The main legal point established in the judgment is the liability of the insurance company to pay compensation for a motor vehicle accident and the right to recover the compensation amount from the owner of the vehicle due to the violation of policy conditions.

JUDGMENT :

1. Heard the parties.

2. Though notice has been validly served upon the owner of the vehicle being respondent no.5 and the driver of the vehicle being respondent no.6 but neither of them turns up in-spite of repeated calls. Hence this appeal is heard ex-parte in respect of respondent nos.5 and 6.

3. This appeal is directed against the judgment and award dated 27.02.2012 passed by the Principal District Judge-cum-Motor Vehicle Accident Claim Tribunal, Seraikella by which the learned Tribunal in an application for compensation under Section 166 of the Motor Vehicle Act, 1988 has directed the insurance company to pay the compensation amount of Rs.2,73,500/- with interest at the rate of 6% per annum from the date of filing of the claim petition that is since 01.06.2007 till the date of realization.

4. The brief facts of the case is that on 07.11.2006 while the deceased Md. Sekh Ishaque @ Md. Asar was travelling on the roof of the bus after paying the fair to the conductor of the bus with the assurance of the conductor to provide a seat to the deceased after sometime inside the bus, the bus being driven in rash and negligent manner on application of sudden brake, there was a jerk by which the said Md. Sekh Ishaque @ Md. Asar swanged out from the roof of the bus and sustained injuries and succumbed to the injuries at MGM hospital during the course of his treatment. The appellant-opposite party no.1-insurance company pleaded before the Tribunal that the story of collecting fare by the conductor of the bus from the deceased is not proper. Hence, it was submitted before the Tribunal that the insurance company ought not to be saddled with the liability to pay the compensation amount if any, to be awarded.

5. The learned Tribunal after considering the rival pleadings framed the following seven issues :-

(i) Whether the claimants have any cause of action or right to sue and the case is maintainable?

(ii) Whether the accident took place due to rash and negligent driving by the driver of the vehicle bus no. JH 01E 5777?

(iii) Whether the deceased died due to motor vehicle accident?

(iv) Whether the owner has violated the terms and condition of the policy for which the vehicle has been insured under the insurer?

(v) Whether the claimant is entitled to receive the compensation amount and if so, what should be the quantum of compensation?

(vi) Whether the insurer of the vehicle is liable to indemnify the insured (owner) of the vehicle?

(vii) Whether the claimant is entitled to get any relief or reliefs as claimed by them?

6. The learned Tribunal took up issue nos. i, ii and iii together and after considering the evidence in the record, came to a conclusion that the deceased died due to motor accident and decided the issue nos. i, ii and iii in favour of the claimants. In respect of issue no. iv, the Tribunal decided the issue no. iv in favour of the claimants and against the opposite party no.1-Insurance company. In respect of issue nos. v, vi and vii, taken up together by the tribunal, the Tribunal quantified the said compensation to be paid as mentioned above and passed the said impugned order.

7. Mr. D.C. Ghose, learned counsel for the appellant-insurance company relied upon the order of Hon’ble Supreme Court of India in the case of Branch Manager, National Ins. Co. Ltd. vs. Giriraj Prasad Agrawal & Ors. in Civil Appeal No.2421 of 2008 dated 16.01.2014 wherein the Hon’ble Supreme Court of India consequent upon the failure of the owner of the vehicle-respondent no.1 in that case to appear in-spite of notice, in the facts of that case, without going into the other aspects and leaving the question of law to be decided in appropriate case directed the appellant-Insurance Company to recover the award amount from the respondent no.1-insured. Mr. Ghose, next relied upon the judgment of Division Bench of this court in the case of National Insurance Company Ltd. vs. Most. Budhani Kisku & Anr. reported in 2008 (1) JCR 366, paragraph nos.9 and 10 of whic