National Insurance Company Ltd vs Smt. Rita Debnath And Ors
2023 Latest Caselaw 29 Tri

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                    HIGH COURT OF TRIPURA
                          AGARTALA
                    MAC APP NO.32 OF 2022

   National Insurance Company Ltd.
                                            ......... Appellant(s)

                    Vs.

   Smt. Rita Debnath and ors

                                            ....... Respondent(s)

For the Petitioner(s) : Mr. S.D. Choudhury, Advocate.

For the Respondent(s) : Mr. S. Das, Advocate

Date of hearing and delivery of Judgment & Order : 09.01.2023.

Whether fit for reporting : NO.

HON'BLE THE CHIEF JUSTICE(ACTING)

JUDGMENT AND ORDER(ORAL)

This is an appeal filed under Section 173 of the

Motor Vehicle Act, 1988 against the Judgment and Award dated

19.01.2022 passed by the learned Motor Accident Claims

Tribunal (Court No.5), West Tripura, Agartala in T.S.(MAC)55

of 2018, wherein, the appellant-Insurance Company was

directed to pay compensation amounting to Rs.11,25,400/-

with 8% interest per annum to the claimant-respondents

herein.

2. The fact of the case, in brief, is that on

09.10.2016 at about 1.30 am one Subash Debnath after

closing his shop was going on foot towards Ashram

Chowmuhani from Lal Bahadur Chowmuhani through the left

side of the road. When he reached near Old Central Jail, at

that time, an Alto car bearing registration No. TR01-AD(TEM) -

0861 came from the back side in a very rash and negligent

manner and dashed him. As a result, the said-Subash Debnath

sustained injuries and was immediately shifted to AGMC and

GBP hospital. He was discharged from the hospital after

primary treatment but after returning home, the health

condition of the said-Subash Debnath became serious and he

was again admitted to AGMC and GBP hospital. He expired on

10.10.2016 at about 4.30 am. In connection with the accident,

the son of the deceased lodged an FIR at East Agartala PS vide

No. 108 of 2016 under section 279/338 of IPC on 10.10.2016.

It was also pleaded that deceased was having fast food

business and he used to earn Rs.25,000/- per month. At the

time of the accident, the deceased was 59 years old.

3. Thereafter, the claimant-respondents herein as

appellants filed a case bearing registration No.T.S(MAC)55 of

2018 under Section 166 of the Motor Vehicle Act, 1988

claiming compensation of Rs.22,50,000/- due to the death of

said Subash Debnath, the deceased herein in the said road

traffic accident.

4. The case of the claimants was contested by O.P.

No.1, the owner of the offending vehicle by filing a written

statement. He pleaded that at the time of the accident, the

vehicle was insured with O.P. No.2, the National Insurance

Company Limited i.e. the appellant herein. The case of the

claimants was contested by O.P. No.2, the Insurance Company

by filing a written statement denying the plea of the claimants.

The insurance company, i.e. the appellant herein pleaded that

claimants are to prove their case by producing documents and

the insurance company is not liable to pay any compensation

unless a valid driving licence, insurance certificate, registration

certificate, and other documents of the said vehicle is produced

by the owner. It is further pleaded that any breach of

conditions specifically those relating to the driving licence and

use of the vehicle may entitle O.P No.2 to avoid liability as per

section 149(2) of M.V. Act.

5. The learned Tribunal for adjudication of the said

matter framed the following substantial questions of law:-

"(I) Whether the present claim petition is maintainable both in law and facts ?

(ii) Whether the predecessor of the claimant- petitioners died as a result of an accident occurred on 09.10.2016 at about

01.30 hours near old Central Jail, Jail Road within the jurisdiction of East Agartala PS, West Tripura involving the vehicle bearing Registration No.TR-01-AD- TEM-0861(Alto Car) ?

(iii)Whether claimant petitioners are entitled to get compensation as prayed for and if so, who shall be liable to pay the compensation and upto what extent?

