HIGH COTJRT OF CmiATTIS' v. New

Shri appellant/insurance Atanu Shri Ghosh, respondents/claimants. Vikram Shri Dixit, respondents/owner and driver. company. counsel counsel O R A L O RD E R (Passed on 16th December, 2013) (1) These appeals were heard analogously and are disposed of by this common order as they arise out of one and the same accident and coimnon questions of fact and law are involved therein. For the sake of convenience, Miscellaneous Appeal No.274/2002 taken-up as lead case. Miscellaneous Appeal No.274/2002 arises out of the common award dated 19- 12 -2001 passed by the 1st Additional Motor Accidents Claims Tribunal, Baikunthpur-Korea Link Court, Surajpur, Surguja (henceforth 'the Claims Tribunal') in Claim Case No.33/2001. (2) The nutshell, necessary adjudication of the appeals, are as under: (2-1)0n 07-05-1994, the offending vehicle, namely, Bus bearing registration No.CIL 8041, respondent Bijendra, insured appellant New India Insurance Company Limited and being driven by respondent Kailash, carrying passengers Ambikapur Sanawal On account negligent driving of the bus, it fell into a deep ditch near Ghatpendari, Tahsil Surajpur, District Surguja. As a result of the accident, some of the passengers travelling in the bus died and some of them sustained grievous injuries, leading to filing of claim applications under Section 166 of the Motor Vehicles Act, 1988 (henceforth 'the Act, 1988') before the Claims Tribunal seeking compensation from owner, driver insurer offending bus, jointly and severally. (2.2)0pposing the claim applications, the owner and driver offending a written statement stating offending bus met with the accident on account of a mechanical failure. The offending bus was duly got insured with appellant New India Insurance Company Limited at its Daltenganj Branch, District Palamu, State of Bihar by its competent officer, namely, a Development Officer Abhay Kumar Sinha on 06-05-1994. On 05-05-1994, two buses of the respondent/owner, the offending bus bearing registration No.CIL 8041 and another bearing registration No.MP 27 8899, had been sent to Betala Park, Daltenganj, District Palamu, State of Bihar for insurance. Both the buses were duly inspected and verified physically by Development Officer Abhay Kumar Sinha at Daltenganj Branch of the appellant/insurance company and were insured by him with the appellant/insurance company on 06-05-1994 and thereafter, both the buses returned from Daltenganj to Ambikapur. After the return, the offending bus, carrying the passengers, left Ambikapur for Sanawal via Pratappur on 07-05- 1994 and on the way, met with the accident. The insurance cover of the offending bus was cancelled appellant/insurance company cancellation was informed to the respondent/owner on 03-01-1995, i.e., months accident, but the amount of premium deposited for the insurance of the offending bus was not refunded to the respondent/owner till filing of the written statement before Claims Tribunal No cancellation of the insurance cover of the other bus of the respondent/owner bearing registration No.MP 27 8899 done, appellant/insurance company at its Daltenganj Branch for insurance along with the offending bus, whereas both the buses were duly and simultaneously insured by the appellant/insurance company on one and the same date of 06-05-1994, i.e. before the accident. It further stated driver offending bus did have a valid and effective licence to drive the bus and there was no breach of any of the policy of insurance issued favour of the offending bus . (2.3)In written statement before Claims Tribunal, appellant/insurance company stated that the offending bus bearing registration No.CIL 8041 was got insured at its Daltenganj Branch after the date of accident, i.e., on 09-05-1994 by suppressing the material fact of the accident and, therefore, in light of Section 149 (2) (b) of the Act, 1988, the policy of insurance issued in favour of the offending bus is null and void. It was further stated offending Daltenganj Branch for inspection. It was further stated that Kailash, the driver of the offending bus did not have a valid and effective licence to drive the bus. It was further stated that 86 passengers were travelling in the offending bus in violation of the permitted capacity of 52 only. As such, there were clear violations of the terms of the policy of insurance issued in favour of the offending bus. (2.4)During course trial, appellant/insurance company examined as many as 12 witnesses and filed various documents as per the record to prove that the offending bus was being in breach of policy insurance and the policy of insurance was a back dated policy. The owner of the offending bus was examined as Brijbihari Prasad on behalf of the owner and the driver of the offending bus. The owner also examined other witnesses, namely, Ramesh Patel and Vijay Gupta in support of his case. (2.5)By common award, Claims