Jharkhand High Court
The Oriental Insurance Company Ltd vs Ajmat Ali on 15 February, 2022
Author: Ananda Sen
Bench: Ananda Sen
IN THE HIGH COURT OF JHARKHAND AT RANCHI
M.A No. 518 of 2016
The Oriental Insurance Company Ltd. .... .... Appellant(s).
Versus
1. Ajmat Ali
2. Sanjay Kumar Kedia
3. Devi Prasad Mandal .... .... Respondent(s)
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CORAM : HON'BLE MR. JUSTICE ANANDA SEN.
THROUGH : VIDEO CONFERENCING
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For the Appellant(S) : Mr. Manish Kumar, Advocate For the Respondent No. : Mr. S.K. Roy, Advocate For the Respondent NOs. 2 & 3: Mr. Deepak Kumar, Advocate
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10/15.02.2022 Heard the counsel for the parties.
2. This appeal has been filed by the Insurance Company challenging the part of the judgment and award passed by the District Judge-cum-Motor Accident Claim Tribunal, Giridih in Title (M.V) Suit No. 6 of 2009.
3. Learned counsel appearing on behalf of the appellant has raised only two grounds in this appeal. He submits that right to recover the amount of compensation should have been granted to the Insurance Company as there is violation of condition of Insurance Policy. He submits that the vehicle which met with accident resulting injury of the claimant is admittedly a goods carrying vehicle. He submits that from the evidence and the material on record it is clear that the injured claimant was travelling as a passenger in the goods carrying vehicle, that being so the liability should have been fastened upon the owner of the vehicle to pay the amount of compensation. He submits that the aforesaid issue has not been considered and decided at all by the Tribunal, thus the legitimate right of the Insurance Company to recover the amount from the owner of the vehicle was not granted. The second ground which has been raised by the Insurance Company is that the Insurance Company has received summon from the Tribunal only on 11.2.2014, thus interest should not have been directed to be paid from the date of filing of the claim application i.e 18.2.2009. He submits that at best the Insurance Company would have been directed to pay the amount of interest from February, 2014. He submits that from the fact that notice issued only in February, 2014 clearly suggests that there was delay on the part of the claimant in pursuing this claim application, thus they are not entitled to receive interest from the date of filing of this case i.e from 2009.
-2-4. Counsel appearing on behalf of the claimant submits that he has got no objection if the Insurance Company is given right to recover the amount from the owner of the vehicle. He submits that even if there is violation of condition of the policy and the claimant was a gratuitous passenger in a goods carrying vehicle, the primary duty is upon the Insurance Company to satisfy the award and thereafter proceed against the owner of the vehicle to recover the said amount. So far as the question of interest is concerned, he submits that the claim application was filed on 18.2.2009 and thus the interest was granted from the aforesaid date thus no fault can be found in the judgment passed by the Tribunal. He submits that there was no latches on the part of the claimant in pursuing this appeal.
5. Counsel appearing on behalf owner of the vehicle submits that since the injured was travelling with goods in a goods carrying vehicle, it is the Insurance Company who has to pay the amount as admittedly vehicle was duly insured by the Insurance Company. The owner of the vehicle should not be saddled with the liability to pay the compensation, when admittedly the vehicle was insured.
6. After hearing the parties I have gone through the impugned judgment and lower court record. The quantum is not under challenge. Factum of accident is also not under challenge. Considering the aforesaid I am not entering into those issues. Since a limited challenge has been made, only those are being dealt hereinafter. The first ground which the Insurance Company has taken is that the offending vehicle being a goods carrying vehicle and the injured was a gratuitous passenger, the "right to recover" should have been granted to the Insurance Company to recover the amount from the owner of the vehicle. To appreciate this issue I have gone through the claim application. In the claim application, the claimant, in paragraph no. 20 has described the manner how the accident had taken place. He has stated that on 9.5.2007 the claimants at about 5.45 in the evening along with his associates after paying hire charges travelled in the offending vehicle bearing No. JH 02H 5645. While the vehicle reached near Arkhango village the vehicle turned turtle as a result of which the claimant sustained injuries. His left leg got fractured. He was not in a position to work for one year thus he sustained pecuniary loss. An FIR was registered, which is Exhibit No.6. As per the FIR, I find that the author of the fardbeyan i.e informant stated that on 9.5.2007 he along with his associates boarded a tempo to go to Telaiya.
