Jharkhand High Court
Judge-Cum-Motor Vehicle Accident ... vs Anima Saha Wife Of Late Gurupado Saha on 30 June, 2022
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
1 M.A. 211 of 2010
IN THE HIGH COURT OF JHARKHAND AT RANCHI
M.A. No. 211 of 2010
(Against the judgment and award dated 08.02.2010 passed in
M.A.C.T. Case No.13 of 2004/71 of 2009 passed by learned District
Judge-cum-Motor Vehicle Accident Claim Tribunal, Pakur)
Branch Manager, The New India Assurance Company Ltd,
Bhagalpur Branch, District Bhagalpur ........... Appellant
Versus
1. Anima Saha Wife of Late Gurupado Saha
2. Santana Saha Daughter of Late Gurupado Saha.
(Respondent No.2 is minor being represented through respondent
No.1 as her mother and natural Guardian), (Claimant No.1 and 2) Both residents of Village Ghorapahari, P.S. Pakur(M) District Pakur, at presently residing in Village Gamra, P.S. Shikaripara District Dumka.
3. Bhagat Ram Mandhyan Son of Late Raghu Mali Mandhyan resident of Village Lookergunj, P.S.-Allahabad, District Allahabad(U.P.) Presently residing at Sindhipara, Pakur, P.S and District Pakur ......... Respondents For the Appellants : Mr. Alok Lal, Adv.
PRESENT HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY By the Court:- Heard the learned counsel for the appellant but no one turns up on behalf of the respondents in spite of repeated calls, hence the appeal is being heard ex-parte.
2. This appeal has been preferred against the judgment and award dated 08.02.2010 passed in M.A.C.T. Case No.13 of 2004/71 of 2009 by learned District Judge-cum-Motor Vehicle Accident Claim Tribunal, Pakur whereby and where under, the learned tribunal in a claim petition filed under section 166 of these Motor Vehicles Act, 1988 directed the appellant-Insurance Company to pay a sum of Rs.2,65,500/- with interest at the rate of 6% per annum from the date of admission of this claim petition i.e. 06.10.2005 till the date of its 2 M.A. 211 of 2010 realization within 60 days from the date of that order less the amount if already paid under Section 140 of the M.V. Act.
3. The brief facts of this case is that the deceased-Gurupada Saha who was the husband of the claimant no.1 and father of the claimant no.2; met with an accident by coming under the wheel of truck No. UTW-9222 in which the deceased-Gurupada Saha was travelling as a passenger and accidently fell on the ground and the wheels crushed him. Learned Tribunal upon the rival pleadings of the parties framed altogether eleven issues. So far this appeal is concerned, only the issue nos.9, 10 and 11 are relevant which read as under:-
9. Whether the owner or the insurer of the vehicle is liable to pay the compensation?
10. Whether the Insurance Company has any liability for the alleged violation of the statutory provision of the Insurance Policy?
11. Whether the deceased will be treated as a passenger or after having been fallen down from the truck, he ceases to be the passenger and comes within the category of third person?
4. Learned Tribunal considered the evidence in the record and came to a conclusion that as the evidence in the record establishes that the deceased fell down from the truck and thereafter he was run over hence he ceased to be a passenger therefore the deceased is to be treated as the third person, therefore, the insurance company is liable to pay the compensation and held that the Insurance Company is liable to pay entire compensation.
5. Mr. Alok Lal, learned counsel for the appellant submits that though the appellant has taken several grounds in this appeal but the appellant is confining its argument to the sole ground that since the deceased was travelling in the truck as a gratuitous passenger, the appellant-insurance company shall not be held liable to pay the compensation on behalf of the owner of the vehicle by way of indemnification of the owner of vehicle the insurer for the death arising out of the said motor vehicle accident and instead the owner of the offending vehicle be held liable to 3 M.A. 211 of 2010 pay the said compensation and as the Insurance Company has already paid the compensation, hence, the Insurance Company be given the right to recover the said compensation amount from the owner of the vehicle by executing the judgment and award.
6. In support of their case, the respondent nos. 1 and 2 have examined two witnesses. C.W.1 Bijay Mandal has stated that the deceased-Gurupada Saha was travelling in the said truck and as soon as the said truck came near the house of the deceased, he fell down from the truck and the truck ran over the deceased and in the claim petition; the claimant has also admitted that the deceased was travelling in the said truck and by falling from the truck, the said truck run over. C.W.2 Anima Saha, who is the wife of the deceased, has also stated that her husband was run over by the vehicle involved in the accident.
7. Mr. Alok Lal, learned counsel for the appellant also relied upon the judgment of the Hon'ble Supreme Court of India in the case of Manager National Insurance Co. Ltd. v. Saju P. Paul & Anr. reported in (2013) 2 SCC 41, paragraph- 17 of which reads as under:
"17. In the present case, Section 147 as originally existed in the 1988 Act is applicable and, accordingly, the judgment of this Court in Asha Rani [(2003) 2 SCC 223 : 2003 SCC (Cri) 493] is fully attracted. The High Court was clearly in error in reviewing its judgment and order delivered on 9-11-2010 [National Insurance Co. v. Saju P. Paul, MACA No. 713 of 2003, order dated 9-11-2010 (Ker)] in the review petition filed by the claimant by applying Section 147(1)(b)(i). The High Court committed grave error in holding that Section 147(1)(b)(i) takes within its fold any liability which may be incurred by the insurer in respect of the death or bodily injury to any person. The High Court also erred in holding that the claimant was travelling in the vehicle in the course of his employment since he was a spare driver in the vehicle although he was not driving the vehicle at the relevant time but he was directed to go to the work site by his employer. The High Court erroneously assumed that the claimant died (sic was injured) in the course of employment and overlooked the fact that the claimant was not in any manner engaged on the vehicle that met with an accident but he was employed as a driver in another vehicle owned by M/s P.L. Construction Company. The insured (owner of the vehicle) got insurance cover in respect of the subject goods vehicle for driver and cleaner only and not for any other employee. There is no insurance cover for the spare driver in the policy. As a matter of law, the claimant did not cease to be a gratuitous passenger though he claimed that he was a spare driver. The insured had paid premium for one driver and one cleaner and, therefore, second driver or for that purpose "spare driver" was not covered under the policy."
