United India Insurance Company Ltd. v. Smt.Anita Bai And Others
NAFR HIGH COURT OF CHHATTISGARH, BILASPUR M. A. No. 1264 OF 2004 United India Insurance Company Ltd., Mendekar Complex, Rajendra Nagar Square, Bilaspur (Chhattisgarh), Through Branch Manager, T.P. Nagar, Korba, Tahsil and District Korba (insurer of the accidented vehicle) ---- Appellant
Versus
1.
Smt. Anita Bai, aged about 18 years, wife of Late Rathram, 2.
Sajan Singh, aged about 45 years, son of Mansai, 3.
Smt. Vimla Bai, aged about 42 years, wife of Sajan Singh, 4.
Minor Ku. Chandreshwari Yadav, aged two months, daughter of Late Rathram, All by Caste Yadav, resident of Village Champa, Tahsil and P.S. Kartala, District Korba (Chhattisgarh).
5.
Khomlal Khairwar, aged about 21 years son of Puniram, Caste Khairwar, resident of Salihabhata, P.S. Kartala, Distt. Korba (C.G.) (driver of the accidented vehicle), 6.
Mukesh Kumar Kanwar, aged about 18 years, son of Jeth Singh, resident of Champa, Tah. and P.S. Kartala, Distt. Korba (Chhattisgarh) (registered owner of the accidented vehicle).
-----Respondents For Appellant :
Mr. H.B. Agrawal, Sr. Advocate with Mr. Pankaj Agrawal, Advocate For Non-applicants :
None Hon'ble Shri Sanjay Agrawal, J.
Judgment on Board 18/11/2016 1.
This is the appeal filed by the Insurance Company against the award dated 08/09/2004 passed by the Additional Motor Accident Claims Tribunal, Korba (C.G.) (hereinafter called as 'Claims Tribunal') in Claim Case No. 248/2004, whereby, the Claims Tribunal while allowing the claim petition in part has fastened the liability upon the Insurance Company.
2.
Brief facts of the case are that on 17/12/2003 at about 1.30 p.m. deceased (Rathram) was travelling in the vehicle in question i.e. Tractor bearing registration No. C.G.12/8696 which was being driven by non-applicant No. 1 (Khomlal Khairwar), owned by non-applicant No. 2 (Mukesh Kumar Kanwar) and insured with the non-applicant No. 3, the Insurance Company. At that particular time, vehicle in question was being driven rashly and negligently by its driver, as a result of which, it tilted down and because of that deceased (Rathram) has expired on the sport.
3.
On account of alleged accident, the claimants being the legal representatives of deceased (Rathram) have filed the claim petition as per the provision prescribed under Section 166 of the Motor Vehicles Act and, claimed a total compensation of Rs. 13,40,000/- by submitting inter alia that the deceased (Rathram), a 20 years old, was a Khalasi and used to earn Rs. 2,000/- per month.
4.
The non-applicants No. 1 & 2, driver and owner of the vehicle in question, though submitted their return, but, were treated exparte subsequently. 5.
The non-applicant No. 3/Insurance Company has contested the claim by raising a specific defence that the vehicle in question was being driven by the driver, which was not possessing a valid and effective driving license and, stated further that as per instruction of the owner deceased (Rathram) was travelling unauthorizedly in violation of the policy, therefore, the Insurance Company cannot be held liable to pay any amount of compensation. 6.
In order to establish the claim, claimants have examined Smt. Anita Bai, the widow of deceased (Rathram), while Insurance Company has examined one Harun Saiyad, the Advocate (Investigating Officer/Investigator).
7.
Upon hearing the parties, the Claims Tribunal while allowing the claim petition in part has come to the conclusion that the driver of the offending vehicle was possessing a valid and effective driving license, in consequence, while fastening the liability upon the Insurance Company, has awarded a total sum of Rs. 2,78,000/- with 9% interest conditionally if the said amount is not deposited within a period of one month.
