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IN THE HIGH COURT OF JHARKHAND AT RANCHI

M.A. No. 17 of 2016

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The Branch Manager, M/s New India Assurance Company Ltd., Laxmi Cinema

Complex, Main Road, Hazaribagh, through its Asst. Manager and duly

constituted attorney of The New India Assurance Company Ltd., Ranchi

Division, Sethi Corporate, 2^nd Floor, Pee Pee Compound, PO PS Hindpiri,

District Ranchi.

…

…

Appellant

-versus-

1. Sudama Devi

2. Nand Kishore Thakur

3. Parmeshwar Thakur

4. Sanju Kumari

5. Gunja Kumari

6. Raju Kumar Ram

…

…

Respondents

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CORAM :

HON’BLE MR. JUSTICE ANANDA SEN

THROUGH VIDEO CONFERENCING

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For the Appellants :

Mr. Ganesh C. Jha, Advocate

For the Respondents : Mr. Deepak Kumar, Advocate

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ORDER

RESERVED ON 15.07.2021

PRONOUNCED ON 24.07.2021

18/24.07.2021

In this appeal, the appellants have prayed for setting aside

the award dated 22.09.2015 passed by the Motor Vehicles Accident

Claims Tribunal, Hazaribagh in Claim Case No.94 of 2007, by which the

Tribunal has award compensation amount of Rs.11,57,182/- to the

claimants and directed the Insurance Company to pay the amount of

compensation to the claimants.

2.

I have heard the counsel for the Insurance Company, the

counsel for the owner of the vehicle and the counsel for the claimants.

3.

The only grievance of the Insurance Company-appellant is

that the deceased was a roof top passenger, thus, the Insurance

Company is not liable to reimburse the owner. It is the alternative prayer

of the Insurance Company that right of recovery should have been given

to the Insurance Company, to recover the amount of compensation

already paid, from the owners of the offending vehicle. It is submitted

that the Tribunal has wrongly fastened the liability of payment of

compensation, ignoring the aforesaid fact, which would be apparent

from the First Information Report itself.

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4.

Counsel for the owner, by relying upon a judgment of this

Court in the case of Giriraj Prasad Agrawal versus Parwati Devi and

Kali Paharin reported in 2005 3 JLJR 24 (Jhr) has argued that there is

nothing in the deposition of the witnesses to conclude that the deceased

was a roof top passenger. He submits that even if the deceased was a

roof top passenger, in view of the judgment of Full Bench of this Court, it

is the Insurance Company, who has to indemnify the owner, when

admittedly, the vehicle was insured.

5.

The claimants submit that they are entitled to the

compensation amount, which has been awarded. They submit that they

are entitled for a compensation at an enhanced rate, but, the counsel

admitted that they have neither filed cross objection nor filed separate

appeal claiming enhancement.

6.

Considering the submission of the parties and the fact that

there is no appeal for enhancement by the claimants, nor there is any

cross objection, the issues, which fall for consideration in this appeal are

as under: -

(I)

Whether the deceased was a roof top passenger?

(II)

Whether the Insurance Company is liable to indemnify

the owner of the vehicle and/or right to recovery should

be given to the Insurance Company?

7.

Since this is the only controversy in this appeal, I am not

entering into the other aspects, i.e., the factum of accident, involvement

of the offending vehicle, age of the deceased etc., which are admitted,

nor I am entering into the quantum, since there is no challenge to the

quantum.

8.

To consider the aforesaid issues, I have gone through the

evidence. Three witnesses were examined in this case on behalf of the

claimants. Claimant Witness No.1, Parmeshwar Thakur, who is the son

of the deceased Doman Thakur. He stated that on 29.08.2006, they

were travelling in a vehicle bearing registration No. JH 12B 2323 from

Koderma Railway Crossing to Kuju. When the vehicle reached near

Parwati Nurshing Home, the deceased fell from the vehicle as the

vehicle was being