Allowed

National Insurance Company Limited v. Shanti Devi and Ors.

Jharkhand HC17 Jan 2023MA/374/2015

Case brief

AI extract

What is this about?

In a stay application under Section 149(2)(a)(ii) of the Motor Vehicles Act, the High Court allowed the appeal against the Tribunal's dismissal of the insurer's defense. The court held that the insurer must pay the awarded compensation first, as the owner asserted a valid license but failed to produce it, shifting the burden to the insurer to prove the driver's status.

What did the court decide?

Insurance company to pay the Tribunal's award in the first instance to the claimants, with liberty to recover the amount from the owner of the vehicle, and the statutory deposit is to be refunded.

National Insurance Company Limited Vs Shanti Devi and Ors. — Insurance | Jharkhand HC (2023)

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1- M .A. No. 374 of 2015

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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M .A. No. 374 of 2015

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National Insurance Company Limited, S.N. Ganguly Road, P.S.-Kotwali, Main Road, P.O. Ranchi, District-Ranchi. ..... … Appellant

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Versus

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Shanti Devi, wife of Late Indra Dev Paswan

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Rajo Devi, wife of Chatis Paswan

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Rupam Kumari, daughter of Late Indra Dev Paswan

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Pammi Kumari, daughter of Late Indra Dev Paswan

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Sarvesh Kumar, son of Late Indra Dev Paswan

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Mandeep Kumar, son of Late Indra Dev Paswan

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Dilip Kumar Singh, son of Raj Kumar Singh

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Regional Manager, Bank of India, Hazaribagh

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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 Resp. No.7	:	Mr. Shailesh Kumar Singh, Advocate.
For the Resp. No. 8	:	Mr. A. Allam, Sr. Advocate
	:	Mr. Faisal Allam, Advocate.

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09/ 17.01.2023 Heard Mr. Alok Lal, learned counsel appearing for the appellant, Mr. Shailesh Kumar Singh, learned counsel appearing for the respondent No. 7 and Mr. A. Allam, learned senior counsel appearing for the respondent No. 8.

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By order dated 06.06.2022, on the prayer of the appellant, the name of respondent No. 2, who was the father of the deceased, has been deleted, as he has left for his heavenly abode. It has been contended that the legal heirs of respondent No. 2 is already there.

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Notice upon the rest of the respondents has been validly served, but they have chosen not to appear. The rest of the respondents have not appeared in spite of repeated calls.

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The present appeal has been filed being aggrieved and dissatisfied with the award dated 06.04.2015, passed by the Presiding Officer, Motor Vehicles Accident Claims Tribunal, Ranchi, in Compensation Case No. 64 of 2006.

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Indra Dev Paswan, aged about 28 years by profession a carpenter died as a result of the motor vehicle accident, which took place on 30.09.2005 at about 11:00 A.M. when the deceased Indra Dev Paswan was going towards Chatra along with his friend on his motorcycle. It is stated that when they reached near Morainava Chowk , then a marshal jeep, bearing registration No. BR-13-C-0252 driven rashly and negligently by its driver dashed on the motorcycle resulting into the accident and the occupants of the motorcycle fell down and received

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2- M .A. No. 374 of 2015

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multiple grievous injuries and Indra Dev Paswan succumbed to the injures. The post-mortem examination of the deceased was conducted at RIMS, Ranchi and the prayer has been made to award compensation of Rs. 5 lacs with interest.

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The said claim petition, on contest, was decided by the learned Tribunal and the insurance company was directed to pay a sum of Rs. 8,41,000/- after deducting the amount, if any paid under Section 140 of the Motor Vehicle Act with interest at the rate of 9% per annum from the date of institution of the claim application i.e. 16.07.2009, till the date of payment, which shall be made within one month from the date of receipt of a copy of the judgment, failing which, the interest at the rate of 12% per annum from the date of judgment shall be payable. How the amount will be disbursed has also been disclosed in para-17 of the award.

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Mr. Alok Lal, learned counsel appearing for the appellant contended before the court that the ground of invalid driving license was taken by the insurance company and the learned Tribunal has negated on the ground that insurance company has not been able to prove its case. He submits that the owner and the driver have appeared in the Tribunal and have contested their case and they both pleaded that the driver was having the valid driving license, however, the valid driving license was not produced before the learned Tribunal and in absence of that learned Tribunal has stated that only on the contention of the driver and the owner that the driver was having the valid driving license, the insurance company has failed to prove that contention. He further submits that the onus lies upon the driver and the owner, once the case is contended by way of bringing on record the driving license, which is lacking in the case in hand.

