Jharkhand High Court
New India Assurance Company Limited vs (1) Mohan Singh on 17 November, 2022
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
M.A.No.408 of 2014
IN THE HIGH COURT OF JHARKHAND AT RANCHI
M.A. No.408 of 2014
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(Against the Judgment and Award dated 09.05.2014 passed by Learned District Judge-III-cum-M.V.A.C.T., Jamshedpur, passed in Compensation Case No.88 of 2012)
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New India Assurance Company Limited, office at 1st Floor, Kamani Centre, Bistupur, P.O. & P.S. Bistupur, Jamshedpur, District- East Singhbhum represented through its Divisional Office No. 1, P.P. Compound, P.O. Ranchi, P.S. Chutia, District- Ranchi.
.... .... Appellant/ Opp. Party No.1
Versus
(1) Mohan Singh, Son of Late Yudhishthir Singh, Dependent
Father of deceased Tapan Singh, Resident of Village- Jharia, P.O. Bhatin, P.S. Potka, District- East Singhbhum.
.... .... Respondent/Claimant (2) Swapan Kumar Mahto, Son of Sri Bhut Nath Mahto, Resident of Village- Asanbani, Tola Phadlogoda, Kanderbera, P.O. & P.S. Chandil, District- Seraikela Kharsawan.
(3) Kailash Prasad Kumbhakar, Son of Nitai Chandra Kumbhakar, Resident of Village- Sushni, P.O. & P.S. Bodam, District- East Singhbhum.
.... ....Respondents/Opp. Parties
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For the Appellant : Mr. Manish Kumar, Advocate
For the Respondents : Mr. Atanu Banerjee, Advocate
PRESENT
HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
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I.A. No.7987 of 2022
Heard the parties.
2. Learned counsel for the legal representatives of deceased respondent No.1/claimant submits that this interlocutory application has 1 M.A.No.408 of 2014 been filed with a prayer for substituting the legal heirs of the deceased respondent No.1/claimant namely Mohan Singh who died on 16.12.2016 leaving behind his brother namely Jagat Singh as his sole legal representative. It is next submitted that the sole legal representative of respondent No.1-claimant namely Mohan Singh had no idea about the status of this appeal. Hence, he could not take steps for his substitution in place of respondent No.1. It is next submitted that unless the delay in filing the petition for substitution is condoned and abatement, if any is set aside, the appellants will be highly prejudiced.
3. Considering the aforesaid facts, the delay in filing the petition for substitution is condoned, abatement if any is set aside and the prayer for substitution of the only one legal representative of the deceased respondent No.1-claimant namely Mohan Singh, as prayed for, is allowed.
4. Mr. Atanu Banerjee & Associates have filed power on behalf of the respondent No.1 (a)-claimant No.1 (a).
5. Registry is directed to incorporate the name of Jagat Singh as the sole legal representative of the deceased respondent No.1-claimant namely Mohan Singh as respondent No.1 (a)-claimant No.1 (a) and to mention the word 'Dead' against the name of respondent No.1-claimant namely Mohan Singh with red ink in the cause title of the appeal memo.
6. This interlocutory application stands allowed.
(Anil Kumar Choudhary, J.) By the Court: - Heard the parties.
2. This Miscellaneous Appeal has been preferred against the Judgment and Award dated 09.05.2014 passed by Learned District Judge-III-cum- M.V.A.C.T, Jamshedpur, passed in Compensation Case No.88 of 2012 whereby and where under the learned tribunal has awarded a total sum of Rs.3,39,000/- less Rs.50,000/- as already paid under Section 140 of the M.V. Act along with interest @ 9% per annum.
3. The brief fact of the case is that the deceased- Tapan Singh on 24.05.2011 at 11:30 p.m was travelling in the offending truck along with other labourers who were working at Bhutnath Crusher. After unloading 2 M.A.No.408 of 2014 of the crushed materials the offending truck was returning back for the next trip. The truck got struck in the mud and while under the direction of the driver of the truck, the deceased and other labourers were trying to get the truck out of the mud and in the process, all of a sudden the truck turned over the deceased- Tapan Singh who was on the paddy field helping the labourers to push the truck out and Tapan Singh died on the spot in the accident caused due to negligent driving of the driver of the vehicle.
4. Before the tribunal, the opposite party No.1-New India Assurance Company challenged the maintainability of the claim application on various technical grounds and inter alia contended that the deceased was travelling as a gratuitous passenger in the truck and as the offending truck is a goods carrier vehicle meant for carrying goods only, hence, the Insurance Company is not liable to pay the compensation as the policy does not cover carrying of gratuitous passenger in goods vehicle.
5. The owner and driver of the offending truck being the opposite party Nos.2 and 3 filed their joint written statement challenging the maintainability of the claim application. They pleaded that the accident did not occur because of rash and negligent driving of the driver of the vehicle but the accident occurred because of the negligence on the part of the deceased himself. It was further pleaded that since the offending vehicle was insured with New India Assurance Company Limited, hence, the insurance company is liable to pay the compensation if any, in respect of the said accident
6. On the basis of the rival pleadings of the parties, the learned tribunal framed the following six issues:-
(I) Whether claimant has any cause of action or right to sue and is this case maintainable?