8.
Learned counsel for the appellant/Insurance Company has assailed the aforesaid findings of the Claims Tribunal on the ground that a person who was driving the vehicle was deceased (Rathram) himself and, not Khomlal Khairwar as pleaded by claimants in their claim petition. He assailed further on the ground that since the seating capacity in the Tractor was only for the driver and therefore, the vehicle in question was being driven in violation of the policy. 9.
None appeared on behalf of the non-applicants, though served. 10.
I have heard the learned counsel for the appellant and perused the entire record carefully.
11.
The main contention raised by counsel for the appellant/Insurance Company is that since the vehicle in question was being used in utter violation of the policy, therefore, the liability as fastened upon him cannot be sustained. It has been argued further that the deceased (Rathram) himself was driving the alleged offending vehicle as shown by the criminal records without possessing a driving license, therefore, the Insurance Company can not be held liable. It argued further that even if it is found that he was not driving the vehicle, than in that condition also, since he was travelling in the alleged vehicle insured exclusively for agricultural purposes having seating capacity of one i.e. for driver alone, therefore, in such circumstances, the Insurance Company cannot be held liable to pay any amount of compensation.
12.
The only question which required to be determined by this Court is whether the vehicle in question was being used in violation of the policy or not? 13.
From a bare perusal of the record, coupled with the defense plea, it is clear that the vehicle in question was being driven by Khomlal Khairwar and not by deceased (Rathram) as argued by the counsel for the appellant. In fact, the said submission is contrary to his own defense plea and, therefore, liable to be rejected. Consequently, it cannot be held that the deceased (Rathram) was driving the alleged vehicle. It is also gathered from the record that the driver (Khomlal Khairwar) was holding a valid driving license and, therefore, the Insurance Company cannot be exonerated on this point. 14.
Further contention as raised by the learned counsel for the appellant is that since the deceased was travelling in the vehicle in question as per instruction of the owner and as per averments made in the claim petition itself, therefore, it is clear that the vehicle in question was being used in violation of the policy. Under such circumstances the Insurance Company is entitled to be exonerated from its liability.
15.
In order to appreciate the aforesaid submission of the counsel, it is necessary for this Court to examine whether the deceased (Rathram) was travelling in specific instruction of the owner or not. However, none of the employees of the Insurance Company have entered into the witness box in order to establish the said fact that the deceased (Rathram) was travelling in the alleged offending vehicle as per instruction of the owner. It is the bounded duty of the Insurance Company to adduce at least one of his employee in order to establish his said specific defence. Having failed so, the Insurance Company can not be exonerated from its liability on this ground also.
16.
Reliance as placed by the learned counsel for the appellant, in the matter of Oriental Insurance Co. Ltd. v. Nattbi Bai and others delivered by the Supreme Court in SLP No. 3900/2000, is distinguishable from the facts involved in the present case. As in the said case, the vehicle in question was being admittedly used other than the agricultural purposes. However, in the instant case, the vehicle in question was being used for the agricultural purposes, therefore, the said case law would not be of any help to the Insurance Company. 17.
Another decision as relied further by the counsel for the appellant, reported in 2009 (1) ACCD 100 (CG) (Royal Sundaram Alliance v. Eshwar and others), is also on different facts, therefore, not applicable in the instant case.
18.
The interest as awarded by the Claims Tribunal that if the amount of compensation is not deposited within a period of one month than it will carry interest at the rate of 9% per annum is also not tenable as the same has been observed even without assigning any reasons. Therefore, I set aside the same and direct that the amount of compensation of Rs. 2,78,000/- shall carry interest at the rate of 6% per annum from the date of the claim petition, i.e. 01/01/2004, till its realization.
19.
The appeal is therefore, devoid of merit and deserves to be dismissed with the above mentioned modification. No order as to costs. Sd/- (Sanjay Agrawal) Judge Tiwari