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2024 DIGILAW 595 (JHR)

Oriental Insurance Co. Ltd. v. Lekha Rakshit

2024-06-20

SANJAY KUMAR DWIVEDI

body2024
JUDGMENT : SANJAY KUMAR DWIVEDI, J. All these matters are arising out of the same accident however, different awards have been passed for the different claimants and in view of that all these appeals have been tagged together by co-ordinate bench of this Court and as such all the appeals have been heard together with the consent of the parties. M.A. No. 474 of 2018 2. Heard learned counsel appearing for the appellants, learned counsel appearing for the respondents/claimants, learned counsel appearing for the respondent/owner of the bolero and learned counsel appearing for the respondent/owner of the auto in question. 3. M.A. No.474 of 2018 has been filed by the Oriental Insurance Co. Ltd. aggrieved and dissatisfied with the judgment/award dated 16.01.2018 passed by learned District Judge III-cum-Motor Vehicle Accident Claims Tribunal, Dhanbad in Title (M.V.) Case (Motor Accident Claim Case) No.335 of 2015. 4. Mr. Alok Lal, learned counsel appearing for the appellant submits that this case has been instituted by the claimants on account of a road accident death of one Naresh Rakshit which was happened on 10.12.2011 at about 5:00 AM along with other passengers travelling in Tempo. He submits that the claimants claimed that the deceased on that day was travelling on a Tempo bearing Registration No. JH-10U-7236 along with other co-passengers and due to rash and negligent driving of the driver of the Mahindra Bolero bearing Registration No. JH-09M-5859 came with high speed from Dhanbad side by rash and negligently dashed upon the tempo as a result of which one passenger of the said tempo was died on the spot and other passengers were sustained injuries due to said accident and on this background the claim case was filed. 5. He submits that the learned Tribunal has awarded an amount of Rs.11,73,155/- with interest @ 6% to be paid within 60 days and if not paid within the 60 days further interest of 9% shall be paid. He submits that there was a composite accident due to the negligence of Bolero driver, who have dashed into the auto and as such the insurance company of auto is not liable. He submits that there was a composite accident due to the negligence of Bolero driver, who have dashed into the auto and as such the insurance company of auto is not liable. According to him, the driver of Bolero was fully in rash and negligent driving, in view of that the insurance company, who is the insurer of the auto in question is not liable, however the learned Tribunal has directed the insurance company to pay the awarded amount. He further submits that in a case of head on collision both the vehicles are liable for the compensation to be paid. According to him, charge sheet was submitted against the driver of the Bolero as well as the Tempo driver. He submits that there is no clear-cut finding of the learned Tribunal with regard to the recovery of the amount from the owner of the Bolero, however, the Bolero in question was not insured as such this finding of recovery from the owner that too without clear cut finding is erroneous. He further submits that the driving license was also disputed and as such the award passed by learned Tribunal is vitiated and according to him this award required to be interfered with. 6. Learned counsel appearing for the claimants submits that the claimant has rightly claimed the compensation as both the vehicles were involved in the said accident. He submits that the right of the claimants cannot be snatched on the technical ground which has been argued by the learned counsel appearing for the insurance company. He submits that if the Bolero in question was not insured, the owner of the Bolero is also liable. 7. Learned counsel appearing for the Auto in question submits that the said Auto was insured with the present appellant and as such the owner of the Tempo is not liable and the learned Tribunal has rightly held so. 8. Learned counsel appearing for the respondent/owner of the Bolero submits that the insurance company namely H.D.F.C. Ergo General Insurance Co. Ltd. has not intimated about the cancellation of the insurance pursuant to the dishonor of the cheque and in view of that the owner of the Bolero is not liable. 