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2019 DIGILAW 100 (PAT)

Parwati Devi wife of Tej Narain Jha v. Branch Manager, United Insurance Company Limited

2019-01-16

PRAKASH CHANDRA JAISWAL

body2019
JUDGMENT : 1. Heard learned counsel for the petitioner and learned counsel for O.P. No. 1 on the aforesaid review petition. 2. The petitioner has filed this review petition to review the judgment dated 11.05.2018 passed by this Court in Miscellaneous Appeal No. 17 of 2012, whereby this Court finding appellant/O.P. No. 1 United India Insurance Company Limited not liable to pay compensation to the claimant indemnifying the owner of the vehicle exonerated it from the liability of payment of compensation to the claimant and set aside the judgment and award passed by the learned Tribunal. It is submitted by the learned counsel for the petitioner that the deceased was travelling on the trailor, which is hailing to Sri. P.K. Jha, brother of the deceased and there has been partition between the deceased and his brother preceding to his death in accident and the deceased was travelling on the said vehicle in his separate status and entity as a labourer, so he had not stepped into the shoe of the owner of the vehicle rather he happens to be a third party of the case. 3. It is further submitted that as the offending vehicle was insured and the insurance policy was valid and enforceable at the time of accident, hence the Insurance Company is liable to pay compensation to the claimant, in case of death of the deceased hence the impugned judgment passed by this Court is liable to be reviewed, holding the insurance company liable for the payment of compensation. 4. Per contra, it is submitted by the learned counsel for the O.P. No. 1 that the tractor and trailor both were hailing to father of the deceased, who happens to be its registered owner. The petitioner has neither taken any such case that the aforesaid trailor is hailing to brother of the deceased nor has adduced any evidence either in this Court or before the learned Tribunal and finding the deceased to have stepped into shoe of his father by travelling on the said trailor, who has died in accident during the course of travelling, this Court has rightly found Insurancy Company not liable to pay compensation as the owner of the vehicle and claimant both cannot be one and the same person. It is further submitted that even if the trailor is hailing to brother of the deceased, in that case also, the deceased would be considered to have stepped into the shoe of his brother and he does not happen to be a third party rather owner of the trailor. Hence, in that case also, Insurance company is not liable to pay compensation to the claimant. It is further submitted that the aforesaid tractor and trailor was insured by the appellant under the Act only policy. As the vehicle was insured only under the Act only policy, it has not covered the risk of the owner of the vehicle in question. It is also submitted that there is no error apparent on the face of the record in passing the impugned judgment. The petitioner has virtually filed appeal assailing the impugned judgment of this Court in the guise of review which is not maintainable and is liable to be dismissed. 5. From perusal of record, it appears that deceased was travelling on the trailor at the time of accident and sustained injury during the course of travelling which proved fatal. As per the material available on record, the aforesaid trailor was hailing to his father, who happens to be its registered owner and as deceased happened to be the son of the registered owner of the trailor, he stepped into the shoe of the owner of the vehicle i.e. insured and became the owner of the vehicle. Though the petitioner has taken the case that there has been partition between the father and the deceased and in buttress of his aforesaid case, he has filed rent receipts and report of the Amin on the mutation petition indicating that there has been partition amongst the sons of raiyat of land and rent receipts are being issued in the name of the insured and his sons separately. But he has not brought on record any evidence regarding any partition amongst the deceased and the insured by metes and bounds either through the Court or by way of deed of partition. Mere issuance of rents receipts separately in the name of the deceased and the insured, in my considered opinion, is not sufficient to establish the partition between the deceased and the insured. Mere issuance of rents receipts separately in the name of the deceased and the insured, in my considered opinion, is not sufficient to establish the partition between the deceased and the insured. Rent receipt is mainly for the revenue purposes and it does not decide the right and title of the parties over the property. 6. The claimant has not filed any document either before the Tribunal or before this Court in buttress of her case that the aforesaid trailor was hailing to brother of deceased, namely, P.K. Jha. Even if the case of the claimant is taken to be true in that case also as the deceased happened to be the brother of the said P.K. Jha, he stepped into the shoe of the alleged owner of the vehicle i.e. insured and became owner of said trailor, so in either way, the deceased became the owner of the vehicle. The insurance company is not liable to indemnify the owner of the vehicle. It would be liable to cover all the risk of third party. It is settled principle of law that if the insured cannot be fastened with any liability under the provisions of Motor Vehicle Act, the question of insurer being liable to indemnify the insured, therefore, does not arise. Record further indicates that the vehicle in question was insured only under the Act only policy. It has not covered the risk of the owner so on all count Insurance Company is not liable to pay compensation to the claimant. 7. Having considered all aspects of the case, this Court by the impugned judgment has set aside the judgment and award passed by the learned Tribunal exonerating the Insurance Company from liability of payment of compensation to the claimant. This Court finds no error apparent on the face of the record in the said judgment. Virtually the petitioner seems to have assailed the aforesaid judgment of this Court in the guise of the review petition which is not permissible in the eye of law. Hence, finding no substance in the aforesaid petition, it is hereby dismissed.