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2013 DIGILAW 677 (PAT)

Oriental Insurance Company Ltd. v. Leelawati Devi

2013-06-24

JYOTI SARAN

body2013
ORDER This appeal is directed against the judgment and award dated 19.5.2008/15.12.2008 passed by Sri Ashok Kumar Pathak, the Additional District Judge-VI, Patna-cum-Motor Vehicle Accident claim Tribunal, Patna in Claim Case No. 41 of 2005 (Lilawati Devi and others versus Binod Rai and others) whereby the learned Tribunal while allowing the claim has granted liberty to the appellant for recovery of the said amount from the owner of the offending vehicle. 2. Facts of the case leading to the claim application in brief is that the deceased along with some other persons were going from Danapur towards Bihta by Tata Spacia passenger Jeep bearing Registration No. BR 1P-9531 which met with an accident allegedly on account of rash and negligent driving of the vehicle and which resulted into the death of Sheo Prasad Singh@Sheoji Singh, the husband/father of the claimants. Whereas the claimant No.1, Lilawati Devi is the widow of the deceased, the other claimants are his children. Upon service of notice the Insurance Company appeared and contested the matter. The Driver and the owner of the offending vehicle did not choose to appear and contest the proceeding and thus the claim case was heard ex parte as against them. The learned Tribunal upon consideration of the oral and documentary evidence led by the parties upheld the claim of the claimants for compensation but while doing so it also opined that the deceased was travelling as a gratuitous passenger and that the vehicle was not having a valid permit to ply on the road and thus the Oriental Insurance Companies was not liable to indemnify the owner and pay the compensation. However, since the vehicle was insured with the appellant Insurance Company hence the learned Tribunal while directing the Insurance Company, who is the appellant before this Court to make payment of the compensation with interest at the rate of 7.5% to be calculated from the date of filing of the claim case until its actual payment, further granted liberty to the Insurance Company to recover the said amount from the owner of the offending vehicle. 3. I have heard Mr. Durgesh Kumar Singh learned counsel appearing for the appellant-Insurance Company, Mr. Rajesh Kumar appearing for the claimant-respondent Nos. 1 to 2 and Mr. Arbind Kumar Singh, learned counsel appearing for the owner-respondent No.6. 4. Mr. 3. I have heard Mr. Durgesh Kumar Singh learned counsel appearing for the appellant-Insurance Company, Mr. Rajesh Kumar appearing for the claimant-respondent Nos. 1 to 2 and Mr. Arbind Kumar Singh, learned counsel appearing for the owner-respondent No.6. 4. Mr. Durgesh Kumar Singh, learned counsel appearing for the appellant has made a very short submission to question the award. He has submitted that even while the Tribunal has held the deceased to be a gratuitous passenger and taken note of the fact that the vehicle was not having a valid permit to ply on the road for commercial purposes rather the vehicle was registered as a private vehicle and thus even while holding that the Insurance Company was not liable to pay the compensation and the liability fell on the owner i.e. respondent No.6 herein, yet has directed the Insurance Company to make payment of the compensation amount along with interest and recover the same from the owner. It is the contention of Mr. Singh that in view of the categorical finding of the Tribunal that the liability fell on the owner, there was no occasion for the Tribunal to direct the Insurance Company to make payment of the amount and to recover the same from the owner. 5. Mr. Singh, learned counsel for the appellant has questioned the award limited to the extent of the liability of the Insurance Company to make payment of the compensation amount. He has fairly submitted that he does not question the compensation amount. Learned counsel in support of his argument has relied upon a bench decision reported in 2010(3) PLJR 251 (Branch Manager, Oriental Insurance Com.(Ltd.) Vs. Md. Yunus & Ors.) and with reference to paragraph 16 of the said judgment he has submitted that in no circumstance the liability could be shifted on the Insurance Company. 6. The legal position canvassed by Mr. Singh appearing on behalf of the Insurance Company could not be controverted either by learned counsel appearing for the claimants or the owner. In fact, despite indulgence having been granted to the owner respondent No.6 by this Court for filing the registration paper of the vehicle in question for contesting the submission of the Insurance, no affidavit has been filed in this regard and Mr. In fact, despite indulgence having been granted to the owner respondent No.6 by this Court for filing the registration paper of the vehicle in question for contesting the submission of the Insurance, no affidavit has been filed in this regard and Mr. Arvind Kumar Singh, learned counsel appearing for the owner-respondent No.6 has submitted that despite his efforts he has not been able to get the said papers from the respondent No.6. 7. I have heard learned counsel for the parties and I have perused the materials on record including the award in question. 8. The compensation allowed is not in dispute. There is nothing on record nor any such argument was made by Mr. Arvind Kumar Singh, learned counsel appearing on behalf of the owner of the vehicle to contest the legal position as argued by Mr. Durgesh Kumar Singh. In fact, in view of the judicial pronouncement relied upon by Mr. Durgesh Kumar Singh rendered in the case of Md. Yunus(supra) there cannot be any contest on the legal position. The judgment rendered in the case of Md. Yunus(supra) would apply with full force to the case in hand as the facts of the two cases and the import of the award(s) passed is the same. Even in the said case the vehicle was registered as a private vehicle but was being used for commercial purpose and had met with an accident leading to a death and in a similar manner the Tribunal while upholding the claim and taking note of the fact that being registered as private vehicle it was being used for commercial purpose, had directed the Insurance Company to make payment of the compensation amount and recover the same from the owner. This Court relying upon several judgments has upheld the contention of the Insurance Company. It was held that in cases of such kind the Insurance Company is not liable to indemnify the owner. 9. In view of the judgment rendered in the case of Md. Yunus(supra) and considering that there is nothing in the present case which distinguishes it with the case of Md. Yunus(supra), the contention advanced on behalf of the appellant is upheld. 10. For the reasons aforesaid this appeal is allowed. 9. In view of the judgment rendered in the case of Md. Yunus(supra) and considering that there is nothing in the present case which distinguishes it with the case of Md. Yunus(supra), the contention advanced on behalf of the appellant is upheld. 10. For the reasons aforesaid this appeal is allowed. The judgment and award under challenge is modified to the extent that the owner-respondent No.6 shall now be liable to make payment of the compensation amount to the claimants in terms of the award passed by the learned Tribunal. The claimants-respondent Nos.1 to 4 shall be at liberty to realize the said compensation amount from the owner of the vehicle i.e. respondent No.6 by taking recourse to the remedies that is available to them under the Act, in the light of the award passed by the Tribunal. 11. The award dated 19.5.2008/15.12.2008 stands modified to the extent as stated hereinabove. 12. In consequence of the order passed in this appeal, the statutory amount deposited by the Insurance Company shall be refunded to them in accordance with law. 13. Let the Lower Court Records be returned to the Tribunal concerned, forthwith.