Jharkhand High Court
The National Insurance Company Limited vs (1) Tairun Bibi on 10 May, 2022
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
M.A.No.360 of 2008
IN THE HIGH COURT OF JHARKHAND AT RANCHI
M.A. No.360 of 2008
(Against the Award dated 16.09.2008 passed in T. (M.V.)S. No.167 of
1993 by the Additional District cum M.A.C.T. Judge, FTC-V,
Dhanbad)
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The National Insurance Company Limited, Dhansar Branch, P.O. Dhansar, District- Dhanbad, represented through its legal cell, S.N. Ganguli Road, P.O.- Ranchi, P.S. Lower Bazar, Ranchi, District-
Ranchi .... .... Appellant/ Opp. Party No.2 Versus (1) Tairun Bibi, Wife of - Late Zakir Hussain.
(2) Md. Hamid, Son of - Late Zakir Hussain.
(3) Md. Maqbool, Son of - Late Zakir Husssain.
(4) Rabijan Bibi Wife of - Late Babu Khan.
All residents of - Murardih, P.O. Govindpur, P.S. Barwadda (Govindpur), District- Dhanbad.
.... ... Respondents/ Plaintiffs (5) Santosh Kumar Sao, Son of - Not Known to the Appellant, Resident of - Manaitand, P.O. & P.S. Dhansar, District- Dhanbad.
(6) Ramadhar Pandit, Son of- Ramlakhan Pandit, resident of - Manaitand, P.O. & P.S. Dhansar, District- Dhanbad.
.... ... Respondents/ Opp. Parties
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For the Appellant : Mr. Manish Kumar, Advocate
For the Respondents : None
PRESENT
HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
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By the Court: - Heard the learned counsel for the appellant.
2. Though notice has been served upon the respondents yet no one 1 M.A.No.360 of 2008 turns up on behalf of the respondents in spite of repeated calls. Hence, this appeal is heard ex-parte.
3. This appeal is preferred assailing the judgment and award dated 16.09.2008 passed by the Additional District cum M.A.C.T. Judge, FTC-V, Dhanbad in T.(M.V.)S. No.167 of 1993 whereby and where under the learned tribunal in an application under section 166 of the Motor Vehicle Act, 1988 directed the appellant- Insurance Company to pay Rs.1,86,300/- as compensation after deducting Rs.25,000/- which has been paid as interim compensation under Section 140 of M.V. Act and directed the appellant- Insurance Company to pay the net payable amount of Rs.1,61,300/-.
4. The brief facts of this case is that the claimant- respondent Nos.1 to 4 are respectively the wife and minor children of the deceased- Zakir Hussain. At the time of alleged accident, the deceased- Zakir Hussain was travelling in a truck as a gratuitous passenger. As the said truck being rashly and negligently driven, met with an accident, the deceased- Zakir Hussain, sustained injury in the said motor vehicle accident and succumbed to such injuries sustained by him, in the said accident. Though it has been specifically pleaded by the Insurance Company in its written statement in paragraph-10 (last sentence) that the deceased was a gratuitous passenger in the truck concerned but no specific issue, as to whether the deceased was a gratuitous passenger, was framed but the learned tribunal has considered the issue as to whether the deceased was a gratuitous passenger; in its finding in respect of issue Nos.(ii) and (iii) which are as under:-
(ii) Whether the driver of the vehicle was driving the same rashly and negligently at the time of the accident?
(iii) Whether the deceased died due to the motor vehicle accident?
5. In support of their case, the claimants altogether examined four witnesses out of whom, the C.W.1 and 4 are the eye-witnesses to the occurrence.
6. C.W.1- Md. Mukhtar has categorically stated that the deceased was travelling in the truck which met with an accident.
2 M.A.No.360 of 20087. C.W.4- Nabi Hussain though in his examination-in-chief has stated that the truck came at high speed and turned ups and down and by the dashing of the truck, Zakir Hussain fell down and came under the truck, yet in his cross-examination, the C.W.4 has stated that he could not say whether the deceased was travelling in the truck or not.
