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2011 DIGILAW 1617 (RAJ)

Dhanna Lal v. Surajmal

2011-08-05

MAHESH CHANDRA SHARMA

body2011
Hon'ble SHARMA, J.—The appeal o. 2788 of 2006 has been filed by Dhannalal, Gopal, Birdha, Deva Lal and Inderraj, being owner of the tractor and trolley against the award dated 23.11.2005 passed by MACT Baran, awarding compensation in the amount of Rs. 1,61,000/- to the claimants. 2. Whereas appeal No. 600 of 2006 has been filed by the claimants for enhancing the claim amount awarded by the MACT in the award dated 23.11.1995. 3. Since both these appeals are late to award dated 23.11.1995, both the them are decided by this common order. 4. The facts have been set out in the impugned award and hence, I am not repeating the same here except wherever necessary. 5. Brief facts of the case are that on account rash and negligent driving of the tractor, one Chandra Prakash who was travelling in the trolley fell from the tractor and died. The claimants filed claim against the insurance company and the owner of the tractor. The MACT after recording evidence of the parties in the first instance decided issue No.1 against the claimants. The claimants filed appeal before this Court and this Court remanded the matter vide order dated 29.7.1993 in Civil Misc. Appeal No. 703/1993. Thereafter the MACT decided the issues 1 and 2 in favour of the claimants and awarded a sum of Rs. 1,61,000/- to claimants an the insurance company was directed to pay the amount to the claimants and further the insurance company was directed to recover the compensation from the owner of the tractor as they have violated the conditions of the policy. 6. Mr. Jitendra Pandey, learned counsel appearing for the tractor owner has argued that the accident occurred due to sole negligence of the deceased himself hence the impugned award is liable to be quashed. There was no evidence on record to show the income of the deceased and thus the award passed by the MACT is very excessive in awarding a sum of Rs. 1,61,000/-. 7. I have considered the arguments of the learned counsel for the appellant. The MACT after considering the evidence of the claimants, it was held that it was negligence of the driver of the tractor on account of which Chandra Prakash died. The MACT discarded the evidence of the tractor owner that Chandra Prakash while sitting in the tractor in a drunken stage. The MACT after considering the evidence of the claimants, it was held that it was negligence of the driver of the tractor on account of which Chandra Prakash died. The MACT discarded the evidence of the tractor owner that Chandra Prakash while sitting in the tractor in a drunken stage. The other evidence produced by the tractor owner was that he was dancing in the tractor. The MACT discarded the evidence of the tractor owner. I have gone through the findings arrived at by the MACT and I am in agreement with the findings arrived at by the MACT that the accident took place on account of rash and negligent driving of the tractor. 8. The MACT estimated the income of the deceased to be Rs. 12,000/- per year and dependency was determined Rs. 8,000/- per year. The multiplier of 17 was applied. In this manner Rs. 1,36,000/- were determined as compensation. For love and affection and cremation one time amount of Rs. 25,000/- was awarded. In this manner a sum of Rs. 1,61,000/- was awarded to the claimants. This compensation cannot be said to be excessive. The findings arrived at by the MACT is just and proper and the same stand confirmed. The appeal filed by the tractor owner deserves to be rejected. The claimants are also not entitled to enhancement of compensation. 9. For the reasons mentioned above, the appeals filed by the owner of the tractor and the claimants deserve to be rejected and hence, rejected. The award of the MACT stand confirmed. The interim stay granted on 23.8.2006 stands vacated. The stay application also stands rejected. The MACT is directed to disburse the award money to the claimants as per the award. 