Jharkhand High Court
Subodh Kumar Gupta vs Kaikai Devi & Ors. on 11 January, 2010
Equivalent citations: AIR 2010 JHARKHAND 50, 2010 (1) AIR JHAR R 758, 2010 (3) AKAR (NOC) 235 (JHA), 2010 A I H C 2591, (2010) 88 ALLINDCAS 324 (JHA), (2010) 1 JCR 634 (JHA), 2010 (88) ALLINDCAS 324, (2011) 1 ACJ 313, (2010) 2 TAC 28
Author: M. Y. Eqbal
Bench: M. Y. Eqbal, Pradeep Kumar
IN THE HIGH COURT OF JHARKHAND AT RANCHI
M. A. No. 06 of 2008
Subodh Kumar Gupta ... ... ... Appellant
Versus
1. Guruwari Devi
2. Dhanaj Ahir
3. Chanchala Kumari
4. Basant Ahir
5. United India Insurance Co. Ltd., Ranchi ... Respondents
WITH
M. A. No. 02 of 2008
Subodh Kumar Gupta ... ... ... Appellant
Versus
1. Kaikai Devi
2. Tinku Sahu
3. Pintu Sahu
4. United India Insurance Co. Ltd., Ranchi ... Respondents
WITH
M. A. No. 03 of 2008
Subodh Kumar Gupta ... ... ... Appellant
Versus
1. Lilawati Devi
2. Dinesh Singh Munda
3. Bhajohari Munda
4. Ramesh Singh Munda
5. United India Insurance Co. Ltd., Ranchi ... Respondents
WITH
M. A. No. 04 of 2008
Subodh Kumar Gupta ... ... ... Appellant
Versus
1. Ratika Devi
2. Panchu Devi
3. United India Insurance Co. Ltd., Ranchi ... Respondents
WITH
M. A. No. 05 of 2008
Subodh Kumar Gupta ... ... ... Appellant
Versus
1. Durga Devi
2. Renu Kumari
3. Vijay Kumar Sahu
4. Mohini Devi
5. United India Insurance Co. Ltd., Ranchi ... Respondents
WITH
M. A. No. 07 of 2008
Subodh Kumar Gupta ... ... ... Appellant
Versus
1. Gouri Devi
2. Umesh Chand Mahto
3. Dhanjay Mahto
4. Chotelal Mahto
5. United India Insurance Co. Ltd., Ranchi ... Respondents
2 M.A. No.06 of 2008 & ors
WITH
M. A. No. 135 of 2008
United India Insurance Company Ltd., Ranchi ... Appellant
Versus
1. Smt. Sunaina Devi
2. Rahul Kumar Sahu
3. Priyanka Kumari
4. Nitesh Kumar
5. Priya Kumari
6. Subodh Kumar Gupta ... ... ... Respondents
WITH
M. A. No. 303 of 2009
Branch Manager, United India Insurance
Company Ltd., Doranda, Ranchi ... ... Appellant
Versus
1. Savitri Devi
2. Dilip Kumar Sahu
3. Subodh Kumar Gupta ... ... Respondents
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CORAM: THE HON'BLE MR. JUSTICE M. Y. EQBAL
THE HON'BLE MR. JUSTICE PRADEEP KUMAR
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For the Appellant: M/s. Nilesh Kumar
For the Ins. Company: Mr. D.C. Ghosh
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Reserved on: 04.01.2010 Pronounced on: 11th January, 2010
M. Y. Eqbal, J. Since in all these appeals, common question of law and facts are involved, they have been heard together and are disposed of by this common judgment.
2. M.A. Nos. 02/2008, 03/2008, 04/2008, 05/2008, 06/2008 and 07/2008 arose out of Compensation Case Nos.175, 176, 177, 178, 179 and 181 of 2004. These six compensation cases have been disposed of by the Motor Accident Claims Tribunal, Ranchi by a common judgment dated 14.8.2007 whereby the claimants-respondents have been awarded compensation and the Insurance Company has been directed to pay the compensation amount and recover the said amount of compensation from the appellant-owner of the vehicle. The appellant being aggrieved by the said direction to the Insurance Company to recover the amount have preferred these appeals.
3. M.A. No.135 of 2008 and M.A. No.303 of 2009 have been filed by the Insurance Company who has assailed the judgment and award passed in Compensation Case No.184 of 2004 and Compensation Case No.36 of 2005 respectively mainly on the 3 M.A. No.06 of 2008 & ors ground that although appellant-Company has been directed to pay the compensation but no right of recovery of the compensation amount has been given to the owner of the vehicle.
4. The facts of the case lie in a narrow compass: -
All the deceased persons along with others were travelling in a Tata 407 Mini Bus on 6.7.2004. It was alleged that the driver of the vehicle was driving the Mini Bus in a very rash and negligent manner, as a result of which, when the said Bus reached near Birhour Dera Dhalan, it had turned turtle at the road side. As a result, the occupants of the said Mini Bus including various other persons sustained grievous injuries on their persons and later on, six persons died. All the six compensation cases were filed by the legal representatives of the deceased persons for the grant of compensation. The appellant-owner of the vehicle filed written statement denying the averments made in the claim application. It was stated that the vehicle was insured with the respondent-United India Insurance Company Ltd. at the material time and the driver was holding a valid driving licence. The insurer of the vehicle also filed a written statement denying its liability on the ground that there is a violation of the conditions of policy inasmuch as there was no valid road permit in respect of the vehicle and at the time of accident about 50-60 passengers were boarded in the said bus, which was overloaded and overcrowded. Hence the Insurance Company has no liability.
