Opp. Party No. 1/ vs Jambi Haiburu on 13 September, 2022

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Jharkhand High Court

Opp. Party No. 1/ vs Jambi Haiburu on 13 September, 2022

2. This appeal has been preferred by the appellant against the Award/ Judgment dated 02.07.2016, passed by learned District Judge- cum-Presiding Officer, M.A.C.T., West Singhbhum in Motor Accident Claim Case No. 29 of 2012.

3. As per the factual matrix, on 20.02.2009 at about 01:30 pm the offending vehicle (Tractor and Trailor) bearing Reg. No. JH-01J-8370 and JH-01J-5818 loaded with bricks came from Nakti and stopped near a School and as per order of opposite party No. 3, one Ram Haiburu, aged about 7 years along with other children boarded on the vehicle and then driver of the offending vehicle began to drive very rashly and negligently towards Nachalda and fell down on the left side of the field, due to which the applicant's son, Ram Haiburu crushed under the tractor and died on the spot. In respect of the aforesaid accident, an FIR was lodged by Bahta Haiburu bearing Bandgaon (Karaikela) P.S. Case No. 07/2009 dated 21.02.2009, u/s. 279, 304(A) of IPC against the driver of the offending vehicle and charge-sheet was also submitted against the driver, Opp. Party No. 3.

On notice, Opposite Party No. 1, Insurance Co. appeared before the learned Tribunal by filing its written statement. However, inspite of service of notice, Opposite Party No. 2 (owner of the offending vehicle) and opposite party No. 3 (driver of the offending vehicle) did not appear in the Court and hence, the case was proceeded exparte against those opposite parties vide order dated 03.07.2015.

The opposite party No. 1/ appellant (Insurance Co.) contested the case before the learned Tribunal and stated that the claim of the applicant is not maintainable. It has been further pleaded that as per FIR, the driver of the offending vehicle was negligent at the time of alleged accident because he allowed the children to climb-up the truck and thereafter, he started driving the vehicle rashly and negligently, as a result of which, the deceased Ram Haiburu, aged about 7 years fell down on the left side of the vehicle and was allegedly crushed by the loaded tractor, which caused his death. It has also been pleaded that the claimant has received interim award of Rs.50,000/- from this opposite party No. 1, Insurance Co. and the amount of compensation as claimed by the 3 claimants is exorbitant and without any basis. As such, the claim petition is not maintainable against the opposite party No. 1, which is fit to be dismissed.

Learned Tribunal, on perusal of the documents brought on record and after hearing counsel for the parties and upon going through the written statement as well as other documents framed following issues for proper and just adjudication of the case:-

i) Whether the present claim case is not maintainable in its form?

ii) Whether claimants have got no valid cause of action for the present case?

iii) Whether the deceased Ram Haiburu died in a motor vehicle accident?

iv) Whether the accident took place due to the rash and negligent driving of the driver of offending vehicle/ tractor No. JH-01J-5818?

v) Whether the offending vehicle was duly insured with the United Insurance Co. Ltd. at the time of accident?

vi) Whether the owner of the offending vehicle has violated the terms and conditions of Insurance Policy and Insurance Co. is not liable to indemnify the insured?

vii) Whether the claimants are entitled to get compensation amount in this case, if so, up-to what extent and by whom?

4. Learned Court below after hearing the parties and after perusing the exhibited documents and oral evidences, elaborately dealt the issues framed and thereafter, found that the claimants are entitled to receive compensation amount. Resultantly, the learned Tribunal awarded a sum of Rs.2,00,000/- along with interest @ 6% per annum from the date of filing of claim application till its realization, as compensation to be paid by the Insurance Co. to the claimants.

5. The correctness of the said order has been challenged in this appeal by appellant-Insurance Co.

6. Mr. Ganesh C. Jha, learned counsel appearing for the appellant- Insurance Co., assailing the judgment of the learned Court below argues that the manner in which the learned Tribunal conducted, assessed and computed the awarded amount is against the provisions of Motor Vehicle Act, 1988 and rules thereof. Learned counsel further argues that the Tractor was insured under "Farmers Package Policy" and as per FIR, charge-sheet and claim application, the said Tractor was engaged for commercial activity and bricks were loaded in the said Tractor for transportation, which is beyond the coverage of Insurance Policy. Learned counsel further argues that the status of the deceased is of gratuitous passenger, for which protection under Section 147 of the M.V. Act, 1988 is not available. Learned counsel further argues that the Tractor is a single capacity vehicle and the other occupants on it are "Gratuitous Passengers", who do not come under the purview of insurance policy. Learned counsel accordingly submits that for the aforesaid facts and circumstances, the appellant-Insurance Co. cannot be held liable to pay any compensation for "Gratuitous Passengers", rather, the owner of the offending vehicle can be held liable to pay compensation, if any, awarded by the learned Court below.

