IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

Transcription

1 IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) MAC APPEAL No. 95/2014 NEW INDIA ASSURANCE CO. LTD...(APPELLANT) -VERSUS- JOGEN JOGENDRA NATH BORA & 2 ORS...(RESPONDENTS) BEFORE THE HON BLE MR. JUSTICE Prasanta Kumar Deka Advocate for the appellant Advocate for the Respondent : Mr. R. Goswami. : Mr. B.K. Bhattacharjee. Date of hearing & Judgment : JUDGE 1 P age

2 JUDGMENT AND ORDER (ORAL) Heard Shri R. Goswami, the learned counsel appearing on behalf of the appellant. Also heard Mr. B.K. Bhattacharjee, the learned counsel appearing on behalf of the respondent. 2. This appeal has arisen out of the judgment and order passed in MAC Case No. 20/2009 by the Learned Member MACT, at Jorhat. The said judgment was passed on 21/05/2013. The case of the claimant respondent is that he was injured on 31/07/2007 at about 8.30 P.M. while he was proceeding towards his residence on a bicycle from Sonarigaon, Jorhat. Suddenly, the offending vehicle AS-05A/1841 ( 407 Mini Truck) driven by driver in a rush and negligent manner knocked down the claimant who received serious injuries on the whole body and on the basis of the said injury he had to be hospitalised and he claimed a compensation of Rs. 19,00,000/-. The matter proceeded ex-parte against the driver. However, the owner of the vehicle as the opposite party no. 1 filed the written statement and the present appellant as the other opposite party filed its written statement in the said proceeding before the learned Tribunal. In the written statement of the present appellant Insurance Company, it had specifically taken the plea that the policy no /49/06/68/ (exhibit-a) issued against the vehicle no. AS-05A/1841 ( 407 Mini Truck) was under the Rasta Apatti Kavach group which was not a Motor Liability Policy and not governed by the 2 P age

3 Motor Vehicle Act, 1988 and as such the appellant Insurance Company has no liability to pay any compensation to the claimant. 3. After adducing evidence, both by the claimant respondent and the appellant opposite party no. 3, the learned Tribunal vide the impugned Judgment and order awarded an amount of Rs. 12,05,580/- to be paid within a period of two months from the date of order and on being default, interest at the rate of 6 percent per annum from the date of filling petition till realization along with a cost of Rs. 1,000/-. The learned Tribunal held the appellant liable for payment of the awarded amount. 4. Being aggrieved by the impugned judgment and order the appellant Insurance Company has preferred this appeal thereby impugning the judgment and order referrer herein above. The appeal was admitted. 5. Mr. Goswami on behalf of the appellant raised that under no circumstances the Learned Tribunal had the jurisdiction to decide the claim raised before the Tribunal. He further submits that the policy (exhibit-a) specifically mentioned the condition The COVERAGES ARE IN CONNECTION WITH VEHICLE NO. AS-05/A-1841, TATA 407 TRUCK, ENGINE NO. 497SP , CHASSIS NO THIS IS NOT A MOTOR LEGAL LIABILITY POLICY AND NOT GOVERNED BY THE MOTOR VEHICLE ACT. 6. Mr. Goswami, also submits that section 165 of the Motor Vehicles Act, 1988 authorise the State Government to constitute Motor Accident claims tribunal for such area as may be the specified in the notification for the purpose of adjudicating upon claims for compensation in respect of accident involving the death or bodily injury to persons arisen out of the persons or damages of a 3 rd party so arisen or both. Mr. 3 P age Goswami, further submits that in the present case in hand, as the policy was not motor

