Divisional Manager, Bajaj Allianz General Insurance Co. Ltd vs Bandhna Barayak And Ors

I.A. No. 9967 of 2018

I.A. No. 9967 of 2018 has been preferred by the appellant for condonation of delay of 91 days in preferring the appeal on the ground as envisaged

under para-4 to 10 of the Interlocutory Application.

On being satisfied with the grounds urged by the Insurance Company, delay in preferring appeal after obtaining permission and opinion of various

concerned authorities, is hereby condoned.

I.A. No. 9967 of 2018 is allowed.

M.A. No. 654 of 2018

The appellant has preferred this appeal against the award dated 28.04.2018 passed in Motor Accident Claim Case No.299/2012 passed by the

learned Presiding Officer, Motor Vehicles Accident Claims Tribunal, Ranchi whereby the Tribunal has awarded a compensation to the tune of

Rs.6,34,800/- out of which Rs.50,000/- has already been indemnified by the appellant. The remaining amount i.e. Rs.5,84,800/- along with simple

interest @9% per annum from the date of admission of the Claim Application under section 166 of the Motor Vehicles Act i.e. 19.03.2015 till its

realisation.

Learned Tribunal has further held that the owner of the offending vehicle O.P. No.1 Parvati Mahila Mandal I/C Bhawani Devi of village Bhagalpur

Gulgula, P.O. Bugan, P.S. Karra, District-Khunti has violated terms and conditions of the Insurance policy by plying the offending vehicle on public

road, without holding route permit. Therefore, O.P. No.2 insurer of the offending vehicle is at liberty to recover the said amount paid to the claimants

in satisfaction of award from O.P. No.1, owner of the offending vehicle.

Learned counsel for the appellant Mr. Alok Lal has submitted that the Tribunal has found the owner of offending vehicle liable for violation of Section

149 (2) M.V. Act even then directed the Insurance Company to pay and recover from owner. This right of recovery is also not in accordance with

law as the entire liability ought to have been recovered from the O.P. No.1 i.e. Parvati Mahila Mandal. Learned counsel for the appellant has

submitted that the Tribunal has not considered section 147 (b)(i) of the Motor Vehicle Act and has passed such order where the liability has not been

accepted by the Insurance Company, as the premium of labourer has not been taken by the Insurance company. Learned counsel for the appellant

has further submitted that the deceased was a labourer and not owner of the goods nor authorized representative of the owner of the goods, which

were loaded on the tractor, as such the impugned award may be set aside.

Heard learned counsel for the appellant and perused the impugned award as well as photocopy of the policy handed over by the learned counsel for

the appellant bearing policy no. OG-12-2408-1810-00000030 with regard to Tipping trailer for the period from 01.10.2011 to 30.09.2012 mid night,

insured was Parvati Mahila Mandal, product commercial vehicle and photocopy of policy with regard to 38 Hp, tractor vide policy no. OG-12-2408-

1811-00000320 for the period from 01.10.2011 to 30.09.2012 mid night, of commercial vehicle insured was Parvati Mahila Mandal with sitting capacity

From perusal of the same, it appears that there is no dispute that the vehicle was insured under the commercial vehicle and as per the discussion

made by the learned Tribunal, the deceased was a labourer on the vehicle.

It appears that on 13.02.2012 at 11.00 A.M. the driver of the offending vehicle tractor bearing registration no. JH-01AQ-6326 attached with trailer

bearing registration no. JH-01AQ-6327 called the deceased namely Jitendra Baraik from his house to his tractor for working as labourer, going to

village Kuluhatu loading stones and bricks. The tractor dashed against the deceased namely Jitendra Baraik, driver of the offending vehicle, driven

rashly and negligently resulting to his death on spot at about 3.00 P.M. due to grievous head injuries. The post-mortem of the deceased conducted at

Sub-divisional Hospital, Khuti and the report submitted vide post-mortem report dated 14.02.2012 has been brought on record to prove the occurrence.

F.I.R. at Karra Police Station was lodged bearing no.6/12 dated 14.02.2012 against the driver namely Sunil Baraik, driver of the offending vehicle

tractor for the offence under sections 279 and 304A of the Indian Penal Code. After investigation police submitted charge sheet against the driver

Sunil Baraik, driver of the offending vehicle tractor registration no. JH-01AQ-6326 and the trailer bearing registration no. JH-01AQ-6327 for the

offence under sections 279 and 304A of the IPC vide chargesheet no. 40/12 dated 14.05.2012.

