Miscellaneous Appeal No. 551 of 2010 · Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Miscellaneous Appeal No.551 of 2010 ====================================================== Insurance Company Ltd., The Divisional Manager, United Muzaffarpur India .... .... Appellant/s Versus 1. Bindi Devi, W/o Late Kishori Lal Saraf, village-Main Road, Raxaul, P.S. Raxaul, District-East Champaran 2. Bihar State Road Transport Corporation, Patna .... .... Respondent/s ====================================================== CORAM: HONOURABLE MR. JUSTICE JYOTI SARAN ORAL ORDER 08. 27-08-2013 Reg: I.A. No. 4502 of 2013 This interlocutory application has been filed under Section 5 of the Limitation Act for condonation of delay of 64 days in filing the appeal. Having heard learned counsel and for the reasons assigned, the prayer is allowed. Delay is condoned.
Decision
I.A. No. 4502 of 2013 is disposed of. Reg: M.A. No.551 of 2010 This appeal under Section 173 of the Motor Vehicles Act (hereinafter referred to as „the Act‟) is directed against the judgment and award dated 23.12.2009 / 6.1.2010 passed by learned 5th Additional District Judge-cum-Motor Accident Claim Tribunal, Muzaffarpur in Claim Case No. 201 of 2007, whereby the claim has been allowed with interest. Facts of the case in brief is that the deceased was travelling Patna High Court MA No.551 of 2010 (8) dt.27-08-2013 2 in a bus under the ownership of the Bihar State Road Transport Corporation, Patna bearing registration no. BR 05P-0556, from Motihari to Patna. The said bus met with an accident when on 11.5.2007 at 3.45 A.M. it fell of the Gandhi Setu after breaking the railing into the river and as a result several passengers deceased while others received grievous injury. The husband of the claimant Bharat Bhushan Saraf was one of the passengers who succumbed to the injuries suffered by him in the accident and he died on the spot. Following the accident an FIR was instituted giving rise to Ganga Bridge P.S. Case No. 144 of 2007 alleging rash and negligent driving on the part of the driver of the offending vehicle. The claimant mother setting up a claim for compensation, filed the case in question. It was stated that the deceased was aged about 24 years and getting a salary of Rs. 4,000/- per month. Despite valid service the owner who is the Bihar State Road Transport Corporation did not choose to appear. The insurance company who is the appellant before this Court appeared and filed a written statement and admitted to the fact that the vehicle was covered under an insurance policy bearing no. 21010131/06/02/0001200 and which was valid up to 21.6.2007. It is not in dispute that the accident had occurred prior thereto. The Patna High Court MA No.551 of 2010 (8) dt.27-08-2013 3 claim case was contested on the compensation amount as also on grounds that the offending bus was running without a valid permit and that the driver did not possess a valid driving licence. On the basis of the rival pleadings advanced by the parties the tribunal framed seven issues. In the light of he evidence led by the parties, the tribunal quantified the compensation amount at Rs. 5,53,500/- and after reducing the amount of interim compensation of Rs. 50,000/- already paid, the insurance company was directed to make payment of the balance amount of Rs. 5,03,500/- together with interest of 6 per cent payable from the date of filing of the claim application. The insurance company being aggrieved, is in appeal before this Court. Mr. Ram Chandra Lal Das has appeared for the insurance company while the Corporation has been represented by Senior Counsel, Mr. P.K. Verma. The sole issue raised by the insurance company is whether the insurer was liable to make payment of the compensation even in absence of a route permit. Mr. Das in support of his submission has relied upon a judgment of the Supreme Court rendered in the case of Chella Bharathamma reported in (2004) 8 SCC 517 to submit that in absence of valid permit, the liability was that of the insured and not the insurer. Patna High Court MA No.551 of 2010 (8) dt.27-08-2013 4 Contesting the claim of the appellant, Mr. Verma has invited the attention of this Court towards a Bench decision of this Court reported in 2010(3) PLJR 77 (United India Insurance Company vs. Sangeeta Devi). He submits that the appellant insurance company had earlier approached this Court questioning a compensation awarded to another passenger of the same ill fated bus and in which appeal they had only raised an issue of fake driving licence. It is submitted that a Single Judge of this Court having noted the rival contentions and in the light of the judicial pronouncement on the issue had taken note of the liberty granted by the tribunal in the said case in requiring the insurance company to make payment