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Jharkhand High Court · body

2019 DIGILAW 475 (JHR)

Divisional Manager v. Gupteshwar Prasad Agarwal,

2019-02-14

S.N.PATHAK

body2019
JUDGMENT S. N. Pathak, J. - Heard the parties. 2. This appeal has been preferred challenging the judgment and award dated 27.11.2014, passed in Compensation Case No. 43 of 2005. 3. As per the factual matrix, the deceased, Rupesh Kumar, died as a result of motor vehicle accident which took place on 01.06.2002, while he was going to Khalari for supplying dairy products by Auto Rickshaw bearing Reg. No. BR-14P-1092. In the midst of journey, he fell down from the said Auto and sustained severe and grievous injuries on his person, which has resulted into his death. Thereafter, the legal heirs of late Rupesh Kumar filed Compensation Case for payment of Rs. 4.00 lakhs. It is claimed by the Claimants that at the time of death, the deceased was earning Rs. 4500/- and the Claimants are solely dependent upon his earnings. Opposite Party No. 1 appeared in the said Compensation Case and stated that he had already transferred the vehicle in question prior to the date of accident and on the particular date, it stood in the name of opposite party No. 3, Ram Kumar Tiwary. However, Ram Kumar Tiwary did not appear in the said case and vide order dated 11.03.2011, the case was posted exparte against the said Ram Kumar Tiwary. Further, the opposite party No. 2, Insurance Co. filed its written statements. In the written statements, the defence of mis-joinder and non-joinder of necessary parties were taken by the Insurance Co. It was also stated that as per the F.I.R., the Auto Rickshaw was meant for carrying passenger but it was used for carrying goods. As such, there was breach of the terms and conditions of the Insurance Policy. It was also stated that the extra premium for the driver was paid but on going through the F.I.R. it is apparent that the deceased was shown as Khalasi and hence, the Insurance Co. is not liable to indemnify the Owner on account of death of Khalasi. It was also stated that the transfer of the vehicle was not notified and as such, the new purchaser is not liable to be indemnified by the present Insurance Co. 4. After perusal of the documents and going through the averments made in the written statements, considering the evidences led and the examination of the witness, the learned Tribunal framed the followings issues:- I) Is the compensation case as framed maintainable? 4. After perusal of the documents and going through the averments made in the written statements, considering the evidences led and the examination of the witness, the learned Tribunal framed the followings issues:- I) Is the compensation case as framed maintainable? II) Have the claimants got any cause of action or right to claim? III) Does the claim application suffer for mis-joinder and non-joinder of necessary party? IV) Whether the death of the deceased namely Rupesh Kumar occurred due to motor vehicle accident arising out of Tempo bearing registration No. BR-14P-1092? V) Was the accident a result of rash and negligent driving by the driver of the offending vehicle? VI) Was the deceased namely Rupesh Kumar was a Khalasi in the Auto Rickshaw and was not covered under the said policy? VII) Was the driver of the offending vehicle was having valid and effective D.L.? VIII) Are the claimants entitled to get compensation as claimed? If yes, from whom and to what extent? IX) To what other relief or reliefs are the claimants entitled to? 5. The learned Tribunal after discussing each and every issues in details came out with a finding that the Insurance Co. is liable to make payment to the Claimant to tune of Rs. 5,15,000/- with interest 9% per annum. 6. The correctness of the award has been assailed by the Insurance Co. in the present Appeal on the following grounds:- a) Non-joinder/ mis-joinder of necessary parties. b) Driving license of the driver was not produced. c) The Khalasi did not come within the purview of the Insurance Policy and as such, Insurance Co. was not liable to pay any compensation and it has wrongly been held by the learned Tribunal that onus was on the Insurance Co. to pay compensation. 7. Heard Mr. Harendra Kumar Singh, learned counsel for the Insurance Co., Mr. Nilesh Kumar, learned counsel for the Claimants and Mr. Altaf Hussain, learned counsel for the original Owner of the vehicle. 