Jharkhand High Court
The Branch Manager vs Smt. Malti Devi on 3 August, 2022
Author: Ananda Sen
Bench: Ananda Sen
IN THE HIGH COURT OF JHARKHAND AT RANCHI
M.A. No. 700 of 2018
The Branch Manager, Reliance General
Insurance Company Limited............ Appellants
Versus
1. Smt. Malti Devi
2. Smt. Chandni Devi
3. Miss Simpal Kumari
4. Mr. Talu Ray
5. Beldaha Rai............ Respondents
......
Coram: Hon'ble Mr. Justice Ananda Sen ......
For the Appellants : Mr. Amit Kr. Das, Advocate
Ms. Swati Shalini, Advocate
For Respondent No. 1 : Mr. Onkar Nath Tiwari, Advocate
For Respondent Nos. 4 & 5 : Mr. Lalit Yadav, Advocate
......
5/03.08.2022 Heard learned counsel for the insurance company and the learned
counsel for the respondents.
2. Though this appeal has been listed today under the heading for Orders for considering I.A. No. 5713 of 2022, filed by the appellant Insurance Company praying therein to stay the operation of the award, yet the parties have argued the entire case of merits. Lower court records are also before this Court. Parties have also given their consent thus there is no impediment in disposing of the entire appeal on merits at this stage itself. Keeping this appeal pending, after hearing the entire case at length, will not do justice to the parties. Thus, I am disposing of this appeal at this stage.
3. This appeal has been filed challenging the judgment dated 6th August, 2018, passed by the District Judge-II-cum- P.O., M.A.C.T., Dumka in Motor Accident Claim Case No. 50 of 2013. The Tribunal, considering the material on record, awarded compensation to the tune of Rs.7,03,000/- to the claimants, who happen to be the wife, minor children and mother of the deceased.
4. Learned counsel appearing on behalf of the appellant-insurance company submitted that the challenge is limited in this appeal. The insurance company has not challenged the quantum, which has been assessed by the Tribunal. It is their case that admittedly, the deceased was travelling on a Tractor thus, should have been treated as gratuitous passenger. A Tractor is not a passenger carrying vehicle, thus being the gratuitous passenger the principle of "pay and recover" should have been applied in the instant case and right to recovery should have been given to the insurance company. She referred to the evidence led by the parties and -2- also the policy documents in support of her contention and submitted that no passenger was covered under the terms and condition of the policy rather it was only the driver and owner of the vehicle, who was covered.
5. The insurance company, in this case, only prays that the aforesaid right be extended to the insurance company and the company be allowed to recover the amount of compensation, to be paid to the claimants, from the owner of the Tractor.
6. Counsel appearing on behalf of the claimants submitted that the quantum of compensation as assessed at Rs.7,03,000/- is on much lower side. The monthly income of the deceased has not been correctly assessed nor any enhancement considering future prospects, has been awarded. Further, under conventional head only Rs.55000/- has been awarded which should have been Rs.70,000/-, in terms of the judgment of the Hon'ble Supreme Court in the case of "National Insurance Company Limited - versus- Pranay Sethi & Others, reported in (2017) 16 SCC 680".
On query, he fairly admits that neither he has filed any Cross Objection nor any separate appeal praying for enhancement of the amount of compensation.
So far as the contention of the claimants in respect of quantum is concerned, it is an admitted case that they neither filed any Cross Objection nor any separate appeal. Thus, in this appeal their contention cannot be entertained.
7. Counsel appearing on behalf of the owner and driver of the Tractor submitted that admittedly the said Tractor was insured with the appellant on the date when the accident occurred. It is their case that since the vehicle was duly insured, the insurance company should indemnify the owner and pay the amount of compensation. He further submitted that from the evidence it is clear that the deceased was working as a labourer and was attached with the said Tractor and thus, he being the labourer and employee of the owner of the Tractor, the insurance company should pay the amount of compensation.
8. After hearing the parties, I have gone through the entire records including the evidence led by the parties and the impugned judgment. The deceased Mantu Rai, aged about 22 years was a labour and cultivator. It is the case of the claimants the deceased was earning Rs.8000/- per month. On the fateful day he, alongwith in Lakhan Kunwar as labour had gone to work with the said Tractor. The Tractor was being driven in very rash and negligent manner by the driver Baldeha Rai. The deceased fell down from the Tractor and was crushed beneath the rear wheels resulting in his -3- death. The claimants being the wife, minor children and mother of the deceased, filed the claim application claiming compensation.
9. The Tribunal after going through the evidence on record and after considering the documents, assessed the income of the deceased to be Rs.4500/- per month and, thereafter taking 18 as multiplier and deducting 1/3rd as personal expenses, awarded compensation to the tune of Rs.7,03,000/- alongwith interest @ 6% per annum from the date of filing of the claim application. The Tribunal held that the vehicle was duly insured with the appellant insurance company on the date of the accident and there is no violation of the terms and conditions of the policy as the driver was having a valid driving license. Considering these aspects, the Tribunal directed the insurance company to pay the amount of compensation to the claimants.
10. Aggrieved by the finding, the appellant insurance company has preferred this appeal. The only ground taken by the counsel for the appellant is that the deceased was a gratuitous passenger in the Tractor. The Tractor not being a passenger carrying vehicle and since it was carrying a passenger, the passenger can be termed to be a gratuitous passenger, will disentitled the claimants from seeking compensation against the insurance company. As per her, it is the owner of the vehicle in question, who should be directed to pay the amount of compensation or at least the right of recovery should have been granted in favour of the insurance company.
