Jharkhand High Court
Divisional Manager vs Nunibala Devi @ Munibala Devi on 2 March, 2021
Equivalent citations: AIRONLINE 2021 JHA 662
Author: Kailash Prasad Deo
Bench: Kailash Prasad Deo
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Civil Miscellaneous Appellate Jurisdiction)
M.A. No. 576 of 2018
......
Divisional Manager, National Insurance Co. Ltd., Bokaro ...... Appellant Versus
1. Nunibala Devi @ Munibala Devi
2. Punam Kumari
3. Suman Kumari
4. Anand Rajwar
5. Ankit Rajwar (Respondent Nos.2 to 5 being minors and are being represented through their mother being their natural guardian as their Next Friend) All residents of Village Kharti Tola Peterwar, P.S. & P.O. Peterwar, District- Bokaro (Claimant Nos.1 to 5 respectively)
6. Shilwanti Devi, residing at Qr. No.205, Sector III-A, P.O. & P.S. Bokaro Steel City, District- Bokaro (Owner of Auto Rickshaw)
7. Mehru Karmali, Resident of Kokar, P.S. Sadar, P.O. & District- Ranchi at Present residing at Village Peterwar, P.S. & P.O. Peterwar, District- Bokaro (Driver) .......Respondents M.A. No. 575 of 2018 ......
National Insurance Co. Ltd., through its Divisional Manager, Bokaro...... Appellant Versus
1. Shashi Munda
2. Bhola Munda Both residing at Village- Arari P.O. & P.S. Peterwar District- Bokaro (respondent No.2 being minor and is being represented through his brother as his next friend)
3. Shilwanti Devi, residing at Qr. No.205, Sector III A, Bokaro Steel City, P.O. & P.S. Bokaro Steel City, District- Bokaro (owner of Auto rickshaw)
4. Mehru Karmali R/o Kokar, P.S. Sadar, P.O. & District- Ranchi at present residing at Village Peterwar, P.S. & P.O. Peterwar, District- Bokaro (Driver) .......Respondents CORAM: HON'BLE MR. JUSTICE KAILASH PRASAD DEO (Through : Video Conferencing) For the Appellant : Mr. Alok Lal, Advocate (in both the appeals) For the Respondents :
05/Dated: 02/03/2021.
Both the Miscellaneous Appeals are arising out of a common accident, though from two different awards, as such, both are being heard together and disposed of by this common judgment.
Heard, learned counsel for the appellant, Mr. Alok Lal in both the appeals preferred by National Insurance Company Limited.
M.A. No.576 of 2018 has been preferred against the award dated 23.05.2018 passed by learned District Judge-II-cum-Motor Vehicle Accident Claim Tribunal, Bokaro in Title (Motor Vehicle) Suit No.22 of 2015, whereby the claimants (dependents of Tahlu Rajwar), namely,
1.Nunibala Devi @ Munibala Devi, 2. Punam Kumari, 3. Suman Kumari,
4. Anand Rajwar and 5. Ankit Rajwar have been awarded compensation -2- to the tune of Rs.6,50,000/- along with interest @ 6% per annum from the date of filing of claim application i.e. 17.03.2015 to be paid within 90 days and if the same amount is not paid within a period of 90 days, thereafter interest @9% per annum shall be paid to the claimants by O.P. No.3 (National Insurance Co. Ltd.) till its realization. Learned Tribunal has given right of recovery in favour of O.P. No.3- National Insurance Company Limited, if there is violation of terms and conditions of the Insurance Policy by O.P. No.1- owner of tempo bearing registration No.JH-09H-6249.
Whereas the Second Miscellaneous Appeal vide M.A. No.575 of 2018 has been preferred by the same Insurance Company against the award dated 30.05.2018 passed by learned District Judge-II-cum-Presiding Officer, Motor Accident Claim Tribunal (M.A.C.T.), Bermo at Tenughat in Motor Vehicle Claim Case No.102 of 2009 awarding compensation to the tune of Rs.4,26,000/- along with simple interest @ 7% per annum from the date of filing of the claim application i.e. 09.12.2009 till realization of the same from the National Insurance Company Ltd to the claimants, Shashi Munda and Bhola Munda both sons of Late Sohan Munda (deceased) to be paid within two months of filing of the deficit court fee, if any, by the claimants, failing which the claimants will be at liberty to realize the same through the process of Court in accordance with law.
