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2019 DIGILAW 307 (JHR)

United India Insurance Co. Ltd. v. Mukti Devi

2019-01-30

S.N.PATHAK

body2019
JUDGMENT : S.N. PATHAK, J. 1. Heard the parties. 2. This appeal has been preferred against the Award dated 15.09.2012 passed by the learned District & Additional Sessions Judge-II-cum-MACT, Dhanbad in Title (M.V.) Suit No. 160/2009, whereby and whereunder the learned Tribunal has been pleased to allow the claim petition of the applicants and has held that the appellant-Insurance Company is liable to pay a sum of Rs. 4,51,500/- with interest @ 6 % p.a. from the date of filing of claim application. 3. As per the claim application, on 16.11.2008 at 7.15 a.m. Puran Mahto (deceased) was travelling by Auto Rickshaw bearing registration No. JH 10M 7601 from his village Simaltand to ISHU Darbar Bengabad, Giridih along with other passengers and while reached at Village Mohldih near Passanger’s shed adjacent to Bhalpahari river lying on the main road of Tundi Giridih all of a sudden due to rash and negligent driving, the auto rickshaw overturned and the deceased thrown below due to which Puran Mahto died on the spot. It is alleged that accident took place due to high speed as well as rash and negligent driving of the driver of auto rickshaw, namely Manoj Kumar Mahto. The matter was reported to Ahilyapur (Taratand) P.S. of Giridih District whereupon ASI Arjun Singh of Taratand O.P. went to the place of occurrence and recorded fardbeyan of Ganesh Mahto and on the basis of which Ahilyapur (Taratand) P.S. Case No. 81/08 dated 16.11.2008 u/S 279, 304 (A) of the IPC was registered against the driver of Auto Rickshaw bearing registration No. JH 10 M 7601 and after investigation police submitted charge sheet vide C.S. No. 14/09 dated 28.04.2009 under Section 279, 304 (A) of the IPC against the driver Manoj Kumar Mahto of the said auto rickshaw. The dead body of the deceased was subjected to post mortem examination at Sadar Hospital Giridih on 16.11.2008. It is further averred that the offending vehicle belong to Ram Prasad Mahto Defendant No. 1-respondent No. 5 while the same stood insured with defendant No. 2 M/s United India Insurance Co. Ltd-appellant. The dead body of the deceased was subjected to post mortem examination at Sadar Hospital Giridih on 16.11.2008. It is further averred that the offending vehicle belong to Ram Prasad Mahto Defendant No. 1-respondent No. 5 while the same stood insured with defendant No. 2 M/s United India Insurance Co. Ltd-appellant. As per further averment of the claim application, deceased Puran Mahto was only earning member and has died leaving behind wife and minor children, who were solely dependent on his income and due to sudden death of deceased, the applicants are suffering from serious mental shock, agony and totally deprived of their expectations and prospective earning and also from the love and affection of the deceased for rest of their life. It is further averred that the deceased was having sound health without any sickness at the time of accident he was aged about 30 years and he was working as Mason and out of his profession earning Rs. 4,500/- per month. The claimants on account of death of deceased late Puran Mahto sustained pecuniary loss etc. to the tune of Rs. 5,71,100/-. Besides they have claimed interest from the date of application till its realization including the cost of the proceeding. It is also averred that the plaintiffs have received Rs. 50,000/- from defendant No. 2 as an ad interim compensation. The defendant/O.P. No. 1/respondent No. 5 in its written statement has opposed to the claim application and beside taking ornamental pleas it has been admitted that the insurance of Auto Rickshaw bearing registration No. JH 10 M 7601 on the alleged date of accident was with United India Insurance Co. Ltd. It has further asserted that the driver of auto rickshaw was having valid and effective driving licence at the time of accident and all the requisites papers of the vehicle i.e. Tax Token, permit, fitness certificate, insurance certificate were valid at the time of accident. It is further stated that in case the plaintiffs are entitled to get compensation then defendant No. 2-appellant/United Insurance Co. Ltd. is liable to indemnify the owner’s liability if any arising out of the accident. It is further averred that this defendant has got no liability in the present case. Defendant/O.P. No. 2 herein appellant in its written statement has also opposed to the claim application stating therein that there is no cause of action against this defendant. Ltd. is liable to indemnify the owner’s liability if any arising out of the accident. It is further averred that this defendant has got no liability in the present case. Defendant/O.P. No. 2 herein appellant in its written statement has also opposed to the claim application stating therein that there is no cause of action against this defendant. It is further averred that Auto Rickshaw bearing registration