11. To address the issue, raised in this appeal, it is necessary to refer to the First Information Report. The author of the First Information Report is the grandfather of the deceased. Jarmundi (Taljhari) P.S. Case No. 213 of 2010 was registered under Sections 279, 304(A) of the Indian Penal Code. In the fardbeyan, it has been mentioned that on 26.12.2010, one Lakhan Kunwar, came to the house of the informant and took alongwith him the deceased Mantu Rai for working in the Tractor. Mantu Rai did not return. A search was conducted and it was revealed that the deceased was travelling in the Tractor alongwith Pappu Rai and the Tractor was being driven in a very rash and negligent manner by the driver as a result of which the deceased fell down from the Tractor and crushed beneath the rear wheels. From perusal of the said ferdbeyan, it is evident that the author of the fardbeyan is not an eyewitness to the occurrence. Charge sheet was filed after investigation. Charge sheet/Final Report no. 12/2011 suggests that it is the driver of the Tractor Beldaha Rai, who was responsible for the said accident. From the charge sheet also it is clear -4- that the deceased was travelling in the said Tractor.
12. So far as the oral evidence is concerned, PW-1 is Malti Devi, who is one of the claimants and the mother of the deceased. She is also not an eyewitness to the occurrence. Claimant Witness No. 2 is Radhey Shyam Rai, who is also not an eyewitness nor is CW-3. These witnesses stated that they have heard that the deceased was working on the Tractor and was travelling on the same but due to rash and negligent driving, he fell down from the Tractor and crushed beneath the rear wheels.
13. The claimants, in their claim application in Para-19(1) pleaded that the deceased alongwith one Pappu Rai was coming on the said vehicle of Lakhan Kunwar, which was being driven rashly and negligently by the driver when said Mantu Rai fell down. It is necessary to quote Para-19(1) of the claim application, which is quoted herein in below:-
"19(1) When the deceased Mantu Rai along with Pappu Rai were coming on the said vehicle of Lakhan Kunwar which was being driven rashly and negligently by its driver, the said Mantu Rai (deceased) fell down and dashed him in the facts of which that Mantu Rai sustained multiple grievous injury on his person and died at spot."
14. This fact, i.e. falling of the deceased from the said Tractor and crushing by the rear wheels has not been controverted by the owner and the driver in their written statement. Rather, they admitted that the accident had occurred due to rash and negligent driving of the Tractor by the driver. From the evidence, which has been led by the parties and the pleadings, the facts, which emerges is that the deceased was travelling in the Tractor alongwith another person namely Pappu Rai and the Tractor was being driven by one Beldaha Rai. Thus, there were three passengers including the driver, who was on the Tractor. From the evidence led, there is nothing to suggest that the Tractor was carrying any goods neither there is evidence to suggest that any trailer was attached with the said Tractor. The cover notes of the insurance policy, which is Ext.-2 suggests that only the driver and the owner of the vehicle was covered, for which premium was paid. No extra passenger was covered by the policy. Thus, there was violation of the condition of the policy as a passenger was travelling in the said Tractor and the said passenger was not covered under the policy.
15. The Hon'ble Supreme Court in the case of "Shivraj- versus- Rajendra and Another, reported in (2018) 10 SCC 432" was dealing with a case where the deceased was travelling in a Tractor. In the aforesaid case, the High Court concluded that the deceased was travelling in a Tractor in breach of terms and conditions of the policy therefore, the insurance company cannot be -5- made liable to compensate the owner or the claimants. After hearing the parties, the Hon'ble Supreme Court in Para-10 of the aforesaid judgment has held that neither there was any trailer attached with the Tractor nor any goods were being carried, the insurance company was not liable to indemnify the owner of the Tractor. It is necessary to quote Para-10 of the aforesaid judgment, which is as follows:-
"10. The High Court, however, found in favour of Respondent 2 (insurer) that the appellant travelled in the said tractor as a passenger which was in breach of the policy condition, for the tractor was insured for agriculture purposes and not for carrying goods. The evidence on record unambiguously pointed out that neither was any trailer insured nor was any trailer attached to the tractor. Thus, it would follow that the appellant travelled in the tractor as a passenger, even though the tractor could accommodate only one person, namely, the driver. As a result, the Insurance Company (Respondent 2) was not liable for the loss or injuries suffered by the appellant or to indemnify the owner of the tractor. That conclusion reached by the High Court, in our opinion, is unexceptionable in the fact situation of the present case."
The Hon'ble Supreme Court, thereafter, applied the principle of "pay and recover" considering the judgment of the Hon'ble Supreme Court in the case of "National Insurance Company Limited - Versus- Swarn Singh" and several other judgments.
16. I find that the case in hand, is covered by the aforesaid judgment and the finding of the Hon'ble Supreme Court. Thus, I allow this appeal and modify the award only to the extent by giving right of recovery to the appellant Insurance Company. The amount of compensation alongwith interest should be paid to the claimants within six weeks from today. The appellant insurance company will be at liberty to recover the same from the owner of the Tractor. The statutory amount deposited by the Insurance Company at the time of filing this appeal, should be refunded to the Insurance Company.
17. In view of the final order passed in the main appeal itself, I.A. No. 5713 of 2022, praying to stay of the operation of the Award, is rendered infructuous.
(Ananda Sen, J) Mukund/-cp.2