Partly allowed

Oriental Insurance Co.Ltd. v. Rekha Devi And Ors.

Jharkhand HC3 Jan 2023MA/274/2009

Case brief

AI extract

What is this about?

The High Court modified the impugned tribunal award. While absolving the insurance company of direct liability to the claimants as the deceased was a labourer, the court directed the insurer to pay the compensation amount and subsequently recover the sum from the vehicle owner.

What did the court decide?

The insurance company is directed to pay Rs. 1,00,000 (less Rs. 50,000 already paid) to claimants and is given the right to recover the entire amount from the vehicle owner.

Oriental Insurance Co.Ltd. Vs Rekha Devi And Ors. — Insurance | Jharkhand HC (2023)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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M .A. No. 274 of 2009

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Oriental Insurance Co.Ltd., Godda Branch, Godda Bhagalpur Road, P.O & P.S. –Godda Town and District- Godda …... O.P. No. 3/ Appellant

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-Versus-

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Rekha Devi, wife of Late Birbahadur Mandal

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Santosh Kumar Mandal, son of Late Birbahadur Mandal

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Karelal Mandal, son of Late Birbahadur Mandal (Respondent nos. 2 and 3 are minors and are being represented through their mother respondent no. 1 as their natural guardian) All residents of village Balutola Akchari Diara, P.O.& P.S.- Akchari, District- Bhagalpur

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….. (Applicant nos. 1 to 3 respectively)

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Gangadhar Jha, son of Late Moti Candra Jha ….. (Opp. Party no. 1)

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Prakash Jha, son of Gangadhar Jha ….. (Opp. Party no. 2) Both residents of village Gosaichak, P.O. & P.S.- Balbadda, DistrictGodda

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Brihaspati Mandal, son of Laxman Mandal ….. (Opp. Party no. 4) 7. Guljar Devi, wife of Brispati Mandal Both Residing at village Balutola Akchari Diara, P.S. Akchari, DistrictBhagalpur

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….. Respondents

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CORAM : HON’BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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-----For the Appellant : Mr. Alok Lal, Advocate. For the Respondents : Mr. Lakhan Chandra Roy, Advocate

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09/ 03.01.2023 Heard Mr. Alok Lal, learned counsel for the appellant and

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Mr. Lakhan Chandra Roy, learned counsel appearing for the respondents. 2. This Miscellaneous Appeal has been preferred against the judgment and award dated 31.03.2009 passed by M.V.A.C.T cum- 2nd Additional Sessions Judge, Godda in Title Claim Case no. 14 of 2006 / 29 of 2007, by which, learned tribunal has awarded a total sum of Rs. 1,00,000/under Section 167 of M.V.Act with interest thereon @ 6% per annum from the date of the order.

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The case of claimants in brief is that on 19.12.2005, the deceased- Pramod Mandal died on the spot after being crushed by offending tractor, which was rashly and negligently driven by the driver and 15 others were also injured in the said accident. The age of the deceased was 10 years and he was a student. The said offending tractor was insured by the appellant/Opposite Party no. 3 being the insurance company. In their written statement the appellant-Opposite Party no. 3 being the Oriental Insurance Company inter alia pleaded that the driver of the tractor was not having a valid and effective driving license and the deceased was a gratuitous passenger of the said tractor and the owner of the vehicle has violated the conditions of policy of the insurance by allowing the deceased to travel in the tractor as an unauthorized passenger though no premium for any gratuitous passenger was paid hence, the insurance company is not liable to pay the compensation. The insurance company further pleaded that the tractor was overloaded with paddy crops and the passengers beyond the sanctioned laden weight and on this ground also, the insurance company is not

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liable to pay the compensation. The Opposite Party nos. 1 and 2, who are the owner and driver of the offending tractor appeared and filed their written statement and contended that the deceased was travelling in the vehicle in the capacity of owner of his goods and the vehicle was duly insured and the driver had valid and effective license, so it is the insurance company, who has to pay the compensation.

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On the basis of the rival pleadings, the learned tribunal framed the following five issues:-

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I. Whether the claim application is maintainable ?

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II. Whether the claimants have got valid cause of action ?

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III. Whether the deceased Pramod Mandal died in a motor vehicle accident dated 19.12.2005 caused due to rash and negligent driving of vehicle bearing no. JH-17/A – 6913?

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IV. Whether the claimants are entitled to compensation, if so, for what extent

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and from whom ?

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V. Are the claimants entitled for any other relief or reliefs under the law and

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equity ?

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Mr. Alok Lal, learned counsel for the appellant by drawing attention of the court to the FIR- marked as Exhibit 1, submits that therein it has categorically been mentioned that all the persons including the deceased were travelling in the said tractor along with their paddy. Mr. Lal further submits that as the claimants themselves have relied upon the FIR – Exhibit 1 , hence, the contents of the FIR will prevail upon the oral testimony and in the oral testimony also, they have supported the contents of FIR and as the deceased was travelling in the tractor, which was not insured for gratuitous purpose beyond the laden capacity of the tractor, hence, there is a violation of the condition of the policy by the insured owner of the vehicle and the appellant insurance company is not liable to pay the compensation amount. It is next submitted by Mr. Lal that learned concerned court failed to appreciate the fact that the owner of the vehicle has not paid any premium to cover the risk of the passenger or laborers travelling in the tractor, as such the insurance company is not liable to pay the compensation amount.

