Dismissed

Bharti Axa General Insurance Company Limited through Its Legal Executive Ms Ankita Bose v. Hemanti Devi

Jharkhand HC13 Apr 2023MA/4/2019

Case brief

AI extract

What is this about?

In this motor accident claim appeal, the High Court held that the Insurance Company could not be absolved of liability. The court ruled that since the specific requirement regarding an unauthorized driver was not pleaded or proved, the onus did not shift to the vehicle owner, and the insurance cover remained valid.

What did the court decide?

Insurance Company is directed to pay the statutory amount awarded; Registrar General to remit deposited appeal money.

Bharti Axa General Insurance Company Limited through Its Legal… — Insurance | Jharkhand HC (2023)

¶1

M.A.No.04 of 2019

¶2

IN THE HIGH COURT OF JHARKHAND AT RANCHI M.A. No.04 of 2019

¶3

------

¶4

(Against the judgment and award dated 04.08.2018 passed by learned District Judge-II-cum-M.A.C.T., Giridih in Motor Accident Claim Case No.10 of 2017)

¶5

------

¶6

Bharti AXA General Insurance Company Limited, having its Office 1^st Floor, The Ferns Icon Building, Survey No.28, ‘Doddan Kundi’, Outer Ring Road, P.O. & P.S.- ‘Doddan Kundi’, Bangalore – 560037 and also having its office at 3^rd Floor (South East Carrier), Rohini 56, Circular Road, Ranchi-834001, through its Legal Executive Ms. Ankita Bose, aged about 26 years, daughter of Sri Alok Bose, residing at Emami Market, 4^th Floor, 3 Lord Sinha Road, P.O. + P.S. Little Russel Street, District- Kolkata, PIN 700071 (West Bengal)

¶7

.... .... …. Opposite Party No.3/ Appellant

¶8

Versus

¶9

Hemanti Devi, aged about 28 years, wife of Late Shankat Turi;

¶10

Dropadi Devi, aged about 58 years, wife of Pairu Turi;

¶11

Khushbu Kumari, aged about 12 years, daughter of Late Shankar Turi;

¶12

Pushpa Kumari, aged about 08 years, daughter of Late Shankar Turi;

¶13

Roli Kumari, aged about 06 years, daughter of Late Shankar Turi;

¶14

Moli Kumari, aged about 04 years, daughter of Late Shankar Turi;

¶15

Tijiya Kumari, aged about 06 months, daughter of Late Shankar Turi;

¶16

Respondent Nos.3 to 7 being minor are represented through their natural guardian mother being respondent No.1 and all are residents of Village – Kari, PO- Kishgo, PS- Deori, District – Giridih (Jharkhand)

¶17

.... .... …. Claimants/ Respondents

¶18

¶19

M.A.No.04 of 2019

¶20

Pappu Kumar (Owner of Mahindra Bolero no. JH-12C-0521), son of Narayan Saw, resident of Village – Nawadih Ruputola, PORajdhanwar, PS- Dhanwar, District- Giridih (Jharkhand)

¶21

Sheo Kumar Choudhary (Driver of Mahindra Bolero no. JH-12C0521), son of Kailash Choudhary, resident of Village – Upraili Dhanwar, Budhuwadih, P.O. & P.S. – Dhanwar, District Giridih (Jharkhand)

¶22

.... .... …. Opposite Party Nos.1 and 2/Respondents

¶23

------ For the Appellants : Mr. Amit Kumar Das, Advocate Ms. Swati Shalini, Advocate For the Resp. Nos.1 to 7 : Mr. Sudhir Kumar Roy, Advocate Mr. Arvind Kr. Choudhary, Advocate For the Resp. No.8 : Mr. Naresh Pd. Thakur, Advocate For the Resp. No.9 : None ------

¶24

P R E S E N T

¶25

HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY

¶26

By the Court :- Heard the parties.

¶27

No one turns up on behalf of the respondent No.9 in spite of repeated calls, hence, this appeal is heard and disposed of ex-parte against the respondent No.9.

