Dismissed

Branch Manager Bajaj Allianz General Insurance Co. Ltd. v. Karan Hembrom And Ors.

Jharkhand HC8 Nov 2019MA/149/2017

Case brief

AI extract

What is this about?

The High Court dismissed an insurance company's appeal against a motor accident tribunal awarding Rs. 2,25,000 to a deceased minor's parents. The Court rejected the argument that negligence must be proved for Section 166 claims, noting criminal proceedings were pending. While noting the award was low, the Court did not enhance it absent an appeal for enhancement.

What did the court decide?

Appeal dismissed; insured company ordered to deposit balance within 60 days; Tribunal to disburse amount after verification.

Branch Manager Bajaj Allianz General Insurance Co. Ltd. Vs Karan… — Insurance | Jharkhand HC (2019)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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(Civil Miscellaneous Appellate Jurisdiction)

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M.A. No. 149 of 2017

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Branch Manager, Bajaj Allianz General Insurance Co. Ltd 3/20/B.K.K. Banerjee Road, P.O. Behrampore, District- Murshidabas (W.B.) 742101 Cum T/A 504 Mahabir Tower, Opposite Church Complex, Main Road, P.O. Ranchi, P.S. Hindpiri, Town & DistrictRanchi 834001 Cum T/A GE Plaza, Airport Road, Yeerwada Pune (Mumbai) 411006

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…… Appellant

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Versus

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Karan Hembrom Son of Kundan Hembrom

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Marangmai Baski Wife of Karan Hembrom

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Both residing at Village Nabadih, P.S. & P.O. Littipara District- Pakur

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(Claimant Nos. 1 and 2 respectively)

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Baijun Baski Son of Late Mangal Baski resident of Village & P.O. Alubera, P.S. Amrapara, District- Pakur (Owner) ……Respondents

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----CORAM: HON'BLE MR. JUSTICE KAILASH PRASAD DEO

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For the Appellant : Mr. Alok Lal, Advocate Mr. Santosh Kumar, Advocate For the Respondent Nos 1 and 2 : Mr. A.K. Lall, Advocate Md. Yasir Arafat, Advocate For the Respondent No.3 : Mr. Awanish Shekhar, Advocate

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06/Dated: 08/11/2019

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Heard, learned counsel for the appellant and learned counsel for the respondents.

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Appellant- Bajaj Allianz General Insurance Co. Ltd has preferred this appeal against the award dated 24.09.2016 in M.A.C.T. Case No.31 of 2014 passed by learned District Judge-I-cum-Motor Vehicle Accident Claim Tribunal, Pakur, whereby the claimants being the parents of the deceased- Late Kartik Hembrom have been awarded compensation to the tune of Rs.2,25,000/- instead of their claim of Rs.6,00,000/- with simple interest @ 9% per annum from the date of filing of the claim application i.e. 05.03.2014 till its realization.

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Learned counsel for the appellant has submitted that the impugned award is vulnerable in view of the facts, as the learned Tribunal has not considered the case of appellant which will be apparent from at para 11 of the impugned award which is reproduced herein:

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“11. From the perusal of the exhibits it appears that in this reference

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Littipara P.S. Case No.06/14 dated 14.01.14 corresponding to G.R. No.44/14 has been lodged against the driver of the offending vehicle and after investigation charge-sheet has been submitted against the driver but tribunal has to decide the case on the basis of evidence adduced before the tribunal and certified copy of the F.I.R. charge-sheet and other exhibits clearly show that Kartik Hembrom died in motor vehicle accident which was being driven by the driver of the offending vehicle and there is no evidence on behalf of Insurance Company that the driver of the vehicle was driving the said vehicle rashly and negligently. In these circumstances, I find that accident had not taken place due to rash and negligent driving of the driver of the offending vehicle. The insurance company has got examined the witness to prove that due to rash and negligent driving by the driver of the offending vehicle accident took place but I find that accident did not take place due to rash and negligent driving of the driver because insurance company has not been able to prove the negligence driving of driver. It is true that vehicle was duly insured at the time of accident and registered in the name of the owner of the vehicle and, the driver had valid driving licence and the driver had not violated the terms and conditions of the insurance policy and the insurance company has not been able to show that the owner of the vehicle had violated the terms and conditions of policy for which the vehicle has been insured under the insurer and the insurer of the vehicle is liable to pay compensation to the claimants for the death of their child, who died in accident, hence I come to right conclusion that the insurance company is liable to pay compensation to the claimant.”

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Learned counsel for the appellant has submitted that the learned Tribunal has given finding that accident has not taken place due to rash and negligent driving of the driver of the offending vehicle, as such, in view of the judgment Surender Kumar Arora and Ors. vs. Manoj Bisla and Ors. reported in (2012) 4 SCC 552 as well as Oriental Insurance Co. Ltd. Vs. Premlata Shukla and Others , reported in (2007) 13 SCC 476, the claim application was fit to be rejected as proof of negligence on the part of the driver of the vehicle is sine qua non for an application under Section 166 of the Motor Vehicle Act, as such, claimant is not entitled for any compensation as the learned Tribunal has held that accident has not taken place due to rash and negligent driving of the driver of the offending vehicle.

