United India Insurance Company Ltd vs Talamai Kisku And Ors

The appellant- United India Insurance Company Ltd. has preferred this appeal against the award dated 05.12.2016 passed by learned District Judge-

III-cum-M.A.C.T. Judge, Godda in M.A.C.C. No.41 of 2011 whereby the claimants have been awarded compensation to the tune of Rs.5,03,700/-

under Sections 140 and 166 of the MV Act along with simple interest @ 6% per annum from the date of filing of the case i.e. 27.07.2011.

Learned counsel for the appellant has submitted that appellant- Insurance Company has already indemnified the award of Rs.50,000/- passed under

Section 140 of the MV Act with objection as the said amount shall be adjusted at the time of final disposal of application under Section 166 of the MV

Act. Learned counsel for the appellant has further submitted that the deceased- Tala Tudu was admittedly a labourer, boarded the tractor of the

respondent- Badri Prasad Bhagat, S/o Bhagwan Das Bhagat, resident of Poraiyahat, P.O. & P.S.-Poraiyahat, District- Godda, who is owner of the

Tractor bearing registration No.JH-17A/7705. Learned counsel for the appellant has further submitted that the tractor was insured before the

Insurance Company but the deceased was a gratuitous passenger, who was not covered under the Insurance Policy. Learned counsel for the

appellant has further submitted that while deciding the issue nos.5, 6 and 7 at paragraph no.13 of the award, the Tribunal has wrongly considered the

deceased to be a third party on the basis of the judgment passed by learned Single Judge of Andhra Pradesh High Court, reported in TAC 2015 (4)

434 in the case of National Insurance Co. Ltd. vs. Smt. Zuleka Begum and Others. The ratio laid down by the Andhra Pradesh High Court is not

applicable in the present case. Learned counsel for the appellant has further submitted that while deciding the issue no.3 at para 10, the learned

Tribunal has taken note of the evidence of P.W.1- Pradhan Tudu, who is father of the deceased and has stated that the driver of tractor was driving

the tractor rashly and negligently. When the tractor reached near the Kittajore, she (deceased) was trying to alight from the vehicle but was crushed

by the tractor due to which she died. As such, the lower court record is necessary in this case to satisfy this Court with regard to the material brought

on record to consider that the deceased was third party or gratuitous passenger in the aforesaid accident so as to show coverage under the Insurance

Policy.

Learned counsel for the appellant has fairly submitted that there is delay of one day in preferring the appeal and for condonation of the same, I.A.

No.9923 of 2019 has been preferred but since there is delay, as such, notice is necessary upon the respondents. Learned counsel for the appellant has

further submitted that the dispute is only between Insurance Company and owner of the vehicle, as such notice may be issued upon respondent nos. 3

(owner) and respondent no. 4 (driver).

In view of the facts and circumstances, let notice be issued to the respondent no.3- Badri Prasad Bhagat, S/o Bhagwan Das Bhagat (Owner of

Tractor No.JH-17A/7705) resident of Poraiyahat, P.O. & P.S.- Poraiyahat, District- Godda and respondent no.4- Deolal Tudu, S/o Mangal Tudu

(Driver of Tractor No.JH-17A/7705), resident of Village- Kittajore, P.O. & P.S.-Poraiyahat, District- Godda in both limitation as well as main memo

of appeal under both process i.e. under registered cover with A/D as well as under ordinary process for which requisites etc. must be filed within one

week.

I.A. No.10828 of 2019

I.A. No.10828 of 2019 has been preferred for stay of the award dated 05.12.2016 passed in MACC Case No.41 of 2011 for which Title Execution

Case No.18 of 2017 is pending before the 3rd Additional District Judge, Godda.

Considering the submission of the appellant, this Court directs the Insurance Company to deposit the entire awarded amount along with interest as

directed by the learned Tribunal within a period of eight weeks from today. If such amount is deposited before the learned Tribunal, the learned

Tribunal shall issue notice to the claimants and after proper verification disburse the same to the claimants. If the said amount is deposited by the

Insurance Company the learned Tribunal shall not proceed against the Insurance Company.

The appeal be listed after service of report upon the respondent nos.3 and 4.

I.A. No.10828 of 2019 stands disposed of.