Jharkhand High Court
Divisional Manager vs Turi Majhiyan @ Turi Tudu on 20 April, 2023
Author: Kailash Prasad Deo
Bench: Kailash Prasad Deo
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Civil Miscellaneous Appellate Jurisdiction)
Miscellaneous Appeal No. 130 of 2018
Divisional Manager, Bajaj Allianz General Insurance Co. Ltd., 5th Floor,
Mahavir Tower, P.O. Ranchi G.P.O., P.S. Main Road, District Ranchi.
..... ...... Appellant
Versus
1. Turi Majhiyan @ Turi Tudu
2. Ubit Manjhi
3. Malati Majhiyan
4. Nirmal Tudu
5. Sanaka Tudu
6. Permanent Fincon Private Limited .... .... Respondents
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CORAM : HON'BLE MR. JUSTICE KAILASH PRASAD DEO
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For the Appellant : Mr. Alok Lal, Advocate
For the Respondent-Owner : Mr. Rahul Kumar, Advocate
For the Respondents-Claimants: Md. Zaid Ahmed, Advocate
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The matter is being taken up through Video Conferencing. Learned counsel for the parties have no objection with it and submitted that audio and video qualities are good.
Order No.08/Dated: 20th April, 2023 Heard, Mr. Alok Lal, learned counsel for the appellant, Mr. Rahul Kumar, learned counsel for the respondent-owner and Md. Zaid Ahmed, learned counsel for the respondents-claimants.
Mr. Alok Lal, learned counsel appearing on behalf of the appellant- Bajaj Allianz General Insurance Co. Ltd. has submitted that the impugned award passed on 25.11.2017 by the learned District Judge-III-cum- Presiding Officer, Motor Vehicle Accident Claims Tribunal Dhanbad in Title (MV) Suit No. 46 of 2016 is bad in law and fit to be set-aside on the ground that the owner has entered into contract of insurance policy with Bajaj Allianz General Insurance Co. Ltd. vide policy No. OG-16-2401-0410-00000005 for the period from 13.04.2015 to 12.04.2016, which was Contractor's Plant and Machinery Policy with respect to 3rd party insurance to the tune of limited liability up to Rs.2,06,000/-.
Learned counsel for the appellant has thus submitted that this policy is never come under the Motor Vehicle Act and thus the claim application is not maintainable with regard to the accident as the insurer has only given coverage to the Contractor's Plant and Machinery not to the third party victim. Learned counsel for the appellant has further submitted that this has been submitted in the written statement and the issue No.5 was framed by the learned Tribunal i.e. whether the offending vehicle was insured with -2- defendant No.2 and other valid papers at the time of alleged accident? The learned Tribunal has given finding with respect to the issue No.5 that the vehicle was insured for that period.
Learned counsel for the appellant has further submitted that Exhibits-A, B and C adduced by the appellant-Bajaj Allianz General Insurance Co. Ltd. before the learned Tribunal have not been appreciated by the learned Tribunal and thus came to a wrong finding. He has further submitted that so far the quantum of compensation is concerned, even if it is considered to be a valid policy then also the insurance company has only liability to indemnify the award up to Rs.2,06,000/-, the balance amount is to be paid by the owner of the offending vehicle and, as such, the impugned award is bad in law. He has further argued that the learned Tribunal has given the right of recovery to recover the same from the owner of the vehicle after indemnifying the award but the Insurance Company has to prove that insured has violated the terms and conditions of the policy. Learned counsel for the appellant has thus submitted that the terms and conditions ought to have been clarified that if the quantum of award is more than the insurance policy given to the insured, then also such recovery may be given.
Learned counsel for the appellant has further submitted that insurance company is only liable to indemnify the sum assured, the balance to be paid by the owner of the vehicle, which has not been considered by the learned Tribunal.
Mr. Rahul Kumar, learned counsel appearing on behalf of the respondent No.6- Permanent Fincon Private Limited, the owner of the offending vehicle bearing registration No. JH-10AU-0639 has submitted that contention of the appellant-Bajaj Allianz General Insurance Co. Ltd. is not tenable. Learned counsel has further submitted that under sub-section (28) of Section 2 of the Motor Vehicle Act, 1988, JCB has been considered to be a Motor Vehicle and the learned Tribunal has rightly placed reliance upon the judgment passed by the Hon'ble Himanchal Pradesh High Court, Shimla in the case of National Insurance Co. Ltd. Vs. Sharda Devi & Ors. reported in 2017 ACJ 181 and the judgment passed by the Hon'ble Delhi High Court in the case of Bajaj Allianz General Insurance Co. Ltd. Vs. Ram Avtar Yadav & Ors. reported in 2014 ACJ 2855 and thus the contention that JCB is not a motor vehicle is completely misconceived the fact by the appellant-Bajaj Allianz General Insurance Co. Ltd.
-3-Learned counsel for the respondent-owner has placed reliance upon the issue No.5 decided at paragraph No. 13 of the impugned award and submitted that the learned Tribunal after discussing all the materials and exhibits has considered that the vehicle was duly insured at the time of accident.
Learned counsel for the respondent-owner has thus submitted that the the right of recovery has already granted in favour of Insurance Company, against which, owner of the vehicle has not preferred any appeal and, as such, this Court may simply dismiss the instant Miscellaneous Appeal without interfering with the finding recorded by the learned Tribunal.