5. The Tribunal formulated various issues including the issue with regard to liability of the Insurance Company. On the issue of overloading, the Tribunal found that the insurance policy was issued covering the risk of 21 passengers but at the time of accident 50-60 passengers were being carried in the said bus. The Tribunal, however, held that carrying passengers more than the risk covered by the policy though amounts to breach of policy but insurer cannot be absolved from its liability to pay compensation with respect to the persons exceeding number of passengers covered by the insurance policy. Relying upon the decision of the Jharkhand High Court in the case of Giriraj Prasad Agrawal vs. Parvati Devi & ors, 2005 (3) TAC 115, the Tribunal held that the insurance company is liable to pay compensation. The Tribunal further held that the insurer may proceed against the insured/owner for the 4 M.A. No.06 of 2008 & ors breach of contract of policy. The Tribunal further held that since the passengers took the risk of travelling in a overcrowded bus, they are liable for contributory negligence. The Tribunal, therefore, awarded compensation and held the Insurance Company liable to pay compensation amount but gave a right to the Insurance Company to proceed against the owner of the vehicle for the breach of conditions of policy. Hence, the appellant, who is the owner of the vehicle, assailed that part of the award.
6. In the appeals being M.A. Nos.135/2008 and 303/2009 the Insurance Company has assailed the judgment and award solely on the ground that in the said judgment direction has not been given by the Tribunal to the Insurance Company to proceed against the owner of the vehicle for breach of the terms of the policy.
7. The only question that falls for consideration is whether in the facts of the instant case, the Tribunal was correct in law in giving direction to the Insurance Company to proceed against the owner for breach of the terms of the policy and to recover the compensation amount.
8. Admittedly on the relevant date of accident, mini bus was carrying 50-60 passengers. It has not been brought on record that by reason of the said accident more than 21 persons died or sustained injuries. From the records it appears that 8 persons died in the said accident and 8 claim cases were filed. In such circumstances the Insurance Company cannot disown its liability for payment of compensation in respect of death of at least 21 persons covered under the policy.
9. In this regard, law has been well settled by the Supreme Court in the case of National Insurance Co. Ltd. vs. Anjana Shyam & ors, (2007) 7 SCC 445. The case before the Supreme Court was that the vehicle had a carrying capacity of 42 passengers and the bus was insured for the said 42 passengers. On the day of accident the bus was overloaded. There were at least 90 passengers. The bus fell off the road into a nalla leading to the death of 26 including the driver of the vehicle and 63 persons insured. The Insurance Company mainly contended that the bus was overloaded and it was being driven not by an authorized driver. Hence, the Insurance Company has no liability. The Tribunal brushed aside these objections and passed various award that was affirmed up to the 5 M.A. No.06 of 2008 & ors High Court. The matter came to the Supreme Court. Their Lordships, after discussing various provisions of Act and the terms and condition of the policy, observed:
"21. The High Court has considered only the aspect whether by overloading the vehicle, the owner had put the vehicle to a use not allowed by the permit under which the vehicle is used. This aspect is different from the aspect of determining the extent of the liability of the Insurance Company in respect of the passengers of a stage carriage insured in terms of Section 147(1)(b)(ii) of the Act. We are of the view that the Insurance Company can be made liable only in respect of the number of passengers for whom insurance can be taken under the Act and for whom insurance has been taken as a fact and not in respect of the other passengers involved in the accident in a case of overloading.
22. Then arises the question, how to determine the compensation payable or how to quantify the compensation since there is no means of ascertaining who out of the overloaded passengers constitute the passengers covered by the insurance policy as permitted to be carried by the permit itself. As this Court has indicated, the purpose of the Act is to bring benefit to the third parties who are either injured or dead in an accident. It serves a social purpose. Keeping that in mind, we think that the practical and proper course would be to hold that the Insurance Company, in such a case, would be bound to cover the higher of the various awards and will be compelled to deposit the higher of the amounts of compensation awarded to the extent of the number of passengers covered by the insurance policy."
10. After having considered the facts and evidence on record and in the light of the law settled by the Supreme Court, we have no hesitation in holding that the Tribunal erred in law in giving right to the Insurance Company to recover the compensation amount from the appellant-owner of the vehicle.
11. For the reasons aforesaid, M.A. Nos.02/2008, 03/2008, 04/2008, 05/2008, 06/2008 are 07/2008 are allowed and the award of the Tribunal so far it gives right of recovery is set aside. Consequently, M.A. No.135 of 2008 and M.A. No.303 of 2009 filed by the Insurance Company are dismissed.
(M. Y. Eqbal, J) Pradeep Kumar, J.
(Pradeep Kumar, J) Manoj/A.F.R.