IN THE HIGH COURT OF JUDICATURE AT PATNA
MA No.252 of 1992
1. Ramesh Singh, son of Paltoo Singh.
2. Rakesh Kumar Singh, S/o. Ramesh Singh.
Minor son under the guardianship of his father, both residents of
Jhoomari Tilaiya, P.S. - Jhoomari Tilaiya, Distt. - Hazaribagh,
.................... O.P. .............. Appellants.
Versus
1. Chinta Devi, w/o. Prayag Goshwami, decd.
Resident of village - Rajapur, Indaul, P.S. - Akbarpur, Distt. -
Nawada.
......... Applicant ............Respondent Ist. Set.
2. Oriental Insurance Company, Hazaribagh, Distt. - Hazaribagh.
........ O.P. ........... Respondent, 2nd Set.
3. Prahlad Kumar Verma, son of Firangi Prasad Verma.
Driver of vehicle No. B.H.W. 1892,
Resident of Jhoomari Tilaiya, P.S. Jhoomari Tilaiya, Distt. -
Hazaribagh.
........ O.P. ............... Respondent 3rd Set.
-----------
23/ 27.07.2010 Heard learned counsel for the parties.
2. This miscellaneous appeal is directed
against the order dated 29.06.1992 passed by Sri Hari
Bhushan Prasad Sinha, learned 4th Additional Sessions
Judge, Nawada in Motor Vehicle Claim Case No. 01 of
1991 / 28 of 1988 by which the appellant has been granted
compensation of Rs.65,000/-. However, it has further been
held that under Section 95(i) (b) (ii) of the Motor Vehicles
Act, 1939 would be applicable to this case having been
filed prior to New Motor Vehicle Act 1988. The Insurance
Company is only liable to pay Rs.15,000/- per passenger
2
and the rest of the amount to be paid by the owner.
3. As per the case of the applicant her
husband was the passenger on the trecker in question. So
the Insurance Company is only liable to pay Rs.15,000/-
which has already been paid by it as ad interim
compensation. Subtracting this amount of 15,000/- the
applicant is entitled for 50,000/- more which is not
payable by the Insurance Company and hence it is
required to be paid by the opposite party no. 1, the owner
of the vehicle in question. The owner of the vehicle has
preferred this appeal.
4. The learned counsel for the appellant,
however, challenged the above finding by the Tribunal on
the ground that the Tribunal has wrongly applied Section
95(i)(b)(ii) of the Motor Vehicle Act 1939 and has
contended that the case falls under Section 95(i)(b) of the
Motor Vehicle Act 1939 as there is no case that the
deceased was a passenger of the vehicle and contended
that after going through the evidence, it can well be
inferred that the deceased died not being a passenger but
as other than a passenger and it can well be inferred that
the vehicle dashed while going on the road and hence
3
Section 95(i)(b)(ii) of the Motor Vehicle Act, 1939 is not
applicable.
5. Learned counsel for the Insurance
Company, however, contended that the Tribunal has
rightly applied the law and fact as the case is covered
under Section 95(i)(b)(ii) of the Motor Vehicle Act as
there is evidence and it can well be inferred that the
deceased was travelling as a passenger on the vehicle
which met with an accident and hence on the rival
submission of the parties, the question for consideration is
whether the deceased was a passenger or was a person
other than passenger on the vehicle which met with the
accident i.e. and whether the case is covered under Section
95(i)(b)(i) or covered under Section 95(i)(b)(ii) of the
Motor Vehicle Act.
6. However, going into facts and the findings
by the learned lower Court, the learned Tribunal has taken
into consideration the evidence of A.W. 2 Chinta Devi
who is the applicant and wife of deceased herself has
stated that she came to know that her husband fell down
from the trecker in question and died and the Tribunal
took into consideration this fact and evidence and while
4
considering the applicability of Section 95(i)(b)(ii) held
that her husband was a passenger on the trecker in
question.
7. Learned counsel for the appellant has
challenged the findings and contends that Chinta Devi is
not the eye witness of the occurrence and she has stated
that she has learnt about the occurrence and her evidence
cannot be relied as admissible and hence the finding of
Tribunal is not correct.
8. However, in the petition of the claim
before the Tribunal it has been stated that the deceased
was traveling by that vehicle and he caught the vehicle at
Rajouli to Nawada and vehicle which was being driven
rashly and negligently dashed with a tree and deceased
Prayag Goswami died on the spot.
9. The owner even filed written statement
and has stated in his written statement that the vehicle is
already insured and Ramesh Singh is the owner of the
vehicle but not refuted that deceased was not travelling on
vehicle.
10. However, during the evidence the
applicant witness A.W 1 Saudagar Goswami has stated
5
that his elder brother Prayag Goswami has died on
25.05.1988 by accident of trecker and he learnt that his
brother has been taken to the police station. A.W. 2 Chinta
Devi has stated that her husband died in the accident and
she learnt that he fell down from the trecker in question
and died. A.W. 3 is Suresh Goswami and he has stated that
he was not present at the place of occurrence i.e.
Angharbari. The evidence of A.W. 4 who is the only
witness who has stated that Suresh Goswami informed
him about the occurrence. However, there is no eye
witness to the occurrence at all. None of the witness
examined said specifically about the occurrence having
been taken place in their presence and they simply said
that there was a simple accident.
11. However, A.W. 2 has specifically stated
that she learnt that the deceased fell down from the death.
The case of the applicant in the petition for compensation
of the claim specifically mentioned in Column 10 and 22
that the deceased Pryag Goswami died while traveling on
the vehicle which met with the accident.
12. Insurance copy of insurance bill which
has been marked as Ext. A, mentions that the vehicle was
6
having sitting capacity 6 + 1 and also mentions limit of 6
passengers and was insured for 6 passengers of
Rs.15,000/- .
13. Learned counsel for the appellant,
however, contended that since one of the witnesses Suresh
Goswami has stated in his evidence that he does the
business of ferry and the deceased was also a person who
was doing the business of ferry and hence contend that it
may be inferred that the deceased was also doing the ferry
business in the locality when the accident took place and it
may be deemed that the trecker dashed the deceased while
he was roaming on the road for doing ferry and therefore it
should have been held that the deceased was not a
passenger of the vehicle and was a person other than
passenger who died out of road accident by the vehicle.
However, the argument is based on imagination and
without any basis and any conclusion arrived on that basis
cannot be accepted as there is neither any pleading,
averment nor any proof or suggestion.
14. However, having regard to the fact, in
the claim petition itself, there is a specific mention that
deceased was a passenger and traveling on the trecker and
7
there is evidence of A.W. 2 that her husband fell down
from the trecker and hence on that basis the finding
recorded by the Tribunal is well considered and not
required to be interfered with.
15. After having heard the learned counsel
for the parties and taking into consideration the entire facts
and circumstances of the case, this Court comes to an
irresistible conclusion that the deceased was a passenger in
the vehicle in question and the Tribunal was justified in
making Sections 95(i)(b)(ii) of the Motor Vehicles Act
1939 applicable to the facts of the case and hence the
applicant is entitled to the amount fixed by the Tribunal. In
the result, I do not find any merit in this appeal and hence
the same is dismissed.
Kundan (Gopal Prasad, J.)