Miscellaneous Appeal No. 468 of 2008 · Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Miscellaneous Appeal No.468 of 2008 ====================================================== Rajeev Kumar@ Rajiv Kumar son of Rajendra Prasad (owner of Taxi), resident of village Parbalpur, P.O. and P.S. Parbalpur, District-Nalanda Versus .... .... Appellant/s 1. Dinesh Prasad son of Sahdeo Mahto 2. Sahdeo Mahto son of Mohan Mahto 3. Ravi Kant Bharati son of Dinesh Prasad, father, well wisher and next friend 4. Dinesh Sharma son of late Madho Thakur, driver of Tekker, resident of village, P.O. + P.S. Parbalpur, District-Nalanda 5. The New India Assurance Company Ltd. Bihar Sharif Branch situated at I.J.C. Building, Ranchi Road, Bihar Sharif represented through its Branch Manager .... .... Respondent/s ====================================================== with Miscellaneous Appeal No.212 of 2008 ====================================================== Rajeeb Kumar, son of Rajendra Prasad (owner of Trekker Taxi), resident of village Parbalpur, P.O. and P.S. Parbalpur, District-Nalanda Versus .... .... Appellant/s 1. Dinesh Prasad son of Sahdeo Mahto 2. Sahdeo Mahto son of Mohan Mahto 3. Samkuri Devi wife of Sahdeo Mahto 4. Ravi Kant Bharati minor son of Dinesh Prasad, father, well wisher and next friend 5. Dinesh Sharma son of late Madho Thakur, driver of Trekker, resident of village, P.O. + P.S. Parbalpur, District-Nalanda 6. The New India Assurance Company Ltd. Bihar Sharif Branch situated at I.J.C. Building, Ranchi Road, Bihar Sharif represented through its Branch Manager
Legal Reasoning
.... .... Respondent/s ====================================================== CORAM: HONOURABLE MR. JUSTICE JYOTI SARAN ORAL ORDER 15 24-09-2013 Since these two appeals arise from a common judgment and award dated 29.03.2008 / 09.04.2008 passed in M.A.C.T. Case No. 10 and 11 of 1994 by the 1st Additional District Judge- cum-Motor Vehicles Accident Claim Tribunal, Nalanda, hence Patna High Court MA No.468 of 2008 (15) dt.24-09-2013 2 both these appeals have been taken up together with a view to its final disposal. The appellant in the two appeals is the owner of the offending vehicle. Whereas respondent no. 6 the insurance company is represented by Mr. Shailendra Kumar, the claimants have entered appearance through Mr. Anil Kumar No. 6. The claim case has been allowed in favour of the claimant. The tribunal has found the claimant entitled to a compensation of Rs. 32,000/- in respect of death of Mani Kant @ Tuntun which was the subject matter of Claim Case No. 10 of 1994 and to an amount of Rs. 1,29,400/- for the death of Sunaina Devi which was subject matter of Claim Case No. 11 of 2004. The total amount of compensation thus being assessed at Rs. 1,61,400/-, the owner of the offending vehicle was directed to make payment thereof together with interest @ 6 per cent per annum from the date of the order. The owner being aggrieved is in appeal before this Court. Mr. Shambhu Prasad, learned counsel appearing on behalf of the appellant in the two appeals has questioned the judgment and award on the following grounds: (a) The tribunal has committed a serious error in recording that no written statement was filed on behalf of the owner who was opposite party no. 1 Patna High Court MA No.468 of 2008 (15) dt.24-09-2013 3 in the claim case even when the order dated 29.08.2006 mentions the filing of the written statement by the owner of the offending vehicle and which is also a part of the record. (b) A serious error has been committed by the tribunal in shifting the burden of payment of the compensation amount on the appellant merely on grounds of a discrepancy in the description of the vehicle. The tribunal observing that the cover note of the policy paper refers to a Mahindra Maxi and not a trekker, has disbelieved the document for imposing the liability of the compensation on the owner. Mr. Shambhu Prasad has referred to the registration book which was led as Exhibit-A in the court below and a copy whereof has been enclosed at Annexure-2 in the appeals. He mentions that the original book specifically mentions the registration number of the vehicle as BR 21-5051 and is described as a trekker taxi. Mr. Prasad referring to the chassis and engine number submits that each vehicle is identified by its chassis and engine number which is clearly mentioned as DP 01217 in the registration book. It is submitted with reference to the copy of the cover note present at Annexure-1 and the certificate of insurance which is a part thereof and was led as Exhibit-C in the claim case that even when the chassis number and the engine number mentioned in the Patna High Court MA No.468 of 2008 (15) dt.24-09-2013 4 registration book tallies with the cover note and the certificate of insurance, the tribunal has committed a serious error in finding discrepancy in the description of the vehicle to shift the burden on the owner when in terms of Section 149 of the Motor Vehicles Act, 1988 once a vehicle is