IN THE HIGH COURT OF JHARKHAND AT RANCHI
M.A. No. 41 of 2008
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United India Insurance Co. Ltd. … Appellant
-Versus-
Sukhni Mahto & ors Respondents
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with
Cross Objection No.8 of 2009
Sanatan Hansda Manjhi @ Sanatan Hansda... Cross Objector
-Versus-
M/s United India Insurance Co.Ltd. & ors.... .... Respondents
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CORAM : HON'BLE MR. JUSTICE M.Y.EQBAL
HON'BLE MRS. JUSTICE JAYA ROY
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For the Appellant : Mr. Alok Lal
For the Respondents : M/s. Jai Prakash & P.Chatterjee
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Date of CAV 18.3.2009 Date of pronouncement: 20.3.2009
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8- 20.3.2009 This appeal by the appellant-Insurance Company is directed
against the judgment and award dated 29th September, 2007
passed by Motor Accident Claims Tribunal, Dhanbad in Title (M.V)
Suit No.169/2004, whereby he has awarded compensation of
Rs.2,49,500/- and directed the appellant-Insurance Company to
pay the said amount.
2. The claimants-respondents filed the aforementioned case for
grant of compensation on account of death of Ramnath Mahto in a
motor vehicle accident. According to the claimants on the relevant
date of accident the deceased was feeling pain in abdomen and he
was going for his treatment along with his brother and other
villagers at Bokaro Hospital by a Ambassador Car No.JH 10D 2510.
The said ambassador car on the way dashed against a tree
because of rash and negligent driving by the driver of the car, as a
result of which the deceased Ramnath Mahto died on the spot
inside the car.
3. The defendant-respondent, who is the owner of he vehicle,
fled written statement stating that the car was insured with the
appellant-United India Insurance Company and, therefore, the
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owner has no liability to pay the compensation amount rather the
insurance company is liable to pay compensation, if awarded by the
tribunal.
4. On the other hand, the appellant-Insurance Company
contested the case by filing written statement stating inter alia that
at the relevant time the ambassador car was insured as a private
vehicle but the same was used as a commercial vehicle inasmuch
as the deceased was traveiling in the said ambassador car on
payment of hire. The insurance company is, therefore, not liable to
pay compensation.
5. The Tribunal, on the basis of pleadings of the parties,
framed the following issues:
“1) Is the suit, as framed, maintainable?
2) Whether the deceased Ram Nath Mahato died
due to rash and negligent driving of the vehicle in
question having registration No.JH-10D-2510 on P.O.
at the time of the occurrence?
3) Whether the claimants are entitled to the
compensation amount as claimed?
6. The Tribunal held that the deceased died due to rash and
negligent driving of he vehicle in question at the relevant time and
the driver had valid and effective licence and, therefore, the
insurance company is liable to pay compensation.
7. Mr. Alok Lal, learned counsel appearing for the appellant,
assailed the impugned judgment and award as being illegal and
wholly without jurisdiction. Learned counsel submitted that
admitted case of the claimants was that the vehicle was taken on
hire on payment of Rs.1000/- from the owner of the car and the
same has been substantiated by evidence. In spite of that the
tribunal neither framed any issue nor recorded any finding with
regard to liability of the insurance company . The tribunal simply
held that since the vehicle was insured, the insurance company is
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liable to pay compensation. We find force in the submission of the
learned counsel.
8. The claimants filed documentary evidence including the FIR,
Ext.1, which was lodged by the brother of the deceased. In the FIR
it was very specifically mentioned that ambassador car was taken
on hire for going to Bokaro hospital. In evidence PW 1 , widow of
the deceased, deposed that the ambassador car was taken on hire
on payment of Rs.1000/-. The insurance company in para 11 of he
written statement took a specific defence that at the relevant time
the vehicle was used as a commercial vehicle although it was
insured as a private car and, therefore, the insurance company has
no liability. Surprisingly, the owner of the vehicle in his written
statement has not denied the assertion made by the claimants as
also the insurance company that the vehicle ws taken on hire by
the claimants. In spite of that the tribunal has neither framed any
issue nor recorded any finding with regard to liability of the
insurance company. Simply the tribunal held that the deceased died
due to rash and negligent driving of the vehicle in question and the
driver has a valid and effective licence. So the insurance company
is liable to pay compensation. In our considered opinion, the
finding arrived at by the Tribunal is absolutely erroneous in law.
9. As noticed above, the vehicle was taken on hire by the
claimants for going to Bokaro hospital and on the way the vehicle
met with an accident. Admittedly, the vehicle was insured as a
private car and not as a commercial vehicle. Hence the insurance
company has no liability for payment of compensation.
10. Hence, this appeal is allowed and the finding of the tribunal
holding the insurance company liable to pay compensation is set
aside. It is held that the respondent-owner of the vehicle is liable to
pay the compensation amount assessed by the Tribunal.
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11. In the result, this appeal is allowed with the aforesaid
observation and direction and the cross objection filed by the
owner of the vehicle is disallowed.
(M.Y. Eqbal, J. )
Jaya Roy,J: (Jaya Roy,J.)
Pandey/AFR