National Insurance Company Ltd., Dumka, Branch Office at Dumka, Sunshine Lane, Main v. Samuel Soren @ Tarku Saitan

Judgment

1. The present miscellaneous appeal under Section 173 of the Motor Vehicles Act, 1988 has been preferred on behalf of appellant – National Insurance Company Limited for setting aside the judgment / award dated 30.07.2018 passed by learned District & Additional Sessions Judge-IV, Dumka-cum-Motor Accidents Claim Tribunal, Dumka in Motor Accident Claim Case No. 43/2014, whereby and whereunder the claimant has been awarded compensation to the tune of Rs. 9,77,200/- along with interest @ 6% per annum from the date of filing of the claim petition with observation that if the appellant-Insurance Company has any 2 objection, it may realize the paid compensation amount from the opposite party no. 2 / insured.

2. Factual matrix giving rise to this appeal is that the deceased Samuel Rakesh Soren was employed as driver of the offending vehicle bearing registration no. JH-04C-6612. On the fateful day of

29.01.2010, when the deceased was driving the offending vehicle reached near Dumaria Road at Village-Chatra at about 1:00 P.M., the tractor attached with trailer suddenly turned turtle due to rash and negligent driving and the driver Rakesh Soren came under the wheels of the tractor and died on the spot while other labourers boarding on the tractor namely, Binor Tudu, Raja Babu Goswami, Rawan Yadav and two other persons sustained injuries.

3. In connection with above accident, a fardbeyan was lodged by the eye-witness namely, Binod Tudu bearing Jama P.S. Case No. 14/2010 dated 29.01.2010 registered for the offences under Sections 279, 337, 338 & 304A of the Indian Penal Code against the deceased driver. In course of investigation, post-mortem on the dead body of the deceased was conducted and evidences were collected which disclosed that the accident had taken place due to rash and negligent driving by its driver (deceased) and final form was submitted.

4. Opposite party no. 1, Samuel Soren @ Tarku Saitan filed claim case, which is registered as Motor Accident Claim Case No. 43/2014 and in course of trial of the above claim case, opposite party no. 2 Sushil Kumar More (Owner)-cum-insured of the offending tractor denied that the deceased Samuel Rakesh Soren 3 was the driver of his vehicle, rather stated that one Umesh Prasad Singh was the driver of the said vehicle. It was further pleaded that since the offending tractor was insured with the opposite party no. 1 namely National Insurance Company Limited (appellant herein). Hence, liabilities shift on the Insurance Company.

5. On the other hand, appellant / National Insurance Company Limited appeared and filed its written statement pleading inter alia that unless the claimant produce driving license, valid permit etc. the Insurance Company can’t be held liable to indemnify the claim. The opposite party no. 1 also denied the age, income and factum of incident, which require stick proof.

6. On the basis of pleadings of parties, following issues were settled by the learned Tribunal for adjudication:- (i) Whether the claim case is legally maintainable ? (ii) Whether the claimant has any cause of action ? (iii) Whether the son of the claimant died due to accident by tractor having registration no. JH-04C-6612 attached with trailer having registration no. JH-04C-6613 ? (iv) Whether the claimant is entitled for compensation as claimed from opposite party nos. 1 & 2 ? (v) Whether the offending vehicle was insured on the date of accident ? (vi) Whether the claimant is entitled to get relief or reliefs as claimed for?

7. Learned Tribunal, after considering oral and documentary evidence available on record, recorded findings that applicant is 4 legal heir and dependent father of the deceased and is entitled to institute this case for compensation. It was also held that the deceased driver died on the spot due to rash and negligent driving of the offending tractor which turned turtle beside the road and other persons were also injured. The mother of the deceased has already been died, hence, the applicant is entitled for compensation. It was also noticed by the learned Tribunal that the applicant-cum-witness no. 1 in his examination-in-chief has stated that his son was employed by opposite party no. 1 as driver since four months ago on daily wages of Rs.200/-. The C.W.-2 also corroborated factum of accident as eye-witness, who was sitting on the offending tractor as labourer and sustained some injuries. It was also found that offending tractor was insured with the present appellant vide Insurance Policy No. 171005/31/09/6300000762 w.e.f. 25.08.2009 to 24.08.2010 and the accident took place on 29.01.2010. Considering the age, income and settled principles of law for computing the compensation amount, the learned Tribunal awarded Rs. 9,77,200/- as compensation along with interest @ 6% per annum. The quantum of award / compensation has not been

challenged by the claimant, which has attained finality.

8. The main grievance of the appellant is that in the oral evidence of claimant himself, it has transpired that the deceased was employed with the insured about four months ago, he had no driving license, rather the vehicle was being plied by the owner on assurance that he has applied for driving license of the deceased at the District Transport Office and permitted him to drive the vehicle. In the rebuttal of the aforesaid fact, there is simply written statement 5 of the opposite party no. 2 / owner of the offending vehicle that his vehicle was being driven by one Umesh Prasad Singh and not by the deceased, as such, no driving license of the deceased was ever produced. There is clear cut violation of terms and conditions of the policy and Insurance Company is entitled for specific recovery right of the compensation amount paid from the owner of the vehicle. The learned Tribunal has not given specific direction in this regard and simply opined that if the Insurance Company desires and has any objection, it may recover the awarded amount paid to the claimant.

