IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.395 of 2006 MANAGER, UNITED INDIA INSURANCE Company Ltd., Regional Officer, Patna and is being duly constituted attorney of United India Insurance Co. Ltd., having its Regional Officer at 3rd Floor, Chanakya Commercial Complex, R-Block, P.S. - , Town and District – Patna. ………. (Opposite Party No. 1) …. Appellant. Versus 1. GEETA DEVI, wife of Late Rajendra Sah, resident of mohalla Murgichak, Ward No. 7, P.S. + District – Khagaria. …………. Claimant ………….. Respondent Ist Set. 2. Nawal Kishore Singh, Son of Sri Chandra Shekhar Singh, resident of village Makaspur, P.O. – Biht, P.S. – Barauni, District – Begusarai (owner of the vehicle) …… Opposite Party No. 2 …… Respondent 2nd Set. ----------- For the Appellant :- Mr. Syed Qaisar Hasan, Advocate. For the Respondent No. 1 (Claimant):- Mr. Dharmesh Kumar Shrivastava, Advocate. For the Respondent No. 2 (Owner) :- Mr. Kaushal Kumar Singh, Advocate. Mr. Niraj Kumar-I, Advocate. -------------- 12/ 03.11.2010 Heard learned counsel for both the parties. 2. This miscellaneous appeal is directed against the order dated 26.07.2006 passed by the Additional District & Sessions Judge, Fast Track Court 3 – cum – Chairman, Claims Tribunal, Khagaria in Claim Case No. 02 of 2005 by which he has allowed the claim of the claimant to the tune of Rs.3,10,000/- along with 9% interest to be paid by the Insurance Company along with Rs.2,500/- for funeral expenses and Rs.5,000/- for the loss of estate in addition to the interim compensation of 2 Rs.50,000/- already paid and the Tribunal has allowed advocate fee of Rs.55/- and advocate clerk fee of Rs.15/-. 3. From perusal of the lower court records it appears that a claim case was filed by the claimant Geeta Devi alleging therein that her son Dabo Sah @ Avinash Kumar while coming from Begusarai to Khagaria by motor cycle bearing no. BR 34/1749 was dashed by truck bearing registration no. BR-9B-5893 being driven rashly and negligently, by which the deceased Dabo Sah got injured and succumbed to injury. Further case of the claimant is that the deceased has a monthly income of Rs.4,000/- per month. 4. The Insurance Company Opposite Party no. 1 appeared and filed the written statement asserting that the owner and insurer of the motor cycle involved in the accident has not been made party and hence the claim petition suffered from misjoinder and nonjoinder of the parties. The driver of the truck bearing no. BR-9B-5893 has no valid driving license and denied the averments made in the claim petition and further stated that the motor cycle by which the accident took place was carrying three persons and motorcyclists were not perfect drivers rather were learner having no valid license. The owner of the truck appeared and asserted that the vehicle was insured. There was 3 no negligence on the part of the owner and the driver and it is only the Insurance Company who is liable to pay the compensation. 5. On the pleading of the parties five issues were framed which are as follows:- (i) Whether the claim petition is maintainable? (ii) Whether the deceased Dabo Sah died out of the rash and negligent driving of the truck? (iii) Whether the owner of the truck is responsible for the compensation? (iv) Whether the Insurance Company is liable to pay the compensation? (v) Whether the claimant is entitled for the relief? 6. On the issues the claimant adduced both oral and documentary evidence. The oral evidence adduced that (Claimant Witness) C.W. 1 Babloo Kumar, C.W. 2 Ramesh Kumar, C.W. 3 Geeta Devi, C.W 4. The documentary evidence adduced on behalf of the claimant is Ext. 1 series cash memo, Ext. 2 FIR, Ext. 2/A Fardbeyan, Ext. 3 certified copy of the charge-sheet, Ext. 4 Certified copy of the order, Ext. 5 award of District Legal Service Authority, Khagaria, Ext. 6 Post Mortem Report of Dabo Sah, Ext. 7 Certificate of Registration of truck, 4 Ext. 8 photo copy of the Insurance, Ext. 9 photo copy of the permit of the vehicle, Ext. 10 Tax Token, Ext. 11 Accident Report, Ext. 12 receipt of the settlement of land. 7. However, considering the oral and documentary evidence and the submissions made by the parties the Tribunal while considering the issue no. 2 held that the accident took place due to rash and negligent driving of the truck. While deciding issue no. 3 held that the driver of the truck and the Insurance Company is responsible to pay the compensation. While deciding issue no. 4 held that the Insurance Company is liable to pay Rs.3,60,000/- out of which Rs.50,000/- has already been paid as interim compensation and hence on the rest of the amount to the tune of Rs.3,10,000/- an interest of 9% is payable from the date of the filing of the petition till the date of the payment and further held that the claimant is also liable to get an amount of Rs.2,500/- for funeral and Rs.5,000/- for loss of estate and hence held the issue no. 5 that the claimant is entitled for compensation. 