4 M.A. 211 of 2010
8. Mr. Alok Lal, learned counsel for the appellant also relied upon the judgment of the Hon'ble Supreme Court of India in the case of Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy & Ors., (2003) 2 SCC 339, para 10 and 11 of which reads as under:
" 10. The inevitable conclusion, therefore, is that provisions of the Act do not enjoin any statutory liability on the owner of a vehicle to get his vehicle insured for any passenger travelling in a goods carriage and the insurer would have no liability therefor.
11. Our view gets support from a recent decision of a three-Judge Bench of this Court in New India Assurance Co. Ltd. v. Asha Rani [(2003) 2 SCC 223 : (2002) 8 Supreme 594] in which it has been held that Satpal Singh case [(2000) 1 SCC 237 : 2000 SCC (Cri) 130] was not correctly decided. That being the position, the Tribunal and the High Court were not justified in holding that the insurer had the liability to satisfy the award."
9. Mr. Alok Lal, learned counsel for the appellant also relied upon the judgment of Hon'ble Supreme Court of India in the case of National Insurance Co. Ltd. v. Bommithi Subbhayamma & Ors. reported in (2005) 12 SCC 243 para 7 of which reads as under:
"7. In Asha Rani [(2003) 2 SCC 223 : 2003 SCC (Cri) 493 : (2002) 9 Scale 172] this Court while overruling Satpal Singh [(2000) 1 SCC 237 :
2000 SCC (Cri) 130] has clearly held that the Insurance Company is not liable for payment of any compensation for death of a gratuitous passenger travelling in a goods vehicle." (Emphasis supplied)
10. Hence, it is submitted by Mr. Lal that the impugned judgment and award be modified and the insurance company should be absolved of its liability to pay the compensation by way of indemnification of the owner of the vehicle as made by the tribunal.
11. In view of the submissions made at the Bar and after going through the records, the sole point for determination that crops up for consideration is:
"Whether the insurance company can be absolved of the liability to pay the compensation amount and if yes, as the insurance company has already paid the amount to the claimants, whether the insurance company be given the right to recover the same from the owner of the vehicle?"
12. Now coming to the facts of the case, as already indicated above, the evidence in the record, goes to show that the deceased was travelling in the offending truck, obviously as a gratuitous passenger. In view of the settled principle of law, this court is of 5 M.A. 211 of 2010 the considered view that the deceased being a gratuitous passenger, the insurance company is not liable to pay the compensation amount but in view of the settled principle of law, in the case of Manuara Khatun and Ors. v. Rajesh Kr. Singh and Ors. reported in (2017) 4 SCC 796 paragraph 22 of which reads as under:
22. Accordingly, the appeals succeed and are allowed. Impugned order is modified to the extent that Respondent 3 United India Insurance Co. Ltd.
is accordingly directed to pay the awarded sum to the appellants (claimants). Thereafter Respondent 3 United India Insurance Co. Ltd. would be entitled to recover the entire paid awarded sum from the owner (insured) of the offending vehicle (Tata Sumo) Respondent 1 in these very proceedings by filing execution application against the insured.
And keeping in view that the insurance company has already paid the claim amount to the claimants- respondent no. 1 and 2, this is a fit case where the insurer be given the right to recover the said compensation amount paid by it to the claimant, from the owner of the vehicle. The sole point of determination is answered accordingly.
13. In view of the discussions made above, the impugned judgment and award is modified by absolving the insurance company of the liability to pay the compensation amount and by holding that the owner of the vehicle is liable to pay the compensation amount, but as already the insurance company has paid the compensation amount to the claimant respondent nos. 1 and 2, the impugned judgment and award is modified by giving right to the insurance company to recover the compensation amount already paid, from the owner of the offending vehicle, by way of execution of judgment and decree as per the law laid down in paragraph 26 National Insurance Co. Ltd. v. Saju P. Paul reported in (2013) 2 SCC 41.
14. In the result, this appeal is disposed of with the aforesaid modification in the judgment and award dated 08.02.2010 passed in M.A.C.T. Case No.13 of 2004/71 of 2009 passed by learned District Judge-cum-Motor Vehicle Accident Claim Tribunal, Pakur.
6 M.A. 211 of 2010
15. The Registrar General is directed to pay the statutory amount if any deposited by the appellant in connection with this appeal in this court, to the concerned officer of the appellant insurance company, upon the insurance company satisfying that it has already paid the compensation amount to the claimants failing which the statutory amount be remitted to the concerned tribunal by appropriate mode forthwith.
16. No order as to costs.
17. Let a copy of this Judgment be sent back to the Court concerned forthwith.
(Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated, the 30th June, 2022 Smita /AFR