The quantum of compensation has not been assailed rather only the liability to indemnify the awarded amount by the Insurance Company, is

assailed before this Court, though the Tribunal has given liberty to recover the said amount of the award from the owner of the offending vehicle.

From perusal of the same, it appears that the quantum of award has been computed on the lesser side as consortium to the tune of Rs.40,000/- has not

been calculated by the learned tribunal in view of the judgment of Hon'ble Apex Court in the case of National Insurance Company Limited Versus

Pranay Sethi and Ors. reported in (2017) 16 SCC 680 but on the other hand interest @9% has been awarded from the date of admission of the Claim

Application which ought to have been 7.5% from date of application in view of the judgment of Dharmpal and Sons vs. UP State Road Transport

Corporation; 2008 (4) JCR 79 SC. This Court is also not taking note of the computation of the award as the claimant has not preferred any appeal and

also because of the reason that if Rs.40,000/- is added and interest is subtracted then the amount will remain more or less the same as such,

considering the compensation to be just and fair compensation which is not a windfall gain or bonanza, this Court is not interfering with the

compensation awarded.

So far the liability is concerned, the Tribunal has rightly given liberty to recover the same from the owner by the Insurance Company, after full fledged

trial on the Issue no.IV i.e. Whether risk of the deceased namely Jitendra Baraik was covered under the policy of the insurance issued by O.P. No.2

i.e. Bajaj Allianz General Insurance Co. Ltd? The same was dealt at para-10 of impugned award along with Issue no.5 and held that risk of the

deceased namely Jitendra Baraik, working as a labourer in the said tractor was covered and O.P. No.2 has failed to disprove this fact. The said

award has not been assailed by the owner of the offending vehicle, though the tractor and trailer were separately insured as commercial vehicle.

Be that as it may, since only the insurance company has preferred appeal before this Court, assailing the liability fastened upon the Insurance

Company to be paid to the claimants, giving liberty to recover from the owner, this Court is confining its jurisdiction on that part only.

It appears that the claimants are the poor parents of the deceased Jitendra Baraik. The vehicle was duly insured before the Insurance Company i.e.

Bajaj Allianz as tractor and trailer. The person who died from the tractor was not unauthorised person rather he was taken by the driver of the vehicle

Sunil Baraik, as such, the person was authorised. Apart from this, the evidence which has been brought on record says that vehicle had dashed against

deceased namely Jitendra Baraik driving the offending vehicle tractor rashly and negligently resulting to his death on spot at about 3.00 P.M. This

shows that the Tribunal has awarded third party compensation to the deceased. Under the aforesaid circumstances, the deceased was an authorized

person by the driver of the offending vehicle which comes under third party liability for the accident.

The counsel for the appellant has never assailed the impugned award on the ground that deceased was a gratuitous passenger over the tractor

though the insurance policy shows that both tractor and trailer were insured as a commercial vehicle. The owner is Parvati Mahila Mandal, as such,

the Tribunal has rightly directed the Insurance Company to pay the same with a liberty to recover the same from the owner of the vehicle. The

tribunal is justified in passing such award against the Insurance Company so as to protect the claimants from the pittance, otherwise, it would be very

difficult for the claimants to recover the same from the owner of the vehicle i.e. Parvati Mahila Mandal. The same can only be indemnified by the

Insurance Company. The principle of payment and recovery has been dealt by the Apex Court in the case of Oriental Insurance Company versus

Najappan & Ors. AIR 2004 SCW 952 as well as Manuara Khatun and Others vs. Rajesh Kumar Singh & Ors.; (2017) 4 SCC 79.6 The tribunal has

rightly passed the right of recovery to the Insurance Company from the owner of the offending vehicle.

Under the aforesaid circumstances, this Court does not feel any irregularity or illegality in the impugned award. Accordingly, present appeal is hereby

dismissed.

The Insurance Company is directed to comply the order passed by the Tribunal within a period of 90 days from today. If the award is not satisfied

by the Insurance Company to the claimants, the Tribunal is directed to proceed in accordance with law. So far the liberty given by the Tribunal is

concerned since the owner has not assailed the same, this Court is not expressing any view on the matter. The appeal is dismissed.

The statutory amount already deposited by the appellant shall be released in favour of the appellant within a period of four weeks from today by the

Registrar General of this Court.

I.A. No. 5681 of 2018 filed under Order XLI Rule 5(5) of the Code of Civil Procedure is hereby closed.