(II) Whether accident took place due to rash and negligent driving by the driver of vehicle- Truck No. JH-05B-5938?
(III) Whether deceased died due to Motor Vehicle Accident? (IV) Whether vehicle was duly insured with OP New India Assurance Co. Ltd and is there any violation of contract between the insurer and insured?
(V) Whether claimant is entitled to receive the compensation amount and if so, what should be quantum of compensation?3 M.A.No.408 of 2014
(VI) Whether claimant is entitled to get any relief or reliefs as claimed by him?
7. The learned tribunal considered the oral testimonies of two witnesses namely Mohan Singh and Kachu Singh examined on behalf of the claimants and the documents which have been marked Ext. 1 to 4 including Ext. 2 and 3 respectively which are the certified copy of the F.I.R. and charge-sheet respectively. The learned tribunal first took up issue Nos.(II), (III) together and by observing that the F.I.R. was not compendium of occurrence, held that the deceased was the representative of the owner of the stone chips. The tribunal came to the conclusion that the deceased died in a road accident which was caused by rash and negligent driving of the driver of the truck.
8. Thereafter, the tribunal took up issue No. (IV) and came to the conclusion that the offending vehicle was insured with the opposite party No.1- Insurance Company and decided this issue in favour of the applicant.
9. Thereafter, the tribunal took up issue No.(I) and held that the claim case is maintainable and there is valid cause of action for filing the claim case and decided this issue in favour of the applicant.
10. Then, the tribunal took up issue No. (V) and after considering the evidence in the record assessed the income of the deceased to be Rs.3,000/- per month and by considering that the deceased was unmarried, deducted 50% of the income of the deceased towards personal expenses and by applying the multiplier of 18, granted a total compensation of Rs.3,39,000/- but as Rs.50,000/- was already paid under Section 140 of M.V. Act so, awarded the net compensation of Rs.2,89,000/-, after deducting ₹ 50,000/- from the said total compensation amount.
11. Lastly, the tribunal took up issue No.(VI) and held that the applicants are entitled for the compensation amount not from the date of order but from the date of filing of this claim and awarded simple interest @ 9% from the date of filing of the claim petition and accordingly awarded the said compensation.
12. Mr. Manish Kumar- learned counsel for the appellant submits that 4 M.A.No.408 of 2014 the tribunal erred by not relying upon the contents of the F.I.R. which was filed and proved by the claimant themselves and wherein it has been mentioned that several persons were travelling in the said truck hence all of them cannot be representatives of the onus of the goods as held by the tribunal and in this respect relies upon the judgment of the Hon'ble Supreme Court of India in the case of National Insurance Company Limited vs. Rattani and Others reported in (2009) 2 SCC 75 para-13 of the said judgment reads as under:-
"13. Furthermore in their depositions the witnesses examined on behalf of the claimants themselves stated that about 30-40 persons were travelling in the tempo truck. All 30-40 persons by no stretch of imagination could have been the representatives of the owners of goods, meaning thereby, the articles of gift."
and submits that as several persons were admittedly travelling in the said truck so all these persons could not have been said to be the representative of the owners of the goods more so when it is the case of the claimants themselves in the claim application is that at the time of accident there was no material in the truck and the material carried on by the truck was already unloaded.
13. Mr. Manish Kumar next submits that in the F.I.R. itself which was marked as Ext. 2 it has been categorically mentioned therein that the deceased was travelling in the truck and the truck turned turtle because of rash and negligent driving of the driver of the offending truck and the deceased- Tapan Singh died due to being crushed in the truck. It is next submitted that Ext. 3 which is the charge-sheet submitted by the police after due investigation of the case also shows that the deceased was travelling in the said truck from the crusher to village Dongagal and on the way the truck turned turtle because of rash and negligent driving of the driver of the vehicle and the deceased was crushed under the said truck. It is next submitted that it is a settled principle of law that the contents of the F.I.R. and charge-sheet will prevail over the oral testimony of the witnesses examined in the matter of motor vehicle accident claim case. Hence, it is submitted that as the deceased was travelling as a gratuitous passenger in violation of the terms and conditions of the policy issued by the appellant- Insurance Company in favour of the owner of the 5 M.A.No.408 of 2014 vehicle/respondent opposite party No.2- Swapan Kumar Mahto. Hence, the impugned judgment and award be modified by absolving the Insurance Company of the liability to pay the compensation amount and instead the owner of the vehicle being the respondent/opposite party No.2 be directed to pay the compensation.
14. Mr. Atanu Banerjee- learned counsel for the respondent No.1 on the other hand stoutly defends the impugned judgment and award and submits that the tribunal has rightly observed that the F.I.R. is not the compendium of the occurrence and as in their oral testimony, the two witnesses examined by the claimant have categorically stated that the deceased died accidentally being ran over by the offending truck while the driver of the truck was trying to bring out the truck from the mud where it was struck. Hence, the tribunal has rightly saddled the appellant- Insurance Company with the liability to pay the compensation amount. It is therefore submitted that this appeal, being without any merit, be dismissed.