¶28

This Appeal, under Section 173 of the Motor Vehicles Act, 1988, has been preferred against the judgment and award dated 04.08.2018 passed by learned District Judge-II-cum-M.A.C.T., Giridih in Motor Accident Claim Case No.10 of 2017 by which in an application under Section 166 of the Motor Vehicle Act, 1988 the learned tribunal awarded a compensation of Rs.9,30,160/- along with simple interest @ 6% per annum from the date of filing of the claim application i.e. 22.03.2017 to till the realization of the amount of compensation from the opposite party No.3.

¶29

The brief facts of the case is that on 08.01.2017 at about 5:00 pm the deceased was coming on a tempo with other passengers. On the way the driver of Bolero Vehicle rashly and negligently driving the offending

¶30

¶31

M.A.No.04 of 2019

¶32

Bolero Vehicle, dashed the tempo due to which injuries were caused to Shankar Turi and other passengers and the injured Shankar Turi was taken to referral hospital and was later on referred to Ranchi but on the way, the deceased- Shankar Turi died. The claimants are the dependants of Shankar Turi. In connection with the said accident, Dhanwar P.S. Case No.11 of 2017 was registered on 09.01.2017 for the offences punishable under Sections 279, 337, 338, 304 A and 427 of the Indian Penal Code and after due investigation of the case, the police submitted charge-sheet against the driver of the offending Bolero Vehicle. The deceased was earning Rs.15,000/- per month by driving his tempo and was aged about 30 years at the time of his death.

¶33

The opposite party No.1 being the owner of the offending vehicle and the opposite party No.2 being the driver of the offending vehicle did not appear in response to the notice and were set ex-parte . Later on they filed their joint written-statement but since the same was not pressed, vide order dated 19.08.2017 the tribunal ordered that the said joint written statement of the owner of the offending vehicle and the driver of the offending vehicle who are respectively the opposite party Nos.1 and 2 of the claim application be kept in the record.

¶34

The opposite party No.3-appellant- Insurance Company filed its written statement and challenged the maintainability of the claim petition on various technical grounds. It was specifically pleaded by the opposite party No.3-appellant- Insurance Company that the vehicle was being driven by the driver without holding any driving license and without any road permit.

¶35

In view of the rival pleadings of the parties, the learned tribunal framed the following six issues:-

¶36

1). Whether the suit is maintainable in its present form?

¶37

2). Whether there is valid cause of action for the present suit?

¶38

3). Whether death of the deceased Shankar Turi was caused by the injury sustained due to rash and negligent driving by the driver of the offending vehicle i.e. Mahindra Bolero No. JH-12C-0521 on 08.01.2016 at about 5.00 P.M?

¶39

4). Whether the driver of offending vehicle had a valid driving licence at the time of occurrence and the offending vehicle was insured with O.P. no.3 Bharti AXA General Insurance Company Ltd. at the time of occurrence?

¶40

¶41

M.A.No.04 of 2019

¶42

5). Whether the claimants are entitled for compensation and if so, what amount and from whom?

¶43

6). To what relief or reliefs the claimants are entitled for?

¶44

In support of its case, the claimants altogether examined five witnesses while the opposite party did not adduce any evidence either oral or documentary. P.W.1- Dropadi Devi is the mother of the deceased. She has supported the case of the claimants including the accident and the earning of the deceased. In her cross-examination, she has stated that she came to know about the accident from a second person.

¶45

P.W.2- Pairu Turi is the father of the deceased. He in his examination-in-chief filed in the shape of affidavit has also stated in the same manner as the P.W.1 and in his cross-examination also he has stated that he came to know about the accident from a second person. 10. P.W.3- Hemanti Devi is the wife of the deceased. Like the P.W.1 and P.W.2, she has also supported the case of the claimants in her examination-in-chief filed in the shape of affidavit. In her crossexamination she has stated that she does not know how the accident took place because she was at her house at that time.

¶46

P.W.4- Sarju Turi is the elder brother of the deceased. He is an eyewitness to the occurrence. He has supported the case of the claimants. In his cross-examination he has stated that at time of accident he was also travelling in the tempo concerned and there were only four persons sitting in the tempo.