9. Mr. S.J. Roy, learned counsel appearing for the H.D.F.C. Ergo General Insurance Co. Ltd. has not intimated about the cancellation of the insurance pursuant to the dishonor of the cheque and in view of that the owner of the Bolero is not liable. 9. Mr. S.J. Roy, learned counsel appearing for the H.D.F.C. Ergo General Insurance Co. Ltd. in one of the appeal pointed out that the letters with regard to the intimation of the cancellation of the insurance of the Bolero vehicle was marked as Exhibits – A, B, C, D and E was exhibited before the learned Tribunal as the cheque in question was dishonored. In view of the learned Tribunal has held that if the insurance company is liable to prove that the Bolero in question was also insured, then after satisfying the award, the amount can be recovered from the owner of the Bolero. 10. As it is crystal clear that there is no clear-cut finding with regard to the recovery of the amount from the owner which was not insured on the date of accident, in view of that the owner is liable to satisfy the said award and the learned Tribunal has further erred in directing the insurer of the Auto only to satisfy the award, if a composite accident is there pursuant to multiple vehicle accident and it is settled that offending vehicles are liable. In view of that and further considering that the Bolero was not insured on the date of fateful accident, the owner of the Bolero is also liable to pay 50% of the awarded amount, as such the insurance company of auto i.e. Oriental Insurance Co. Ltd. will satisfy the award in favour of the claimants and will recover the same from the owner of the Bolero in question. 11. The point raised by Mr. Lal with regard to the license is not accepted by this Court in view of the fact that insurance company has not able to prove the fact before the learned Tribunal and the learned Tribunal has rejected the said argument. 12. It is admitted position that the vehicle Bolero in question was not insured on the relevant date of the accident, and admittedly both the vehicles i.e. Bolero and Auto were involved in the said accident. Auto is insured with the Oriental Insurance Co. Ltd. and the learned Court has fastened the entire liability upon the Oriental Insurance, which is against the mandate of law. Auto is insured with the Oriental Insurance Co. Ltd. and the learned Court has fastened the entire liability upon the Oriental Insurance, which is against the mandate of law. As such both the vehicles are liable to pay the compensation of 50% each in terms of the award. Accordingly, Oriental Insurance will satisfy the entire award in favour of the claimants and it is liable to recover 50% remaining from the owner of the Bolero. 13. In view of the above, the award dated 16.01.2018 passed by District Judge III-cum-Motor Vehicle Accident Claims Tribunal, Dhanbad in Title (M.V.) Case (Motor Accident Claim Case) No.335 of 2015 is modified to the above extent. 14. This appeal is allowed in part and disposed of. 15. The statutory amount deposited before this Court shall be transmitted to the learned Tribunal and the said amount will be utilized for satisfying the award in favour of the claimants. 16. The insurance company if not satisfied the award as yet, it will satisfy the same within 8 weeks. M.A. No.345 of 2019 17. M.A. No.345 of 2019 has been filed by the Oriental Insurance Co. Ltd. being aggrieved and dissatisfied with the Judgment/Award dated 30.06.2018 passed by learned District Judge II-cum-Motor Vehicle Accident Claims Tribunal, Dhanbad in M.V. Claim Case (Motor Accident Claim Case) No.28 of 2012. 18. Mr. Alok Lal, learned counsel appearing for the appellant in M.A. No.345 of 2019 submits that this case has been instituted by the claimants on account of a road accident death of one Mainuddin Mia which was happened on 10.12.2011 at about 5:00 AM along with other passengers travelling in Tempo. He submits that the claimants claimed that the deceased on that day was travelling on a Tempo bearing Registration No. JH 10U 7236 along with other co-passengers and due to rash and negligent driving of the driver of the Mahindra Bolero bearing Registration No. JH 09M 5859 came with high speed from side rash and negligent dashed upon the tempo as a result of which one passenger of the said tempo died on the spot and other passengers were sustained injuries due to said accident, on this background the claim case was filed. 