Branch Manager, the National Insurance Company Ltd., Biharsharif, Nalanda, represented through Sri v. Binod Kumar

Patna High Court MA No.143 of 2009 (25) dt.09-07-2013 2 District- Nalanda. ……Claimants….Respondents 4. Brijnandan Dubey @ Haldhar Dubey, son of Ram Pravesh Dubey, resident of Village- Kothari, P.O.- Kanhaiya Ganj, P.S.- Telhara, District- Nalanda. ....Opposite Party no.1 .... Respondent/s ====================================================== Appearance : (In MA No.143 of 2009) For the Appellant/s : Mr. Shailendra Kumar For the owner, driver & Khalasi : Mr. Jharkhandi Upadhyay For the claimants : Mr. Ram Chandra Singh (In MA No.142 of 2009) For the Appellant/s : Mr. Shailendra Kumar For owner, driver & Khalasi : Mr.Jharkhandi Upadhyay For the claimans : Mr. RamChandra Singh (In MA No.623 of 2007) For the Appellant/s : Mr. Abhay Kumar Sinha For owner, driver & Khalasi : Mr.Jharkhandi Upadhyay For the claimants : Mr. Ram Chandra Singh ====================================================== CORAM: HONOURABLE MR. JUSTICE JYOTI SARAN ORAL ORDER 25 09-07-2013 Heard the parties. These three appeals arise from awards passed in Claim Case Nos.4 of 2005, 191 of 2005 and 3 of 2005 respectively by the District Judge-cum-Motor Vehicles Accident Claim Tribunal, Nalanda at Biharsharif, preferred by the claimants following an accident caused by the Commander Jeep bearing Registration No.BR-21A-6494, in which the family members of the claimants were travelling and which went out of control due to rash and negligent driving of the driver resultantly the jeep plunged into the river south of the road. As all these three appeals are originating from the same occurrence though questioning different awards passed in the case, hence they have taken up together for the purpose of its disposal. With the Patna High Court MA No.143 of 2009 (25) dt.09-07-2013 3 consent of the parties these appeals have been taken up for disposal at this stage itself. The facts of the case are in a very narrow compass. About 15 persons were travelling in the Commander jeep in question which was going from Soniawan in the Nalanda district to Patna when due to rash and high speed driving of the driver the jeep plunged into a river causing death of nine persons while injuring six of them. The claim cases were filed by the family members of the persons travelling in the ill-fated jeep giving rise to several claim cases, three of which are the subject-matter of the appeals herein. Pursuant to the notice, the owner and the claimants have appeared to contest the appeal. While it was pleaded by the owner of the offending vehicle that the driver had a valid licence and that the vehicle was duly insured, the claim was contested by the insurance company primarily on the following grounds, namely: (a) the jeep was overloaded at the time of accident and beyond the permitted capacity and thus there was breach of policy conditions; (b) the policy did not cover use of vehicle for ferrying passengers; and (c) that as it is a case of breach of policy conditions by Patna High Court MA No.143 of 2009 (25) dt.09-07-2013 4 the insured, the insurance company cannot be made liable for payment. The arguments have been contested by the learned counsel appearing for the owner of the vehicle as well as the claimants. I have heard Mr. Shailendra Kumar who has appeared on behalf of the insurance company in M.A. No.142 of 2009 and M.A. No.143 of 2009 while Mr. Abhay Kumar Singh has appeared in M.A. No.623 of 2007. Mr. Jharkhandi Upadhyay has appeared for the owner, the driver and the Khalasi of the offending vehicle and Mr. Ram Chandra Singh has appeared for the claimants. Perusal of the impugned award manifests that although the claimants had led oral and documentary evidence in support of their claim, the insurer except examining one witness who is the Investigator did not choose to lead any documentary or oral evidence in support of their contest. Whether the offending vehicle was being used by the owner for the purpose other than those covered under the policy conditions is an issue of fact and the award passed in the claim cases in question manifests that no evidence was led by the insurer to establish that the persons travelling in the ill-fated jeep were travelling for a hire or reward. There is no dispute that there were about 15 Patna High Court MA No.143 of 2009 (25) dt.09-07-2013 5 persons travelling in the ill-fated jeep but the question yet remains whether it was for hire or reward for it is only if this fact is established, that the insurer can avoid its liability in terms of sections 147/149 of the Motor Vehicles Act, 1988 as held by the various judicial pronouncements. Since the award in the three claim cases are identical in nature, I would be referring to the award which is the subject-matter of M.A. No.142 of 2009. Learned counsel for the insurer has relied upon the observation of the Tribunal at page 7 of the award and with reference whereto it is submitted that even when the tribunal has admitted to overloading thus accepting a breach of policy conditions, yet the tribunal has merely granted liberty to the insurer for recovery of the amount, if any, from the owner of the offending vehicle. Learned counsel for the appellant-insurance company have also referred to the evidence of the sole witness led by the insurance company who is none other than the investigator and has submitted that the vehicle was being plied for ferrying passengers. It is submitted that despite this evidence of the investigator of the occurrence, the same has not been believed by the tribunal. Surprisingly even when the insurer has chosen to lead the investigator as his sole witness investigation report does not form part of the record nor the same was led as evidence by the insurance company. The Patna High Court MA No.143 of 2009 (25) dt.09-07-2013 6 records manifests that except the evidence of the investigator there is nothing on record to establish whether the persons travelling in the ill-fated jeep were passengers in the literal sense and/or the offending jeep was being used for commercial purposes. In absence of any evidence supporting this contention of the insurer on the issue that the vehicle was being operated for commercial purpose the tribunal has rightly concluded that nothing was led by the insurer to establish that the passengers were travelling by the ill-fated jeep for hire or on payment. In fact, even when the issue of the option available to the insurer to avoid liability stands settled in the judgment of the Supreme Court reported in (2004) 3 SCC 297 (National Insurance Co. Ltd. Vs. Swaran Singh) and which was reiterated in the judgment of the Supreme Court reported in (2007) 5 SCC 428 (Oriental Insurance Co. Ltd. Vs. Meena Variyal) upholding that until the insurer is able to establish any policy violation by the insured, it cannot avoid its liability yet the records do not reflect any endeavour made by the insurance company to vindicate its stand regarding the jeep in question being engaged for commercial purposes. It is in view of this incontrovertible position that the tribunal while directing the insurance company to make payment of the compensation had afforded liberty to to make recovery thereof from insured after Patna High Court MA No.143 of 2009 (25) dt.09-07-2013 7 establishing the same. The insurance company having been granted this liberty cannot make any complain in view of the judgment rendered on this issue. They are not required to institute any fresh suit rather they can seek this remedy in the same proceeding and before the tribunal itself. Reference in this regard is made to the following judgments: (1) (2004) 8 SCC 517 ( National Insurance Co. Ltd. Vs. Challa Bharathamma). (ii) (2004) 13 SCC 224: 2005 SCC (Cri) 148 (Oriental Insurance Co. Ltd. Vs. Nanjappan). For the reasons aforesaid, this Court is not persuaded to interfere with the awards in question. However, it shall be open to the appellant-insurance company to make recovery of the amount of compensation from the insured in case they are able to establish the violation of policy conditions. The appeals are accordingly dismissed. Let the statutory amount be remitted to the tribunal for its disbursement in accordance with law. Let the lower court records summoned in the appeals in question, be also remitted to the concerned tribunal forthwith. SKPathak/- (Jyoti Saran, J)