8. C.W.2 and 3 were respectively the father and wife of the deceased of Zakir Hussain and they are not the eye-witnesses to the occurrence and they had only knowledge about the occurrence by hearing from others.
9. Learned tribunal observed in paragraph-13 of the impugned award that the statement of the C.W.1 that the deceased was travelling in the truck, is not reliable in the light of the statement of the C.W.2, 3 and 4 and directed the Insurance Company to pay the said amount.
10. Mr. Manish Kumar- learned counsel for the appellant submits that the learned tribunal erred by ignoring the categorical statement of the C.W.1 that the deceased Zakir Hussain was travelling in the truck and also by ignoring and not considering the contents of Ext.-1 which is the F.I.R. of Katras (Rajganj) P.S. Case No.217 of 1993 wherein also it has been categorically mentioned that the persons who were travelling in truck sustained injuries as the said truck turned turtle being rashly and negligently driven and in the said accident, Zakir Hussain died at the place of occurrence itself. It is next submitted by the learned counsel for the appellant that in view of the overwhelming evidence in the record, the learned tribunal ought to have held that the deceased was a gratuitous passenger and would have directed the owner of the vehicle who is the opposite party No.2 to pay the compensation. However, on being asked by this Court, Mr. Manish Kumar fairly submits that though the appellant- Insurance Company is not liable to pay the compensation amount and the opposite party No.2 being the owner of the vehicle is liable to pay the compensation amount but in view of the settled principle of law if this court thinks it fit and proper the Insurance Company may be directed to pay the compensation amount which has been determined by the learned tribunal and in respect of which quantum of compensation no dispute has been raised in this appeal, with right to recover the said amount from the owner of the truck in question being the opposite party 3 M.A.No.360 of 2008 No.1.
11. Having heard the submissions made at the Bar and after carefully going through the materials and evidence in the record, the following two points crop up for determination in this appeal:-
(i) Whether the learned tribunal erred in holding that the deceased Zakir Hussain was not travelling in the truck which met with an accident and thus was not a gratuitous passenger?
(ii) Whether the impugned award warrants interference of this Court and if yes, to what extent?
12. So far as the first point of determination is concerned, as already discussed above in previous paragraphs of this judgment; the C.W.1 who was the eye-witness to the occurrence, has categorically stated that the deceased- Zakir Hussain was in the truck. The C.W.4 has categorically stated in his cross-examination that he was not in a position to say as to whether the deceased- Zakir Hussain was in the truck or not.
13. After carefully going through the pleadings made by the claimants in the claim application, this Court finds that there is no categorical averment in the pleadings in no uncertain manner as to whether the deceased was in the truck or not. There is no specific averment even in the claim petition that the deceased was a pedestrian or going by any other vehicle while the accident occurred.
14. So far as the testimonies of C.W.2 and 3 are concerned, admittedly they are not the eye-witnesses to the occurrence; so their testimonies are of no consequence to determine the issue whether the deceased was travelling in the truck. In this backdrop, keeping in view the unchallenged testimony of C.W.1- who is the eye-witness of the occurrence examined on behalf of the claimants themselves; that the deceased was in the truck, which is supported by the contents of the F.I.R. which has been marked as Ext.-1 as already mentioned above in this judgment, this Court has no hesitation in holding that the learned tribunal below erred by holding that the deceased was not travelling in the truck and such finding of the learned tribunal that the deceased was not travelling in the truck and therefore, was not a gratuitous passenger, is not sustainable in law. Accordingly, the portion of the said finding in issue Nos.(ii) and (iii) that 4 M.A.No.360 of 2008 the deceased was not travelling in the truck and thus was not a gratuitous passenger is set aside and this Court also holds that the evidence in the record is sufficient to establish that the deceased was travelling in the truck which met with an accident as a gratuitous passenger.
15. The first point of determination is answered accordingly.
16. So far as second point of determination is concerned, it is a settled principle of law as has been held by the Hon'ble Supreme Court of India in the case of Manuara Khatun Vs. Rajesh Kr. Singh reported in (2017) 4 SCC 796 wherein in the facts of that case where the victims were travelling as "gratuitous passengers" in the offending vehicle and thus it was held that the insurance company was not liable to pay the compensation amount still the Hon'ble Supreme Court formulated the following question in paragraph-13 "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?"
and answered the same as under in paragraph- 21 of which read 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 quoted supra."
