1 - National Insurance Company Limited Branch Office-Palkot Road Gumla, District- Gumla (Jharkhand), Through v. 1 - Godo Bai D/o Late Kulhu Ram Aged About 38 Years Caste- Nageshiya

Legal Reasoning

: Mr. Dashrath Gupta, Advocate in both the appeals. For Respondents No. 1 & 2 : Mr. J.K. Saxena, Advocate in both the For other Respondents appeals. : None. Hon'ble Shri Justice Sanjay Kumar Jaiswal Order on Board (02 .0 5 .202 5 )

1. Since both appeals arise out of the same order dated

14.12.2018 passed by the Additional Motor Accident Claims Tribunal, Kunkuri, District - Jashpur (C.G.), in Claim Cases No. 53/2013 and 54/2013, they are being

Decision

heard and disposed of by this common judgment.

2. The brief facts of the case were that on 10.08.2013, deceased Kulhu Ram and Firni Bai, along with Godo Bai/claimant No. 1 and their son-in-law, were going to Kalia and Gailunga from Bankombo on a bolero vehicle bearing registration No. CG-14-8088 (herein after referred to as ‘offending vehicle’), and when they reached bridge of Eib river, at that time, Ganesh Ram, driver of the offending 4 vehicle driving the offending vehicle in a rash and negligent manner caused a accident by overturned the vehicle, due to which deceased Kulhu Ram and Firni Bai sustained grievous injuries and died during treatment.

3. The deceased in the case Kulhu Ram and Firni Bai are husband and wife and their two daughters Godo Bai and Rajkumari Bai have filed separate claim applications for both the deceased (Claim Case No. 53/2013 for death of Kulhu Ram and Claim Case No. 54/2013 for death of Firni Bai claiming a total compensation of Rs. 37,14,000/- and Rs. 15,53,760/- respectively).

4. Upon due consideration on the pleadings and material available on record, the claims tribunal has awarded a total compensation of Rs. 3,07,000/- in Claim Case No. 53/2013 and a total compensation of Rs. 3,60,400/- in Claim Case No. 54/2013. The insurance company/appellant of the offending vehicle, Kanta Ekka (his heirs were taken on record as he died during the trial), registered owner of the offending vehicle as well as the driver, Ganesh Ram Chauhan, have been held liable for payment of compensation by the Claims Tribunal.

5. The appellant/insurance company submits that the insurance policy was an ‘Act only Policy’ under which only the risk of the 3rd Party was covered. The deceased in the case were passengers in the said vehicle who did not fall under the category of 3rd Party. He further submits that the vehicle was insured as a private vehicle, whereas at the time of the accident, it was being used for a commercial purpose by taking it on rent. He also submits that the driver, Ganesh Ram Chauhan/respondent No.3, did not have a valid and effective driving license to drive the offending vehicle. Thus, due to the violation of the terms of 5 the insurance policy and the risk of the deceased not being covered, the insurance company is not liable for payment of compensation. The Tribunal has committed an error by holding the appellant/insurance company liable for payment of compensation. Therefore, the appeal may be allowed and the appellant is liable to be exonerated from its liability.

6. In the case, learned counsel for the claimants opposed the appeal, submitting that the award in question is well merited.

7. No one appeared on behalf of the driver and owner i.e. respondents No. 3, 4 to 7 of the offending vehicle.

8. Heard learned counsel appearing for the parties and perused the record with utmost circumspection.

9. No specific facts have been presented by the claimant side regarding the driving license of the driver Ganesh Ram Chauhan, but certified copies of the charge sheet have been presented vide Ex.A-1 to Ex.A-15. On perusal of the same, it is found that since the driver Ganesh Ram Chauhan did not have a valid and effective driving license on the date of the accident, he has been prosecuted by the police under Section 3/181 of the Motor Vehicles Act.

10.Administrative Officer T.K. Gadhewal (NAW-1), witness on behalf of the insurance company, has presented the insurance policy Ex.NA-1, according to which the offending vehicle was insured on the date of the accident. He has stated that the driver did not have a valid and effective license, and the insurance conditions have been violated. No driving license has been presented on behalf of the driver, Ganesh Ram and the owner, and they have not even come to the witness box. In the above situation, 6 looking to the charge sheet presented on the basis of the statement of Administrative Officer T.K. Gadhewal (NAW- 1), which has been submitted by the claimant party itself, it is found that the policy has been breached as the driver did not possess a valid and effective driving license on the date of the accident.

11.The next contention of the appellant/insurance company is that the vehicle was insured as a private car, whereas at the time of the accident, the offending vehicle was being used for commercial purposes by running on rent. Administrative officer T.K. Gadhewal (NAW-1) has also stated in his statement regarding the above argument and has cited the police charge sheet in this regard. According to the charge sheet, at the time of the accident, there were about 08-09 persons in the offending vehicle. It is also clear that all of them were returning after the last rites. It is also clear from the First Information Report Ex.P-2 that the vehicle was hired. However, when Rajkumari (AW-1), claimant witness, was suggested in this regard during cross-examination, she said that her parents did not have a vehicle and whenever they used to go somewhere, they used to go by hiring a vehicle. She has denied having any knowledge about the fact that even on the date of the accident, the offending vehicle was hired. But considering the statement of the administrative officer, T.K. Gadhewal (NAW-1), examined by the appellant/insurance company, which is confirmed by the charge sheet, that the vehicle was used for commercial purposes at the time of the accident. The driver or owner of the offending vehicle has not appeared as a witness in the court to refute it, and as per the case, the vehicle had been purchased by Stephen Minj from the registered owner, Kanta Ekka. That Stephen 7 Minj has accepted in paragraph-5 of his cross-examination that the written report of the accident has been written correctly and in this regard he has not given a clear statement that how as per the First Information Report, 08-10 people were sitting in the said offending vehicle while the vehicle was insured as a private vehicle. In such a situation, in the absence of rebuttal of the statement of the administrative officer T.K. Gadhewal (NAW-1) examined by the insurance company, whose statement is also confirmed by the charge sheet, makes it clear that at the time of the accident, the offending vehicle was being used on rent for commercial purpose, therefore, it is found that the offending vehicle was driven by its driver in the breach of policy conditions.

12.The learned counsel for the appellant/insurance company also argued that, as per the policy Ex.NA-1, the risk of the deceased is not covered. From the examination of the insurance policy, it becomes clear that the policy was an ‘Act only Policy’ in which the premium was paid only for the coverage of the risk of the 3rd Party and for the employee. There is no statement or evidence that the deceased was the employee of that vehicle. The deceased persons do not even fall in the category of 3rd Party for the offending vehicle, hence the argument of the appellant/insurance company in this regard is also found acceptable that as per the policy Ex. NA-1, the risk of the deceased persons was not covered.

13.On the above basis, this court finds that the conclusion of the tribunal regarding the violation of insurance conditions and the risk of the deceased was not proper and valid. Therefore, the award in question is not found to be upheld. Since the offending vehicle was insured at the time of the 8 accident and the insurance conditions were also found to have been violated, and the risk of the deceased persons was also not covered.

14. For the reasons mentioned herein above, the appeals are hereby allowed. The appellant/insurance company is exonerated from its liability for payment of compensation. The driver and registered owner of the offending vehicle would be liable for payment of the entire compensation. The insurance company can recover the amount of compensation, if any, deposited by it till date from the driver and/or registered owner of the offending vehicle. The rest of the conditions shall remain intact.

15. Records of the Claims Tribunal along with a copy of this judgment be sent forthwith for information and necessary action, if any. Sd/- (Sanjay Kumar Jaiswal) Judge H. L. Sahu