IN THE HIGH COURT OF JUDICATURE AT PATNA
MA No.6 of 2005
Mostt. Sakhiya Devi @ Usha Devi, wife of Late Gaya Yadav
@ Gaya Singh, resident of Village and P.O. Beyapur, P.S.
Maner, District- Patna. .........................Petitioner(Appellant)
Versus
1. Dharmendra Kumar, son of Shri Lal Behari Rai,
resident of Village- Maudahi, P.S.. Kateshwar, P.S. Bihta,
District- Patna, (Owner of Truck No. BR-1A-4115).
2. Sri Vidya Rai, son of Chandrika Rai.
Resident of Village- Saraundha, Koilwar, P.O. & P.S. Kailwar,
District-Arrah (Bhojpur) (Driver of Truck No. BR-1A-4115).
3. The Divisional Manager, United India Assurance Company
Ltd., Patna, Divisional Office, Boring Canal Road, S.K. Puri,
Patna-800011.
....Opposite Parties(Respondents.)
For the appellant :- Mr. Santosh Kr. Sinha II, Advocate.
Mr. Arivind Pd. Singh.Advocate.
For the respondent
(United India Insurance
Co. Ltd.) :- Mr. P. Kumar, Advocate.
Mr. Seema, Advocate.
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17. 02. 11. 2010. Heard.
This Miscellaneous Appeal is directed against the order
dated 13. 10. 2004 passed by the court of Additional District Judge,
III, Patna, in Motor Vehicle Accident Claim Case No. 33 of 2003,
by which he has dismissed the claim petition filed by the claimant
on the ground that insurance policy and number mentioned in the
claim petition are of fake policy.
2. From perusal of memo of appeal and annexures, it
appear that claim petition was filed with regard to death of one Gaya
Yadav @ Gaya Singh, by wife of the deceased by which it was
mentioned that Gaya Yadav @ Gaya Singh died in an accident by a
Truck bearing Registration No. BR-1A-4115. However, in the said
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petition, the Insurance Company appeared and filed a petition that
the vehicle in question was not insured. The Tribunal on taking
evidence of O.P.W. 1 on behalf of Insurer Opposite Party No. 3
United India Insurance Company, in his deposition stated that
policy of Insurance Company in question was not issued from the
office and on that basis, the Tribunal by the impugned order held
that the claim petition is liable to be dismissed.
3. Learned counsel for the appellant however, contended
that the Tribunal without holding any inquiry and giving an
opportunity to the appellant to adduce evidence passed the
impugned order while considering the petition filed on behalf of
Opposite Party No. 3 by which he has dismissed the entire claim
petition. It has been asserted that even assuming that the vehicle
was not insured with the insurer-opposite party No. 3, even then the
claimant is liable to get compensation from the owner of the vehicle
opposite party. Moreover, while hearing O.P. No. 3 on petition that
the vehicle in question was not insured, the entire claim petition was
not required to be dismissed.
4. Hence, learned counsel for the Insurance Company,
however, does not dispute the proposition that the claim petition
ought not have been rejected merely on the ground that vehicle was
not insured.
5. However, taking into consideration the fact that the
impugned order itself shows at the outset that petition has been filed
on behalf of opposite party no. 3, United Indian Insurance Company
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Limited on 17. 11. 2003 in which it has been stated that vehicle in
question was not insured and the Tribunal proceeded on the said
petition and took evidence of manager of a Branch of O.P. No. 3 and
proceeded for mini trial on the petition itself and passed the
impugned order by which he dismissed the claim petition which was
not the subject matter of the petition of Insurance Company and
impugned order was passed without going into the question whether
the claimant is liable for compensation from owner even the vehicle
was not insured.
6. Hence having regard to the circumstances, the
impugned order is not sustainable and is hereby set aside and the
case is sent down to the Tribunal to decide in accordance with law
after framing issues and decide the case giving opportunity to the
parties to adduce evidence.
Accordingly, the appeal is allowed.
m.p. ( Gopal Prasad, J.)