Jharkhand High Court
The Oriental Insurance Co. Ltd. Through ... vs Deoki Chandra on 7 April, 2022
Author: Gautam Ku Mar Choudhary
Bench: Gautam Kumar Choudhary
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
M.A. No. 48 of 2011
The Oriental Insurance Co. Ltd. through Divisional Manager, City Centre,
Sector- IV, Bokaro Steel City, P.O. & P.S.- Sector-IV, Dist- Bokaro, through
its Incharge, Legal Cell, Manoj Kumar Singh, Ranchi
..... ..... Appellant
Versus
1. Deoki Chandra
2. Gandhari Devi
3. Swet Sagar
4. Shabhayata,
5. Shiv Kumar Rajak
.... .... Respondents
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CORAM : HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY
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For the Appellant : Mr. Bibhash Sinha, Advocate
For the Respondents : Mr. Indrajeet Sinha, Advocate
Mrs. Suchitra Pandey, Advocate
CAV ON 24.02.2022 PRONOUNCED ON 07 .04. 2022
1. The Insurance Company has preferred appeal against the judgment and award of compensation in T.M.V. Case No. 74 of 2008 by 1st Additional District Judge-cum-Additional M.A.C.T, Bokaro, under section 166 of the M.V. Act for the death of Prakash Chandra Mahto, in a motor vehicle accident.
2. As per the claimant's case the accident took place on 28.04.2008 (in the night) while the deceased was going by private ambassador car bearing registration No. OR-02L-1112 of one Shiv Kumar Rajak (O.P. No. 1), who was owner-cum-driver of the said vehicle. Petarbar P.S. Case No. 35/2008 under Sections 279, 337, 338 and 427 of the IPC was registered on the basis of fardbeyan of Muzib Ansari regarding the accident against unknown driver. The deceased was an employee of Bokaro Steel Plant, with a monthly salary of Rs.10,833/- who left behind the claimants.
3. In pursuance of the notice, O.P. No. 2 the Oriental Insurance Co. Ltd. appeared and contested the claim by filing written statement inter alia on the grounds that Ambassador car bearing registration No. OR-02L-1112, on which, deceased Prakash Chandra Mahto was coming from Ramgarh to 2 Bokaro, was dashed by an unknown vehicle (truck) resulting in the accident. It is further pleaded that the said car is registered as Private Car and insured with O.P. No.2 as "Private Car liability only Policy Zone-B" and the deceased was travelling in the said car as a gratuitous passenger and as such, the policy condition, is insurance company did not cover the risk. The particulars of the driver need to be disclosed for verification of the driving licence. Further, the net payment of the deceased was Rs 6,750/- and not as claimed in the plaint. It has however been admitted that the interest of Sheo Kumar Rajak in the Ambassador car bearing registration No. OR-02L-1112 was under the insurance cover.
4. O.P. No.1 appeared and filed the written statement. The claim case has been contested on the ground that the Ambassador car was insured at the relevant time of accident.
5. On the basis of rival pleadings of both the parties, following issues have been settled for proper adjudication of this claim case, which are as under:-
(i) Whether the suit maintainable in its present form?
(ii) Whether the suit is barred by Law of Limitation, waiver and acquiescence?
(iii) Whether at the time of accident, the vehicle bearing registration No. OR-02L-1112 was insured with the O.P. No. 2 Oriental Insurance Co.?
(iv) Whether the driver was having valid driving licence at the time of accident?
(v) Whether the applicants are entitled to receive the claim amount, if so, to what extent and by whom?
(vi) Whether the applicants are entitled to any other relief/reliefs?
6. The appeal has been preferred on the ground that as per the F.I.R. (Ext. 4) the aforesaid car on which the deceased was travelling at the time of accident was hit by an unknown vehicle as a result, it lost balance and dashed against a road side tree. The F.I.R. was lodged against unknown driver and after investigation charge sheet has also been filed against the unknown vehicle but the case has been filed against the owner of the aforesaid car on which the deceased was travelling as gratuitous passenger. The policy of insurance was "private car liability only Policy Zone-B" under which 3 occupant of the vehicle were not covered. It is neither the case of claimant nor there is any evidence that the said ambassador car was being driven rashly and negligently by driver. Under the circumstance, the award of compensation against the insurer of the aforesaid car is not based on the pleadings or the evidence on record.
7. Three witnesses have been examined on behalf of the claimants, but none of them are eye witness to the accident. Owner-cum-driver of the ambassador car (OPW 1) has deposed that he was driving the vehicle at the relevant time of accident. The accident took place on collision with a truck. His friend Prakash Chandra Mahto who was travelling in the car sustained fatal injuries and died of it. Final form (Ext 5) has been submitted against the driver of the unknown truck.
8. Under the aforesaid facts and circumstance in the absence of any evidence of rash and negligence on the part of the driver of the ambassador car, the matter for consideration is whether the insurer can be held liable to pay the compensation amount?