Learned counsel for the appellant has submitted that both the deceased [Tahlu Rajwar and Sohan Munda] died in a common accident on 06.05.2009 in the evening while Tahlu Rajwar and Sohan Munda along with other persons were travelling on a auto rickshaw/ tempo bearing registration No.JH09H-6249, met with an accident on NH 23, in front of Charki Hotel when unknown Bolero hit the tempo from the back side. The injured were admitted to private Nursing Home i.e. Vrindavan Nursing Home, Bokaro, but they lost their lives.
Learned counsel for the appellant has assailed the impugned award of Title (Motor Vehicle) Suit No. 22/2015 on the ground that Nunibala Devi @ Munibala Devi along with her minor children initially preferred claim application before the District Judge-I at Tenughat vide T(M.V.)S-
-3-101/2009, which was dismissed on 07.02.2012 and thereafter restoration application was filed vide Miscellaneous Case No.3/12 which was also dismissed, but instead of praying for restoration before the same court, they have opted to prefer an application before the claim tribunal, Bokaro whereas the claim application of both claimants, Shashi Munda and Bhola Munda in Motor Vehicle Claim Case No.102/2009 for death of their father (Sohan Munda) was preferred before the claim tribunal, Bermo at Tenughat, as such, the order in claim application [Title (Motor Vehicle) Suit No. 22/2015] of Nunibala Devi @ Munibala Devi along with her four minor children has been passed contrary to the law.
Learned counsel for the appellant has further submitted that it is a case of hit and run, where the tempo was hit by unknown Bolero Jeep causing death of both the deceased, Tahlu Rajwar and Sohan Munda in which the driver of tempo bearing registration No.JH09H-6249 has no negligence which is under the insurance coverage of National Insurance Company Limited (appellant).
Learned counsel for the appellant has further submitted that it is a case of hit and run where the compensation amount has to be paid by the State Accident Relief Fund but not by the Insurance Company.
Learned counsel for the appellant has further submitted that the driving licence of the tempo has not been brought on record to establish that driver of the tempo was having valid and effective licence to drive the vehicle.
Learned counsel for the appellant has further submitted that deceased were gratuitous passengers, as they were travelling on a goods carrying tempo, as such, in view of the judgment passed by the Apex Court in the case of Oriental Insurance Company Ltd. Vs. Premlata Shukla, reported in (2007) 8 SCC 476, Bimlesh and ors. vs. New India Insurance Company Limited, reported in 2010 (8) SCC 591 and Nishant Singh & Ors. vs. Oriental Insurance Co. Ltd., reported in 2018 (6) SCC 765, the impugned Awards/judgments are fit to be set aside.
This Court will first discuss the fact of the case. From perused of the record it is apparent that both Tahlu Rajwar and Sohan Munda (deceased) were travelling on a tempo bearing registration No.JH09H-6249 in their return -4- journey and as soon as they reached at Village- Chargi under Peterwar Police Station in the District Bokaro on NH 23 in front of Charki Hotel, the Bolero Jeep hit the tempo from the back causing grievous injuries to both the persons, who were admitted at Vrindavan Nursing Home, Bokaro. Both persons were the vegetable vendors and Sohan Munda died during treatment on 06.05.2009 and Tahlu Rajwar died during treatment on 07.05.2009.
Police registered FIR vide Peterwar P.S. Case No.33 of 2009, dated 08.05.2009, for the offence under Sections 279, 427 and 304A IPC and after investigation submitted chargesheet against the driver of the unknown Bolero vehicle.
Admittedly, the tempo on which both the deceased were travelling was insured before the National Insurance Company Ltd. vide policy No.170401/31/08/6300005815, valid for the from dated 10.11.2008 to 09.11.2009.
The driver of the tempo, Mehru Karmali appeared before the learned Tribunal and filed his written statement claiming therein that vehicle was duly insured and accident caused due to contributory negligence of both the vehicles. The owner of the tempo namely, Shilwanti Devi, W/o G.S. Ojha residing at Qr. No.205, Sector III- A, P.O. & P.S. Bokaro Steel City, District- Bokaro did not appear before the learned Tribunal and the case was fixed ex-parte vide order dated 05.10.2015.
