High Court Patna High Court - Orders

Baby Devi vs Sunaina Devi @ Sunita Devi on 21 June, 2011

Patna High Court – Orders
Baby Devi vs Sunaina Devi @ Sunita Devi on 21 June, 2011
                 IN THE HIGH COURT OF JUDICATURE AT PATNA
                                 MA No.697 of 2009
BABY DEVI, W/o Ravindra Kumar, Resident of Village - Dhandua,
P.S.- Jandaha, District - Vaishali at Hajipur.
                       ..... Opp. Party No. 1 (owner), Appellant.
                                      Versus
SUNAINA DEVI @ SUNITA DEVI, Wife of Ram Babu Rai, Resident of
Village - Govindpur Thakharaha, P.S.- Rajapakar, District-
Vaishali at Hajipur (Pchhoner).
                                     ...... Claimant, Respondent
                                    -----------

For the appellant: Sri Hemendra Prasad Singh, Advocate
For the respondent: Sri Dhurendra Kumar, Advocate
Sri Ashok Priyadarshi, S.C.

———

11 21.06.2011 Heard Sri Hemendra Prasad Singh,

learned counsel for the appellant, Sri

Dhurendra Kumar, who appears on behalf of sole

respondent/claimant on M.A. 697 of 2009 as well

as Interlocutory Application No. 2638 of 2010

filed for impleading National Insurance Company

as proposed respondent and I.A. No. 7583 of

2009, which was filed for condoning the delay.

Interlocutory Application i.e. I.A. No.

7583 of 2009 was filed for condoning the delay

of seven days in filing the appeal.

In view of grounds set forth in the

limitation petition, delay in filing the appeal

is condoned and Interlocutory Application No.

7583 of 2009 stands allowed.

On Interlocutory Application No. 2638

of 2010, Sri Ashok Priyadarshi, learned counsel

for National Insurance Company/proposed
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respondent, has argued that since the appeal

was filed at belated stage, the prayer for

impleading National Insurance Company as

respondent is liable to be rejected.

I have heard Sri Hemendra Prasad Singh,

learned counsel for the appellant on merit of

the case.

The present appeal has been filed

against an order which was passed under Section

140 of the Motor Vehicle Act, whereby, the

learned Motor Vehicle Accident Claim Tribunal,

Vaishali at Hajipur (hereinafter referred to as

‘Tribunal’) had allowed the petition of the

claimant for payment of interim compensation of

Rs. 50,000/-

           The    appellant          is     the       owner    of    the

offending vehicle.

           Learned          counsel        for    the         appellant

submits,        that        the      learned          Tribunal       has

incorrectly           decided       that        the     vehicle       in

question, at the time of accident, was being

driven by the son of the owner of the

vehicle/appellant.

It was submitted that during

investigation it has come that the vehicle in

question was being driven by the driver who was
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having proper licence.

It was further submitted that before

passing the interim order the learned Tribunal

was required to conduct an enquiry which has

not been done, and accordingly, the order in

question, is liable to be set aside.

Learned counsel for the

respondent/claimant submits that F.I.R. itself

indicates that at the time of accident the

vehicle in question was being driven by the son

of the owner/appellant, who was not authorised

to drive the commercial vehicle. At the time of

hearing the petition filed under Section 140 of

the Motor Vehicle Act learned Tribunal was not

required to ask the claimant to establish with

all evidence that accident had occurred due to

gross negligence and fault of the owner, but

only on prima facie satisfaction the Tribunal

was required to pass order.

It was further submitted that the

claimant has also filed Claim Petition under

Section 166 of the Motor Vehicle Act vide Claim

Case No. 130 of 2010 which is still pending.

Accordingly, it was argued that the interim

compensation amount can be adjusted at the time

of final adjudication of the claim case.
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Accordingly, it was submitted that the

appellant/owner would be at liberty to

participate in the main claim petition and may

take any stand in the said claim petition.

In the present case, on 2.12.2007, son

of the claimant died in an accident by the

commercial vehicle of the appellant. After the

accident, an F.I.R. was lodged, and in the

F.I.R. the informant made statement, that

vehicle in question at the time of accident was

being driven by the son of the owner of the

vehicle, whereas, since it was a commercial

vehicle it was required to be driven by a

driver having licence for driving the vehicle.

Accordingly, a petition under Section 140 of

the Motor Vehicle Act was initially filed for

interim compensation and the learned Tribunal

after hearing the parties and prima facie

satisfied that owner himself was at fault has

passed the impugned order and directed the

owner of the vehicle/appellant to pay interim

compensation of Rs. 50,000/-. Subsequently, as

submitted by learned counsel for respondent, a

Claim Petition under Section 166 of the Motor

Vehicle Act has been filed vide Claim Case No.

130 of 2010 and the same is still pending.
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                     The    court      is   of     the      opinion    that

         appellant    can       lead   evidence        to    dispute    the

claim of the sole respondent in the claim case

filed under Section 166 of Motor Vehicle Act,

and at this stage, it is not appropriate to

interfere with the impugned order which has

been passed for immediately compensating the

family of the deceased.

After going through the impugned order

the court is of the opinion that there is no

error, and accordingly, the order impugned

requires no interference.

The appeal stands rejected.

(Rakesh Kumar, J.)
Praful