-3-Further it was mentioned that when he boarded the said tempo there was no other passengers but later on driver overloaded the tempo with passengers as a result of which tempo turned turtle resulting in injuries. The claimant was examined as witness no.1. In his evidence also he has stated that as he wanted to go to Telaiya, so he sat in the tempo which is the offending vehicle. Driver allowed other passengers to sit in the said vehicle, as a result of which the vehicle turned turtle and accident occurred. From the aforesaid facts which has been narrated by the claimant himself there in claim petition, FIR and his statement, while deposing as a witness nowhere he had stated that he was travelling in the vehicle along with his goods. From the statement it is clear that he boarded the tempo as a passenger. This fact clearly suggests that he was a passenger as it is evident that claimant himself has accepted that after he boarded the vehicle where there were several person as passenger. This fact suggests that the vehicle was being used as a passenger carrying vehicle. Now the question is what is the category of the vehicle. The Insurance Policy has been brought on record. The photocopy of the insurance policy is marked as Exhibit-X for identification before the Tribunal. This Insurance Policy has been relied upon by the Tribunal and by the parties also. Finding this Insurance policy to be valid the Tribunal saddled the liability upon the Insurance Company, thus this document which is marked as Exhibit -X is an admitted document and no one disputes the same.
7. When I go through this document, I find that this policy is for goods carrying commercial vehicle (other than three wheeler). Be it pertinent to mention that the vehicle which met with an accident was a four wheeler. Thus, from the Insurance Policy it is quite clear that vehicle which met with an accident is a goods carrying vehicle. From what has been discussed above the only conclusion which can be reached is that a goods carrying vehicle was being used as passenger carrying vehicle. This is a violation of condition of the policy.
8. Now the question under consideration is when there is a violation of condition of policy and a passenger is being carried in a goods carrying vehicle as gratuitous passenger what would be the consequence and who would be directed to pay the amount of compensation. This issue will be governed by the judgment of the Hon'ble Supreme Court in the case of Manuara Khatun & Ors. Vrs. Rajesh Kumar Singh & Ors. reported in (2017) 4 SCC 796.
-4-The Hon'ble Supreme Court in the aforesaid judgment has held that in this type of case it is the insurer who has to satisfied the award and the principle of "pay and recover" is applicable. It is necessary to quote paragraph no. 15 of the aforesaid judgment.
"15.This question also fell for consideration recently in National Insurance Co. Ltd. V. Saju P. Paul wherein this Court took note of entire previous case law on the subject mentioned above and examined the question in the context of Section 147 of the Act. While allowing the appeal filed by the insurance company by reversing the judgment of the High Court, it was held on facts that since the victim was travelling in offending vehicle as "gratuitous passenger"
and hence, the insurance company cannot be held liable to suffer the liability arising out of accident on the strength of the insurance policy. However, this Court keeping in view the benevolent object of the Act and other relevant factors arising in the case, issued the directions against the insurance company to pay the awarded sum to the claimants and then to recover the said sum from the insured in the same proceedings by applying the principle of "pay and recover"."
9. Thus applying the same principle which has been laid down by the Hon'ble Supreme Court, I hold that there was a violation of a fundamental condition of the Insurance Policy and the claimant was a gratuitous passenger in a goods carrying vehicle. In that scenario the Insurance Company has got right to recover the amount of compensation from the owner of the vehicle. The aforesaid issue was also raised by the Insurance Company before the Tribunal but the Tribunal passed an award ignoring the same. Thus in this case the Insurance Company is entitled to recover the amount from the owner of the vehicle.
10. So far as the challenge in respect of payment of interest is concerned, from the record of the Tribunal I find that the claim application was filed on 18.2.2009. Notices were issued but not served upon the Insurance Company. Considering the service report, the Tribunal on 16.9.2010 directed the claimant to file fresh requisites and take steps for service of notice upon the Insurance Company. Thereafter the steps were taken and requisites were filed but there was some error in the notice. The Tribunal thereafter on repeated occasions directed the claimant to rectify the notice but the same was not rectified. It was kept pending for long and only on 21.9.2013 the claimant rectified the defects and filed a proper notice. Thus, I find that for three years ie. from 16.9.2010 to 21.9.2013 the case got delayed just because of the latches of the claimant.
-5-Thus, this Court is of the view that claimant is not entitled for interest from 16.9.2010 to 21.9.2013 i.e for period of three years. The claimant is thus entitled to get interest from 18.2.2009 till 15.9.2010 and thereafter again from 22.9.2013 onwards. The interest should be calculated by the Insurance Company.
11. Thus, from what has been held above this appeal at the behest of the Insurance Company stands allowed.
12. The amount of compensation should be paid by the Insurance Company to the claimants and the Insurance Company will be at liberty to recover the same by due process of law from the owner of the vehicle. Further the amount of compensation will carry interest at the rate as has been fixed by the Tribunal in the award which would be calculated from the date of filing which is 18.2.2009 till 15.9.2010 and again from for the period 22.9.2013 till the amount is paid. It is expected that amount should be paid within a period of six weeks from today.
13. Statutory amount deposited by the Insurance Company at the time filing of this appeal should be refunded to the Insurance Company.
(ANANDA SEN , J) anjali/ C.P 3