6. To prove the case, the claimant-respondents

examined two witnesses, namely, Mr. Dipankar Debnath as

P.W.1 and Sri Ishwar Biswas as P.W.2. The respondent No.4

herein adduced himself as O.P.W-1 before the learned Tribunal

below and appellant-Insurance Company herein adduced the

investigation officer of the East Agartala P.S. Case

No.108/2016 as O.P.W.-2.

7. The learned Tribunal below after hearing both the

parties and perusing the evidence on record passed the

judgment and award dated 19.01.2022 awarding

Rs.11,25,400/- along with 8% per annum from 17.04.2018 till

the payment in favour of the claimants. The O.P. No.2, i.e. the

appellant-Insurance Company herein was fastened the liability

to pay the said amount.

8. Aggrieved thereby, the O.P. No.2, i.e., the

Appellant-Insurance Company herein filed this instant appeal

and prayed for the following reliefs:-

" i) Admit the appeal;

ii) Call for the records hearing Case No.T.S.(MAC)55/2018 from the Ld. Tribunal, West Tripura, Agartala, Court No.5.

iii) Issue notice upon the respondents as to why the impugned judgment shall not be set aside, cancelled, quashed.

iv) After hearing be kind enough to set aside, quash, cancel, modify the impugned judgment passed by the learned Tribunal(Court No.5), West Tripura, Agartala. During the pendency of the appeal be kind enough to stay further proceeding arising out of the impugned judgment in T.S.(MAC)55/2018."

9. Heard Mr. S.D Choudhury, learned counsel

appearing for the appellant-Insurance Company as well as Mr.

S. Das, learned counsel appearing for the claimant-

respondents.

10. Mr. Choudhury, learned counsel appearing

for the appellant-Insurance Company submitted that the driver

of the offending vehicle was not having a valid driving license

at the time of the said accident, which violates the policy

condition. Moreover, at the time of the accident, the driver of

the offending vehicle was in a drunken condition. Further

learned Tribunal below in Para-26 of its judgment observed

that 'As the driver of the offending vehicle was driving without

driving licence, OP No.1-the owner is liable to pay

compensation. However, as submitted by the Ld. Counsel for

the claimants in view of the Judgment of the Honble Supreme

Court in Parminder Singh(Supra) and the Judgment of the

Honble Madras High Court in Branch Manager, Ifko Tokiyo

General Insurance company Limited(Supra), the insurance

company(OP No.2) can be directed to pay the compensation

amount to the claimants and OP No.2 can recover the same

from OP No.1, the owner on the principle of pay and recover

policy as the offending vehicle was insured with OP No.2'. But

the same was not mentioned in the operative part of the

impugned judgment and award and the appellant-Insurance

Company herein was simply directed to deposit the whole

amount.

11. Heard both sides and perused the evidence on

record.

12. The learned Tribunal below in Para-26 of the

impugned judgment and order dated 19.01.2022 observed

thus:-

"26. As the driver of the offending vehicle was driving without driving licence, OP No.1-the owner is liable to pay compensation. However, as submitted by the Ld. Counsel for the claimants in view of the Judgment of the Honble Supreme Court in Parminder Singh(Supra) and the Judgment of the Honble Madras High Court in Branch Manager, Ifko Tokiyo General Insurance company Limited(Supra), the insurance company(OP No.2) can be directed to pay the compensation amount to the claimants and OP No.2 can recover the same from OP No.1, the owner on the principle of pay and recover policy as the offending vehicle was insured with OP No.2' [Emphasis added]

13. Accordingly, this instant appeal is allowed and

disposed of to the extent indicated here-in-above on the

principle of pay and recover given in para-26 of the impugned

Judgment and Award dated 19.01.2022.

14. Consequently, pending application(s), if any also

stands closed.

CHIEF JUSTICE (ACTING)

suhanjit