The National Insurance Co. Ltd. has filed written statement stating therein that the owner of the Bolero Jeep and the insurer of the Bolero Jeep have not been impleaded as party. The accident was not caused because of negligence and carelessness of the driver of the tempo bearing registration No.JH09H-6249 and the tempo was a goods carrying tempo, in which deceased were returning. The Title (Motor Vehicle) Suit No.101 of 2009 preferred before the learned District Judge-I, Tenughat was dismissed on 07.02.2012, the restoration application was instituted vide Miscellaneous Case No.3 of 2012, which was also dismissed and the same has not been mentioned in the claim application filed by the claimant -5- namely, Nunibala Devi @ Munibala Devi, as such, the claim application was not maintainable in view of Sections 147 and 149(2) of the MV Act and Rule 226 of the Bihar Motor Vehicle Rules 1997.
It appears that the learned Tribunal has framed issue no.VI in T. (M.V.) Suit No.22 of 2015 which reads as follows:- "What amount of compensation the claimants are entitled to get and from whom?"
This issue has been decided on the basis of evidence brought on record in T.(M.V.) Suit No.22/2015 and Nunibala Devi @ Munibala Devi has been examined as witness no.1 and Mahendra Rajwar as witness no.2. The FIR of Petewar P.S. Case No.33 of 2009 as Exhibit-I, chargesheet and insurance paper have been brought on record and marked for identification as X and X/1 and the post-mortem report of Tahlu Rajwar has been marked for identification as X/2, whereas in the Claim Case no.102 of 2009 with respect to deceased- Sohan Munda, certified copy of the FIR of Peterwar P.S. Case No. 33 of 2009 has been marked as Exhibit-1, certified copy of the chargesheet No.80 of 2009 dated 31.08.2009 has been marked as Exhibit-2, death certificate of deceased- Sohan Munda dated 12.05.2009 has been marked as X for identification, postmortem examination report has been marked as X/1 and the driving licence of O.P. No.2 (driver) has been marked as 'Y'.
Shashi Munda (claimant no.1) has been examined as P.W.1 and Chandrashekhar Khanna as P.W.2. It is apparent that in both the cases, none of the opposite parties have produced any oral or documentary evidence.
From perusal of the impugned order, it appears that so far filing with regard to Claim Case No.102/2009 by the dependents Shashi Munda and Bhola Munda is concerned, no dispute has been raised by the Insurance Company as it was filed for first time before the Bermo at Tenughat, as such, there is no illegality.
So far the question, which has been raised by the learned counsel for the appellant with regard to the maintainability of T. (M.V.) Suit No.22 of 2015 i.e. filed by claimants, Nunibala Devi @ Munibala Devi and four minors is concerned, initially the same was filed before the Motor -6- Accident Claim Case Tribunal, Bermo at Tenughat vide Title (M.V.) Suit No.101 of 2009, which was dismissed and restoration application no. 3 of 2012 was also dismissed. Thereafter without mentioning the same, the claimants have preferred the fresh case before the claim Tribunal at Bokaro.
The issue has not been framed nor any evidence has been brought on record by the Insurance Company rather, it appears that in a benevolent legislation a claimant can prefer an appeal. The accident took place in the year, 2009, the poor claimants being the widow and minor children, who are residents of Peterwar preferred claim application before the Bermo at Tenughat, but the claim application has never been dismissed on merits, rather the same was dismissed for default without adjudication of the issue. The restoration application was also dismissed without adjudication of the issue, as such, in a benevolent legislation the claimant(s) subsequently filed the claim case before the Principal Bench at Bokaro vide T.(M.V.) Suit No.22 of 2015. Such type of difficulties have been noticed in several cases and Supreme Court in the case of Jai Prakash Vs. National Insurance Co. Ltd., reported in 2002 SC 607 decided this issue by giving certain directions to the police authority and to the claims Tribunal.
Since no contrary evidence has been brought on record, this Court feels that the issue which has been agitated by the learned counsel for the appellant regarding the maintainability of the claim case by the claimants without any contrary evidence brought on record and without showing that the case of Insurance Company has been prejudiced because of such dismissal or repeated filing and without mentioning the same fact in the claim application at Bokaro, this Court is not inclined to accept the objection in absence of any prejudice shown by the appellant- Insurance Company, as such, the objections with regard to maintainability of Title Motor Vehicle/Suit No. 22 of 2015 preferred by claimants, Nunibala Devi @ Munibala Devi and four minors children with respect to death of Tahlu Rajwar is accordingly not accepted by this Court.