9. Learned counsel for the appellant has placed reliance upon the judgment passed in the case of National Insurance Co. Ltd. Vs. Mastan & Another reported in (2006) 2 SCC 641, wherein it has been held by Hon’ble Apex Court that Section 167 of the Motor Vehicles Act, 1988 statutorily provides for an option to the claimant stating that where the death of or bodily injury to any person gives rise to a claim for compensation under the 1988 Act as also the 1923 Act, the person entitled to compensation may without prejudice to the provisions of Chapter X claim such compensation under either of those Acts but not under both. Section 167 contains a non obstante clause providing for such an option notwithstanding anything contained in the 1923 Act.

10. Under 1988 Act, the driver of the vehicle is liable but he would not be liable in a case arising under the 1923 Act. If the driver of the vehicle has no licence, the insurer would not be liable to indemnify the insured. In a given situation, the Accident Claims 6 Tribunal, having regard to its rights and liabilities vis-a-vis the third person may direct the insurance company to meet the liabilities of the insurer, permitting it to recover the same from the insured. The 1923 Act does not envisage such a situation. Role of Reference by incorporation has limited application. A limited right to defend a claim petition arising under one statute cannot be held to be applicable in a claim petition arising under a different statute unless there exists express provision therefor. Section 143 of the 1988 Act makes the provisions of the 1923 Act applicable only in a case arising out of no fault liability, as contained in Chapter X of the 1988 Act. The provisions of Section 143, therefore, cannot be said to have any application in relation to a claim petition filed under Chapter XI thereof, but difficulty in applying the provisions of 1988 Act arises in relation to a claim made under Chapter-XI thereof. Claims under the said Chapter ought to be proved in terms of Section 166 of the 1988 Act, where negligence on the part of the driver of the vehicle is required to be proved. Indisputably, in relation to such claim, Insurer can raise only a limited defence in view of sub-Section 2 of Section 149.

11. As regards aforesaid contention of the appellant, I find that the owner / insured of the offending vehicle has specifically pleaded at para-16 of the written statement that the deceased Samuel Rakesh Soren was not driver of the said tractor and trailer, rather Umesh Prasad Singh, son of B.Prasad Singh of Dangal Para, P.S.-Dumka, District-Dumka was appointed as driver of the said tractor and trailer, to whom the possession of the said tractor was handed over. The offending vehicle has not been met with an accident nor caused 7 any injuries to any one including the deceased. At the same time, it is also pleaded that there was no rash or negligent driving, rather the vehicle was being driven vigilantly and smoothly with full care and caution. Photocopy of driving license of one Umesh Prasad Singh bearing DL-8448/81 was also produced and marked Exhibit–X/4 for identification.

12. It appears that C.W.-1 Samuel Soren / claimant in his examination-in-chief at para-5 & 6 has specifically stated that tractor owner namely, Sushil Kumar More told Samuel Rakesh Soren (deceased) that he has applied for his driving license at District Transport Office, Dumka hence, he should drive the tractor with free mind and also pay Rs. 200/- per day. Similarly C.W.-2, Arun Kumar Tiwary has also stated at para-7 & 8 of his examination-in-chief that deceased Samuel Rakesh Soren was employed as driver by the owner of the tractor since four months ago and pay Rs. 200/- per day as wages. In Cross-examination of above witnesses, nothing has been elicited by the owner of the vehicle to rebut their testimony. Moreover, the owner of the vehicle has adduced no oral or documentary evidence to justify the contents of his written statement. There is no material on record to justify the plea of insured. It is proved beyond doubt that on the date and time of accident, the deceased was plying the offending vehicle in rash and negligent manner, causing death of himself and injury to other labourers. As such, the finding recorded by the learned Tribunal suffers from no infirmity in this regard. 8

13. In view of the aforesaid discussions and reasons, it is evident that there is violation of terms and conditions of the policy, but in view of ratio of judgment of Hon’ble Apex Court in the case of National Insurance Co. Ltd. Vs. Swarn Singh reported in (2004) 3 SCC 297, the appellant shall have right to recover the awarded amount from the owner of the offending vehicle. The appellant is directed to satisfy the awarded amount with interest, as awarded by the learned Tribunal, within six weeks from the date of this order.

14. The amount already paid by the appellant shall be adjusted with the final payment.

15. The statutory amount deposited by the appellant at the time of filing of the present miscellaneous appeal shall be returned.

16. Accordingly, the present miscellaneous appeal is dismissed.

17. Consequently, I.A. No. 3388/2020 stands disposed of. (Pradeep Kumar Srivastava, J.) High Court of Jharkhand at Ranchi Dated : 19/01/2024 Sunil/NAFR