4 legal liable policy on the such circumstances, the learned Tribunal ought not to have invoked the jurisdiction U/s 165 of the M.V Act, 1988 to decide the claim petition of the petitioner and the submits that the impugned judgment and award is bad in law as the Tribunal is devoid of jurisdiction inherently. Hence the appeal is to be allowed. 7. Mr. B.K. Bhatacharjee, the learned counsel on behalf of the respondent/claimant countered the submission of Mr. Goswami on the ground that the policy (exhibit-a) had the coverage of road side persons ( 3 rd Party) to the extent of Rs. 1,00,000/- and total sum insured to that effect is Rs. 22,00,000/- and for the said reason, the learned Tribunal has the jurisdiction to award the compensation inasmuchas the claimant falls within the category of 3 rd party as he was knocked by the vehicle while he was on his way to his home on by-cycle. Mr. Bhatacharjee relied United India Insurance Company limited versus Uma Kalai ( Devbarma) and Ors. Reported in 2013 to GLT 284 Based on the said decision Mr. Bhatacharjee argues that the Insurance Company cannot deny the liability in respect of any party including 3 rd party once the premium is accepted in respect of any type of Insurance Policy covering the vehicle. In support of the submission, Mr. Bhatacharjee mainly relied para 8 of the decision (Supra) relied by him which is reproduced herein below:- From a bare reading of the circular of Insurance Regulatory & Development Authority (IRDA) dated it appears that the IRDA has adopted section ii of the standard motor package policy, also called the comprehensive policy for the private car and two wheeler under the erstwhile India motor tariff and the circular dated which came into force w.e.f and the circular dated make it clear that the insurance liability in respect of the occupants carried 4 P age

5 in a private car as a pillion rider carried on two wheelers is covered under the standard motor package policy and as such it was mandated by the IRDA by its previous circular dated that the insurers are not permitted to abridge the cover of the standard coverage available under the erstwhile tariffs beyond the options permitted in the erstwhile tariffs. 8. So the learned counsel on behalf of the respondent submits that there is no merit in the appeal and as such the same liable to be dismissed. Mr. Bhatacharjee also further submits that since long the award was passed and now the question of jurisdiction cannot be entered into at this stage of the appeal. So the award passed on 21/05/2013 is a valid one. 9. Perused the case record also perused the various exhibits including the exhibit- A, the Insurance Policy. Also perused the claim petition and the written statement filed by the present appellant Insurance Company in the said proceeding before the learned Tribunal, Jorhat. The appellant/insurance Company raised the question of jurisdiction in the written statement which was filed in the said proceeding. However, the learned Tribunal instead of deciding the question of law regarding maintainability of petition went ahead with the proceeding and after framing the issue allowed the parties to adduce evidence and after hearing the argument the impugned judgment and order was passed. 10. Learned Tribunal had a duty caste on it to decide the question of jurisdiction inasmuch as the same was raised by the Insurance Company appellant at the earliest. Further it was the duty of the learned Tribunal to decide question of jurisdiction as a preliminary issue considering the inconvenience that may be caused to the claimant in 5 P age

6 the event of completion of the proceeding because after all the question of jurisdiction which goes to the root of the proceeding can be entered into at this appellant stage. The award so passed has got no legal force as the question of jurisdiction can be decided even at a later stage. Finally, I agree with the submission of Mr. Goswami that the jurisdiction as exercised by the learned Tribunal was wrong in view of the policy exhibit-a. Accordingly the judgment and order passed by the learned Tribunal, Jorhat, is hereby set aside. So far the decision relied by the Mr. Bhatacharjee the same has no bearing in the issue at hand inasmuch as the question of abridgement of the cover of the standard coverage available under erstwhile tariffs is not the issue at present. But it is a question whether the Tribunal can enter into the claim against a policy which is not a Motor Legal Liability Policy and not governed by the Motor Vehicle Act. 11. As per the evidence on record it can be prepondered that injury suffered by the claimant respondent was serious and on such circumstances the Insurance Company and the owner of the vehicle are liable to compensate the claimant/respondent as per law. Accordingly, I hereby direct the claimant to raise his claim before Insurance Company and the Insurance Company appellant will consider the claim of the claimant and decide the matter at the earliest as per the policy exhibit-a. Considering the submission of Mr. Bhatacharjee, the Insurance Company shall make an endeavour to decide the claim within a period of 2 (two) months from the date of lodging the claim by the claimant/respondent. Accordingly the appeal is disposed of. 12. Mr. Bhatacharjee, fairly submits that the appellant Insurance Company had deposited the 50 percent of the total awarded amount along with the statutory deposit of Rs. 25,000/- which is lying with the registry. That may be released on the application 6 P age

7 made by the appellant Insurance Company at the earliest. No cost. Send the case to the Learned Tribunal Jorhat, at Jorhat within a period of 10 days from today. JUDGE B. DEY 7 P age

8 I.A. 1143/2015 BEFORE HON BLE MR. JUSTICE PRASANTA KUMAR DEKA In view of the above judgment passed in the appeal. This I.A. is, accordingly, disposed of. JUDGE B. DEY 8 P age