.3)
reveals that cause of injury as road traffic accident and cause
of death is on account of injury to brain and spinal cord and
hemorrhage.
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17. From perusal of record of Tribunal, it transpires that
after issuance of notice, insurance company (appellant herein)
has put its appearance on 28.07.2011 through its lawyer by
filing Vakalatnama. Despite given several opportunities to the
insurance company to file W.S, insurance company failed to file
W.S and learned Tribunal debarred the insurance company
from filing of W.S vide order dated 21.11.2011. Record further
reveals that there is no effort taken on behalf of insurance
company to set aside the above-said order. Even insurance
company has not taken pain to cross examine two witnesses
who have been examined on behalf of claimant in the present
case, even insurance company did not take further pain to
bring on record any ocular evidence in the present matter. But
surprisingly, after pronouncement of judgment/ award in the
present case, learned counsel for insurance company filed an
application for correction in the judgment/award dated
02.05.2012 as in the said award name of advocate for
insurance company has been wrongly written as Shri B.
Pathak in place of Shri R.K Choudhary. Learned Tribunal vide
order dated 11.06.2012 accepted the prayer of insurance
company and allowed the correction by inserting the name of
Shri R.K. Choudhary in place of Shri B. Pathak.
From the above-stated fact, it is clear that the counsel
for the insurance company has participated in the proceeding
before the Tribunal merely for the sake of participation and not
to contest the matter.
18. In these circumstances, this Court has to decide
whether the plea of insurance company which has not been
raised /taken before the Tribunal would be considered at this
appellate stage or not. Before further examining the factual
matrix of the present case, it is required to referred judgment
rendered by the Hon'ble Supreme Court in the case of
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Ramchandra v. United India Insurance Co. Ltd. reported
(2013) 12 SCC 84 wherein it has been held that new plea at
the stage of appeal is not permissible when it was not raised
before the Tribunal and no evidence adduced to that effect.
Relevant paragraph of the judgment reads hereunder -
26. Hence, at the stage of appeal before the High Court, we find no legal justification
for the High Court to leave it open to the Insurance Company to realise the amount of
compensation beyond Rs 32,091 from the insured/owner as the plea of the
respondent Insurance Company all through was that the claimant is not entitled to
any compensation beyond the extent of liability under the Workmen's Compensation
Act and the respondent Insurance Company had not taken the alternative plea either
before the Tribunal or the High Court that in case the claimant is held entitled to
compensation beyond the extent of liability under the Workmen's Compensation Act,
the same was not payable as no extra premium was paid by the insured/owner
under the policy of insurance. The Insurance Company had failed to raise any plea
before the courts below i.e. either the Motor Accidents Claims Tribunal or the High
Court and it did not even contend that in case the claimant is entitled to any
compensation beyond what was payable under the Workmen's Compensation Act, it
is the insured owner who was liable to pay as it had no contractual liability since the
insured/owner of the vehicle had not paid any extra premium. Thus, this plea was
never put to test or gone into by the Motor Accidents Claims Tribunal since the
Insurance Company neither took this plea nor adduced any evidence to that effect so
as to give a cause to the High Court to accept this plea of the Insurance Company
straightaway at the appellate stage.
19. The Hon'ble Apex Court while again considering the
fact of new plea raised at the appellate stage or in appeal in the
case of Rajesh Kumar v. Yudhvir Singh reported in (2008) 7
SCC 305 held as follows -
11. ..................... It even does not appear that the contentions raised before us
had either been raised before the Tribunal or the High Court. The Tribunal as
also the High Court, therefore, proceeded on the materials brought on record
by the parties. In absence of any contention having been raised in regard to
the applicability of the Workmen's Compensation Act which, in our opinion,
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ex facie has no application, the same, in our opinion, cannot be permitted to
be raised for the first time.
20. In the judgment rendered by the Hon'ble Supreme
Court in the case of Manjusha & Ors. v. United India
Assurance Co. Ltd. & Anr. reported in 2025 SCC OnLine SC
1512 has held that pleadings and proof of pleadings is crux
and core of adjudicatory process and in the absence of specific
pleadings, proof could not be offered and thus, negate the
contention of limited liability raised before the Apex court
which was never put to test neither before the Tribunal and the
High Court. Relevant paragraph of the judgment reads
hereunder -
13. In this context, we cannot but notice Ramkhiladi (supra) in which there
was a contention taken by the claimant that the deceased was employed by
the owner of the vehicle, the motor bike. It was held in paragraph 9.3 that no
evidence was led by the claimants to prove that the deceased driver was an
employee of the owner. Pleadings and proof of such pleadings; by valid
evidence led, is the crux and core of any adjudicatory process. Trite is the
principle that there can be no proof offered without specific pleadings. The
limited liability was not pleaded, by the insurance company, either before the
Tribunal, as we see from the award made, nor in the appeal filed before the
High Court as we see from the memorandum of appeal filed before the High
Court.