Tribunal, holding that the insurance company failed to prove the alleged breach of the terms of the policy of insurance, partly allowed the claim applications and granted compensation to the extent as mentioned in the impugned award. (3) Shri Pravesh Sharma, learned counsel appearing appellant/insurance company three-fold submissions; firstly, Claims Tribunal has committed illegality in holding that the policy of insurance issued in favour of offending bus was not ante-dated, secondly, that the respondent/driver Kailash did not have a valid and effective licence to drive the offending bus on the accident thirdly/lastly, offending carrying 86 passengers violation permitted capacity 52 passengers. Learned counsel would submit that the insurance company would not be liable to satisfy the impugned award, therefore, impugned award, directing insurance company satisfy award, be set aside and the owner of the offending liable payment compensation awarded by the Claims Tribunal. Shri Vikram Dixit, learned counsel appearing for respondents/owner driver Shri Atanu Ghosh, learned counsel appearing respondents/claimants support impugned award and oppose the appeal. (5) I considered submissions made by learned counsel for the parties and have perused the record of the claim case with utmost circumspection. (6) The Claims Tribunal, after close scrutiny of the evidence available record, arrived following findings: An inquiry (1) that the back dated information policy was issued in favour of the offending bus. (Ex.NA3-13) initiated The policy covering Development (2) issued Abhay Kumar Sinha, cancelled by Prashant Kumar Chatterjee (NAW3- 10) at the instructions of higher authorities though he was not authorised to cancel the same. insurance, Officer offending bus, Development Officer Abhay Kumar Sinha, (3) who issued the policy in question has been examined nor any criminal case has been instituted insurance company for the alleged misconduct. against explained Development Officer Abhay Kumar Sinha, (4) who could, being the star/key witness of the case, offending bus was inspected or verified or not, though he was continuing as insurance company till the impugned award was passed by the Claims Tribunal. not been examined, an officer whether The officer, at whose instruction the (5) the policy in inquiry was question, was not examined by the insurance company. conducted about 27 8899 No.MP insured registration On 6-5-1994, the offending bus bearing (6) registration No.CIL 8041 and the other bus were, bearing after inspection and physical verification, simultaneously insurance were issued in their favour by one and the same Development Officer Abhay Kumar Sinha, but the policy of insurance covering the other bus bearing registration No.MP 27 8899 was not cancelled and only the policy of insurance covering the offending bus, cancelled. 7-5-1994, policies accident The policy of insurance issued in favour (7) of the offending bus was cancelled but the amount of premium paid for the insurance was not refunded to the respondent/owner of the offending bus. The conduct of the insurance company (8) not clear and the proceeding under Section 1988 is summary in nature. 166 of the Act, Development Non-examination Officer Abhay Kumar Sinha by the insurance company is insurance issuance insurance in favour of the offending bus has insurance company. policy established company (7) Admittedly undisputedly, vehicles owned by the respondent/owner; one was the .offending bus bearing registration No.CIL 8041 and another vehicle a bearing registration No.MP 27

8899. Both insured by Development Officer Abhay Kumar Sinha at Daltenganj Branch of the appellant/insurance company on 6-5-1994. It is not in dispute that the policy 10 insurance issued favour bearing registration No.MP 27 8899 neither disputed insurance company cancelled though issued Daltenganj Branch appellant/insurance company Development Officer Abhay Kumar Sinha himself. Thus, it was obligatory for the insurance company to adduce evidence to explain in which circumstances policy insurance issued Development Officer Abhay Kumar Sinha in favour of the other bus of the respondent/owner bearing registration No.MP 27 8899 was not cancelled by the insurance company and the insurance was held to be good. Apart from this, the policy of insurance issued in favour of the offending bus was not cancelled by Development Officer Abhay Kumar Sinha. Prashant Kumar Chatterjee (NAW3-10) clearly admitted that he was not competent to cancel the policy of insurance and he cancelled the policy of insurance in question at the instructions of the higher authorities. Though the policy of insurance in question was cancelled incompetent officer amount of premium deposited for the insurance was refunded respondent/owner offending bus. Thus, it is clearly established that neither the alleged back dated policy of insurance 11 was cancelled by a competent