APPEAL FROM ORIGINAL ORDER No.406 of 2003
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Against the judgment and award dated 22.9.2003 passed nu Motor
Vehicles Accident Claims Tribunal, Dhanbad in Title (M.V.) Suit
No.31/2002.
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Oriental Insurance Company Ltd ... ... ... Appellant
Versus
Hembala Devi and another ... ... ... Respondents
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For the Appellant: Mr. D.C. Ghosh
For the Respondents: M/s. N.K. Sahani, Kumar Nilesh
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PRESENT: THE HON'BLE MR. JUSTICE M. Y. EQBAL
THE HON'BLE MRS. JUSTICE JAYA ROY
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By Court This appeal by the appellant-Insurance Company is directed
against the judgment and award dated 22.9.2003 passed by Motor
Accident Claims Tribunal, Dhanbad in Title (M.V.) Suit No.31 of
2002 whereby compensation of Rs.3,44,500/- has been awarded
against the appellant on account of death of Mithu Mahato caused
in a motor vehicle accident.
2. The facts of the case lie in a narrow compass:
Deceased Mithu Mahato happened to be driver of
Maruti Van bearing Registration No.BR 36-5678 owned by Goutam
Kumar Roy. According to the claimants, the deceased took the
vehicle from the owner to attend a marriage ceremony and went
along with Subodh Mandal, Ashok Kumar Jha and Kanai Prasad
Poddar towards Chirkunda on 03.4.2000. When the deceased driver
did not return till 07.4.2000, respondent-owner of the Maruti Van
lodged an FIR with Nirsa Police Station. On the basis of the FIR, a
criminal case was instituted. During investigation, police recovered
the dead body, which was identified by the father, who is the
claimant. The police in the charge-sheet mentioned that the above
three named persons, who were going along with the deceased,
had murdered him.
3. The respondent, who is owner of the vehicle, contested the
case by filing written statement stating, inter alia, that the vehicle
was insured with the appellant-Insurance Company, which is liable
to pay the compensation. The appellant-Insurance Company, on
the other hand, contended that the claimants are not entitled to any
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compensation on the grounds, inter alia, that the owner of the
vehicle lodged FIR with the police against the deceased-driver and
his associates alleging therein that his Maruti Van was stolen away.
Further case of the Insurance Company was that the Maruti Van
was a private vehicle, but the same was being used by the owner on
hire.
4. The Tribunal after hearing the parties, firstly recorded a
finding that the deceased was driver at the time of his death and he
was in the employment of the owner of the vehicle. The Tribunal
further came to the conclusion that the death of the driver was an
accident within the meaning of Motor Vehicles Act. Thus the
Insurance Company cannot be absolved from liability. Therefore,
the claimants are entitled to compensation. For better appreciation,
para-8 of the judgment is reproduced herein below:-
"8. Issue No.II : - The defendant No.1 has admitted
that the of offending vehicle was insured with the defendant
No.2, the Oriental Insurance Company Ltd on the alleged
date of occurrence. Likewise the defendant No.2 Oriental
Insurance Company Ltd has itself admitted in his written
report that the offending vehicle bearing registration No
BR 36-5678 was insured on 3.4.2303. In support of this
contention the defendant No. 2 has also filed the copy of the
Insurance certificate Ext-A which shows that the offending
vehicle was insured with the defendant No.2 from 3.3.2000
to 2.3.2001. The alleged date of occurrence took place on
3.4.2000
. Thus it is fully proved that on the date of alleged
occurrence the offending vehicle was insured with the
defendant No.2. But the defendant No.2 has not adduced
any further evidence to show that the defendant No.1 had
violated the terms and conditions. DW.1 has stated in his
evidence that the Insurance company through its agency
made an enquiry and found that the offending vehicle was
being used in commercial purposes while it was insured as
Private vehicle, The defendant No.1 was not authorised to
run it on hire. But this witness has not made specific
evidence as to who made the enquiry. In his cross-
examination he has stated that he had not personally
enquired in this regard. Thus the evidence of this witness is
not sufficient to come to a finding that the offending vehicle
was being run for commercial purposes and since it has
come in the plaintiffs’ evidence that the defendant No.1 is a
Jeweller and engaged the deceased as his driver on
monthly salary of 2,500/-. As such it is quite natural that a
businessman can keep the driver on monthly salary. Thus I
find and hold that defendant No.1 has not violated any
terms or conditions of the Insurance Policy and if the
defendant No.2 proved it the defendant No. 2 is at liberty to
realize the compensation amount from the owner of the
offending vehicle but the Insurance Company can not
absolve itself from its liability in paying the compensation
amount to third party that is the plaintiffs. The learned
lawyer of the plaintiffs has relied upon a decision ,which is
reported in AIR 2000 Supreme Court page 1930. In this
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decision the Hon’ble Apex Court has been pleased to
observe that the deceased who was driver of autorickshaw
was murdered by the passengers who committed act of
felony of stealing autorickshaw. The death of the driver is
an ‘accident’ within meaning Motor Vehicle Act. In my
view this decision is fully applicable to the present case,
Thus, this Issue is answered in favour of the plaintiffs and
against the defendants.”
5. So far the findings recorded by the Tribunal on the question
as to whether the manner in which the deceased was killed is an
accident, there is no dispute that having regard to the evidence
brought on record the Tribunal rightly held that it was an accident
within the meaning of Motor Vehicles Act. However, with regard
to the findings recorded by the Tribunal that the Insurance
Company is liable to pay the compensation amount inasmuch as
there had not been violation of conditions of the policy, I do not
find the said finding is justified. The owner himself made
contradictory statement and lodged FIR alleging that his vehicle
was taken by the driver and specific defence taken by the Insurance
Company that at the time when the accident took place, the vehicle
was being used for commercial purposes. Neither evidence was led
by the owner of the vehicle nor did he examine himself as a
witness. In that view of the matter, it cannot be held that the
Insurance Company is liable to pay the compensation amount.
However, in the facts and circumstances of the case, it is directed
that the Insurance Company shall pay the compensation amount
with liberty to recover the same from the owner of the vehicle after
having proved that it has no liability.
6. For the reasons aforesaid, this appeal is disposed of with the
aforesaid observation.
(M. Y. Eqbal, J)
(Jaya Roy, J)
Jharkhand High Court,Ranchi.
The 23rd December, 2008,
Manoj/N.A.F.R.