Jharkhand High Court
United India Insurance Co. Ltd vs (1) Majhu Mahto S/O Late Bhola Mahto on 10 May, 2022
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
M.A.No.361 of 2008
IN THE HIGH COURT OF JHARKHAND AT RANCHI
M.A. No.361 of 2008
(Against the Award dated 08.09.2008 passed in Compensation Case
No.219 of 2005 by the learned P.O. M.V.A.C.T., Ranchi)
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United India Insurance Co. Ltd., having its Divisional Office at Vypar Bhawan, Lalji Hirji Road, P.S. Kotwali, P.O. Ranchi, Dist. Ranchi through its Divisional Manager - S. N. Singh, S/O- Late Ranjeet Singh, resident of Lake Avenue, Kanke Road, P.O. Kanke, P.S. Gonda, Dist. Ranchi. .... .... Appellant/ Opp. Party No.2 Versus (1) Majhu Mahto s/o Late Bhola Mahto, (2) Mukesh Kumar (minor) s/o Majhu Mahto, (3) Alomani Kumari (minor) d/o Majhu Mahto, (4) Sukarmani Kumari (minor) d/o Majhu Mahto.
All resident of Village Hisri Kansi Tola, P.O. Barohi, P.S. Burmu, Dist. Ranchi.
Respondent nos.2 to 4 are minors and are being represented through their father and natural guardian, respondent no.1 .... ... Applicants/ Respondent Nos.1 to 4 (5) Smt. Premawati Devi w/o Arjun Sahu, resident of Village Basadi Burmu, P.O., P.S. Kanke, Dist. Ranchi .... ... Opp. Party No.5/ Respondent No.5
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For the Appellant : Mr. Ashutosh Anand, Advocate
For the Resp. No.1 to 4 : Mr. Pradeep Kr. Agrawal, Advocate
PRESENT
HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
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By the Court: - Heard the parties.
2. This appeal is preferred against the judgment and award dated 08.09.2008 passed in Compensation Case No.219 of 2005 by the learned 1 M.A.No.361 of 2008 P.O. M.V.A.C.T., Ranchi whereby and where under the learned tribunal has directed the appellant- Insurance Company to pay the sum of Rs.2,69,500/- to the respondent Nos.1 to 4 with interest @ 7% p.a. on the compensation amount from the date of admission of the application under Section 166 of the M.V. Act i.e. 06.07.2007 to the applicants/ respondent Nos.1 to 4 after deducting the amount of Rs.50,000/-, if paid to the claimants and has further ordered that the appellant- Insurance Company will have the right to recover the amount of compensation paid by it to the claimants from the opposite party No.1 who is the owner of the vehicle; in accordance with law.
3. The brief facts of this case is that the claimants- respondent Nos.1 to 4 are the dependents of Saito Devi who died in a motor vehicle accident involving a tractor trolley admittedly as a gratuitous passenger. The learned tribunal inter alia framed seven issues out of which issue Nos.(6) and (7) are as under:-
(6) Whether the deceased was travelling in tractor-trolley as a gratuitous passenger?
(7) Whether the owner of the tractor No. JH-01H-0201 had violated the terms and conditions of insurance policy?
4. The learned tribunal answered the issued Nos. (6) and (7) by inter alia finding that the deceased was travelling in the tractor as a gratuitous passenger, hence, it held that the owner of the vehicle is liable to pay the compensation but directed the insurer to pay the amount with right to recover the same from the owner.
5. Mr. Ashutosh Anand- learned counsel for the appellant submits that the learned tribunal has come to the conclusion that the deceased was a gratuitous passenger and no premium was paid for covering the risk of gratuitous passengers and as such the learned tribunal erred by directing the appellant- Insurance Company to pay the compensation amount to the claimants with right to recover the same and instead the learned tribunal ought to have absolved the insurance company of all the liabilities and ought to have saddled the owner of the vehicle being the opposite party No.1 who is the respondent No.5 with all the liabilities. In support of its contention, learned counsel for the appellant relies upon the judgment of 2 M.A.No.361 of 2008 Hon'ble Supreme Court of India in the case of New India Insurance Company Vs. Darshana Devi & Others reported in (2008) 7 SCC 416 and submits that though in that case the Hon'ble Supreme Court of India has passed an order of pay and recovery to the Insurance Company but that order was passed using the power vested upon the discretionary jurisdiction of the Hon'ble Supreme Court of India under Article 136 of the Constitution of India and the learned tribunal having no such discretionary jurisdiction it ought not have used the ratio of the judgment of New India Insurance Company Vs. Darshana Devi & Others (supra) as a precedent to pass an order of pay and recovery against the appellant- Insurance Company. Hence, it is submitted that the judgment and award dated 08.09.2008 passed in Compensation Case No.219 of 2005 by the learned P.O. M.V.A.C.T., Ranchi to the aforesaid extent be set aside by way of modification.
