Jharkhand High Court
Nishant Kumar vs The Oriental Insurance Company Ltd on 17 June, 2020
Author: Kailash Prasad Deo
Bench: Kailash Prasad Deo
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Civil Miscellaneous Appellate Jurisdiction)
M.A. No. 29 of 2010
Nishant Kumar, S/o Vikas Choudhary (Owner of Tractor No. BR-53/2885), R/o
Village & P.S. & P.O. Bariyarpur, District- Munghyr (Lakhisarai), Bihar
.... ... Appellant
Versus
1. The Oriental Insurance Company Ltd., Branch Office, Munghyr, Rajawati, Post
Office Road, P.O. Munghyer, P.S. Munghyr, District- Munghyr, Bihar
2. Fulo Devi, W/o Late Shambhu Mandal
3. Puja Kumari, D/o Late Shambhu Mandal
4. Rekha Kumari, D/o Late Shambhu Mandal
5. Tanuja Kumari, D/o Late Shambhu Mandal
6. Rita Kumari @ Nanhi Kumari, D/o Late Shambhu Mandal
7. Baby Kumari @ Munni Kumari, D/o Late Shambhu Mandal
8. Guddu Kumar, S/o Late Shambhu Mandal
9. Gogu Devi @ Gogo Devi, W/o Late Jamindar Mandal
10. Jikari Mandal @ Tikari Mandal, S/o Bishnu Mandal .... .... Respondents
.......
CORAM :HON'BLE MR. JUSTICE KAILASH PRASAD DEO (Through :-Video Conferencing) .........
For the Appellant : Mr. K.K. Singh, Advocate.
For the Respondent Nos.2-9 : Mr. Manoj Kumar Sah, Advocate
For Insurance Company (Res. No.1) : Mr. Ganesh C. Jha, Advocate ..........
15/17.06.2020. Heard, learned counsel for the parties.
2. Owner of the offending vehicle (Tractor) bearing Registration No.BR53-2885 is the appellant before this Court and preferred this appeal against the award dated 26.11.2009 passed by 1st Additional District Judge-cum-MACT, Godda in Title Claim No.76 of 2006 / 73 of 2009.
3. The deceased- Sambhu Mandal was driver of the offending vehicle. After loading bricks on offending tractor, the deceased- Sambhu Mandal was going towards Munghyr from the brick-kiln of Sankar Sao, the owner of B.N.C., along with other labourers and when the offending vehicle (tractor) reached near Naugarhi Maszid, due to rash and negligent driving of the driver, the right wheel of the tractor got burst and driver lost his control and dashed the tractor with a truck, which was standing in front of the place of the accident.
4. Learned counsel for the appellant, Mr. K.K. Singh has submitted that the learned Tribunal has awarded amount of Rs.3,91,500/- out of which Rs.50,000/- has been paid as ad-interim compensation under Section 140 MV Act, as such, the balance amount i.e. Rs.3,41,500/- has been awarded with interest @ 8% per annum from the date of filing of the application till its realization.
5. Learned counsel for the appellant has further submitted that the learned Tribunal has not framed issue:-
(i) Whether the tractor was insured at the time of accident or not? and -2-
(ii) Whether the liability should be upon the Insurance Company to pay the compensation amount?
As such, the matter be remanded to the learned Tribunal on this limited question.
Learned counsel for the appellant has fairly submitted that Rs.4,00,000/- has already been deposited by the appellant in terms of order No.10 dated 15.01.2014 passed by a co-ordinate Bench of this Court. The amount of Rs.2,00,000/- has already been disbursed in favour of claimant/respondent no.2- Fulo Devi and rest amount of Rs.2,00,000/- has been kept in Fixed Deposit. Learned counsel for the appellant has no objection, if the said amount is released in favour of the claimant, as the issue is to be adjudicated before the learned Tribunal with regard to the liability to pay compensation either upon the owner for violation of the terms and conditions of the policy or upon the Insurance Company, if the vehicle is insured.
