Jharkhand High Court
M/S. Oriental Insurance Company Ltd vs (1) Sushma Bakhla on 5 July, 2022
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
M.A.No.352 of 2008
IN THE HIGH COURT OF JHARKHAND AT RANCHI
M.A. No.352 of 2008
(Against the Judgment and Award dated 18.07.2008 passed by
Learned District Judge-cum-M.A.C.T., Lohardaga passed in
Compensation Case No.34 of 2006)
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M/s. Oriental Insurance Company Ltd., Divisional Office at 3rd Floor, Prabodh Towers, S. N. Ganguli Road, P.O. + P.S. + District- Ranchi through its Incharge, Legal Cell, D.O.-I, Town and District - Ranchi Sri S.P. Singh, son of Sri Mathura Singh.
.... .... Opposite Party No.2/Appellant Versus (1) Sushma Bakhla, wife of late Anil Khalkho.
(2) Anish Khalkho, son of late Anil Khalkho.
(3) Anshu Awilla Khalkho, daughter of late Anil Khalkho. (4) Neha Sonali Khalkho, daughter of late Anil Khalkho. All residents of Village - Brahman Diha, Sarnatoli, PS- Lohardaga, District - Lohardaga.
.... .... Applicants/Respondents (5) Sri Ram Mohan Sahu, s/o Late Deosharan Sahu, resident of village Banjar Kisko, P.O. & P.S.- Kisko, district - Lohardaga, At present address Raja Bangla, PS & District- Lohardaga. (Owner).
.... .... Opposite Party No.1/Respondent
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For the Appellant : Mr. Prashant Vidyarthy, Advocate
For the Respondents : None
PRESENT
HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
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By the Court: - I.A. No.4301 of 2010
Heard the learned counsel for the appellant.
2. No one turns up on behalf of the respondents in spite of repeated calls.
1 M.A.No.352 of 20083. Accordingly, this interlocutory application stands rejected as not pressed by the respondents, who filed this interlocutory application.
(Anil Kumar Choudhary, J.) M.A. No.352 of 2008 Since, no one turn up on behalf of the respondents even after repeated calls, hence, this appeal is heard ex-parte.
2. Since, this appeal involves only simple question of fact and law, hence, this appeal is disposed of at the stage of admission itself.
3. This appeal has been preferred against the Judgment and Award dated 18.07.2008 passed by Learned District Judge-cum-M.A.C.T., Lohardaga passed in Compensation Case No.34 of 2006 whereby and where under the learned tribunal directed the appellant- Insurance Company to pay a sum of Rs.50,000/- to the claimant/respondent No.1 in an application under Section 140 of the Motor Vehicle Act.
4. The brief facts of this case is that while the deceased- Anil Khalkho was travelling on a truck which was rashly and negligently driven by its driver; the said truck overturned and fell down and the deceased- Anil Khalkho died being crushed under the truck.
5. Mr. Prashant Vidyarthy- learned counsel for the appellant- Insurance Company submits that since the deceased was travelling as a gratuitous passenger, hence, the Insurance Company is not liable to pay the amount hence the impugned award be set aside and the appellant insurance company be absolved of its liability to pay the compensation ordered to be paid by the learned tribunal in the said impugned award passed under section 140 of the Motor Vehicles Act, 1988.
6. It is pertinent to mention here that the learned tribunal considered the fact that in order to absolve the Insurance Company of the liability to pay the compensation, the Insurance Company has to establish that:- (1) the vehicle in question was a goods carriage; (2) the deceased was travelling in the vehicle as a gratuitous passenger; (3) the insurance policy did not cover liability for the death or injury of the passenger, but the 2 M.A.No.352 of 2008 same cannot be decided at the stage of disposing of the application under Section 140 of the Motor Vehicle Act and also considered that the Insurance Company has not categorically denied the insurance policy so, the learned tribunal treated that the insurance policy is admitted by the appellant Insurance Company and passed the said order. Hence, it is submitted that the impugned award be modified by absolving the Insurance Company to pay the amount.
7. Having heard the rival submission made at the Bar and after carefully going through the materials in the record, the only point for determination which crop up in this appeal is-
"whether the learned tribunal erred by not considering the defence of the Insurance Company that the deceased was a gratuitous passenger and for the said reason, whether the impugned judgment and award needs to be modified?"