19. He submits that the learned Tribunal has awarded an amount of Rs.26,15,133.85/- with interest @ 6% to be paid. 19. He submits that the learned Tribunal has awarded an amount of Rs.26,15,133.85/- with interest @ 6% to be paid. He submits that there was a composite accident due to the negligence of Bolero driver, who have dashed into the auto and as such the insurance company is not liable, according to him the driver of Bolero fully dashed in rash and negligent in driving, in view of the insurance company, who is the insurer of the auto in question is not liable, however the learned Tribunal has directed the insurance company to pay the award amount. He further submits that in a case of head on collision, the vehicles are liable for the compensation to be paid. According to him, charge sheet was submitted against the driver of the Bolero as well as the Tempo driver. He submits that there is no clear-cut finding of the learned Tribunal with regard to the recovery of the amount from the owner of the Bolero, however, the Bolero in question was not insured as such this finding of recovery from the owner that too without clear cut finding is erroneous. He further submits that the driving license was also disputed and as such the award passed by learned Tribunal is vitiated and according to him this award required to be interfered with. 20. Learned counsel appearing for the claimants submits that the claimant has rightly claimed the compensation as both the vehicles were involved in the said accident. He submits that the right of the claimants cannot be snatched on the technical ground which has been argued by the learned counsel appearing for the insurance company. He submits that if the Bolero in question was not insured, the owner of the Bolero is also liable. 21. Learned counsel appearing for the Auto in question submits that the said Auto was insured with the present appellant and as such the owner of the Tempo is not liable and the learned Tribunal has rightly hold so. M.A. No.493 of 2019 22. M.A. No.493 of 2019 has been filed by the HDFC Ergo General Insurance Co. Ltd. being aggrieved and dissatisfied with the Judgment/Award dated 30.06.2018 passed by learned District Judge II-cum- Presiding Officer, Motor Vehicle Accident Claims Tribunal, Dhanbad in M.V. Claim Case (Motor Accident Claim Case) No.28 of 2012. 23. Mr. S.J. Roy, learned counsel appearing for the H.D.F.C. Ergo General Insurance Co. Ltd. being aggrieved and dissatisfied with the Judgment/Award dated 30.06.2018 passed by learned District Judge II-cum- Presiding Officer, Motor Vehicle Accident Claims Tribunal, Dhanbad in M.V. Claim Case (Motor Accident Claim Case) No.28 of 2012. 23. Mr. S.J. Roy, learned counsel appearing for the H.D.F.C. Ergo General Insurance Co. Ltd. submits that the Tribunal has erred in awarding the claim to the claimant to the extent of Rs.26,15,133/- out of which 50% has been directed to be paid by the appellant. He further submits that in one of the appeals pointed out that Exhibit – D exhibited before the learned Tribunal regarding cancellation of the insurance company of the said Bolero as the cheque in question was dishonored. Learned Tribunal has held that if the insurance company is liable to prove that the Bolero in question was also insured, then after satisfying the award, the amount can be recovered from the owner of the Bolero that there is no clear cut finding with regard to the recovery of the amount from the owner which was not insured on the date of accident, in view of that the owner is liable to satisfy the said award and the learned Tribunal has further erred in directing the insurer of the Auto only to satisfy the award, if a composite accident is there pursuant to multiple vehicle accident. It is settled that all offending vehicles are liable and further considering that the Bolero was not insured on the date of fateful accident, the Bolero is also liable to pay 50% of the award amount as such the insurance company, Oriental Insurance Co. Ltd. will satisfy the award in favour of the claimants and will recover the same from the owner of the Bolero in question. 