17. In the case of Shivaraj Vs. Rajendra & Another reported in (2018) 10 SCC 432, wherein in the facts of that case the victims were gratuitous passengers and it was held that the insurance company was not liable to pay the compensation amount but the Hon'ble Supreme Court of India reiterated that the insurance company can still be directed to pay the compensation amount to the claimants and to recover the same from the owner of the vehicle by observing thus in paragraph-11 which reads as under:-
5 M.A.No.360 of 2008"11. At the same time, however, in the facts of the present case the High Court ought to have directed the insurance company to pay the compensation amount to the appellant claimant with liberty to recover the same from the tractor owner, in view of the consistent view taken in that regard by this Court in National Insurance Co. Ltd. v. Swaran Singh, Mangla Ram v. Oriental Insurance Co. Ltd., Rani v. National Insurance Co. Ltd. and including Manuara Khatun v. Rajesh Kumar Singh. In other words, the High Court should have partly allowed the appeal preferred by Respondent 2. The appellant may, therefore, succeed in getting relief of direction to Respondent 2 insurance company to pay the compensation amount to the appellant with liberty to recover the same from the tractor owner, Respondent 1."
18. This court has already held in answer to the first point for determination that the deceased was a gratuitous passenger in the truck. It transpires that no additional premium was paid for such a passenger travelling by the truck in question. The deceased could not be considered to be a third party. The insurance company is thus, not liable to pay the amount of compensation to the claimants; in view of the judgment of Hon'ble Supreme Court of India in the case of Shivaraj Vs. Rajendra & Another (supra), Manuara Khatun Vs. Rajesh Kr. Singh (supra), National Insurance Company Limited vs. Baljit Kaur and others, reported in (2004) 2 SCC 1 as well as New India Assurance Co. Ltd. Vs. Asha Rani & Ors. reported in (2003) 2 SCC 223.
19. Since undisputedly, the insurance policy of the opposite party No.1- owner of the vehicle was valid. The appellant- Insurance Company is liable to pay the amount of compensation of Rs.1,86,300/- and recover the same from the owner, in view of the principle of law settled in the cases of Shivaraj Vs. Rajendra & Another (supra), Manuara Khatun Vs. Rajesh Kr. Singh (supra), National Insurance Company Limited vs. Baljit Kaur and others (supra). The second point for determination is answered accordingly.
20. Thus, the impugned order is modified to the extent that instead of the appellant- Insurance Company, the respondent No.5 of this appeal- being the owner of the truck in question and who was the opposite party No.1 in the learned tribunal is liable to pay the compensation amount but 6 M.A.No.360 of 2008 as has already been held by this court in answer to the second point for determination, the insurer being the appellant-Insurance Company, is to pay the amount and to recover the same from the owner of the vehicle, who is the respondent No.5 of this appeal, by execution only and not by filing any separate suit therefor.
21. In view of the above, the impugned order is modified to the extent that the appellant- Insurance Company is directed to make payment of compensation amount to the claimants with interest thereon as determined by the award of learned tribunal with effect from 03.12.1993 till the date of actual payment less the statutory deposit, if any, made by the appellant with this court in connection with filing of this appeal, with liberty to recover the same from the owner of the vehicle who is respondent No.5 of this appeal by appropriate mode in accordance with law.
22. The impugned judgment and award is modified to the aforesaid extent only.
23. Registry is directed to send the statutory amount, if any, deposited by the appellant- Insurance Company to the learned tribunal below and the Insurance Company is to pay the compensation amount as determined by the tribunal less the amount paid in connection with the award under section 140 of the Motor Vehicles Act, 1988 and less the statutory amount, if any, deposited in connection with this appeal.
24. Let a copy of this judgment along with the lower court records be sent back to the learned tribunal below forthwith.
(Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 10th of May, 2022 AFR/ Animesh 7