found insured, the burden is to be discharged by the insurance company. The argument of Mr. Prasad has been contested by Mr. Shailendra Kumar appearing for the insurance company to submit that the registration number of the offending vehicle which finds mention in the First Information Report is manifestly missing from the cover note and the certificate of the insurance. He further submits that the validity of the cover note is only 14 days. He further submits that there is some confusion in the description of the vehicle, in between the registration book and the insurance policy and since there is no registration number mentioned in the insurance policy, no infirmity can be found in the judgment and award impugned in the present appeals. Since the interest of the claimant stands protected under the impugned judgment and award and the contest is merely between the owner of the offending vehicle and the insurance company as to who would bear the liability of compensation, learned counsel appearing for the claimants submitted that he shall abide by the decision. Patna High Court MA No.468 of 2008 (15) dt.24-09-2013 5 I have heard learned counsel for the parties and I have perused the materials on record. The only issue that is to be determined in the present set of appeals is whether the payment of compensation would be the burden of the owner of the offending vehicle or the insurance company. Of the two issues raised by Mr. Prasad to question the judgment and award, it is evident that the observation of the court below regarding non filing of a written statement is an error of record. Now comes the question of shifting of the liability and whether any discrepancy in the description of the vehicle could shift the burden on the owner despite a valid insurance. The registration book which was led as Exhibit-A is Annexure-2 to the present appeals and though the description of the vehicle is mentioned as trekker taxi, the name of the maker at serial no. 2 though faint, mentions Mahindra Limited. The chassis and engine number is clearly mentioned as DP 01217 and the year of manufacture 1991. The registration book is hypothecated with Kotak Mahindra Limited and it is in the name of Rajeev Kumar, the appellant before this Court. The cover note again mentions the chassis and engine number as DP 01217, the year of manufacture being 1991 and the vehicle hypothecated with Kotak Mahindra Finance Limited with the name of the insured mentioned as that of the appellant. The cover note is Patna High Court MA No.468 of 2008 (15) dt.24-09-2013 6 effective from 24.09.1992 to 23.09.1993 and the accident admittedly took place within the said period on 14.03.1993. Although an objection has been raised by Mr. Shailendra Kumar regarding validity of the period of a cover note but considering the fact that there is a certificate of insurance which was led as Exhibit-C in the claim cases, even the said objection is without a foundation. There is absolutely no confusion that the certificate of insurance is relatable to the same vehicle which is described in the registration book, in the cover note and in the certificate of insurance. Merely by non mention of the registration number would not alter this position since a vehicle is primarily identified by its engine and chassis number about which there is no confusion. Insofar as the validity of cover note is concerned, the issue stays no more res integra, in view of the judgment of the Supreme Court reported in (2008) 9 SCC 133 (National Insurance Company Limited vs. Abhaysing Pratapsing Waghela and others). In paragraph 17 of the judgment it has been observed that if a cover note has been issued it remains valid till it is cancelled. It is further mentioned that a cover note in view of the provision underlying Section 145 (1) (b) of the Motor Vehicles Act, partakes the character of insurance. Thus even the objection of Patna High Court MA No.468 of 2008 (15) dt.24-09-2013 7 Mr. Shailendra Kumar as to the validity of the cover note would not hold good. For the reasons aforementioned, the error committed by the tribunal is manifest and since the offending vehicle was duly insured with the respondent New India Assurance Company Limited, the onus to discharge the liability was that of the insurance company and not the owner of the offending vehicle. For the conclusions drawn aforementioned, the judgment and award impugned in the appeals stands modified to the extent that the compensation amount together with interest as directed under the impugned judgment and award shall be payable by the insurance company without any further delay and preferably within three months from the date of receipt/production of a copy of the order. As a consequence of the order passed, let the statutory amount deposited by the owner in the two appeals be returned to him in accordance with law. The appeals are allowed. Let the lower court records be returned to the Motor Vehicles Accident Claim Tribunal, Nalanda at Bihar Sharif. S.Sb/- (Jyoti Saran, J)