2011(1) CCR (Jhar) (Jharkhand High Court) Oriental Insurance Co. Vs. Ritesh Prasad Sen (Tiwari, J.) HON'BLE NARENDRA NATH TIWARI, J. Oriental Insurance Co. Ltd., Chaibasa Versus Ritesh Prasad Sen S.A. No. 283 of 2007, decided on 25.11.2010 Motor Vehicles Act, 1988, Sec. 147 — Liability of insurance company — Theft of vehicle — Police registered the case — Insurance company pleaded violation of terms of policy — Alleged that vehicle was used for hire purpose — Concurrent finding of lower Court against the insurance company — Held — Insurance company cannot deny its liability. Appeal dismissed. Appeal dismissed. (Paras 9 & 12) eksVj ;ku vf/kfu;e] 1988] /kkjk 147 & chek dEiuh dk nkf;Ro & ;ku dh pksjh & iqfyl us ekeyk ntZ fd;k & chek daiuh us ikWfylh ds fucU/kuksa ds mYya?ku dk vfHkokd~ fd;k & ;g vfHkdFku fd ;ku fdjk;s ds iz;kstu gsrq iz;qDr fd;k tk jgk Fkk & chek dEiuh ds fo:) fuEu U;k;ky; dk leorhZ fu"d"kZ& vfHkfu/kkZfjr & chek dEiuh vius nkf;Ro ls badkj ugha dj ldrhA vihy [kkfjt dhA ¼in la[;k 9 o 12½ Case Law Referred (Para No.) 2010 AIR SCW 2666 8 AIR 2010 SC 2090 8 Advocates Appeared Alok Lal, for Petitioner; M.K. Dey, Sr. Adv. and B.V. Kumar, for Respondent Hon'ble TIWARI, J.—Insurance Company-defendant is the appellant in this appeal. Both the Courts have recorded their findings and passed judgments and decrees fixing liability against the appellant. 2. The plaintiff had filed money suit in the trial Court praying for a decree of Rs. 4,15,000/- together with pendente lite and future interest @ 18 per annum. 3. The plaintiff's case was that his Mahendra Jeep bearing No. JH- 06A-0656, make 2001 was registered in the office of District Transport Officer. Chaibasa and was insured with the defendant-company as a private vehicle for a value of Rs. 4,15,000/-. The vehicle was being used by the plaintiff for his own personal purpose and was being driven by his driver-Mr. Tabrej Alam with valid driving licence. On 5.3.2002, the said vehicle was sent with the driver to bring the family of his sister from Ranchi. While the vehicle was to leave for Chaibasa, two miscreants stopped the vehicle and forcibly boarded in the vehicle and threatened the driver on the point of revolver and directed him to drive towards Chakradharpur. When the vehicle reached Chakradharpur, three more persons, who were waiting for them, also boarded in the vehicle and directed the driver to drive the vehicle towards Ranchi. When the driver was coming towards Ranchi, the miscreants put some intoxicating sub-stance in his nose. The driver lost his sense and control over the vehicle. The driver was also assaulted by the miscreants, who fled away with the vehicle leaving the driver on road side in unconscious condition. When the driver regained consciousness, he reported the incident to the local police, but they refused to take his report saying that the matter is of Keraikela police station. The driver was also assaulted by the miscreants, who fled away with the vehicle leaving the driver on road side in unconscious condition. When the driver regained consciousness, he reported the incident to the local police, but they refused to take his report saying that the matter is of Keraikela police station. The driver then reported the incident to Keraikela police station. His report was recorded in the police station, Keraikela. Further case of the plaintiff was that even at that time, the driver had not regained full consciousness and he was not able to properly convey the entire incident. However, the police on the said in-formation registered a case under Section 397 of Indian Penal Code. The driver then returned Chaibasa where he was treated by the doctor. When he fully recovered and gained consciousness, he filed a petition before the S.D.J.M., Porahat praying to record his statement under Section 164 Cr.P.C., but the same was rejected. Informant again filed a petition praying for forwarding a copy of his statement to the Officer in Charge, Keraikela on 17.8.2002 and the same was allowed. The police thereafter again recorded the statement of driver in the case diary. On that basis, the plaintiff lodged a claim before the defendant -Insurance Company requesting to pay the amount as per the Insurance Policy. The Insurance Company appointed Sri Keshav Prasad as an Investigator. The investigator recorded the statement and submitted a report supporting the plaintiff's claim, but even thereafter amount was not paid by the defendant. The plaintiff claimed that he is entitled to get the amount covered by the Insurance. 