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Mr. Lakhan Chandra Roy, learned counsel appearing for the respondents submits that award has rightly been allowed.

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

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“Whether the learned tribunal erred by directing the insurance

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company to pay the compensation amount to the claimants?”

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Now coming the facts of the case, undisputedly, in the FIR, it has categorically been mentioned that 35 to 40 persons were travelling in the tractor beyond its laden capacity with their paddy and in view of the settled principle of

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law settled by the Hon’ble Supreme Court of India in the case of Oriental Insurance Company Limited Vs. Premlata Shukla and Others reported in (2007) 13 SCC 476 , para 13 and 14 of which reads as under :-

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“13. However, the factum of an accident could also be proved from the first information report. It is also to be noted that once a part of the contents of the document is admitted in evidence, the party bringing the same on record cannot be permitted to turn round and contend that the other contents contained in the rest part thereof had not been proved. Both the parties have relied thereupon. It was marked as an exhibit as both the parties intended to rely upon them.

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14. Once a part of it is relied upon by both the parties, the learned Tribunal cannot be said to have committed any illegality in relying upon the other part, irrespective of the contents of the document having been proved or not. If the contents have been proved, the question of reliance thereupon only upon a part thereof and not upon the rest, on the technical ground that the same had not been proved in accordance with law, would not arise. (Emphasis supplied)”

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as well as the oral testimony of the witnesses examined in the case, this court has no hesitation in holding that the deceased was travelling in the trolley along with many others and it is a settled principle of law as had been held by the Hon’ble Supreme Court of India in the case of United India Insurance Company Ltd. Vs. Serjerao Rao and Others reported in 2008 (1) T.A.C. 6 (S.C.) relying upon its judgment in the case of Oriental Insurance Company Ltd vs. Brij Mohan and Others reported in 2007 (7) SCALE 753 that the insurance company has no liability in the case of labourers travelling in trolley. Learned tribunal saddled the insurance company with the liability to pay the insurance amount on the ground that the deceased was neither a gratuitous passenger nor the tractor was used by any other person for carrying the goods and the insurance company has charged the premium for own damage also.

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Under the circumstances, this court has no hesitation in holding that learned tribunal erred by saddling the insurance company with the compensation amount to be paid to the claimants in respect of the death of the deceased who was travelling as labourer on the trolley of the tractor. Hence, the insurance company is not liable to pay the compensation amount but it is a settled principle of law that when the incident not in dispute taking into consideration the nature of the legislation, the insurance company can be asked to pay the compensation and then to realise the same from the owner of the offending vehicle, as has been held by the Hon’ble Supreme Court of India in the case of Manuara Khatun & Ors. Vs. Rajesh Kr. Singh & Ors. reported in (2017) 4 SCC 796, paragraph 22 of which reads as under :

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“22. Accordingly, the appeals succeed and are allowed. Impugned order is modified to the extent that Respondent 3 United India Insurance Co. Ltd. is accordingly directed to pay the awarded sum to the appellants (claimants). Thereafter Respondent 3 United India Insurance Co. Ltd. would be entitled to recover the entire paid awarded sum from the owner (insured) of the offending vehicle (Tata Sumo) Respondent 1 in these very proceedings by filing execution application against the insured.”

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As the policy of the insurance is not in dispute, this is a fit case where the insurance company be directed to pay the compensation amount as awarded by the tribunal to the claimant respondent nos. 1 to 4 and to recover the same

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from the owner of the vehicle. The sole point for determination is answered.

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Accordingly, in view of the discussions made above, the impugned judgment and award dated 31.03.2009 passed by M.V.A.C.T cum- 2nd Additional Sessions Judge, Godda in Title Claim Case no. 14 of 2006 / 29 of 2007, is modified by absolving the insurance company of the liability to pay the compensation amount and by holding that the owner of the vehicle is liable to pay the compensation amount but the appellant-opposite party no 3- insurance company is directed to pay the said compensation amount of Rs. 1,00,000/- less Rs. 50,000/- already paid under Section 140 of the M.V. Act with interest thereon @ 6% per annum from the date of order till the date of actual payment to the claimant, if not already paid and the insurance company is further given the right to recover the entire compensation amount of Rs. 1,00,000/- with interest as awarded by the tribunal from the owner of the offending vehicle by way of executing of the order as per the law laid down in paragraph no. 26 of the Manager, National Insurance Company Limited vs. Saju P. Paul & Anr. reported in (2013) 2 SCC 41.

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In the result, this appeal is disposed of with the aforesaid modification.

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The Registrar General of this Court is directed to refund Rs. 25,000/- if any, deposited by the appellant in this appeal to the concerned officer of the appellant- insurance company upon the appellant satisfying that it has already paid the entire claimed amount to the claimants failing which, the said amount be remitted to the concerned tribunal by appropriate mode within one month form the date of this judgment.

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No order as to costs.

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Let the copy of this Judgment along with LCR be sent back to the learned Court concerned.

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(Sanjay Kumar Dwivedi, J.)

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Satyarthi-

Oriental Insurance Co.Ltd. v. Rekha Devi And Ors.

Case brief

What is this about?

What did the court decide?

Oriental Insurance Co.Ltd. v. Rekha Devi And Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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