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Bandwan South Lamp Co-Operativ vs Smt.Jatila Singh & Ors. on 1 August, 2009

Jharkhand High Court
Bandwan South Lamp Co-Operativ vs Smt.Jatila Singh & Ors. on 1 August, 2009
           IN THE HIGH COURT OF JHARKHAND AT RANCHI
                                M.A. No. 96 of 2005
                                       With
                          M.A. Nos. 97, 98 and 99 of 2005.
                                       ------
           Bandwan South Lamp Society Ltd.                 ...Appellant.
                                                           ( In all appeals)
                                       Versus
           Smt. Chana Singh and Ors.                 ....    Respondents.
                                                     (In M.A. No. 96/05)
           Smt. Jatila Singh and Ors.                ....    Respondents.
                                                     (In M.A. No. 97/05)
           Smt. Shushila Singh and Ors.              ....    Respondents.
                                                     (In M.A. No. 98/05)
           Smt. Malati Singh and Ors.                ....    Respondents.
                                                     (In M.A. No. 99/05)
                                       ----
           CORAM: THE HON'BLE MR. JUSTICE M.Y. EQBAL
                  THE HON'BLE MRS. JUSTICE JAYA ROY
           For the Appellant(s) :     Mr. Manoj Tandon,
           For the Respondent(s):     M/s. Alok Lal, S.S.Kumar, S. Mahto.

                               ____

By the Court :   Since in these four appeals, common question of law and

facts are involved, they have been heard together and are disposed
of by this common judgment.

These appeals have been filed against the four separate
judgments and awards dated 07.04.2005 passed by the 1st Addl.
District Judge-cum- Motor Vehicles Accident Claims Tribunal, East
Singhbhum, Jamshedpur in Compensation Case Nos. 05/1999,
07/1999, 04/1999 and 06/1999, respectively, awarding
compensation to the claimants for the death of all the four
deceased in one motor vehicle accident.

The Tribunal after coming to a finding that the deceased
were gratuitous passengers in the vehicle held that the Insurance
Company is not liable to pay compensation and accordingly,
liability was saddled with the appellant, the owner of the vehicle.

All the claim applications were filed by the legal
representatives of the deceased for grant of compensation.
According to the claimants, the deceased were traveling in a truck
as labourers, which was loaded with stone-chips. The said truck
turned turtle, as a result of which, all the deceased labourers were
thrown away from the vehicle and sustained injuries. One of the
deceased, Chhatu Singh came beneath the stone-chips and died
on the spot. The respondent-owner (appellant herein) of the vehicle
appeared in all the cases and took plea that the vehicle was duly
insured with the respondent-Insurance Company covering the
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liability of the labourers and therefore, the Insurance Company is
liable to pay the compensation amount.

The respondent-New India Insurance Company taking
ornamental pleadings in the written statement admitted that the
offending truck was insured with its company. But the owner of
the vehicle has violated the policy-condition by allowing the truck
driver to drive the vehicle without any valid driving licence.

On the basis of the pleadings of the parties, the
tribunal formulated number of issues and recorded its findings. On
the issue of driving licence, the respondent -Insurance Company
submitted a report of a Surveyor which was marked as Exhibit-A
mentioning therein that there was no driving licence issued in
favour of the driver, who was driving the vehicle at the relevant
time. The Tribunal held that Exhibit ‘A’ cannot be a conclusive
evidence to show that the driver was not holding any driving
licence. Moreover, neither the D.T.O was examined nor any reliable
evidence was brought on record for the purpose of arriving at the
conclusion that the driver was not holding a valid driving licence.
The tribunal therefore held that there is no evidence to show that
the owner of the truck allowed the driver willfully and knowingly to
drive the vehicle without any valid driving licence. In other words,
these issues have been decided against the respondent-Insurance
Company. Admittedly, against the aforesaid findings, no appeal or
cross objection has been filed by the respondent- Insurance
Company.

On the issue of liability of the Insurance Company under the
insurance policy, the tribunal took notice of the evidence adduced
by the claimants’ witnesses, who have deposed that the deceased
were engaged as labourers in the offending truck by the owner of
the truck. However, the Tribunal proceeded on the assumption
that even if the deceased were authorized labourers of the owner of
the truck, there is no evidence to show that the owner had paid
premium for the said authorized labourers. The Tribunal therefore,
held that in absence of any premium paid for the labourers
engaged by the owner of the vehicle, the Insurance Company
cannot have any liability.

We first invited Mr. Alok Lal, counsel for the Insurance
Company to make his submission, who very fairly submitted that
the vehicle was insured with the respondent-Insurance Company.
However, the learned counsel assailed the finding recorded by the
Tribunal on the issue of the driver holding a valid driving lincene.
Learned counsel submitted that the finding recorded by the
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tribunal on the issue of driving licence is erroneous and cannot be
sustained in law. We are afraid such findings can be assailed by
the respondent without filing any appeal or cross appeal under
Order 41 Rule 22 C.P.C.

Mr. Alok Lal further submitted that even without filing
appeal, the findings can be reversed by applying the provisions of
Order 41 Rule 43 C.P.C inasmuch as the appellate court even in
absence of any appeal can re-appreciate the entire evidences and
the findings recorded by the Court. We are unable to accept the
submission of the learned counsel. We can take notice of the fact
that the claim cases under the Motor Vehicles Act are to be decided
in a summery proceedings and therefore, in absence of any
pleading and evidence brought on record by the Insurance
Company, the findings recorded by the Tribunal cannot be
interfered with.

As stated above before the Claims Tribunal, the Insurance
Company has admitted the insurance of the vehicle but only
pleaded that there was violation of policy-condition. There is no
pleadings that under the policy, the labourers/employees
employed by the owner of a vehicle is not covered because of non
payment of additional premium. From the lower court records, we
find that the Xerox copy of the insurance policy was filed by the
claimants- respondent. Since the insurance of the vehicle was not
disputed, the said policy ought to have been exhibited by the
tribunal by waiving formal proof, for the reasons that the facts
admitted, need not be proved. We have perused the insurance
policy which is available in the lower court records. From the
schedule of the policy , it is evidently clear that besides covering
the liability to the public risk, additional premium of Rs.90/- was
paid for covering the risk of driver, cleaner and four labourers i.e.
for six persons’ premium, which was recovered @ of Rs.15/- per
person, which was the premium payable at the relevant time.

We can, therefore, safely come to the conclusion that the
labourers engaged by the owner of the vehicle, who are now
deceased, were covered under the policy. The findings recorded by
the Tribunal is, therefore, perverse in law and is based on mis-
appreciation of evidence.

We, therefore, hold that the respondent-Insurance Company
is liable to pay compensation so awarded by the Tribunal.

For the reasons aforesaid, all these appeals are allowed and
the findings recorded by the tribunal with regard to liability is
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reversed and it is held that the compensation amount shall be paid
by the respondent-Insurance Company.

However, we clarify that since only four labourers (Coolies)
were covered under the policy by payment of additional premium,
the other claim cases, involving same issue which might have been
filed by the injured, will not, in any way take the benefit of the
findings recorded by this Court.

(M.Y. Eqbal, J)

(Jaya Roy, J)
Jharkhand High Court, Ranchi.

Dated: 01/08/2009.

NAFR/ B.S.-Anu/-

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