21. Considering the above legal proposition and the facts
in hand as discussed above, it appears that the insurance
company very casually participated in the proceeding before
learned Tribunal and thus got debarred from filing W.S. Even
in the absence of pleadings, insurance company has not made
an effort to bring oral plea/objection of limited liability even
during the course of argument before the Tribunal. The
question of limited liability arising out of contract (insurance
policy) as the deceased is not the third party, which is the
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foundation of the present appeal, was neither pleaded nor
agitated by the insurance company before the Tribunal and, as
such, the same cannot and should not be pleaded as a ground
before this court at the appellate stage.
22. If it would be taken from other angle then also, this
appellate Court is of considered view that if such plea of
insurance company is entertained at this appellate stage, then
definitely it would set a wrong precedent where insurance
company would keep itself away from the proceeding by not
agitating the issue(s) before the Tribunal but thereafter, assail
the outcome of Tribunal before the appellate court with a plea
said to be legal one. Needless to say, that Motor Accident Act,
1988 is a beneficial piece of legislation and court ought to be
vigilant that its objective should not be frustrated by anyone on
one pretext or the other.
23. As far as, second issue is concerned, it is trite law that
the insurer has no statutory liability to cover the risk of the
owner or as in this case the driver of the vehicle, who steps into
the shoes of the owner, when the statutory liability is restricted
to third party liabilities. In the judgment rendered in the case of
Ramkhiladi (supra) wherein the principle enunciated by
Hon'ble Supreme Court in "Ningamma and another vs.
United India Insurance Company Limited" reported in
(2009) 13 SCC 710 has been reiterated and held that if a
claim would be made by the owner of the vehicle from its own
insurer, then insured cannot be a third party. A borrower of a
vehicle, who was driving, cannot raise a claim under no fault
liability, since the driver of the vehicle steps into the shoes of
the owner. In the said case, legal heir of the driver/owner of
the said motorcycle brought a claim under Section 163-A of
M.V. Act against own insurer and Hon'ble Supreme Court has
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held that owner cannot be a claimant and at the same time
receiver also.
24. It is required to refer herein the judgment rendered in
Manjusha (supra) which squarely covers the issues and facts
which are almost identical to the case in hand. In the
Manjusha (supra) the question which was tabled before the
apex court was whether brother of owner of vehicle who
succumbed to injury is covered under the limited liability in
terms of insurance policy or not. The Hon'ble Apex Court while
allowing the appeal moved by the claimants, held that the plea
of third party's limited liability, as contemplated in the case of
Ramkhiladi (supra) and other cases, directly before the
appellate stage is not permissible in the absence of any
pleading and without agitating the same before the Tribunal
and the High Court
25. This Court has taken note of the legal proposition as
laid in the Ramkhiladi (supra) and Ningamma (supra) but
the above legal proposition which is meant to be the ground of
the present appeal was never agitated/pleaded before the
Tribunal and as such, in view of legal proposition in Manjusha
(supra), the plea which was not agitated/raised cannot be
allowed to be pleaded directly at this appellate stage and thus
on the basis of the above discussion, this court is of considered
view that plea of limited liability should and could not be
raised and determined at this appellate stage directly in the
absence of any such plea/pleading and without agitating it
before the Tribunal.
26. The appellant-Insurance Company is directed to
comply the award within a period of 45 days from today by
depositing the amount before concerned Tribunal.
27. The statutory amount deposited by the insurance
company be remitted to the learned Tribunal by learned
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Registrar General of this Court within a period of four weeks
from today which shall be paid to the claimants by the learned
Tribunal/executing court after notice and due verification.
28. Accordingly, the instant Miscellaneous Appeal being
M.A. No.120 of 2012 is, hereby, dismissed, with aforesaid
direction.
(Arun Kumar Rai, J.)
High Court of Jharkhand at Ranchi
Dated, the 04/09/2025
R.K./-A.F.R.