Learned counsel for the respondent-owner has further submitted that once a vehicle is registered and certificate of registration is being issued, it itself connotes that it is for the vehicle not for any other purposes and thus the argument advanced by the appellant is not maintainable and, as such, this Court may not interfere with the impugned award passed by the learned Tribunal rather the miscellaneous appeal may be dismissed.
Mr. Zaid Ahmed, learned counsel appearing on behalf of the respondents-claimants has submitted that much thing have been argued by the appellant-Bajaj Allianz General Insurance Co. Ltd. against the owner of the vehicle though the right of recovery has been granted in favour of the appellant- Bajaj Allianz General Insurance Co. Ltd. and thus in a legal battle between the Insurance Company and the mighty owner the victims are dragged in such case since the date of accident i.e. 27.09.2015 till today for approximately 8 years and, as such, this Court may direct the learned Tribunal to be conscious in future and decide the Motor Claim Cases within 90 days from the date of filing of the claim application.
After hearing the learned counsel for the parties and taking note of the submissions made by the learned counsel for the parties, it appears that JCB was covered under the Insurance Policy vide Policy No.OG-16-2401- 0410-00000005 for the period from 13.04.2015 to 12.04.2016 and thus the date of occurrence which is 27.09.2015 covered under the policy. The contention, which has been raised by the learned counsel for the appellant- Bajaj Allianz General Insurance Co. Ltd. that the vehicle was insured as Contractor's Plant and Machinery Policy and, as such, accident to the 3 rd party will not come under the coverage of policy. This contention is fallacy under sub section (28) of Section 2 of the Motor Vehicle Act, 1988 which -4- reads as follows:
"(28) "motor vehicle" or "vehicle" means any mechanically propelled vehicle adapted for use upon roads whether the power of propulsion is transmitted thereto from an external or internal source ande includes a chassis to which a body has not been attached and a trailer; but does not include a vehicle running upon fixed rails or a vehicle of a special type adapted for use only on a factory or in any other enclosed premises or a vehicle having less than four wheels fitted with engine capacity of not exceeding [twenty five centimeters;"
Learned counsel for the respondents-claimants has submitted that the judgment passed by the Hon'ble Himanchal Pradesh High Court as well as by the Hon'ble Delhi High Court are sufficient for this purpose that such vehicles, which is JCB is considered as motor vehicle and, as such, this contention is not acceptable to this Court.
Accordingly, this Court directs the Insurance Development Regulatory Authority to examine such policy issued by different agencies in India whereby they are raising such issues which touch the basic structure of the insurance policy and, as such, a copy of this order be communicated to the Insurance Development Regulatory Authority by the Registry of this Court.
So far contention with regard to the award which has been awarded to the tune of Rs.42,24,326/- along with interest @6% from the date of admission of the claim application to be paid within 60 days from today, failing which, interest @9% shall be granted. Learned counsel for the appellant has submitted that the insurance coverage was only with respect to Rs.2,06,000/- as the premium was paid by the owner of the offending vehicle with respect to 3rd party policy, as such, right of recovery may be granted to the excess amount with respect to the award granted by the learned Tribunal, which the learned Tribunal has failed to consider.
Upon which, learned counsel for the respondent-owner of the vehicle, Mr. Rahul Kumar has submitted that the insurance company has already been given right of recovery against the owner of the vehicle after indemnifying the award if the the terms of policy has been violated and, as such, the issue which was never raised before the learned Tribunal has unnecessarily been raised in this Miscellaneous Appeal which is not tenable and, as such, the same may be rejected.
This Court finds that though the issue has not categorically been raised before the learned Tribunal but in the written statement such plea was -5- taken that the policy was with regard to the Contractor's Plant and Machinery Policy and Exhibits- A, B and C were brought on record.
Upon which, Mr. Alok Lal, learned counsel for the appellant has submitted that, that is the reason, the learned Tribunal ought to have taken note of the same, which the learned Tribunal has failed and recovery right has not been granted, as such, this Court may interfere with the same.
Considering such submission, this Court gives right to the Insurance Company to file a separate proceeding against the owner of the vehicle with regard to the violation of terms and conditions of the policy as well as with regard to the sum assured under 3 rd party policy which was purchased by the owner of the vehicle. Thus, this Court dispose of the appeal with aforesaid liberty to the Insurance Company to first indemnify the awarded amount with interest as awarded by the learned Tribunal in the bank account of the claimants through NEFT, since the interest part has not been assailed, the same remains intact.
The amount, which has already been paid, shall be deducted from the awarded amount and the balance amount along with the interest shall be indemnified within 60 days from today.
The claimants are directed to provide the bank account number of nationalized bank to the learned counsel for the Insurance Company or to the Insurance Company or to the learned Tribunal/ Executing Court within two weeks from today.
The Insurance Company is further directed to initiate a proceeding as per the direction of the learned Tribunal with regard to the violation of terms and conditions of the policy against the owner of the vehicle as well as for recovery of the balance amount apart from sum assured of Rs.2,06,000/- as per the policy document before the learned Tribunal and learned Tribunal after due notice to the owner and after recording the evidence shall decide the issue in accordance with law expeditiously.
The statutory amount deposited by the appellant at the time of preferring the appeal before this Court shall be remitted to the learned Tribunal. If the amount is found to be excess, the same shall be remitted to the Insurance Company otherwise the same shall become part of the award.
However, this Court has not made any observation with regard to the issue which shall be decided by the learned Tribunal.
-6-With the above directions and observations, the instant Miscellaneous Appeal is disposed of.
Let the Lower Court Records be sent to the learned Court below.
(Kailash Prasad Deo, J.) Madhav/-