Judgment:
1 IN THE HIGH COURT OF JHARKHAND AT RANCHI. Misc. Appeal No. 299 of 2008 … Oriental Insurance Company Ltd., Bistupur, Jamshedpur, PO & PS-Bistupur, District-Singhbhum East (Jharkhand). … … (O. P. No. 3)/Appellant -V e r s u s- 1. Nita Singh W/o Basisth Narayan Singh 2. Basisth Narayan Singh son of late Surendra Nath Singh 3. Rakhi Kumari daughter of Basisth Narayan Singh 4. Kiran Kumari daughter of Basisth Narayan Singh 5. Abhimanyu Kumar son of Basisth Narayan Singh (Claimant-respondent nos. 3 to 5 being minor son and daughters, represented through their mother and natural guardian, Nita Singh, the respondent no. 1). All residents of Road No. 12, Block No. 210/II/2, PO-Adityapur, PS- R.I.T. Adityapur, District-Saraikela-Kharsawan (Jharkhand). … (Claimants)/Respondents.
6. Tapan Kumar Mandal son of late Ramchandra Mandal, of village Daharpur, PO & PS-Tamoliya, District-Midnapur (West Bengal) (driver of vehicle no. WB-29-5664).
7. Deva Prasad Jena son of Amulya Kumar Jena, resident of Dhahim Chora, Shankarpara, PO-Tamoliya, PS-Tamoliya. District-Midnapur (E) (West Bengal) (Owner of Vehicle no. WB-29-5664). ... (O.P. Nos. 1 and 2)/Respondents 8. M/s. Kakai Cargo Movers of Tridev Apartment, Plot No. G-2, A-Road, Bistupur, Jamshedpur, PO & PS-Bistupur, Singhbhum East. (Owner of Truck no.
9. National Insurance Company Ltd., Bistupur, PO, PS-Bistupur, District- Singhbhum East.
10. Abdul Kalam son of late Dil Mohammad Khan of village Hasanpura, PO & PS-Sadar, District-Jaipur (Rajasthan). (Respondent nos. 8 to 10 are the proforma respondents for the purpose of this appeal. ... (Opposite parties)/Respondent. … CORAM: - HON’BLE MR. JUSTICE P.P. BHATT. … For the Appellant : - Mr. D. C. Ghosh, Advocate. For the Respondent : - Mr. Pratiush Lala, Advocate. … 20/02.02.2015 The present appeal is filed under Section 173 of the Motor Vehicles Act, 1988, being aggrieved and dissatisfied with the order dated 17.06.2008, passed in Compensation Case No. 4 of 2006, by the learned Ist Additional District Judge, Seraikela-Kharsawan, whereby the learned Tribunal has saddled 50 per cent of the liability arising out of the accident dated 06.05.2005 against the Dumper No.WB-29-5664, particularly, when the said vehicle was not at all insured with the appellant-Insurance Company.
2. Heard the learned counsel for the appellant as well as the learned counsel for the Respondent nos. 1 to 5 (original claimant).
3. So far as the respondent nos. 6 and 7 are concerned, they are duly served but 2 have chosen not to appear before this Court.
4. The learned counsel for the appellant submitted that the order passed by the learned Tribunal, dated 17.06.2008 in Compensation Case No. 4 of 2006, is an illegal order and therefore, the same is required to be set aside. In this context, the learned counsel for the appellant by referring Annexures-3 and 4, pointed out that the cheque given by the owner was dishonoured and intimation to that effect has been given to the owner by Registered Post prior to the date of the accident. However, no steps were taken for submitting another cheque and thereby, regarding renewal, no steps has been taken and therefore, the policy stands cancelled, as there was a dishonour of the premium cheque. In support thereof, the learned counsel for the appellant has referred to and relied upon Annexure-2 i.e. the Policy document, which was cancelled on account of dishonour of the premium cheque.
5. The learned counsel for the Respondent nos. 1 to 5 (original claimants) submitted that they have not received amount of interim compensation till date on account of technical pleas raised by the Insurance Company and therefore, necessary direction may be given for release/realisation of the amount in favour of the claimant, as they are awaiting for their due interim compensation, which is duly payable to them.
6. Since the respondent nos. 6 and 7 did not appear, despite service of notice, this Court has no other option but to proceed further on the basis of the merits of the case.
7. On perusal of the order passed by the learned court below and the materials placed alongwith the present appeal, it appears that there is substance in the arguments advanced by the learned counsel for the appellant that the vehicle in question cannot be treated as an insured vehicle as the premium cheque was dishonoured and intimation to that effect has been conveyed to the owner vide Annexure-4 and therefore, the policy was cancelled on account of dishonour of the premium cheque as indicated in Annexure-2. This fact has not been disputed or denied by the respondent nos. 6 and 7, though they have been duly served and opportunity given for submitting their case and therefore, on the basis of the 3 materials placed on record, the appellant-Insurance Company cannot be held responsible/liable to saddle the responsibility of 50 per cent of the interim compensation, which comes to Rs. 25,000/-. However, at the same point of time, the arguments advanced by the learned counsel for the respondent nos. 1 to 5, who is appearing for the original claimants, also need to be considered sympathetically and in view of the settled legal proposition, the decretal amount can be realised from any of the tort feaseors involved in causing the accident. Even it can be recovered from one of the Insurance Companies but for that purpose, it is desirable to partly remit the case to the learned Motor Vehicles Tribunal for consideration and for passing an appropriate order, fixing liability to pay 50 per cent of the interim compensation i.e. Rs. 25,000/-. Since the claimants are waiting for their legitimate dues, the learned Tribunal is directed to consider and pass an appropriate order within a period of two weeks from the date of receipt of the order against the concerned Opposite Party on the application filed under Section 140 of the M.V. Act. So far as amount of Rs.25,000/-, which is required to be paid by the Oriental Insurance Co. Ltd., is concerned, the same shall be paid at the earliest and preferably within two weeks, if not paid so far by the concerned Insurance Company, which is held to be liable by the learned court below. Security amount, if any, deposited under Section 173 of the M.V. Act by the appellant-Insurance Company, be returned to the appellant-Insurance Company.
8. This appeal stands disposed of, accordingly. (P.P. Bhatt, J.) APK