officer nor the amount premium refunded offending Learned counsel appellant/insurance company is not in a position to dispute aforesaid amount premium refunded offending bus. The above fact clearly reveals that half-hearted effort has been made by the insurance company to show that the policy of insurance issued by it in favour of the offending bus was an anti dated policy. Thus, insurance company that the policy of insurance in question was anti dated is not established as neither the policy was cancelled validly nor after its cancellation the amount of premium was refunded to the owner of the offending bus. (8) Development Officer Abhay Kumar Sinha had issued policy insurance respondent/owner covering the offending bus. It dispute that Development Officer Abhay Kumar Sinha continuing officer insurance company till the impugned award was passed by the Claims Tribunal. He could depose very well about the facts and circumstances of the case under which offending insured insurance company, for the reasons best known to it, 12 examine Development Officer Abhay Kumar Sinha. As a result of which, there could not be any evidence on record by which it could be said that the offending bus not inspected and verified before its insurance. Not only this, the insurance company has not explained and not brought on record as to why Development Officer Abhay Kumar Sinha, who had issued the policy of insurance in favour of the offending bus, examined though working with the insurance company till the impugned award was passed. The non-examination of Development Officer Abhay Kumar Sinha, a star/key witness the policy of insurance question, creates a dent in the case of the insurance company that the policy of insurance in question was a back dated policy. (9) The information (Ex.NA3-13) was obtained by the insurance company that the policy of insurance in question was back dated and on the basis thereof the wheels of the investigation started running. The author of document Ex.NA3-13, on the basis of which the investigation of the insurance company started running, was not examined by the insurance company explanation offered non- examination, which creates further dent on the case of the insurance company. 13 (10) Perusal of the evidence adduced by the insurance company do not lead to an inference that the policy question policy. The testimonies witnesses examined insurance company mainly reveals about conduct of the respondent/owner of the offending bus which was related to earlier occasions the date of accident in question in the instant case. Even if the conduct of the respondent/owner is held to be established, it does not establish that the policy of insurance issued in favour of the offending bus was an ante dated policy and fake one. (11) It is well settled ttiat a party taking a plea that the policy of insurance issued in favour of the offending vehicle was dated policy must prove the same by appropriate legal and supportive evidence In instant case, insurance company has failed to adduce any evidence could support its plea of the policy in question being ante dated. (12) By the impugned award, the Claims Tribunal has clearly held that the proceeding under Section 166 of the Act, 1988 a summary proceeding and in which the question of forgery cannot be established. The Claims Tribunal granted a liberty in favour of 14 appellant/insurance company establish fact of forgery by instituting a relevant proceeding in jurisdictional Court. Nothing has been brought on record to show that any such proceeding has been instituted appellant/insurance company pursuant to liberty granted by the Claims Tribunal in the impugned award dated 19-12-2001. (13) Thus, finding recorded Claims Tribunal the policy of insurance issued favour of tbe offending bus was not a fake policy is a finding of fact based on the evidence on record and I hereby affirm the same. (14) This second plea raised by learned counsel for the appellant/insurance company that the finding arrived at by the Claims Tribunal the driver of the offending bus did have a valid and effective licence to drive the offending bus on the date of accident is bad The Claims Tribunal has clearly recorded a finding that though document Ex.NA3-9 issued District Transport Officer, Hazaribag has not been proved by the person who either wrote the script or who can identify the signature of the said Transport Officer the document in question has been prepared by Anant Kumar and signed by Transport Officer Vijay 15 Kumar Singh, but neither Anant Kumar nor Vijay Kumar Singh have been examined by the insurance company. Thus, the finding arrived at by the Claims Tribunal driver did have a valid and effective licence to drive the offending bus on the date of accident evidence available record and I affirm the same. (15) The last submission made by learned counsel for appellant/insurance company offending bus was carrying passengers