of the insurance amount and to make recovery of the same from the insured. He submits that this Court taking note of the liberty granted to the insurance company was pleased to dismiss the appeal. He thus submits that the issue having been deliberated upon before this Court, the appellant cannot be permitted to raise separate issue by filing repeated appeals arising from the same occurrence. I have heard learned counsel for the parties and I have perused the materials on record. It is not in dispute that the offending vehicle being run under the ownership of the Bihar State Road Transport Corporation was under a valid insurance which Patna High Court MA No.551 of 2010 (8) dt.27-08-2013 5 was operative on the date of the accident. It is also not in dispute that the appellant-insurance company being aggrieved by one of such award had moved this Court and at that time it did not choose to raise the issue of permit. No doubt the provision of Section 149(2) (a) (i) does permit the insurance company to raise the issue of permit in order to avoid liability and an issue to that effect was indeed raised by the insurance company before the tribunal followed by a review application. But the fact yet remains that no evidence was led by the insurance company to establish the said fact in order to avoid its liability regarding the bus being operated in violation of the condition of the insurance policy. The onus entirely lay upon the insurance company to establish the same before the tribunal before it could avoid his liability. In a contest between the insurer and the insured certainly the claimants cannot be allowed to suffer. It is perhaps taking note of such circumstances that the Supreme Court in a judgment reported in (2010) 12 SCC 488 (Kamala Mangalal Vayani vs. United India Insurance Company Limited and others) has observed as such: “6. As noticed above, the owner-cum-driver had remained ex parte. Once it was established that the vehicle was comprehensively insured with the insurer to cover the passenger risk, the burden to prove that it was not liable in spite of such a policy, shifted to the insurer. The Patna High Court MA No.551 of 2010 (8) dt.27-08-2013 6 claimants are not expected to prove that the vehicle had a valid permit, nor prove that the owner of the vehicle did not commit breach of any of the terms of the policy. It is for the insurer who denies its liability under the policy, to establish that in spite of the comprehensive insurance policy issued by it, it is not liable on account of the requirements of the policy not being fulfilled.” Whether the offending bus was plying without a permit is an issue which ought to have been established by the insurance company before the tribunal and which has admittedly not been done as no evidence in this regard has been adduced. Even in the judgment rendered in the case of Challa Bharathamma (supra) relied upon by Mr. Das in support of his contention, the Supreme Court while upholding the right of the insurance company to avoid its liability upon establishment of violation of condition of the policy has yet directed the insurance company to make payment of the compensation amount and recover the same from the insured. Insofar as the case on hand is concerned, certainly the judgment and award impugned does not afford any such liberty upon the insurance company of making recovery of the compensation amount in case they are able to establish any violation of the policy by the insurer. Another startling feature which bears significance is that, the Insurance Company having earlier questioned a similar award Patna High Court MA No.551 of 2010 (8) dt.27-08-2013 7 before this Court relating to the same accident, it did not choose to raise any such objection. Even if there is no estoppel against the insurance company to raise a question of law based on fact prevailing, it yet reflects a casual approach on their part causing undue harassment to the victims of an accident. This Court in the circumstances set forth and in view of the judicial pronouncement as also referred to in this order, is not persuaded enough to interfere with the judgment and award impugned and this appeal is accordingly disposed of with direction to the insurance company to make payment of the compensation amount while affording liberty to them to recover the same from the insured in case they are able to establish any violation of the policy by the insured and for which they need not institute any separate suit rather can proceed in terms of the pronouncement of the Supreme Court as rendered in the case of Oriental Insurance Company Ltd. vs. Nanjappan reported in (2004) 13 SCC 224 before the tribunal in the execution of the award. With the directions and observations aforementioned, this appeal is disposed of. S.Sb/- (Jyoti Saran, J)