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2013 DIGILAW 1329 (JHR)

Md Yusuf Ansari v. Siraj Khatun

2013-12-05

D.N.UPADHYAY

body2013
Order Both these appeals (MA No. 238 of 2010 on behalf of the owner of the vehicle and MA No. 239 of 2010 on behalf of the insurance company) have been preferred against the judgment and award dated 12.8.2010 passed by the 1st Addl. District Judge cum Motor Vehicle Accident Claims Tribunal, Giridih, in connection with Title (MV) Suit (Claim Case) No. 52 of 2003 whereby the claimants have been directed to be paid compensation to the extent of Rs.7,30,000/-with interest at the rate of 6% per annum from the date of the impugned judgment and award. The tribunal has directed the insurance company (in MA No. 239 of 2010) to pay the compensation amount and the said amount may be recovered by the insurer from the owner of the vehicle, who is the appellant in MA 238 of 2010). 2 Brief facts of the case behind institution of the claim case is that the deceased Gulab Husain was travelling from Kodambari to Giridih on the trekker bearing registration No. BR 23A 0652 which met with accident due to rash and negligent driving near Paharpur, Giridih. In the said accident, Gulab Hussain sustained injuries and died at the spot. The claimants who are legal heirs and representatives of the deceased filed an application for payment of compensation vide Title (MV) Suit (Claim Case) No. 52 of 2003 The appellants appeared before the tribunal and filed their respective show cause and raised objection against grant of payment of compensation. 3 Md. Yusuf Ansari (appellant in MA no.238 of 2010) who happens to be the owner of the said offending vehicle has submitted that the vehicle was duly insured and the driver was having valid licence and therefore the tribunal has erred by giving recovery right to the insurer. The aforesaid part of the impugned judgment has been challenged by which recovery right has been given to the insurance company. 4 The insurance company, appellant in MA No. 239 of 2010 has submitted that the driver of the offending vehicle was not having valid licence at the time of accident and that has been elaborately discussed in para 14 to 16 of the impugned judgment. Further more, no valid permit was produced by the owner of the vehicle; rather photo copy was filed. The certificate of fitness of the vehicle was also filed. Further more, no valid permit was produced by the owner of the vehicle; rather photo copy was filed. The certificate of fitness of the vehicle was also filed. The certificate of fitness which was produced was having manipulation and over writing(s). It is contended that the owner of the offending vehicle has violated the terms and conditions of the insurance policy and therefore the owner of the offending vehicle should have been held absolutely liable to pay the compensation amount, but the tribunal has directed the insurance company to pay compensation amount and further directed to recover the same from the owner of the vehicle through process of the court. This part of the finding of the tribunal is erroneous and is liable to be set aside and the owner of the vehicle may be directed to satisfy the award. 5 I have gone through the lower court records as well as the impugned judgment. It appears from Ext A and A/1 that the driver was having licence, but at the time of the accident, it was not effective. The tribunal has elaborately discussed all the documents and the evidence available before him. Two reports submitted by the DTO have been considered. According to the first report, the driving licence which was produced was not issued, but from the second report of the DTO, after perusing the register, the licence was indicated to be valid. The photo copy of the permit was produced which has been mentioned as Ext C. No photo copy of the document can be relied upon, unless it is duly proved in accordance with the law. The tribunal has further discussed the certificate of fitness (Ext H) and held that the date for which the permit was indicated to be valid was having overwriting and there was manipulation. In the judgment the tribunal has discussed in detail all the issues relating to the Driving licence, permit and the certificate of fitness and held that those documents were not genuine and the driver of the vehicle was not having valid and effective driving licence on the date of accident and the vehicle was not having valid permit. In the judgment the tribunal has discussed in detail all the issues relating to the Driving licence, permit and the certificate of fitness and held that those documents were not genuine and the driver of the vehicle was not having valid and effective driving licence on the date of accident and the vehicle was not having valid permit. The tribunal has rightly held that the terms and conditions of the policy has been violated by the insured and therefore the insurance company has been given authority to recover the amount of compensation from the owner of the offending vehicle. 6 So far as the claim of the insurance company (appellant in MA no.239 of 2010) is concerned, in a number of judgments, Hon'ble Supreme Court has held that the claimant shall not suffer due to the dispute, if prevailing with regard to violation of the terms and condition of the policy between the insured and the insurer and in such situation, the insurance company shall satisfy the award by making payment of compensation amount to the claimants and that amount may be recovered from the owner of the vehicle if he is at fault and has violated the terms and conditions of the policy. 7 The appellant insurance company relying upon the judgment reported in 2009 (4) TAC 382 SC section, has submitted that the matter has been referred to a larger Bench for conclusive findings as to whether the recovery right is to be given to the insurance company and whether the insurer shall be held liable to recover the amount from the insured. He has also relied upon the judgment reported in AIR 2008 SCW 2075 . In the case in hand, the owner of the vehicle as well as the driver of the vehicle appeared and contested the claim case. It is not a case in which the diver and the owner did not appear and did not contest the claim case. 8 Learned counsel for the claimant has raised objection and submitted that the claimants shall not suffer if there is dispute prevailing between the insurer and the insured. In this connection, he has relied upon the judgment reported in 2013 (7) SCC 62 (S. Iyyapan Vs United India Insurance Company Ltd & Ors) and 2009 (11) SCC 356 (Oriental Insurance Company Ltd. Vs. In this connection, he has relied upon the judgment reported in 2013 (7) SCC 62 (S. Iyyapan Vs United India Insurance Company Ltd & Ors) and 2009 (11) SCC 356 (Oriental Insurance Company Ltd. Vs. Angad Kol & Ors) and submitted that the recovery right has been given to the insurance company and therefore the appellant insurance company may be directed to satisfy the award. 9 Relying upon the judgments cited above by the counsel for the claimants, I do not find any merit in these appeals which are fit to be dismissed. 10 In the result, both these appeals are dismissed. The appellant in M.A No. 239 of 2010 is directed to pay compensation amount to the claimant as indicated in the impugned judgment and award within two months from the date of production/receipt of a copy of this judgment and the appellant insurance company shall recover the amount from the owner of the vehicle through process of the court as per the guidelines given by the apex court. Appeal dismissed.