4. The defendant appeared and contested the suit denying its liability almost on technical ground and also on the ground that the suit was premature as investigation was still in progress till the date of filing the suit. The defendant also took a ground that there was violation of terms of the Insurance Policy as the vehicle was being used for hire. 5. Both the parties adduced their evidences oral and documentary. Learned trial Court after thorough discussion and appraisal of the evidences on record, came to the finding that the plaintiff has not violated the terms and conditions of the Insurance Policy and there was no legal impediment in allowing the plaintiff's claim. 5. Both the parties adduced their evidences oral and documentary. Learned trial Court after thorough discussion and appraisal of the evidences on record, came to the finding that the plaintiff has not violated the terms and conditions of the Insurance Policy and there was no legal impediment in allowing the plaintiff's claim. However, learned Court on the basis of market price assessed on the date of loss decreed only a sum of Rs. 3,50,000/- against the plaintiff's claim of Rs. 4,15,000/- and directed the defendant to pay the said sum of Rs. 3,50,000/- with interest @ 6% p.a. from the date of decree till the date of realization. 6. Aggrieved by the said decree, the defendant had preferred money appeal before the District Judge, Chaibasa being Money Appeal No. 06/2006. 7. Learned lower appellate Court having heard the parties, independently scrutinized and discussed the facts and evidences on record and arrived at the conclusion that the plaintiff was entitled to get the sum from the defendant as decreed by the Court and that there was no infirmity and illegality in the judgment and decree of learned trial Court. Learned lower appellate Court dismissed the appeal. 8. Assailing the decree of learned lower appellate Court, learned counsel for the appellant submitted that the judgments and decrees of learned trial Court as well as learned lower appellate Court are not legal. The Courts below have not properly appreciated the evidences on record particularly Exhibits A & E, which are FIR and the Surveyor's report respectively. Learned counsel invited this Court to appraise the evidences and to see as to how the Courts below have arrived at wrong conclusion on the basis of the said evidences. Learned counsel submitted that the Insurance Company has got no total liability as has been held in the case of `Amalendu Sahu vs. Oriental Insurance Co. Ltd. Learned counsel referred to the said judgment of the Supreme Court reported in 2010 AIR SCW 2666 : AIR 2010 SC 2090 . 9. I have heard learned counsel and considered his submissions. I also perused the judgments of learned Courts below. Ltd. Learned counsel referred to the said judgment of the Supreme Court reported in 2010 AIR SCW 2666 : AIR 2010 SC 2090 . 9. I have heard learned counsel and considered his submissions. I also perused the judgments of learned Courts below. Learned trial Court as well as learned lower appellate Court have thoroughly and independently assessed and appraised the oral and documentary evidences including Exhibits A & E and have come to the concurrent findings of fact that there was no violation of terms of Insurance Policy and that the plaintiff has been able to establish his claim against the Insurance Company. 10. The said concurrent findings of fact are binding in second appeal. This Court cannot delve into appraisal of facts and evidences in its second appellate jurisdiction. Even if a third view is possible on appraisal of the evidences, the said ground taken by learned counsel for the appellant is not tenable for the purpose of Second Appeal and the same does not give rise to any substantial question of law. 11. The decision of Hon'ble Supreme Court in Amalendu Sahu's case ( AIR 2010 SC 2090 : 2010 AIR SCW 2666) was on different facts. The liability of the Insurance Company to the extent of 50% claimed by complainant owner was fixed on the Insurance Company even if there was breach of the terms and conditions of the policy. In the instant case there are clear findings of the Courts below that there was no breach of terms and conditions. The said decision is, thus, not applicable to the facts of the instant case. 12. I, therefore, find no ground to entertain this appeal. This second appeal is, accordingly, dismissed.