Thus, this Court, holds that in absence of any contrary evidence -7- showing prejudice to the Insurance Company as per Section 166 (2) of the MV Act, 1988, which reads as follows:-
166. Application for compensation.-
".........(2) Every application under sub-section (1) shall be made, at the option of the claimant, either to the Claims Tribunal having jurisdiction over the area in which the accident occurred or to the Claims Tribunal within the local limits of whose jurisdiction the claimant resides or carries on business or within the local limits of whose jurisdiction the defendant resides, and shall be in such form and contain such particulars as may be prescribed:"
As such, it gives rise to a jurisdiction to the claimant(s) to approach to Claims Tribunal at Bokaro. It is not the case of the Insurance Company that the claimant(s) has taken compensation at both the forums, as such, the objections raised by the learned counsel for the appellant is hereby rejected.
So far the objections with regard to the hit and run case is concerned, in my opinion both the deceased (Tahlu Rajwar and Sohan Munda) are third party to the accident, which has caused because of dashing of tempo, in which both the deceased were travelling, by unknown bolero. The right to sue which has been decided in view of the judgment passed by the Apex Court in the case of Khenyei vs. New India Assurance Co. Ltd. & Ors., reported in AIR 2015 SC 2261 corresponding SCC 2015 (9) SCC 273, the Apex Court has dealt with that issue in para 17 which reads as follows:-
"17 The question also arises as to the remedies available to one of the joint tort feasors from whom compensation has been recovered. When the other joint tort feasor has not been impleaded, obviously question of negligence of non-impleaded driver could not be decided apportionment of composite negligence cannot be made in the absence of impleadment of joint tort feasor. Thus, it would be open to the impleaded joint tort feasors after making payment of compensation, so as to sue the other joint tort feasor and to recover from him the contribution to the extent of his negligence. However, in case when both the tort feasors are before the court/tribunal, if evidence is sufficient, it may determine the extent of their negligence so that one joint tort feasor can recover the amount so determined from the other joint tort feasor in the execution proceedings, whereas the claimant has right to recover the compensation from both or any one of them."
(emphasis supplied) The same has again been reiterated in para 22 reads as follows:-
"22. What emerges from the aforesaid discussion is as follows:
22.1. In the case of composite negligence, the plaintiff/claimant is entitled to sue both or any one of the joint tort feasors and to recover the entire compensation as liability of joint tort feasors is joint and several.
22.2. In the case of composite negligence, apportionment of compensation between two tort feasors vis-à-vis the plaintiff/claimant is not permissible. He -8- can recover at his option whole damages from any of them.
22.3. In case all the joint tort feasors have been impleaded and evidence is sufficient, it is open to the court/Tribunal to determine inter se extent of composite negligence of the drivers. However, determination of the extent of negligence between the joint tort feasors is only for the purpose of their inter se liability so that one may recover the sum from the other after making whole of the payment to the plaintiff/claimant to the extent it has satisfied the liability of the other. In case both of them have been impleaded and the apportionment/extent of their negligence has been determined by the court/Tribunal, in the main case one joint tort feasor can recover the amount from the other in the execution proceedings.
22.4. It would not be appropriate for the court/Tribunal to determine the extent of composite negligence of the drivers of two vehicles in the absence of impleadment of other joint tort feasors. In such a case, impleaded joint tort feasor should be left, in case he so desires, to sue the other joint tort feasor in independent proceedings after passing of the decree or award."
As such, the deceased were third party in the accident, in absence of any evidence brought on record by the opposite party i.e. driver of the offending tempo and the Insurance Company, this Court will look into the written statement filed by the driver of the tempo, Mehru Karmali where he has categorically stated that accident has taken place because of contributory negligence of both the vehicles.
So far the gratuitous passenger is concerned, no evidence has been brought on record by the Insurance Company, as stated above. The opposite parties have not adduced any oral or documentary evidence in either of the claim application, before the claim Tribunal either at Bokaro or Tenughat. As such, it is an issue which has been raised without any substance by the counsel for the appellant.
So far licence of the driver is concerned, which has been agitated by learned counsel for the appellant, this Court has perused the written statement filed by the driver as well as by the Insurance Company, nowhere, the Insurance Company has raised the issue, that driver was not competent to drive the vehicle, rather as per the case of the Insurance Company, driver was not at fault or negligent in driving the vehicle (tempo), which was insured before him. This Court is conscious of the legal propositions decided by the Apex Court in the case of Nirmala Kothari Vs. United India Insurance Company, reported in 2020 SCC Online 286, paras 11 & 12 of which are profitably quoted herein:-
"11. The view taken by the National Commission that the law as settled in PEPSU case [PEPSU RTC v. National Insurance Co., (2013) 10 SCC 217 :-9-
(2013) 4 SCC (Civ) 713 : (2013) 4 SCC (Cri) 768 : (2014) 1 SCC (L&S) 750] is not applicable in the present matter as it related to third-party claim is erroneous. It has been categorically held in National Insurance Co.