more than the permitted capacity, which is breach of conditions of the policy of insurance. From a bare perusal of the evidence on record it would appear that though the insurance company has a offending bus the sanctioned capacity was 52 yet 86 passengers were travelling on the date of accident, but it would appear that no such evidence has been brought on record by the insurance company to prove the fact that on the date of accident the offending bus was carrying passengers more than its sanctioned capacity for travelling in the bus. (16) In a decision in National Insurance Co. Ltd. v. Reena Devi and others, 2013 ACJ 1195, the Supreme Court held as under: "9. One thing is certain and clear to us, in view of the finding of fact reached by the 16 Tribunal that the bus in question on the date of the incident was not carrying passengers more than the permitted capacity. It is also the finding of the Tribunal that apart from the persons who were travelling in the bus, the persons walking on the road were also involved in the accident. If that is so, the Tribunal insurance persons who died in the accident and also those who sustained injuries." company compensate directing justified (17) Apart from the fact that the insurance company has failed to prove the fact that the offending bus carrying passengers permitted capacity, the insurance company has further failed to prove that they have already satisfied 52 awards to the extent of permitted capacity and, therefore, they are not liable to satisfy the impugned award. (18) The Supreme Court had an occasion to consider the aforesaid situation in National Insurance Co. Ltd. v. Anjana Shyam S Ors.1, as to how to determine compensation payable quantify the compensation since there is no means of ascertaining who out of the overloaded passengers constitute the passengers covered insurance policy permitted to be carried by the permit itself. The Supreme Court held as under: arises "16. Then determine the compensation payable or how to quantify the compensation since there is no ascertaining question, 1 (2007) 7 SCC 445 17 It a sums. passed varied insured constitute passengers serves mind, awards social higher In the case on hand, compelled amounts the extent of overloaded passengers covered by the insurance policy as permitted to be carried by the permit itself. As this Court has indicated, the purpose of the Act is to bring benefit to the third parties who are either injured or dead in an accident. purpose. Keeping practical and proper course would be to hold that the insurance company, in such a case, would be bound to cover the higher of the various deposit compensation awarded to number of passengers covered by the insurance Illustratively, we may put it like policy. 42 passengers this. were the permitted passengers and they are insurance company. 90 persons have either died or got injured in the accident. Awards The Tribunal should take into account, the higher of the 42 awards made, add them up and direct the insurance company to deposit that lump Thus, the liability of the insurance sum. company would be compensation awarded to 42 out of the 90 passengers. It the maximum benefit derived insurance passengers of the vehicle, that we hold that insurance company would be the 42 awards in starting descending highest of the awards. In other words, the higher of the 42 awards will be taken into account and it would be the sum total of those higher 42 amount that the insurance company would be liable Tribunal thereafter to direct distribution of insurance company proportionately to all the claimants, here all the 90, and leave all the claimants to recover the balance from the owner of the In such cases, it will be necessary vehicle. for the Tribunal, even at the initial stage, to make appropriate orders to ensure that the amount could be recovered from the owner by ordering restrictive orders against the owner so as to ensure the satisfaction in full of the awards that would be ensure attachment satisfied deposited to pay deposit. passing awards awards It 42 /^l.'.<1 18 that may be passed ultimately." (19) On applying the ratio laid down by the Supreme t Court, the ground raised by the insurance company that the offending bus was carrying passengers more than the permitted capacity of 52 and, therefore, the insurance company is not liable to satisfy the impugned award also fails. Therefore, the finding Claims Tribunal regard is hereby affirmed. (20) Thus, the grounds taken by the insurance company fail. I am of the considered opinion that the Claims Tribunal has not cominitted any illegality in passing the impugned award and, therefore, I hold that the appellant/insurance company is liable to satisfy the impugned award. (21) Consequently, impugned award, unexceptionable, hereby affirmed eleven appeals, preferred by the insurance company, are hereby dismissed. No order as to costs. Sd/- SanjayK.Agrawal Judge