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2008 DIGILAW 1491 (JHR)

Oriental Insurance Company Ltd v. Hembala Devi

2008-12-23

JAYA ROY, M.Y.EQBAL

body2008
JUDGMENT : This appeal by the appellant-Insurance Company is directed against the judgment and award dated 22.9.2003 passed by Motor Accident Claims Tribunal, Dhanbad in Title (M.V.) Suit No.31 of 2002 whereby compensation of Rs.3,44,500/-has been awarded against the appellant on account of death of Mithu Mahato caused in a motor vehicle accident. 2. The facts of the case lie in a narrow compass: Deceased Mithu Mahato happened to be driver of Maruti Van bearing Registration No.BR 36-5678 owned by Goutam Kumar Roy. According to the claimants, the deceased took the vehicle from the owner to attend a marriage ceremony and went along with Subodh Mandal, Ashok Kumar Jha and Kanai Prasad Poddar towards Chirkunda on 03.4.2000. When the deceased driver did not return till 07.4.2000, respondent-owner of the Maruti Van lodged an FIR with Nirsa Police Station. On the basis of the FIR, a criminal case was instituted. During investigation, police recovered the dead body, which was identified by the father, who is the claimant. The police in the charge-sheet mentioned that the above three named persons, who were going along with the deceased, had murdered him. 3. The respondent, who is owner of the vehicle, contested the case by filing written statement stating, inter alia, that the vehicle was insured with the appellant-Insurance Company, which is liable to pay the compensation. The appellant-Insurance Company, on the other hand, contended that the claimants are not entitled to any compensation on the grounds, inter alia, that the owner of the vehicle lodged FIR with the police against the deceased-driver and his associates alleging therein that his Maruti Van was stolen away. Further case of the Insurance Company was that the Maruti Van was a private vehicle, but the same was being used by the owner on hire. 4. The Tribunal after hearing the parties, firstly recorded a finding that the deceased was driver at the time of his death and he was in the employment of the owner of the vehicle. The Tribunal further came to the conclusion that the death of the driver was an accident within the meaning of Motor Vehicles Act. Thus the Insurance Company cannot be absolved from liability. Therefore, the claimants are entitled to compensation. For better appreciation, para-8 of the judgment is reproduced herein below:- “8. The Tribunal further came to the conclusion that the death of the driver was an accident within the meaning of Motor Vehicles Act. Thus the Insurance Company cannot be absolved from liability. Therefore, the claimants are entitled to compensation. For better appreciation, para-8 of the judgment is reproduced herein below:- “8. Issue No.II : -The defendant No.1 has admitted that the of offending vehicle was insured with the defendant No.2, the Oriental Insurance Company Ltd on the alleged date of occurrence. Likewise the defendant No.2 Oriental Insurance Company Ltd has itself admitted in his written report that the offending vehicle bearing registration No BR 36-5678 was insured on 3.4.2303. In support of this contention the defendant No. 2 has also filed the copy of the Insurance certificate Ext-A which shows that the offending vehicle was insured with the defendant No.2 from 3.3.2000 to 2.3.2001. The alleged date of occurrence took place on 3.4.2000. Thus it is fully proved that on the date of alleged occurrence the offending vehicle was insured with the defendant No.2. But the defendant No.2 has not adduced any further evidence to show that the defendant No.1 had violated the terms and conditions. DW.1 has stated in his evidence that the Insurance company through its agency made an enquiry and found that the offending vehicle was being used in commercial purposes while it was insured as Private vehicle, The defendant No.1 was not authorised to run it on hire. But this witness has not made specific evidence as to who made the enquiry. In his cross-examination he has stated that he had not personally enquired in this regard. Thus the evidence of this witness is not sufficient to come to a finding that the offending vehicle was being run for commercial purposes and since it has come in the plaintiffs’ evidence that the defendant No.1 is a Jeweller and engaged the deceased as his driver on monthly salary of 2,500/-. As such it is quite natural that a businessman can keep the driver on monthly salary. As such it is quite natural that a businessman can keep the driver on monthly salary. Thus I find and hold that defendant No.1 has not violated any terms or conditions of the Insurance Policy and if the defendant No.2 proved it the defendant No. 2 is at liberty to realize the compensation amount from the owner of the offending vehicle but the Insurance Company can not absolve itself from its liability in paying the compensation amount to third party that is the plaintiffs. The learned lawyer of the plaintiffs has relied upon a decision, which is reported in AIR 2000 Supreme Court page 1930. In this decision the Hon’ble Apex Court has been pleased to observe that the deceased who was driver of autorickshaw was murdered by the passengers who committed act of felony of stealing autorickshaw. The death of the driver is an ‘accident’ within meaning Motor Vehicle Act. In my view this decision is fully applicable to the present case, Thus, this Issue is answered in favour of the plaintiffs and against the defendants.” 5. So far the findings recorded by the Tribunal on the question as to whether the manner in which the deceased was killed is an accident, there is no dispute that having regard to the evidence brought on record the Tribunal rightly held that it was an accident within the meaning of Motor Vehicles Act. However, with regard to the findings recorded by the Tribunal that the Insurance Company is liable to pay the compensation amount inasmuch as there had not been violation of conditions of the policy, I do not find the said finding is justified. The owner himself made contradictory statement and lodged FIR alleging that his vehicle was taken by the driver and specific defence taken by the Insurance Company that at the time when the accident took place, the vehicle was being used for commercial purposes. Neither evidence was led by the owner of the vehicle nor did he examine himself as a witness. In that view of the matter, it cannot be held that the Insurance Company is liable to pay the compensation amount. However, in the facts and circumstances of the case, it is directed that the Insurance Company shall pay the compensation amount with liberty to recover the same from the owner of the vehicle after having proved that it has no liability. 6. However, in the facts and circumstances of the case, it is directed that the Insurance Company shall pay the compensation amount with liberty to recover the same from the owner of the vehicle after having proved that it has no liability. 6. For the reasons aforesaid, this appeal is disposed of with the aforesaid observation.