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Learned counsel for the appellant has further submitted that the learned Tribunal has awarded 9% interest from the date of filing of the application i.e. 05.03.2014 till realization of the compensation amount of Rs.2,25,000/-. The charge-sheet has already been exhibited which shows that the driver of the

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offending vehicle has been charge sheeted by the police. Learned counsel for the respondents has further submitted that compensation in respect of accidents involving the death of, or bodily injury to, persons arising out of the use of motor vehicles, or damages to any property of third party so arising or both.

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To this, learned counsel for the respondent-owner, Mr. Awanish Shankar, has submitted that it is mis-conceived notion of the learned counsel for the appellant to submit that the learned Tribunal has given a finding that accident has not taken place due to rash and negligent driving of the driver of the offending vehicle. To buttress his argument, learned counsel for the respondent-owner has drawn attention of this Court to the same para i.e. para 11 of the impugned judgment where the learned Tribunal has recorded that From the perusal of the exhibits it appears that in this reference Littipara P.S. Case No.06/14 dated 14.01.14 corresponding to G.R. No.44/14 has been lodged against the driver of the offending vehicle and after investigation charge-sheet has been submitted against the driver but tribunal has to decide the case on the basis of evidence adduced before the tribunal and certified copy of the F.I.R. charge-sheet and other exhibits clearly show that Kartik Hembrom died in motor vehicle accident which was being driven by the driver of the offending vehicle and there is no evidence on behalf of Insurance Company that the driver of the vehicle was driving the said vehicle rashly and negligently. The tribunal has not exonerated the driver from the criminal liability, as such, passing of remarks by the learned Tribunal will not amount to dismissal of the claim case filed by the claimant, as such, the impugned award has rightly been passed by the learned Tribunal which does not require any interference by this Court.

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Learned counsel for the respondents, Mr. Arbind Kumar Lall assisted by

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Md. Yasir Arafat, Advocate has submitted that though the claimants being the poor parents of the deceased has not preferred any appeal for enhancement of award but they have claimed compensation to the tune of Rs.6,00,000/- though death of their child aged about 6 years, as such, this Court may consider the same sympathetically.

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After hearing the learned counsel for the parties and from perusal of the record. Since the claimants have not preferred any appeal for enhancement of award, this Court is not inclined to enhance the same in absence of enhancement appeal. So far the maintainability of the claim case is concerned, learned counsel for the appellant has relied upon the judgment in the case of Surender Kumar Arora and Ors. (Supra) as well as in the case of Oriental Insurance Co. Ltd. (Supra). In those cases the Hon'ble Supreme Court has held that proof of rash and negligent driving is therefore sine qua non for maintaining an application under Section 166 of the Motor Vehicle Act but in the present case this is not the vital aspect rather the learned Tribunal has rightly considered that such rash and negligent driving of the driver is subject matter of criminal case i.e., Littipara P.S. Case No.06/14 which is not before the learned Tribunal. The charge- sheet has been submitted against the driver of the offending vehicle showing that there was negligence on the part of the driver. The learned Tribunal in para 11 has only recorded that in absence of any evidence on behalf of the Insurance Company that the driver of the vehicle was driving the said vehicle rashly and negligently no finding can be recorded on this issue rather charge-sheet submitted in the police case is ample evidence before the learned Tribunal to consider that the vehicle was being driven rashly and negligently by the driver. This Court is not accepting the argument made by the learned counsel for the appellant, as such remark by the learned Tribunal is unwarranted. So far the simple interest @ 9% per annum is

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concerned, this Court is also not accepting the same in view of the fact that a minor child aged about 6 years has died on 14.01.2014 and the claim case was decided on 24.09.2016 and a meager compensation amount of Rs.2,25,000/has been awarded, which is just compensation. As per the Apex Court it should not have been less than Rs.5,00,000/- but in absence of any appeal for enhancement, this Court cannot enhance the same.

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Under the aforesaid circumstances, considering it just compensation which is neither a bonanza nor a windfall. This Court is not interfering in the same. In the result, the instant appeal is dismissed being devoid of any merit. The appellant- Insurance Company is directed to deposit the balance amount within a period of 60 days from today. The learned Tribunal shall disburse the awarded amount to the claimants after due verification.

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The Registrar General of this Court is directed to refund the statutory amount deposited by the appellant-Insurance Co. Ltd. within a period of four weeks from the date of the filling of the requisition/application.

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(Kailash Prasad Deo, J.)

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sandeep/R.S.-

Branch Manager Bajaj Allianz General Insurance Co. Ltd. v. Karan Hembrom And Ors.

Case brief

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Branch Manager Bajaj Allianz General Insurance Co. Ltd. v. Karan Hembrom And Ors.

Case brief

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