7. On the other hand, learned counsel appearing for the respondent Nos. 2 and 3 vehemently opposes the contention of the learned counsel for the appellant-Insurance Co. and submits that there is no violation of the terms and conditions of opposite party No. 1-Insurance Co. and driver of the offending vehicle has a valid and effective driving license and the offending vehicle was insured with the opposite party No. 2 at the relevant time. It has been further argued that since the driver has been acquitted in the criminal case vide judgment dated 29.11.2012, it can be safely argued that there was no negligent on the part of the driver of the offending vehicle. Since there was no violation of terms and conditions of the policy on behalf of the opposite party No. 1 and no evidence oral or 5 documentary has been adduced and since vehicle is insured with the Insurance Co., the liability has rightly been fastened on the Insurance Co. to pay the entire amount of compensation. Arguments of the learned counsel for the Insurance Co. is not in consonance with the settled principle of law and is fit to be turned down.

8. Earlier by the direction of this Court, the lower court records were called for and the same is on board. It appears from the records that the driver of the offending vehicle has allowed the children to climb-up on the bricks loaded on the truck and suddenly started driving negligently and rashly, causing such occurrence and as such, there is violation of terms and conditions of the Insurance Policy. The said facts have not been considered by the learned Tribunal that the policy was Farmers Package Policy for issued agricultural use and forestry purpose and as such, the entire liability is on the owner of the vehicle.

9. The issue of Gratuitous Passengers fell for consideration before the Hon'ble Apex Court in case of Manuara Khatun v. Rajesh Kr. Singh, reported in (2017) 4 SCC 796, wherein the Hon'ble Court has held as under:

"13. The only question, which arises for consideration in these appeals, is whether the appellants are entitled for an order against the insurer of the offending vehicle i.e. (Respondent 3) to pay the awarded sum to the appellants and then to recover the said amount from the insured (owner of the offending vehicle Tata Sumo) Respondent 1 in the same proceedings.

14. The aforesaid question, in our opinion, remains no more res integra. As we notice, it was the subject-matter of several decisions of this Court rendered by three-Judge Bench and two-Judge Bench in the past viz. National Insurance Co. Ltd. v. Baljit Kaur [National Insurance Co. Ltd. v. Baljit Kaur, (2004) 2 SCC 1 : 2004 SCC (Cri) 370] , National Insurance Co. Ltd. v. Challa Upendra Rao [National Insurance Co. Ltd. v. Challa Upendra Rao, (2004) 8 SCC 517 : 2005 SCC (Cri) 357] , National 6 Insurance Co. Ltd. v. Kaushalaya Devi [National Insurance Co. Ltd. v. Kaushalaya Devi, (2008) 8 SCC 246 : (2008) 3 SCC (Cri) 467] , National Insurance Co. v. Roshan Lal [National Insurance Co. Ltd. v. Roshan Lal, (2017) 4 SCC 803] and National Insurance Co.

Ltd. v. Parvathneni [National Insurance Co. Ltd. v. Parvathneni, (2009) 8 SCC 785 : (2009) 3 SCC (Civ) 568 : (2009) 3 SCC (Cri) 943] .

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21. In view of the foregoing discussion, we are of the view that the direction to United India Insurance Co. Ltd. (Respondent 3) -- they being the insurer of the offending vehicle which was found involved in causing accident due to negligence of its driver needs to be issued directing them (United India Insurance Co. Ltd. Respondent 3) to first pay the awarded sum to the appellants (claimants) and then to recover the paid awarded sum from the owner of the offending vehicle (Tata Sumo) Respondent 1 in execution proceedings arising in this very case as per the law laid down in para 26 of Saju P. Paul case [National Insurance Co. Ltd. v. Saju P. Paul, (2013) 2 SCC 41 : (2013) 1 SCC (Civ) 968 : (2013) 1 SCC (Cri) 812 : (2013) 1 SCC (L&S) 399] quoted supra.

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."

10. It is admitted position that accident took place and the vehicle was insured with the Insurance Co., which is not denied. This Court is in full agreement with the order passed by the learned Tribunal so far as compensatory amount is concerned but since it has been proved that 7 driver of the offending vehicle was driving the vehicle negligently and rashly and further, the status of the deceased was Gratuitous Passenger the impugned order dated 02.07.2016 is modified to the extent that the Appellant-Insurance Co. shall pay the awarded amount to the Claimant- Respondents with liberty to recover the same from the Owner of the offending vehicle (respondent No. 4) following the procedure of law.

11. The appellant-Insurance Co. is permitted to withdraw the statutory amount, if any, deposited with the learned Registrar General of this Court, after furnishing proper application, in accordance with law.

12. Resultantly, the instant Misc. Appeal stands disposed of.

13. Office is directed to send the LCR to the Court concerned at the earliest.

14. Needless to say, if already amount has been paid, the same is not required to be paid again and if any cheque is lying with the executing Court, deposited earlier, the same may be returned to the appellant- Insurance Co. for depositing fresh cheque. The amount of statutory interest shall be considered @ 7.5% per annum from the date of filing of the claim application till the date of realization of the awarded amount.

(Dr. S.N. Pathak, J.) kunal/-

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Jharkhand High Court