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2023 Supreme(Jhk) 285
IN THE HIGH COURT OF JHARKHAND AT RANCHI
SANJAY KUMAR DWIVEDI, J.
United India Insurance Co. Ltd. – Appellant
Versus
Tankahi Khatoon widow of late Ghyasuddin – Respondent
M.A. No. 83 of 2012
Decided on : 16-02-2023
Advocate Appeared:
For the Appellant :Mr. Basav Chatterjee, Advocate
For the Respondent:Mr. Yogesh Modi, Advocate, Mr. A.K. Sahani, Advocate
The main legal point established in the judgment is the liability of the Insurance Company under the new Act of 1988 and the conditions for the insurer to avoid liability, as specified in Section 149(2).
Headnote:
Insurance - Motor Vehicle Accident - New Act of 1988 - Section 147 - Section 149(2) - [Gratuitous Passenger, Liability of Insurance Company, Recovery from Owner] - The court discussed the liability of the insurance company under the new Act of 1988 and the amendment in 1994, emphasizing that prior to 1994, the Insurance Company was free from the liability with respect to gratuitous passengers. The court referred to the case of Giriraj Prasad Agrawal v. Parwati Devi and Kali Paharin and Others, highlighting the interpretation that the insurer can avoid its liability only if the conditions specified in Section 149(2) are satisfied, and not otherwise. The court concluded that there is no illegality in the judgment of the learned tribunal as the right of recovery has been made therein.
Fact of the Case:
The appellant, an Insurance Company, appealed against an award passed in a Motor Vehicle Claim Case. The claimants sought compensation for the death of Ghiyasuddin in a truck accident. The tribunal directed the Insurance Company to pay the compensation and recover the same from the owner of the vehicle.
Finding of the Court:
The court found that the deceased was traveling as a gratuitous passenger with the consent of the driver of the truck. It held that the Insurance Company was liable under the new Act of 1988 and directed the company to satisfy the award and recover the same from the owner of the vehicle.
Issues: The issues included the liability of the Insurance Company for the death of a gratuitous passenger, the interpretation of the new Act of 1988, and the direction to recover the compensation from the owner of the vehicle.
Ratio Decidendi: The court relied on the interpretation of Section 147 and Section 149(2) of the new Act of 1988, emphasizing the conditions for the insurer to avoid liability and the right of recovery from the owner of the vehicle.
Final Decision: The appeal was dismissed, and the Insurance Company was directed to satisfy the award within six weeks from the date of production/receipt of a copy of the order. The claimants were given the liberty to move before the learned tribunal for the same.
JUDGMENT :
Heard Mr. Basav Chatterjee, learned counsel for the appellant, Mr. Yogesh Modi, learned counsel for the respondent nos. 1 to 5 and Mr. A.K. Sahani, learned counsel for the respondent nos.6 & 7.
2. Aggrieved with award dated 24.02.2012 passed in M.V. Claim Case No.33 of 1999 by the District Judge I-cum-M.A.C.T. Giridih, the appellant-Insurance Company has preferred this appeal.
3. Claimants Jankahi Khatoon and her minor children Sarifan Khatoon, Bijli Khatoon, Mister Ansari and Choti Ansari represented by her mother Jankahi Khatoon widow of late Ghiyasuddin have filed the claim application after death of her husband late Ghiyasuddin aged about 35 years, earning Rs. 5000/- per month who met with an accident occurred at about 6.00 P.M. on 09.01.1999 at Dumri Bermo Road near Gurutand Pool P.S. Nimiaghat District Giridih and died at the spot. It was further stated that the vehicle in question, a truck bearing no BHR 7191 was being driven rashly and negligently in the high speed coming towards Dehri and fell into the river from bridge and several persons including the deceased Ghiyasuddin resulting him spot death. This Ghiyasuddin along with others was sitting on the roof of the cabin of the truck at the time of accident. The vehicle in question was insured with the United India Assurance Co. Branch office at Giridih having Policy No. 210502/21/1/01104/98/99 valid from 17.11.1998 to 16.11.1999. It was disclosed that owner and driver of the vehicle was Sadakat Ansari at the time of accident. The postmortem examination of the deceased was conducted in the Sadar, Hospital, Giridh. The claimants have claimed the compensation of Rs. 5 lakh alongwith interest.
4. Learned tribunal after framing the issues decided the said claim by judgement dated 24.02.2012 and directed to pay 1,92,000.00 alongwith interest @ 6% per annum to the claimants within 30 days from the receipt of that order and thereafter the Insurance Company shall be at liberty to recover the same from the insured i.e. O.P. Nos. 1 and 2 namely, Md. Sadakat Ansari. The Insurance company was further directed to pay the award to the claimants in the manner as given below i.e. 20% of the amount to each claimants and if the claimants are still minor shall be kept under fixed deposit in their names joint with their mother in the local branch of Bank till they reach to the age of majority with intimation to the Tribunal. The Insurance Company was further at liberty to deduct the interim compensation if awarded to claimants earlier. Aggrieved with that Insurance Company has filed the present appeal.
5. Mr. Basav Chatterjee, learned counsel for the appellant submits that the deceased was traveling unauthorizedly in goods vehicle and for the illegality done by the owner liability upon the insurance company cannot be fastened. On these grounds he submits that the appeal is fit to be allowed.
6. On the other hand, Mr. Yogesh Modi, learned counsel for the respondent nos. 1 to 5-claimants submits that there is no illegality in the impugned judgment and the learned tribunal has given the direction to recover the said amount from the owner.
7. Mr. A.K. Sahani, learned counsel for the respondent nos.6 and 7 submits that there is no illegality in the award however the learned tribunal has erred in fixing liability upon the owner.
8. In view of above submission of the learned counsel for the parties the Court has gone through the award and finds that while deciding Issue No. IV whether the alleged deceased Giyasuddin Ansari died as a gratuitous passenger of the Truck No. BHR 7191 arising out the said vehicle, learned tribunal has considered the deposition of A.W.1 as well as A.W.2. Exhibit-4 is postmortem report. A.W.1 who is one of the injured has stated that they usually come by the truck on the way from Colliery towards their house and also used to pay the fare equivalent to bus fare and so they usually paid Rs. 15/- per head to the truck driver and thereafter the learned tribunal has come