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To buttress the aforesaid argument, learned counsel appearing for the appellant has relied in the case of Pappu & Ors. Versus Vinod Kumar Lamba & Ors. , reported in MANU/SC/0019/2018 , wherein the Hon’ble Supreme Court in paras-11 and 12 held as follows:-

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“ 11. The question is: whether the fact that the offending vehicle bearing No.DIL-5955 was duly insured by respondent No.2 Insurance Company would per se make the Insurance Company liable? This Court in the case of National Insurance Co. Ltd. (supra), 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

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3- M .A. No. 374 of 2015

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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 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. In the present case, the respondent No.1 owner of the offending vehicle merely raised a vague plea in the Written Statement that the offending vehicle DIL-5955 was being driven by a person having valid driving licence. He did not disclose the name of the driver and his other details. Besides, the respondent No.1 did not enter the witness box or examine any witness in support of this plea. The respondent No.2 Insurance Company in the Written Statement has plainly refuted that plea and also asserted that the offending vehicle was not driven by an authorised person and having valid driving licence. The respondent No.1 owner of the offending vehicle did not produce any evidence except a driving licence of one Joginder Singh, without any specific stand taken in the pleadings or in the evidence that the same Joginder Singh was, in fact, authorised to drive the vehicle in question at the relevant time. Only then would onus shift, requiring the respondent No.2 Insurance Company to rebut such evidence and to produce other evidence to substantiate its defence. Merely producing a valid insurance certificate in respect of the offending Truck was not enough for the respondent No.1 to make the Insurance Company liable to discharge his liability arising from rash and negligent driving by the driver of his vehicle. The Insurance Company can be fastened with the liability on the basis of a valid insurance policy only after the basic facts are pleaded and established by the owner of the offending vehicle - that the vehicle was not only duly insured but also that it was driven by an authorised person having a valid driving licence. Without disclosing the name of the driver in the Written Statement or producing any evidence to substantiate the fact that the copy of the driving licence produced in support was of a person who, in fact, was authorised to drive the offending vehicle at the relevant time, the owner of the vehicle cannot be said to have extricated himself from his liability. The Insurance Company would become liable only after such foundational facts are pleaded and

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4- M .A. No. 374 of 2015

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proved by the owner of the offending vehicle.

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12. In the present case, the Tribunal has accepted the claim of the appellants. It has, however, absolved the respondent No.2 Insurance Company from any liability for just reasons. The High Court has also affirmed that view. It rightly held that there can be no presumption that Joginder Singh was driving the offending vehicle at the relevant time.”

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On this ground, learned counsel appearing for the appellant submits that the liability cannot be fastened upon the insurance company and the owner of the vehicle is liable to pay the awarded amount.

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On the other hand, Mr. A. Allam, learned senior counsel appearing for the respondent No. 8 submits that it was contended that the vehicle was being driven by the driver is having the valid driving license, which has also been supported by the learned counsel appearing for the respondent No. 7, who is driver of the vehicle in question. Learned senior counsel appearing for the respondent No. 8 further submits that the insurance company has not made the challenge of the validity of the driving license of the driver.

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In view of the above submissions of the learned counsel appearing for the parties, the court has gone through the materials available on record and also the award of the learned Tribunal and finds that the Issue No. 4 has been framed by the learned Tribunal with regard to valid driving license and while deciding the said issue, the learned Tribunal has noted that the driver of the offending vehicle has appeared and filed the show cause mentioning that he had valid driving license, however, the driving license is not available on record and the owner of the offending vehicle has also contended like that and in spite of that the learned Tribunal, on the ground of not putting the same contention by the insurance company, has decided that issue against the insurance company. This is not the case that the owner and driver have not appeared before the court, rather both have appeared and both have contended that the driver was having the valid driving license. Once that plea was taken, it was incumbent upon the driver and the owner of the offending vehicle to produce the document with regard to the validity of the driving license, which has not been done by both of them and in spite of that the onus has been put upon the insurance company, which is against the mandate, as laid down by the Hon’ble Supreme Court in the case of Pappu & Ors.

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(Supra) .

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In the present case, the policy of insurance has not been

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5- M .A. No. 374 of 2015

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disputed and the vehicle in question was insured by the insurance company and the compensation has rightly awarded and well calculated and there is no illegality in that. 13. In para-4 of the award, the contention / stand taken by the insurance company has been noted by the Tribunal, wherein the insurance company has clearly taken the point that there was no valid license.

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In that view of the matter, the contention of the learned counsel appearing for the respondent No. 8 is not accepted by the court. 15. In view of the judgment of the Hon’ble Supreme Court in the case of National Insurance Co. Ltd. Versus Swarn Singh & Ors., reported in (2004) 3 SCC 297 and to subserve the ends of justice, the insurer appellant shall pay the claim amount awarded by the Tribunal to the claimants in the first instance with the liberty to recover the same from the owner of the offending vehicle in accordance with law. The rest part of the award are kept intact.

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The amount with regard to respondent No. 2, which shall be released in favour of the mother of the deceased.

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Accordingly, this appeal is allowed to the extent that the compensation amount awarded by the Tribunal and confirmed by this court shall be paid and satisfied by the insurer appellant in the first instance, with the liberty to recover the same from the owner of the vehicle (respondent No. 7) in accordance with law. The statutory amount deposited by the appellant-company shall be transmitted back to the learned Tribunal forthwith, as the amount of Rs. 9,00,000/- has already been deposited by the insurance company before the Tribunal. The learned Tribunal shall take endeavour to release the same and other directions of the tribunal in terms of the award in favour of the claimants at the earliest.

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The aforesaid appeal is allowed in view of the above terms.

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(Sanjay Kumar Dwivedi, J.)

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Amitesh/-

National Insurance Company Limited v. Shanti Devi and Ors.

Case brief

What is this about?

What did the court decide?

National Insurance Company Limited v. Shanti Devi and Ors.

Case brief

What is this about?

What did the court decide?

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