8. Having heard the parties and from perusal of the impugned judgment, this Court is of the view that everything has been decided and taken care of by the learned Court below in para-14 and 16 of this judgment. The issue No. 3 which deals with mis-joinder and non-joinder of necessary party, the Court below has clear held that it was not pressed in course of hearing. The issue No. 3 which deals with mis-joinder and non-joinder of necessary party, the Court below has clear held that it was not pressed in course of hearing. Raising this issue again in this appeal is unwarranted and against the principle of law. Though a finding is there that the case does not suffer from mis-joinder and non-joinder of the necessary party as the Owners both original as well as transferee have been impleaded as party and the Insurance Co. is also impleaded as a party and therefore, the contention of the learned counsel for the Insurance is misconceived and not acceptable to this Court. Regarding validity of the driving license, the same has been considered as issue No. 7. This issue primarily relates between Insurer and Insured. On the question of liability to indemnify, the Opposite Party No. 1 has appeared in this case and has categorically stated that he had transferred the vehicle to Opposite Party No. 3 but as the Opposite Party No. 3 was not appearing before the Court below, the case proceeded exparte against him. So far as the Insurance Co. is concerned, the liability on Insurance Co. is to prove that the driver of the offending vehicle was not having the valid driving license. On perusal of the records, it transpires that the document marked X/2 before the Court below, was the Surveyor report and the said document appeared to have been prepared on the point of transfer of the vehicle and hence, does not contain any recital as to who was the driver of the offending vehicle. The Surveyor report which is generally procured by the Insurance Co. after receiving information with regards to the accident has not been brought on record. In that view of the matter the Insurance Co. has failed to discharge the onus which was on it to prove that the driving license was not made available or if available, on verification it was found to be improper. Nothing has been brought on record neither any evidence has been led to that effect and pressing the same that Insurance Co. was not liable for compensation as the driver was not having the valid license is also not acceptable to his Court. 9. Under such circumstance the Court concludes that the Insurance Co. Nothing has been brought on record neither any evidence has been led to that effect and pressing the same that Insurance Co. was not liable for compensation as the driver was not having the valid license is also not acceptable to his Court. 9. Under such circumstance the Court concludes that the Insurance Co. has failed to prove that the driver of the offending vehicle was not having a valid driving license. The Khalasi of the concerned vehicle was treated as 3rd party and even if the vehicle was not transferred there was valid Insurance Policy and the law is well settled that in case of subsequent transfer the benefits of insurance policy also gets transferred and therefore, the Insurance Co. is liable to indemnify the Insured. As regards the calculation done by the learned Tribunal, this Court is fully satisfied with that and as such, no interference is warranted in that regard. However, it has been further argued by the learned counsel for the Insurance Co. that if the latest judgment of the Hon''ble Apex Court passed in case of National Insurance Co. Ltd. vs. Pranay Sethi & Ors., reported in (2017) 16 SCC 680 is taken into consideration, the amount of compensation shall be lowered. But this contention of the learned counsel also does not support his case rather, if at all it is taken into consideration, though no appeal has been preferred regarding enhancement of the compensation amount but the same shall be enhanced in view of observations made by the Hon''ble Apex Court in case of Pranay Sethi (supra). 10. Be that as it may, without interfering with the order and judgment passed by the learned Tribunal, since the Insurance co. has already deposited an amount of Rs. 5.00 lakh (Rupees five lakhs) and the same has been disbursed and received by the Claimant, the Insurance Co. is directed to deposit the remaining amount of compensation awarded by the learned Tribunal, within a period of three months from the date of receipt of a copy of this order. Upon such deposit, the same shall be disbursed to the Claimant within a further period of one month, by the learned Tribunal as per the terms and conditions already stipulated in the judgment/ award dated 27.11.2014, passed in Compensation Case No. 43 of 2005. 11. Upon such deposit, the same shall be disbursed to the Claimant within a further period of one month, by the learned Tribunal as per the terms and conditions already stipulated in the judgment/ award dated 27.11.2014, passed in Compensation Case No. 43 of 2005. 11. This Court is in full agreement with the judgment/ award dated 27.11.2014 and as such, no interference is warranted in the instant appeal. 12. Resultantly, this appeal fails and hence, it is dismissed. 13. Office is directed to return the Lower Court''s Records to the Court concerned at the earliest.