Ltd. v. Swaran Singh [National Insurance Co. Ltd. v. Swaran Singh, (2004) 3 SCC 297 : 2004 SCC (Cri) 733] : (SCC p. 341, para 110) "110. ... (iii) ... Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards the insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by a duly licensed driver or one who was not disqualified to drive at the relevant time."
12. While hiring a driver the employer is expected to verify if the driver has a driving licence. If the driver produces a licence which on the face of it looks genuine, the employer is not expected to further investigate into the authenticity of the licence unless there is cause to believe otherwise. If the employer finds the driver to be competent to drive the vehicle and has satisfied himself that the driver has a driving licence there would be no breach of Section 149(2)(a)(ii) and the insurance company would be liable under the policy. It would be unreasonable to place such a high onus on the insured to make enquiries with RTOs all over the country to ascertain the veracity of the driving licence. However, if the insurance company is able to prove that the owner/insured was aware or had notice that the licence was fake or invalid and still permitted the person to drive, the insurance company would no longer continue to be liable."
As such, in absence of any evidence brought on record by the Insurance Company and no such question or application was filed by the Insurance Company before the learned Tribunal, for a direction to the driver to bring the driving licence of the driver of the tempo on record rather the Insurance Company has categorically stated in the written statement that driver of the tempo has not committed any negligence. The question of raising this issue by the appellant- New India Insurance Company Ltd. before this Court is a mere objection raised without any substance, as such, the same is also not acceptable to this Court So far the judgment in the case of Premlata Shukla (supra) with regard to the question of proof of contents of the document, which has been cited by the learned counsel for the appellant is concerned, this judgment is not coming to help the Insurance Company, in absence of any question raised by the Insurance Company by adducing any oral or documentary evidence, as such, the same is not applicable in the present case, as Insurance Company or opposite parties have not produced any oral or documentary evidence before the learned Tribunal.
So far the judgment in the case of Bimlesh and others (Supra), this judgment is on the point, that all the issues were required to be considered by the claim tribunal. From perusal of the impugned award, it -10- appears that seven issues have been framed and all the issues have been decided by the learned Tribunal in T.(M.V.) Suit No.22/2015 preferred by claimants, Nunibala Devi @ Munibala Devi and four minors children of deceased, Late Tahlu Rajwar and four issues in Motor Vehicle Claim Case No. 102/2009 preferred by claimants, Shashi Munda and Bhola Munda have also been decided by the learned Tribunal, as such, this judgment is of no help to the appellant.
The National Insurance Company has never preferred any application before the court below/tribunal or before this Court that learned Tribunal is not framing these relevant issues, which have been suggested by the Insurance Company, as such, frivolous grounds taken by the appellant, before this Court are not sustainable in view of no evidence adduced by the Insurance Company, to agitate that a particular issue with regard to question suggested by the appellant has not been decided by the Insurance Company. As such, this judgment is also no help to the appellant.
So far the judgment of Nishant Singh & Ors. (supra) are concerned, the issue with regard to factum of rash and negligent driving by the driver of the offending vehicle under Section 140 of the MV Act is not required to be adjudicated, as while adjudicating under Section 166 of the MV Act, the same has already been decided in view of the written statement submitted by the driver of the offending vehicle (tempo) namely, Mehru Karmali that accident took place because of the contributory negligence of both the vehicles.
Accordingly, all the issues, which have been agitated by the appellant- Insurance Company before this Court seems to have been agitated first time before this Court and not taken before the learned Tribunal, as no oral or documentary evidence has been adduced, as such, considering the appeal to be devoid of merit is hereby dismissed.
All the I.As. in both the appeals are hereby closed. Accordingly, both the aforesaid Miscellaneous Appeals are hereby dismissed.
The statutory amount deposited by the appellant at the time of -11- preferring both the appeals i.e. M.A. No.576 of 2018 and M.A. No.575 of 2018 shall be remitted to the learned Tribunal/Executing Court by the learned Registrar General of this Court within a period of four weeks from today.
The balance amount of award as passed by the learned Tribunal respectively shall be indemnified by the Insurance Company within a reasonable time as the accident took place on 06.05.2009 as approximately twelve years have elapsed in a benevolent legislation.
(Kailash Prasad Deo, J.) R.S.