8. Learned counsel for the appellant, however, contended that the claimant was a pillion rider and hence he is not entitled for compensation for which the reliance has been placed on decision reported in 2009 (1) BLJ SC 103 (Divisional Manager 5 Vs. Rajendra Singh @ Moti Singh) and 2010 (3) BLJ 85(General Manager United Insurance Company Ltd. Vs. M. Laxmi & Ors.). It has further been contended that the appellant is entitled to recover Rs.50,000/- paid an interim compensation from the owner and the rest of the amount to be paid by the owner and for which reliance has been placed upon 2002 (2) SCC 278 (New India Assurance Company Ltd. Vs. C.M. Jaya & Ors.). It has further been contended that there is violation of the condition of the license and as the truck has no valid permit on the date of the accident and hence if there is any violation in the term and condition of the policy then under Section 149(2) the Insurance Company is not liable to pay and for this proposition has relied upon a decision reported in 2004 (7) Supreme 1 (National Insurance Company Ltd. Vs. The Branch Manager, National Insurance Company & Ors.) and has further submitted that if there is any breach of the term of the contract then the Insurance Company cannot be said to pay and submitted that the beneficial legislation does not warrant go beyond the scheme of Motor Vehicles Act. The scope of the statues cannot go on the pretext of extending the statutory benefit to those who are not covered by the scheme. 9. Learned counsel for the respondent the owner, however, 6 contended that the ground that the deceased was a pillion rider is available to the Insurance Company of the motor cycle which was dashed by the truck and not to the Insurance Company of the truck which has been held responsible for the accident due to rash and negligent driving by the driver of the truck and further that in Motor Vehicles Act, 1939 the liability of the owner was limited to the extent of Rs.50,000/-, however, after the amendment of the Motor Vehicles Act, 1988 now the liability is unlimited and hence the theory of limited liability does not stand. It has further been contended that the Insurance Company has never taken the plea of violation of the policy in terms of the vehicle plying without a permit and neither any evidence having been adduced in the court below nor any such pleading nor any stand was taken and now in the appeal a new stand has been taken which is not permitted and further if a plea has been taken for violation of the term and condition of the Insurance Company it is the Insurance Company who has to establish the violation of the condition. 10. Hence, having heard the respective submissions of the parties the question for consideration is whether the finding recorded by the Tribunal that the claimant is entitled to compensation from the Insurance Company is sustainable in the 7 eye of law and whether the claim of the claimant can be disclaimed by the insurance of truck on the ground of his being a pillion rider on the motorcycle or the claim of compensation can be limited to a limit of Rs,50,000/- only to be paid by the Insurance Company. 11. However, the case of the claimant that the accident took place while the deceased was going on the motor cycle and the truck dashed the motor cycle. However, the Insurance Company of the motor cycle has not been impleaded as party and the owner of the truck and the Insurance Company which insured the Truck, have been made party. 12. Now the first point raised is that the deceased on motor cycle and he was a pillion rider and hence a pillion rider is not entitled to get compensation. However, the pillion rider is not entitled to claim compensation from insurer of the motor cycle as he was not a third party. However, when the Tribunal has held that it was the rash and negligent driving of the truck that caused the accident causing the death of the pillion rider of the motorcycle and hence in comparison to the owner of the truck the pillion rider of the motor cycle is a third party and hence a third party is entitled to get a compensation from the owner of the truck or, in consequence, from the insurer of the truck. 8 13. Learned counsel for the appellant, however, relied upon a decision reported in 2009 (1) BLJ SC 103 (General Manager United Insurance Company Ltd. Vs. M. Laxmi & Ors.). In this case the accident was between a bullock cart and motor cycle and the insurer of the motor cycle was made party and the deceased was a pillion rider and thereunder the facts and circumstance of that case held that the deceased was a gratuitous passenger and not a third party as the scooter was insured under an act policy and held that the Insurance Company own no liability towards the injury suffered by the deceased who was a pillion rider. 