24. The learned Court has directed the Oriental Insurance Co. Ltd., who is the insurer of auto in question and H.D.F.C. Ergo General Insurance Co. Ltd. to pay the 50% of the awarded amount each to the claimants, however, the H.D.F.C. Ergo General Insurance Co. 24. The learned Court has directed the Oriental Insurance Co. Ltd., who is the insurer of auto in question and H.D.F.C. Ergo General Insurance Co. Ltd. to pay the 50% of the awarded amount each to the claimants, however, the H.D.F.C. Ergo General Insurance Co. Ltd. has brought the documents on the record to suggest that the insurance of the Bolero in question was cancelled, in view of the fact that the cheque issued by the owner of the Bolero was dishonored and the letters in this regard were also issued to the Bolero owner which was marked as Exhibit – D in spite of that the learned Tribunal has fastened the liability upon the H.D.F.C. Ergo General Insurance Co. Ltd. 25. Learned counsel appearing for the owner of the Bolero vehicle submits that owner is not liable. 26. The plea of the driving license has argued by Mr. Lal for the Oriental Insurance Co. Ltd. is not being accepted in view of the fact that the insurance company has not been able to substantiate it before the learned Court which was negated by the learned Tribunal. 27. In view of the above, the owner of the Bolero vehicle and Oriental Insurance Co. Ltd. will be liable to satisfy the award of 50% each, the H.D.F.C. Ergo General Insurance Co. Ltd. will not be liable to satisfy the award as on the date of the accident, insurance was not subsisting. 28. Oriental Insurance Co. Ltd. will satisfy the award in favour of the claimants and the right of recovery will be there to the Oriental Insurance Co. Ltd. to recover the 50% of the awarded amount from the owner of the vehicle. 29. In view of the above, the award dated 30.06.2018 passed by District Judge II-cum-Motor Vehicle Accident Claims Tribunal, Dhanbad in M.V. Claim Case (Motor Accident Claim Case) No.28 of 2012 is modified to the above extent. 30. The statutory amount deposited by the Oriental Insurance Co. Ltd. in M.A. No.345 of 2019 shall be transmitted to the learned Tribunal where the matter is pending and the same will be utilized in satisfying the award. 31. The Oriental Insurance Co. Ltd. will satisfy the award within 8 weeks. 32. The statutory amount deposited by the H.D.F.C. Ergo General Insurance Co. Ltd. in M.A. No. 493 of 2019 will be returned back to the said appellant by the Registry. 31. The Oriental Insurance Co. Ltd. will satisfy the award within 8 weeks. 32. The statutory amount deposited by the H.D.F.C. Ergo General Insurance Co. Ltd. in M.A. No. 493 of 2019 will be returned back to the said appellant by the Registry. M.A. No.122 of 2020 and M.A. No.93 of 2022 33. M.A. No.122 of 2020 and M.A. No.93 of 2022 have been filed by the M/s Oriental Insurance Co. Ltd. aggrieved and dissatisfied with the Judgment/Award dated 13.09.2019 passed by learned District Judge XVI-cum-P.O. Motor Accident Claims Tribunal, Dhanbad in Motor Accident Claim Case No.01 of 2016. 34. Mr. Pratyush Kumar, learned counsel appearing for the appellant, Oriental Insurance Co. Ltd. submits that the claimants filed the claim petition before the learned Tribunal for award of a sum of Rs.15,00,000/- along with interest on account of injury caused to her in a motor accident arising out of rash and negligent driving of the driver of vehicle Bolero bearing Registration No. JH 09M 5859 owned by O.P. No.1 and the insured by the insurance company which were valid from 05.03.2011 to 04.03.2012 and Tempo bearing Registration No. JH 10U 7236 owned by O.P. No.2. 35. Mr. Pratyush Kumar, learned counsel appearing for the insurance company submits that although the learned Court has come to a definite finding that both the vehicles were involved in the accident and both the vehicles were equally liable in spite of that liability has been fastened upon the Oriental Insurance company. He submits that when the said Bolero was not insured, the liability is also required to be fastened upon the owner of the Bolero vehicle. He submits that since the oriental insurance company is insurer of a lighter vehicle, the more liability be further required to be fastened upon the owner of the Bolero in question. He submits that the disability certificate is there which is not permanent in nature and as such the compensation awarded to the claimants have been rightly passed by the learned Tribunal and according to him, the said is itself excessive. 36. Mr. Saibal Kr. Laik, learned counsel appearing for the claimant namely Middat Afreen submits that M.A. No.93 of 2022 has been filed for enhancement of the award. 