15. Having heard the rival submissions made at the Bar and after going through the materials in the record, the sole point for determination which crop up for determination in this appeal is:-
"Whether this is a fit case where the appellant-Insurance Company be absolved of the liability to pay the compensation amount and if yes then who is to pay the compensation amount?"
16. It is pertinent to mention here that it is a settled principle of law that the factum of an accident could also be proved from the First Information Report. It is also to be noted that once a part of the contents of the document is admitted in evidence, the party bringing the same on record cannot be permitted to turn around and contend that the other contents contained in the rest part thereof had not been proved as has been held by the Hon'ble Supreme Court of India in the case of Oriental Insurance Company Limited Vs. Premlata Shukla and Others, reported in (2007) 13 SCC 476 para -13 and 14 of which read as under:-
13. However, the factum of an accident could also be proved from the first information report. It is also to be noted that once a part of the contents of the document is admitted in evidence, the party bringing the same on record cannot be permitted to turn round and contend that the other contents contained in the rest part thereof had not been proved. Both the parties have 6 M.A.No.408 of 2014 relied thereupon. It was marked as an exhibit as both the parties intended to rely upon them.
14. Once a part of it is relied upon by both the parties, the learned Tribunal cannot be said to have committed any illegality in relying upon the other part, irrespective of the contents of the document having been proved or not. If the contents have been proved, the question of reliance thereupon only upon a part thereof and not upon the rest, on the technical ground that the same had not been proved in accordance with law, would not arise. (Emphasis supplied)
17. Now, coming to the facts of the case, both in the F.I.R. as well as in the charge-sheet which was relied upon by the claimants and filed as well as proved from the side of the claimants as Ext. 2 and 3 respectively, it has categorically been mentioned that the deceased was travelling in the truck and while the said truck was being driven rashly and negligently, the said truck turned turtle and the deceased was crushed under the truck resulting in his death subsequently. Under such circumstances and in view of the settled principle of law, the learned tribunal certainly erred by not relying upon the contents of the F.I.R. and not considering the charge- sheet which is contrary to the assumption made by the tribunal that the deceased was the representative of the owner of the stone chips, more so because it is the case of the claimant that nothing was loaded in the truck at the time of the accident. This Court has used the word 'assumption' because it is neither the case of the claimants in the claim petition nor the statement of the witnesses who have been examined in this case that the deceased was representative of the owner of the stone chips. Under such circumstances, this Court is of the considered view that the tribunal erred by making out a third case and holding that the deceased was the representative of the owner of the stone chips more so when it is not the case of even the claimants or the opposite parties. It is needless to mention that the contents of the F.I.R. and the charge-sheet which have been marked as Exts. 2 and 3 goes to show that the deceased was travelling as a gratuitous passenger, in the offending truck. Hence, this Court is of the considered view that the appellant- Insurance Company is not liable to pay the compensation amount and instead of the Insurance Company, it is the owner of the vehicle being the respondent-opposite party No.2- 7 M.A.No.408 of 2014 Swapan Kumar Mahto who has to pay the compensation amount, because the deceased was travelling as a gratuitous passenger in the offending truck.
18. In view of the principle of law settled by the Hon'ble Supreme Court of India in the case of Manuara Khatun & Ors. vs. Rajesh Kr. Singh & Ors., reported in (2017) 4 SCC 796, para-21 & 22 of which reads as under:-
"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."
This Court is of the considered view that since the insurance policy is not under dispute hence, the appellant-Insurance Company be directed first to pay the awarded sum to the claimants and then to recover such amount paid by it to the claimants, from the owner of the said offending truck bearing registration No. JH-05B-5938 in execution proceeding arising in the same case as laid down in para -26 of Manager, National Insurance Company Limited v. Saju P. Paul & Anr.,reported in (2013) 2 SCC 41.The sole point for determination is answered accordingly.
19. In view of the discussions made above, the impugned Judgment and award is modified by directing the appellant-Insurance Company to pay the compensation amount awarded by the learned tribunal first to the claimants and then to recover the paid awarded amount from the owner of the offending truck, who is the respondent/opposite party No.2 namely Swapan Kumar Mahto in execution proceeding arising in the very same case as per the law laid down in para-26 in the case of Manager, National 8 M.A.No.408 of 2014 Insurance Company Limited v. Saju P. Paul & Anr. (supra).
20. Let a copy of this Judgment along with the Lower Court Records be sent back to the learned tribunal forthwith.
21. The Registrar General of this Court is directed to remit the statutory amount, if any, deposited by the appellant in this Court in connection with this appeal, to the concerned Motor Vehicle Accident Claims Tribunal by appropriate mode.
22. In the result, this appeal is disposed of with the aforesaid modification of the judgment and award.
(Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 17th of November, 2022 AFR/ Animesh 9