8. It is a settled principle of law that at the stage of the proceeding under Section 140 of the Motor Vehicle Act, 1988, the Claims Tribunal has to verify only three aspects which are as follows:-
(i) the accident has arisen out of use of motor vehicle,
(ii) the said accident resulted in permanent disablement of a person filing the claim or in case of death his legal representatives,
(iii) the claim is made against the owner and the insurer of the motor vehicle involved in the accident.
9. It is also a settled principle of law that if the Insurance Company has raised dispute with any of these aspects, the Claims Tribunal would give its findings through a summary procedure.
10. If the Insurance Company has not raised any dispute with respect to any of these aspects or if raised, is decided against the Insurance Company by the Claims Tribunal, the same would bind the Insurance Company at the later stage of deciding the Claim Petition under Section 166 of the Motor Vehicle Act.
11. No other defence including those referred to in Section 149 (2) of the Motor Vehicle Act would be available to the Insurance Company at the stage of application under Section 140 of the Motor Vehicle Act. It would, therefore, not be necessary, in fact, not permissible for the Insurance 3 M.A.No.352 of 2008 Company to raise such defence at this stage and if raised the Tribunal shall not decide the same at that stage.
12. It is also a settled principle of law that a proceeding under Section 140 of Motor Vehicle Act, 1988, pertains to 'no fault liability' which contemplates summary procedure for awarding compensation of fixed amount, the aspects of merits are not germane. What is to be ascertained is that the accident has arisen out of the use of motor vehicle and that the same resulted in permanent disablement of person filing the claim either by himself or through the legal representatives which is against the owner or insurer of the motor vehicle involved in the accident.
13. Now, coming to the facts of this case, in view of the failure on the part of the insurance company to categorically deny the insurance policy as well as taking into consideration photocopy of the insurance policy available in the record, the tribunal was satisfied that the offending vehicle was insured by the appellant- Insurance Company and the same is also not denied by the appellant- Insurance Company in this appeal. So, once the vehicle is insured with the Insurance Company if ultimately the Insurance Company fails to establish that the deceased was a gratuitous passenger then the Insurance Company has to pay the compensation amount either under the statutory obligation or by contractual obligation in terms and conditions of the policy then also the Insurance Company has to pay the compensation amount to the legal representatives of the deceased.
14. In this case, the Insurance Company for the reasons best known to it, has not produced the insurance policy neither before the tribunal nor before this Court. By now it is a settled principle of law that if the offending vehicle is insured by an Insurance Company then even if ultimately the Insurance Company is not liable to held to pay the compensation in case it is found out that the deceased travelling in the offending vehicle was a gratuitous passenger still the Insurance Company can be directed to pay the compensation amount and recover the same from the owner of the vehicle by execution of the same award.
15. Under such circumstances, as the Insurance Company has failed to produce the insurance policy and rightly a conclusion has been arrived at 4 M.A.No.352 of 2008 by the learned tribunal in the absence of categorical the denial pleading on the part of the appellant-insurance company that the alleged policy, the photocopy of which was produced before the tribunal, was not the policy issued by the appellant, this Court does not find any fault with the learned tribunal under the facts and circumstances of the case allowing the petition under Section 140 of the Motor Vehicle Act, 1988 and directing the appellant- Insurance Company to pay the amount.
16. Mr. Prashant Vidyarthy- learned counsel for the appellant- Insurance Company submits that the Insurance Company has already paid the compensation amount.
17. Under such circumstances, this Court does not find any rhyme or reason to interfere with the impugned award.
18. Accordingly, this appeal, being without any merit, is dismissed.
19. The Registrar General of this Court is directed to remit the statutory amount, if any, deposited by the appellant- Insurance Company in connection with this appeal to the concerned tribunal forthwith if the Insurance Company fails to satisfy that it has already paid Rs.50,000/- to the claimants/respondents in terms of the impugned judgment and award passed by the learned tribunal and in case the Insurance Company satisfies the Registrar General of this Court that the amount of ₹ 50,000/- has already been paid to the claimants, then the statutory amount deposited by the appellant in connection with this appeal, if any, be paid to the concerned officer of the appellant- Insurance Company by appropriate mode on proper identification.
20. Let a copy of this judgment be sent to the learned tribunal forthwith.
(Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 05th of July, 2022 AFR/ Animesh 5