36. Mr. Saibal Kr. Laik, learned counsel appearing for the claimant namely Middat Afreen submits that M.A. No.93 of 2022 has been filed for enhancement of the award. He submits that the learned Tribunal has erred in assessing the income of the appellant, who is a vegetable vendor to the tune of Rs.4,200/- only, however, he was earning a sum of Rs.9,000/- per month. He submits that in the case of vegetable vendor the Hon’ble Supreme Court in the case of Syed Sadiq and Others versus Divisional Manager, United India Insurance Co. Ltd. reported in (2014) 2 SCC 735 has assessed the income to the tune of Rs.6,500/- per month in paragraph No.9 of the said judgment which is quoted as under: “9. There is no reason in the instant case for the Tribunal and the High Court to ask for evidence of monthly income of the appellant claimant. On the other hand, going by the present state of economy and the rising prices in agricultural products, we are inclined to believe that a vegetable vendor is reasonably capable of earning Rs.6,500/- per month.” 37. Mr. Laik further submits that the award is silent on the future prospect and in view of that the claimant is also entitled for future prospect, according to him the award on the conventional head is also meagre which also required to be enhanced. He further submits that the interest awarded to the tune of Rs.6% per annum in place of 7.5% per annum is further may kindly be modified. 38. It is an admitted position that the Bolero in question was not insured on the relevant date of the accident. It is well settled that in a composite accident both the vehicles are liable to compensate. Admittedly, both the vehicles were involved in the said accident, auto is insured with the Oriental Insurance Co. Ltd. and the learned Court has fastened the entire liability upon the Oriental Insurance Co. Ltd. which is against the mandate of law. As such both the vehicles are liable to pay the compensation of 50% each in terms of the award, accordingly the Oriental Insurance Co. Ltd. will satisfy the award in favour of the claimants and it is liable to recover the same from the owner of the Bolero vehicle. 39. Ltd. which is against the mandate of law. As such both the vehicles are liable to pay the compensation of 50% each in terms of the award, accordingly the Oriental Insurance Co. Ltd. will satisfy the award in favour of the claimants and it is liable to recover the same from the owner of the Bolero vehicle. 39. The Court finds force in the argument of learned counsel appearing for the claimants on future prospect there is no finding of temporary disability there, there is no finding of permanent disability as such the argument of Mr. Laik for claimant for enhancement of the award on that aspect is not being accepted by the Court and as such that is negated. Conventional head also appears to be genuine one as such that argument is also not accepted by the Court. 40. However, the Court finds force in the argument of Mr. Laik for enhancement of the awarded amount from the aspect of monthly income in view of the judgment of Hon’ble Supreme Court in the case of Syed Sadique and Others (supra) as such the income will be held to be Rs.6,500/- per month and on that aspect, the award is modified. 41. The interest in the light of the judgment of Hon’ble Supreme Court in the case of Dharampal and Others versus U.P. State Road Transport Corporation reported in (2008) 12 SCC 208 is required to be maintained as per 7.5% per annum whereas the Tribunal has allowed an interest of Rs.6% per annum. Accordingly, interest part is required to be modified to 7.5% per annum. 42. In view of the above, the award dated 13.09.2019 passed by learned District Judge XVI-cum-P.O. Motor Accident Claims Tribunal, Dhanbad in Motor Accident Claim Case No.01 of 2016 is modified to the above extent. 43. The deposited statutory amount in M.A. No.122 of 2020 shall be transmitted to the learned Tribunal which will be utilized in satisfying the award. 44. The Oriental Insurance Co. Ltd. will satisfy the award and 50% of the awarded amount will recover the same from the owner of the Bolero vehicle. 45. The award will be satisfied within 8 weeks by the Oriental Insurance Co. Ltd. 46. In view of the above, these appeals are allowed in part to the above extent and accordingly disposed of. 47. Pending petition, if any, shall also be disposed of. 48. 45. The award will be satisfied within 8 weeks by the Oriental Insurance Co. Ltd. 46. In view of the above, these appeals are allowed in part to the above extent and accordingly disposed of. 47. Pending petition, if any, shall also be disposed of. 48. Let the L.C.Rs. be returned back to the learned Tribunal forthwith.