Jharkhand High Court
Oriental Insurance Co. Ltd vs Babulal Singh Son Of Late Birju Singh on 6 December, 2022
Author: Ananda Sen
Bench: Ananda Sen
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
M.A. No. 288 of 2016
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Oriental Insurance Co. Ltd., Head Office-A-25/27, Asaf Ali Road, New
Delhi 110002, Issue Office Code 332902, Branch Office Dharmshala
Road, PO PS Daltonganj, District Palamau.
... Appellant
-versus-
1. Babulal Singh son of Late Birju Singh
2. Kismatiya Devi wife of Babulal Singh
Both residing at Village Charwadih, PO PS Manika, District Latehar.
3. Rajendra Bharti @ Dr. Rajendra Bharti son of late Ambika Bharti,
resident of PO PS Manika, District Latehar.
4. Dileshwar Singh son of Late Mahabir Singh, resident of Village
Bakoriya, PS PO Manika, District Latehar.
... Respondents
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CORAM : HON'BLE MR. JUSTICE ANANDA SEN
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For the Appellant : Mr. Alok Lal, Advocate
For the Respondent: Mr. Arun Kumar, Advocate
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ORDER
RESERVED ON 01.12.2021 PRONOUNCED ON 6.12.2022 This appeal is at the instance of the Insurance Company, challenging the award dated 29.01.2016 passed by the District & 2nd Additional Sessions Judge cum Motor Vehicle Accident Claim Tribunal, Latehar in M.V. Case No.29 of 2010.
2. Notices were validly served upon the owner and the claimants.
3. The only ground urged by the appellant-Insurance Company in this appeal is that admittedly, the deceased was travelling in a tractor, which is a goods carrying vehicle and not a passenger carrying vehicle. The deceased fell down from the tractor, thus, liability cannot be fastened upon the Insurance Company, rather should be fastened upon the owner of the tractor or in the alternative theory of pay and recover should have been applied.
4. As per the claimants, on 21.06.2009 at about 02.30 p.m. deceased Guddi Kumari was coming on a tractor belonging to Rajendra Bharti, sitting on its engine, but she fell down near village Sadhawadih and came under the wheel of the tractor bearing registration No. JH 01V 6403 and died on the spot. Manika Police Station Case No.41 of 2009 was registered for the said occurrence alleging offence punishable under Sections 279/304(A) of the Indian Penal Code wherein chargesheet was submitted against the driver of the offending vehicle.
25. The Insurance Company, the owner of the vehicle and the driver had appeared on notice and had filed their respective show cause before the Tribunal denying their liability to pay compensation.
6. Tribunal, on the basis of pleadings of the parties, had framed the following issues:-
(1) Whether the instant Claim application u/s 166 M.V. Act, 1988, as filed on behalf of the present claimants Babulal Singh and others in the present form, is maintainable?
(2) Whether the valid cause of action accrued in favour of the present claimants Babulal Singh and others for grant of compensation arising out of death of Guddi Kumari, who died in a motor accident as took place on 21.06.2009 at village Sadhwadih within P.S. Manika, District Latehar for which Manika P.S. Case No.41/09 i.e. U/s 279, 304(A) of I.P.C. was registered against the driver of the offending vehicle i.e. tractor JH-01V-6403?
(3) Whether the accident as alleged took place i.e. due to rash and negligent driving of the driver of offending vehicle i.e. tractor bearing registration no. JH-01V-6403? (4) Whether the driver namely Dileshwar Singh, O.P. No.3 was holding a valid and effective driving license at the time of accident as took place on 21.06.09? (5) Whether the offending vehicle tractor bearing registration No. JH-01V-6403 which was driving by its driver Dileshwar Singh and was insured with a valid and effective insurance policy issued by O.P. No.1 The Oriental Insurance Co. Ltd and other vehicular documents of the offending vehicle were proper and effective at the time of accident took place on 21.06.09? (6) Whether the terms and condition of the aforesaid insurance policy has been violated or not? (7) What was the age and income of the deceased Guddi Kumari i.e. at the time of accident as took place on 21.06.09?
(8) Whether the claimants are entitled to get compensation as prayed for, if yes, then what amount of compensation and from whom of the O.Ps?
(9) What other relief/relieves present claimants are entitled to receive?
5. The claimants, in support of their claim had examined two witnesses, namely, C.W.1 Babulal Singh and C.W.2 Hardayal Singh. The 3 following documents were also marked exhibits at the instance of the claimants:-
Ext. 1 Certified copy of F.I.R.
Ext.2 Certified copy of charge-sheet Ext. 3 Xerox copy of Postmortem report Ext.4 Xerox copy of certificate of registration of vehicle No. JH 01V 6403 Ext.5 Xerox copy of driving license of O.P. No.3 Dileshwar Singh Ext.6 Xerox copy of Insurance Certificate issued by the Oriental Insurance Co. Ltd. for the vehicle No. JH 01V 6403.
6. The Tribunal after adjudicating the issues framed on the basis of the evidence, both oral and documentary, on record, has decided the claim application in favour of the claimants. The Tribunal directed opposite party No.1 to pay compensation of Rs.2,60,000/- (Rupees Two Lakh Sixty Thousand) along with interest at the rate of 6% per annum from the date of accident, i.e., from 21.06.2009 in favour of the claimants within 90 days, failing which rate of interest shall be calculated at the rate of 9% per annum after lapse of 90 days.
7. The Insurance Company has challenged the aforesaid award in this appeal before this Court only on the ground that admittedly, the deceased was travelling in a tractor, which is a goods carrying vehicle and not a passenger carrying vehicle. The deceased fell down from the tractor, thus, liability cannot be fastened upon the Insurance Company, rather should be fastened upon the owner of the tractor or in the alternative theory of pay and recover should have been applied.
8. From the evidence led by the parties and from the findings arrived by the Tribunal, it is clear that the deceased was travelling in the tractor which is a goods carrying vehicle. Thus, the deceased was a gratuitous passenger. This finding has not been challenged either by the owner or by the claimants by filing any other appeal or in this appeal. The fact that the vehicle was insured at the time of accident with the appellant is also an admitted fact.
9. From the award, I find that right to recover has not been granted in favour of the appellant-Insurance Company thus, interest of the Insurance Company not been protected. In the case of Manura Khatun & Others versus Rajesh Kumar Singh & Others reported in (2017) 4 SCC 796, which was dealing with the gratuitous passengers, the Hon'ble Supreme Court has 4 considered several earlier judgments of Hon'ble Supreme Court and has directed the Insurance Company to pay the amount of compensation and recover the same from the owner. In this case also the deceased was gratuitous passenger and the vehicle was duly insured with the Insurance Company. Relying upon the aforesaid judgment of the Hon'ble Supreme Court, I am of the opinion that right to recovery ought to have been granted by the Tribunal in favour of the Insurance Company. Accordingly, the impugned award dated 29.01.2016 passed by the District & 2nd Additional Sessions Judge cum Motor Vehicle Accident Claim Tribunal, Latehar in M.V. Case No.29 of 2010 is modified to the extent that Insurance Company shall have the right to recover the amount of compensation paid by it to the claimants, from the owner of the vehicle.
10. This appeal is, accordingly, allowed to the aforesaid extent. The statutory amount deposited by the appellant-Insurance Company at the time of filing of this appeal shall be refunded to the Insurance Company.
(Ananda Sen, J.) Kumar/Cp-02