¶47

P.W.5- Kishun Rai is also an eye-witness to the occurrence. He has also supported the case of the claimants. In his cross-examination he has stated that he was also travelling in the tempo at the time of the accident.

¶48

Besides the oral testimony, the claimants also proved the documents which have been marked Ext. 1 to Ext. 7 and two documents have been marked X and X/1 for identification. 14. The learned tribunal first took up issue Nos.3 and 4 together and after considering the evidence in the record, came to the conclusion that there was violation of the terms and conditions of the insurance policy as the driving licence and permit were not produced by the owner of the offending vehicle and also observed that the appellant/opposite party

¶49

¶50

M.A.No.04 of 2019

¶51

No.3- Insurance Company is at liberty to recover the compensation amount from the owner of the vehicle. On the basis of the post-mortem report marked Ext.7, the tribunal assessed the age of the deceased to be 35 years and held that the death of the deceased was caused by the injuries sustained by him in the accident resulting from the rash and negligent driving of the driver of offending vehicle.

¶52

Thereafter, the learned tribunal took up issue Nos.5 and 6 together and assessed the monthly income of the deceased to be Rs.4,000/- and added 40% towards future prospects and by applying the multiplier of 16, arrived at the compensation of Rs.9,30,160/-. 16. Learned counsel for the appellant submits that the learned tribunal failed to take into consideration the fact that the deceased himself was driving the three-wheeler without having any driving license and without holding any road permit and therefore, the Insurance Company cannot be saddled with the liability to pay the compensation to the claimants and in para-14 the tribunal has itself made observation to this effect but in the operative portion of the judgment, the tribunal has not given right to the appellant- Insurance Company to recover the compensation amount to be paid by it from the owner of the offending vehicle being the opposite party No.1 of the claim application. It is next submitted that learned tribunal failed to take into consideration that the tempo was overloaded with twelve persons and the deceased was the driver of the tempo/auto rickshaw which was driven by the deceased himself in violation of the provisions of the Motor Vehicle Act, 1988. In support of his contention, learned counsel for the appellant relies upon the judgment of Hon’ble Supreme Court of India in the case of Pappu and Others vs. Vinod Kumar Lamba and Another reported in (2018) 3 SCC 208 paragraph-12 of which reads as under:-

¶53

“12. This Court in National Insurance Co. Ltd. [National Insurance Co. Ltd. v. Swaran Singh, (2004) 3 SCC 297 : 2004 SCC (Cri) 733] has noticed the defences available to the insurance company under Section 149(2)(a)(ii) of the Motor Vehicles Act, 1988. The insurance company is entitled to take a defence that the offending vehicle was driven by an unauthorised person or the person driving the vehicle did not have a valid driving licence. The onus would shift on the insurance company only after the owner of the offending vehicle

¶54

¶55

M.A.No.04 of 2019

¶56

pleads and proves the basic facts within his knowledge that the driver of the offending vehicle was authorised by him to drive the vehicle and was having a valid driving licence at the relevant time."

¶57

It is next submitted that the learned tribunal could not appreciate the evidence in the record in its correct perspective. Hence, it is submitted that the Insurance Company be absolved of the liability to pay the compensation amount.

¶58

Learned counsel appearing for the owner of the offending vehicle being the respondent No.8 on the other hand defends the impugned judgment and award and submits that as there is absolutely no pleading made by the appellant/opposite party No.3- Insurance Company in its written show-cause that the driver of the offending vehicle was not having any driving license and in the absence of such pleading, the onus has not shifted to the owner of the offending vehicle. It is then submitted that assuming for the sake of argument that the pleadings of the appellant/opposite party No.3- Insurance Company to the effect that deceased himself was driving the three-wheeler without having any driving license and without holding any road permit, is true even if the appellant/opposite party No.3- Insurance Company has failed to bring on record in the evidence in this respect, still the same is not a ground to absolve the appellant/opposite party No.3- Insurance Company to pay the compensation amount of the deceased by way of indemnification of the opposite party No.1. Hence, it is submitted that this appeal, being without any merit, be dismissed.