No. JH 10 M 7601 is a passenger carrying commercial vehicle which was being driven at the time of accident by the driver Manoj Kr. Mahto. The said Auto rickshaw is passenger carrying commercial vehicle which was insured on the alleged date and time of accident with this defendant vide Insurance Policy No. 210503/31/08/01/000001861 and it was valid from 06.06.2008 to 05.06.2009. It has been denied about the accident alleged to have been taken place on 16.11.2008 at 7.15 pm near Village Mohlidih adjacent to Bhelpahari river passenger’s shed within Ahilyapur Police Station of District Giridih in the manner as alleged. Accordingly, claimed that this defendant is not liable to pay any compensation and the suit is liable to be dismissed as against him. 4. The parties appeared before the Tribunal and were heard. After examining the witnesses and perusing the evidences on record, the learned Tribunal framed the followings issues:- (i) Whether the suit is maintainable in its present form? (ii) Whether at the time of accident driver of Auto Rickshaw bearing registration No. JH 10 M 7601 was driving the same rashly and negligently? (iii) Whether the deceased Puran Mahto died due to road traffic accident? (iv) Whether, at the time of accident driver of Auto Rickshaw bearing registration No. JH 10 M 7601 had valid and effective driving licence? (v) Whether, at the time of accident driver of Auto Rickshaw bearing registration No. JH 10 M 7601 had valid and effective road permit? (vi) Whether, the vehicle was insured at the time of accident? (vii) Whether, the claimants are entitled for compensation sought for? (viii) Whether the claimants are entitled for any other relief or reliefs? (ix) Whether, the deceased was a Mason earning Rs. 150/- per day and he was aged about 30 years on the date of accident? 5. (vi) Whether, the vehicle was insured at the time of accident? (vii) Whether, the claimants are entitled for compensation sought for? (viii) Whether the claimants are entitled for any other relief or reliefs? (ix) Whether, the deceased was a Mason earning Rs. 150/- per day and he was aged about 30 years on the date of accident? 5. Learned Tribunal after perusal of the records and examining the evidences and after hearing learned counsel for the parties, came to a finding that the claimants are entitled for compensation to the tune of Rs. 4,41,500- with interest @ 6 % per annum from the date of filing of the claim application. The defendant No. 2-appellant was directed to make payment of Rs. 4,41,500/- (-) 50,000/- i.e. 3,91,500/- along with interest @ 6 % to the claimants within a period of 30 days of the order. 6. It has been submitted by Mr. Ashotosh Anand, learned counsel appearing for the appellant-United India Insurance Co. Ltd. submits that the impugned Award is illegal, perverse and bad in law. Learned Tribunal has erred in not considering the Road Permit in its proper perspective which is for the period 16.12.2008 to 20.03.2009 and was for plying the vehicle within 25 KMs from the stand of Dhanbad, whereas the accident occurred on 16.11.2008 and no Road Permit was produced which was valid on the date of accident, so comfortably, it would be said that on the date of accident, owner has not having valid permit. Hence, the appellant-defendant No. 2, United India Insurance Co. Ltd. cannot be held liable for compensation. Learned counsel places heavy reliance upon a reported judgment of Hon’ble Apex Court in case of National Insurance Company Ltd. vs. Challa Upendra Rao, (2004) 8 SCC 517 and further in para 24 of Amrit Paul Singh and Another vs. Tata AIG General Insurance Company Ltd. and Others, 2018 (7) SCC 558 . It was further submitted that though the owner appeared but tried to convince the Court that Driver was having a valid permit and learned counsel took cognizance of the same but nothing has been brought on record neither it was exhibited. Learned counsel fairly submits that he has not assailed the appeal on the ground of quantum. 7. However, Mr. It was further submitted that though the owner appeared but tried to convince the Court that Driver was having a valid permit and learned counsel took cognizance of the same but nothing has been brought on record neither it was exhibited. Learned counsel fairly submits that he has not assailed the appeal on the ground of quantum. 7. However, Mr. Rajesh Lala, learned counsel appearing for the respondent No. 1 emphatically argues that the learned Tribunal has failed to consider the amount under conventional head and also the compensation towards future prospects of 40%. Learned Tribunal while giving the final calculation did not consider these aspects which have been elaborately dealt with in case of National Insurance Co. Ltd. vs. Pranay Sethi and Others, (2017) 16 SCC 680 and as such, respondent No1./claimant is entitled for the enhanced rate of compensation amount and as such, a direction be given for compensation towards conventional head prescribed as Rs.70,000/-and future prospect of 40%. 