9. In the present case it is apparent that only sketchy evidence is available on the manner of accident. Investigation in the police case could not make any headway and final form had to be submitted against the driver of the unknown truck. There is no eyewitness to the accident except O.P. No. 1 who is the owner-cum-driver of the car and obviously it is not expected of him that he will depose about his own fault. He has deposed that there was a collision with a truck. It is indubitable that the ambassador collided with a road side tree. But in any case, it is not a case of head on collision with the truck side wise knock resulting in loss of balance of the car. The illusive truck was real or imaginary or setup by way of defence by O.P. No. 1 cannot be said with certainty. It is precisely in such cases that one has to fall back on the principle of res ipsa loquitur which has been enunciate in Pushpabai Purshottam Udeshi v. Ranjit Ginning & Pressing Co. (P) Ltd., (1977) 2 SCC 745 at page 750 in the following words "The normal rule is that it is for the plaintiff to prove negligence but as in some cases considerable hardship is caused to the plaintiff as the true cause of the accident is not known to him but is solely within the knowledge of the defendant who caused it, the plaintiff can prove the accident but cannot prove how it happened to establish negligence on the part of the defendant. This 4 hardship is sought to be avoided by applying the principle of res ipsa loquitur. The general purport of the words res ipsa loquitur is that the accident "speaks for itself' or tells its own story. There are cases in which the accident speaks for itself so that it is sufficient for the plaintiff to prove the accident and nothing more. It will then be for the defendant to establish that the accident happened due to some other cause than his own negligence. Salmond on the Law of Torts (15th Edn.) at p. 306 states: "The maxim res ipsa loquitur applies whenever it is so improbable that such an accident would have happened without the negligence of the defendant that a reasonable jury could find without further evidence that it was so caused". In Halsbury's Laws of England, 3rd Edn., Vol. 28, at p. 77, the position is stated thus: "An exception to the general rule that the burden of proof of the alleged negligence is in the first instance on the plaintiff occurs wherever the facts already established are such that the proper and natural inference arising from them is that the injury complained of was caused by the defendant's negligence, or where the event charged a; negligence 'tells its own story' of negligence on the part of the defendant, the story so told being clear and unambiguous". Where the maxim is applied the burden is on the defendant to show either that in fact he was not negligent or that the accident might more probably have happened in a manner which did not connote negligence on his part".
In the present case the manner in which the Ambassador rammed into a road side tree, the negligence of the driver of the car is apparent on the principle of res ipsa loquitur. The claim of dependants of the deceased who was the occupant of the car and died in the accident cannot be brushed aside merely because of the inadequacy of eyewitness to the accident.
10. The deceased was thus victim of composite negligence on the part of the driver of the Ambassador car in which he was travelling as well as that of the so called unknown truck.
Whether in cases of composite negligence claim application is maintainable only against the owner and insurer of one of the vehicle has been set out clearly in Khenyei v. New India Assurance Co. Ltd., (2015) 9 SCC 273
15. It has been held that there is a difference between contributory and composite negligence. In the case of contributory negligence, a person who has himself contributed to the accident cannot claim compensation for the 5 injuries sustained by him in the accident to the extent of his own negligence; whereas in the case of composite negligence, a person who has suffered has not contributed to the accident but due to the outcome of combination of negligence of two or more other persons. This Court in T.O. Anthony v. Karvarnan [(2008) 3 SCC 748 : (2008) 1 SCC (Civ) 832 :
(2008) 2 SCC (Cri) 738] has held that in case of contributory negligence, the injured need not establish the extent of responsibility of each wrongdoer separately, nor is it necessary for the court to determine the extent of liability of each wrongdoer separately. It is only in the case of contributory negligence that the injured himself has contributed by his negligence in the accident. Extent of his negligence is required to be determined as damages recoverable by him in respect of the injuries have to be reduced in proportion to his contributory negligence. In the case of composite negligence, the plaintiff/claimant is entitled to sue both or any one of the joint tortfeasors and to recover the entire compensation as liability of joint tortfeasors is joint and several.
11. In view of the above stated position of law claim against the owner and insurer of the ambassador car was maintainable and there was no infirmity in the impugned award by fixing liability on the insurer of the car.
12. With regard to the plea of the Insurance Company that the deceased was a gratuitous passenger, it is not in dispute that the deceased was travelling in the Ambassador car which was not for hire as per the evidence on record. The policy of insurance (Ext B) was a private car liability only policy:
Zone B. No premium was paid for own damage. It has rightly been contended that this was a statutory policy the liability to be confined to third party and that will not cover the deceased who was a gratuitous passenger. It has been held in Jagtar Singh v. Sanjeev Kumar, (2018) 15 SCC 189 that the comprehensive/package policy of a two-wheeler covers a pillion rider and comprehensive/package policy of a private car covers the occupants and where the vehicle is covered under a comprehensive/package policy, there is no need for the Motor Accidents Claims Tribunal to go into the question whether the insurance company is liable to compensate for the death or injury of a pillion rider on a two-wheeler or the occupants in a private car. In view of the aforesaid factual position, there is no scintilla of doubt that a "comprehensive/package policy" would cover the liability of the insurer for 6 payment of compensation for the occupant in a car. There is no cavil that an "Act policy" stands on a different footing from a "comprehensive/package policy". In view of the fact that it was not a comprehensive package policy, therefore the Owner of the ambassador car and not the Insurance Company that shall be liable to pay the compensation.
13. The deceased was a gratuitous passenger in the ambassador car and therefore it was a case of breach of terms of the insurance policy. The third party interest cannot be permitted to suffer on account of the breach of terms and conditions of the insurance policy between the insurer and the insured. The principle of pay and recover in cases of breach of terms and conditions has been affirmed in Shivaraj v. Rajendra, (2018) 10 SCC 432, Manuara Khatun v. Rajesh Kr. Singh, (2017) 4 SCC 796.
Under the circumstance, the Insurance Company is directed to pay the compensation amount to the claimants and recover the same from the owner of the ambassador car i.e. O.P. No. 1 within a month of this order. Mode of payment shall be to the Tribunal and the payment to the claimants shall be made by the Tribunal as per the compensation assessed by the learned the Tribunal.
The appeal is accordingly allowed as at above.
(Gautam Ku mar Choudhary, J.) Jharkhand High Court, Ranchi Dated the 7th April, 2022 AFR / Anit