¶59

Learned counsel appearing for the respondent Nos.1 to 7 being the claimants submits that the eye-witness to the occurrence has categorically stated that only four persons were travelling in the tempo/auto rickshaw at the time of accident and there is absolutely no contra evidence in the record, so it is only a figment of imagination of appellant/opposite party No.3- Insurance Company that the tempo was overloaded with twelve passengers for which there is absolutely no evidence, hence, such contention of the appellant/opposite party No.3- Insurance Company has no legs to stand. Hence, it is submitted that this appeal, being without any merit, be dismissed.

¶60

¶61

M.A.No.04 of 2019

¶62

Having heard the rival submissions made at the Bar and after carefully going through the materials available in the record, the sole point for determination which crop up in this appeal is:-

¶63

“Whether the appellant- Insurance Company be absolved of the liability to pay the compensation?”

¶64

It is a settled principle of law as has been held by the Hon’ble Supreme Court of India in the case of Pappu and Others vs. Vinod Kumar Lamba and Another (supra) that the onus will shift to the owner of the vehicle to produce the driving license of the driver at the time of the alleged accident only if it is pleaded by the Insurance Company that such driver was not having a valid driving license. But in the absence of that pleading certainly no violation of any terms and conditions of the insurance policy can be presumed.

¶65

Now, coming to the facts of the case, as rightly submitted by the learned counsel for the respondent Nos.1 to 7, the witnesses examined by the claimants as already indicated above in this judgment, have categorically stated that only four persons were travelling in the tempo/auto rickshaw at the time of accident. Thus, there being absolutely no evidence in the record that at the time of accident twelve passengers were in the tempo/auto rickshaw, therefore, the said contention of the appellant is without any merit. The appellant has not pleaded that the owner of the vehicle without due verification, allowed the offending vehicle to be driven by any unauthorized person or the person without having driving license was driving the offending vehicle at the time of accident. In the absence of such pleadings, in view of the principle of law reiterated in the case of Pappu and Others vs. Vinod Kumar Lamba and Another (supra); certainly the onus should not shift to the owner of the vehicle and under such circumstances, the violation of the terms and conditions of the insurance policy cannot be believed. Though the appellant/opposite party No.3- Insurance Company pleaded that the deceased was not having a valid driving license for driving the 3 wheeler, which was involved in the accident also, yet it did not produce any evidence to substantiate its said pleadings.

¶66

In view of the discussions made above, this Court is of the

¶67

¶68

M.A.No.04 of 2019

¶69

considered view that this is not a fit case where the appellant- Insurance Company be absolved of the liability to pay the compensation amount.

¶70

Accordingly, the sole point for determination as to whether the appellant- Insurance Company be absolved of the liability to pay the compensation; is answered in the negative.

¶71

In view of the sole point for determination being answered in the negative, this appeal, being without any merit, is dismissed on contest in respect of respondent Nos.1 to 8 and ex-parte against the respondent No.9 but under the circumstances without any costs.

¶72

The Registrar General of this Court is directed to remit the statutory amount if any, deposited by the appellant in connection with this appeal to the tribunal concerned forthwith.

¶73

Let a copy of this judgment along with the lower court records be sent to the courts concerned forthwith.

¶74

(Anil Kumar Choudhary, J . )

¶75

High Court of Jharkhand, Ranchi Dated the 13^th of April, 2023 AFR/ Animesh

¶76

Bharti Axa General Insurance Company Limited through Its Legal Executive Ms Ankita Bose v. Hemanti Devi

Case brief

What is this about?

What did the court decide?

Bharti Axa General Insurance Company Limited through Its Legal Executive Ms Ankita Bose v. Hemanti Devi

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Anjani Kumar Singh Alias Anjani Kumar Vs the State of Jharkhand

Hitesh Kumar R Jain Alias Hitesh Jain Vs the State of Jharkhand

Hitesh Kumar R Jain Alias Hitesh Jain Vs the State of Jharkhand

Lakhan Mahato Vs Sushil Ram Mahato

Saba Tarrannum Vs Afsari Khatoon

Sukra Baiga Vs Chamra Oraon