6. Learned counsel for the respondent Nos.1 to 4 on the other hand vehemently oppose the prayer for setting aside the portion of order by which the learned tribunal has passed an order of pay and recovery of the compensation amount from the appellant. In support of his contention learned counsel for the respondent Nos.1 to 4 relies upon the judgment of Hon'ble Supreme Court of India in the case of Manuara Khatun Vs. Rajesh Kr. Singh reported in (2017) 4 SCC 796 paragraph-13 of which reads as under:-
13. "The only question, which arises for consideration in these appeals, is 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 3 M.A.No.361 of 2008 quoted supra."
7. Learned counsel for the respondent Nos.1 to 4 next relies upon the judgment of Hon'ble Supreme Court of India 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:-
"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."
8. Learned counsel for the respondent Nos.1 to 4 in support of their contention, next relied upon the judgment of Hon'ble Supreme Court of India in the case of Shivawwa and Anr. Vs. Branch Manager, National India Insurance Company Limited and Anr. reported in (2018) 5 SCC 762, para 13 of which reads as under:
"13.Assuming for the sake of argument that the Insurance Company was not liable to pay compensation amount awarded to the claimants as the offending tractor was duly insured, the insurer would still be liable to pay the compensation amount in the first instance with liberty to recover the same from the owner of the vehicle owner (Respondent 2), in light of the exposition in National Insurance Co. Ltd. v. Swaran Singh [National Insurance Co. Ltd. v. Swaran Singh, (2004) 3 SCC 297 : 2004 SCC (Cri) 733] . In para 110 of the said decision, a three-Judge Bench of this Court observed thus: (SCC pp. 341-42) "110. The summary of our findings to the various issues as raised in these petitions are as follows:
(i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third-party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and 4 M.A.No.361 of 2008 the provisions of the Act have to be so interpreted as to effectuate the said object.
(ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163-A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a)(ii) of the said Act.
(iii) * * *
(iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish "breach" on the part of the owner of the vehicle; the burden of proof wherefor would be on them.
(v)-(ix) * * *
(x) Where on adjudication of the claim under the Act the Tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Section 149(2) read with sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the Tribunal. Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the Tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the Tribunal.
(xi) The provisions contained in sub-section (4) with the proviso thereunder and sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover the amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against the insured by relegating them to the remedy before regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims."
(emphasis supplied)
9. Learned counsel for the respondent Nos.1 to 4 next submits that by now it is a settled principle of law that even the tribunals- M.V.A.C.T. can pass such order of pay and recovery. Hence, it is submitted that the impugned award does not warrant any interference of this Court and this appeal, being without any merit, be dismissed and award dated 08.09.2008 passed in Compensation Case No.219 of 2005 by the learned P.O. M.V.A.C.T., Ranchi be confirmed.
10. Having heard the submissions made at the Bar and after carefully going through the materials in the record, the only point for determination which cropped up before this Court is:
"whether the learned tribunal erred in passing an order of pay and recovery in respect of the compensation amount against the appellant- Insurance Company when admittedly the deceased was a gratuitous passenger in the tractor trolley?"5 M.A.No.361 of 2008
11. In view of the settled principle of law as has been held by the Hon'ble Supreme Court of India in the cases of Manuara Khatun Vs. Rajesh Kr. Singh (supra), Shivaraj Vs. Rajendra & Another (supra) and Shivawwa and Anr. Vs. Branch Manager, National India Insurance Company Limited and Anr. (supra), this Court has no hesitation in holding that law is well settled by now that the tribunal can pass the order of pay and recovery against the Insurance Company even though the Insurance Company has no liability to pay the compensation.
12. Hence, this Court is of the considered view that there is no merit in the contention of the learned counsel for the appellant that the learned tribunal ought not have passed the order of pay and recovery against the appellant- Insurance Company in the absence of any such discretionary power vested upon it; as vested with the Hon'ble Supreme Court of India under Article 142 of the Constitution of India read with Article 136 thereof. Thus the learned tribunal has not committed any error in passing the order of pay and recovery in respect of the compensation amount against the appellant- Insurance Company even though admittedly the deceased was a gratuitous passenger in the tractor trolley and hence the appellant-Insurance Company is not liable to pay the compensation amount.
13. The sole point for determination is answered accordingly.
14. In view of the discussions made above, this Court is of the considered view that this appeal is devoid of any merit. Accordingly, the same is dismissed.
15. The appellant- Insurance Company is directed to pay the amount of compensation awarded less the amount already paid if any, in terms of any interim compensation passed under Section 140 of the M.V. Act and also less the statutory amount, if any, deposited in connection with this appeal before this Court, to the claimants by appropriate mode as per law within 3 months from the date of this judgment.
16. The parties to bear their own costs.
17. Registry is directed to transfer the statutory amount to the account of the M.V.A.C.T. concerned by appropriate mode as per law.
6 M.A.No.361 of 200818. Let a copy of this judgment be sent to the learned tribunal forthwith along with the lower court records.
(Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 10th of May, 2022 AFR/ Animesh 7