6. Learned counsel for the respondent (Insurance Company)- Mr. G.C. Jha has submitted that the Hon'ble Apex Court has considered this issue in the case of Oriental Insurance Company Ltd. Vs. Brij Mohan & Ors., reported in AIR 2007 SC 1971, (2007) 7 SCC 56 and has held that if the tractor is insured for an agriculture policy but deviated from the purpose for which, it was insured, the same was found violative of the terms and conditions of the policy and has also relied upon the judgment of the Hon'ble Apex Court in the case of United India Insurance Company Ltd. Vs. Serjerao and others, reported in AIR 2008 SC 460, (2008) 7 SCC 425, as such, the Insurance Company is not liable to indemnify such award and the impugned award passed by the learned Tribunal does not warrant any interference by this Court.
7. Learned counsel for the claimants- Mr. Manoj Kumar Sah has submitted that in such litigation the poor claimants are the sufferer, as the accident took place on 25.06.2005 and more than 15 years have elapsed, as such, the balance amount of Rs.2,00,000/- along with interest on the date of payment be given to the claimants.
8. From the aforesaid discussion it is evident that amount of Rs.50,000/- has already been paid by the Insurance Company regarding which the learned Tribunal has directed the appellant- Nishant Kumar to reimburse the same to the Insurance Company. The claimants have already received Rs.2,00,000/- in pursuant to the order passed by co-ordinate Bench of this Court on 15.01.2014 and Rs.50,000/- has been paid by the Insurance Company as ad-interim compensation under Section 140 MV Act to be reimbursed by the owner, as such, out of total award of Rs.3,91,500/- along with interest @ 8%, the balance amount of Rs.1,41,500/- along with interest @ 8% is liable to be paid to the claimants.
9. Let the instant appeal is disposed of, remanding the matter to the learned -3- Tribunal on a limited question so far the lis between the appellant and the Insurance Company is concerned.
10. Learned Tribunal shall frame the issues:-
(i) Whether the Insurance coverage of the tractor on the date of alleged occurrence vide policy No.332404/2005/7346 for the period from 18.03.2005 to 17.03.2006 was valid and effective for the offending vehicle?
(ii) Whether the owner of the offending vehicle has committed breach of terms of the policy by using tractor for commercial purpose when the policy as claimed by the Insurance Company is for agriculture purpose?
11. The Insurance Company and the appellant are the necessary parties in such litigation and the claimants are not necessary party in the aforesaid litigation, which is hereby remanded to the learned Tribunal.
12. On the joint prayer of the learned counsel for the appellant as well as learned counsel for the Insurance Company, both are directed to appear before the learned Tribunal on the aforesaid questions as framed by this Court by 17.08.2020 and the learned Tribunal after recording the evidence oral or documentary, shall decide the issues within a period of six months thereafter.
13. Accordingly, the instant appeal is disposed of with a direction to the learned Tribunal to pay/indemnify award to the claimants in the aforesaid terms.
14. Learned Registrar General of this Court is directed to remit the statutory amount deposited while preferring an appeal under Section 173 of the Motor Vehicle Act at the time of filing of the Miscellaneous Appeal before this Court, to the Claim Tribunal within a period of six weeks from today so as to pay the same to the claimants
15. The said amount shall also be considered while indemnifying the claim amount and if balance is left, the same shall be paid, to the Insurance Company after adjudication of the issue referred before the learned Tribunal.
16. The trial court is directed to indemnify the balance amount of Rs.1,41,500/- along with interest @ 8% from the amount of Rs.2,00,000/- already deposited by the owner/appellant with the learned Tribunal. If any amount gets shortfall, the Insurance Company will deposit the same.
17. The appellant is also directed to indemnify amount of Rs.50,000/- in favour of the Insurance Company but that shall be paid only after payment is made to the claimants.
18. I.A. 7937 of 2013 has already been considered by a co-ordinate Bench of this Court on 03.12.2013 pursuant thereto on 15.01.2014 the amount has already been paid, as such, the said I.A. already stands disposed of.
( Kailash Prasad Deo, J.) sandeep/R.S-