8. Mr. Mrinal Kanti Roy, learned counsel appearing for the respondent No. 5-defendant No. 1 submits that driver of auto rickshaw was holding valid and effective driving licence at the time of accident and all the requisite papers of the vehicle were valid at the time of accident. Therefore, learned Tribunal has rightly given the liability upon the appellant-defendant No. 2. 9. In view of the submissions of the parties and after perusal of the records and case laws relied upon by the parties, this Court is of the considered view that nothing has been brought on record neither it was exhibited whether the owner has valid permit or not. In absence of any exhibit, it could not have been said that owner was having valid permit. Even if as per the judicial notices taken by the learned tribunal, the road permit which has been brought on record by the owner was valid from 16.12.2008 to 20 March, 2009, whereas the accident occurred on 16.11.2008. 10. The Hon’ble Apex Court in case of Amrit Paul Singh and Another vs. Tata AIG General Insurance company Ltd. and Others (supra) in para 24 has held as under:- “24. In the case at hand, it is clearly demonstrable from the materials brought on record that the vehicle at the time of accident did not have a permit. The appellants had taken the stand that the vehicle was not involved in the accident. In the case at hand, it is clearly demonstrable from the materials brought on record that the vehicle at the time of accident did not have a permit. The appellants had taken the stand that the vehicle was not involved in the accident. That apart, they had not stated whether the vehicle had temporary permit or any other kind of permit. The exceptions that have been carved out under Section 66 of the Act, needless to emphasise, are to be pleaded and proved. The exceptions cannot be taken aid of in the course of an argument to seek absolution from liability. Use of a vehicle in a public place without a permit is a fundamental statutory infraction. We are disposed to think so in view of the series of exceptions carved out in Section 66. The said situations cannot be equated with absence of licence or a fake licence or a licence for different kind of vehicle, or, for that matter, violation of a condition of carrying more number of passengers. Therefore, the principles laid down in National Insurance Co. Ltd. vs. Swaran Singh, (2004) 3 SCC 297 and in case of Lakhmi Chand vs. Reliance General Insurance, (2016) 3 SCC 100 in that regard would not be applicable to the case at hand. That apart, the insurer had taken the plea that vehicle in question had no permit. It does not require the wisdom of the ‘Tripitaka’ that the existence of a permit of any nature is a matter of documentary evidence. Nothing has been brought on record by the insured to prove that he had a permit of the vehicle. In such a situation, the onus cannot be cast on the insurer. Therefore, the Tribunal as well as the High Court had directed that the insurer was required to pay the compensation amount to the claimants with interest with the stipulation that the insurer shall be entitled to recover the same from the owner and the driver. The said directions are in consonance with the principles stated in Swaran Singh (supra) and other cases pertaining to pay and recover principle.” 11. In view of the aforesaid observation and ratio laid down by the Hon’ble Apex Court, I hereby direct the District & Addl. Sessions Judge-II-cum-MACT, Judge, Dhanbad to calculate the amount of compensation after adding the amount of Rs. In view of the aforesaid observation and ratio laid down by the Hon’ble Apex Court, I hereby direct the District & Addl. Sessions Judge-II-cum-MACT, Judge, Dhanbad to calculate the amount of compensation after adding the amount of Rs. 70,000/- as conventional head as per observation made by the Hon’ble Apex Court in case of Pranay Sethi (supra) and also take into account the future prospect that comes to 40% and after calculating the entire amount, the learned Tribunal shall pass an order for paying the same as per the terms and conditions already passed by the Tribunal vide its order dated 15.09.2012. 12. Let the entire enhanced amount, after calculation be paid to the claimants/ respondent Nos. 1 to 4 by the appellant-United India Insurance Co. Ltd., with liberty to recover the same from owner of the vehicle (respondent no. 5) in accordance with law. If the awarded amount has already been deposited, the same shall be disbursed to the claimants/ respondent Nos. 1 to 4, if not already disbursed, in accordance with law. Insurance Company is permitted to withdraw statutory amount deposited at the time of filing instant appeal. 13. Office is directed to return the lower Court records to the Court below at the earliest. 14. With the aforesaid observations and directions, the instant Appeal is hereby allowed. 15. Appeal is disposed of in aforementioned terms and conditions. 16. As a sequel to the disposal of the present Appeal, pending I.A. if any, also stand disposed of.