14. However, having regard to the facts and circumstances, here, the accident between the motor cycle and the truck and the pillion riders died due to rash and negligent driving of the driver of the truck and hence a third party for the owner of the truck and hence a decision reported in 2009 (1) BLJ SC 103 (Supra) is not applicable in the facts and circumstance of this case. In decision reported in 2010 (3) BLJ 85 again the fact is that an accident was a collision between a rickshaw and a motor cycle in which the pillion rider was succumbed to injury because of the rash and negligent driving of the motor cycle by Mukesh Kumar Singh and it was heard and held that the insurance as a 9 statutory policy does not cover the risk of the pillion rider as a gratuitous passenger and hence not cover under the third party risk. However, present facts and circumstances since insurer is not the insurer of the motorcycle and it has been held that the accident was due to the rash and negligent driving of the truck and hence the pillion rider of the motorcycle who succumbed to injury due to the rash and negligent driving of the driver of the truck and hence is a third party in regard to the truck and hence the point raised that the deceased being pillion rider is not liable to get compensation is not sustainable. 15. The next point raised that the Insurance Company has got limited liability of Rs.50,000/- and reliance has been placed in decision reported in 2002 (2) SCC 278 (Supra). However, the date of occurrence of the case appears to be the different when the Motor Vehicles Act, 1939 is applicable and under the Motor Vehicles Act 1939 the statutory liability was limited up to Rs.50,000/- and the question raised in this case was whether in a case of Insurance Policy not taking any higher liability by accepting a higher premium in case of payment of compensation of the third party the insurer to the extent limited by act. However, under the present facts and circumstances of this case, the occurrence took after the promulgation of the 10 Motor Vehicles Act, 1988 and its subsequent amendment in 1994 wherein the limit has been changed from limited to unlimited liability and now the Insurance Company is liable to pay the entire liability and not limited liability and hence the decision reported in 2002 (2) SCC 278 (Supra) is not applicable to the facts and circumstances of the case. 16. The next point raised about the violation of the term and condition, however, the claim petition and on the claim petition the written statement was filed. However, the Insurance Company has not taken any plea about the violation of the term and condition much less there is no whisper that there is any violation of the term and condition or that the truck had no valid permit to ply whereas the claimant has proved Ext. 9 the photo copy of the permit. However, the said Exhibit 9 has not been challenged by the Insurance Company in the lower court nor any plea taken nor any averments made before the Tribunal that truck has no valid permit to ply. However, in the memo of appeal a plea has been taken that the truck had no valid permit and has produced a letter about the verification of the truck. 17. Learned counsel for the appellant, however, contended that the copy of the petition has been filed under Order XLI Rule 27 but that is not on record. However, it has been asserted 11 that in the petition under Order XLI Rule 27 he has asserted that he applied for verification of the permit but the report received after verification on 10.05.2006 and hence contended that even due diligence was not shown to produce the record in time. 18. Learned counsel for the respondent, however, contended that the judgment and award was dated 26.07.2006 and hence contended that even after the receipt of the report the same was not placed before the Tribunal. However, having regard to the facts that this is a dispute between the owner and the Insurance Company that who will pay the compensation, moreover, no point about the permit has been taken in the written statement before the Tribunal nor any objection raised. However, the claimant is being dragged in the litigation between the owner and the insurer and the learned counsel for the claimant submits that the claimant has only received Rs.50,000/- till date. Hence, having regard to the fact that since the point not raised before the Tribunal during the enquiry and evidence adduced has not been challenged during enquiry cannot be challenged in appeal. 19. Hence, under the facts and circumstances I do not feel inclined to interfere and it is hereby ordered that the Insurance Company is directed to pay the compensation as held by the Tribunal and may recover the amount from the owner in 12 accordance with law. However, it is open for the parties- appellant to pursue his remedy in accordance with law. 20. Hence, this miscellaneous appeal is disposed of. Kundan (Gopal Prasad, J.)