IN THE HIGH COURT OF JUDICATURE AT PATNA
Miscellaneous Appeal No.103 of 2010
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Against the Judgment and Award dated 8th December,2009 and
16.12.2009 passed in Claim Case no.17 of 2001 by Sri Birendra
Kumar , District Judge-cum- Motor Vehicle Accident Claim
Tribunal, Madhepura
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Branch Manager, National Insurence Company Ltd. Branch Office, Madhepura,
District Madhepura and its sister office situated at Hospital Road, Forbesganj,
District-Araria represented through Shri Anjani Kumar working as A.O. and duly
constituted attorney of National Insurance Company having its Regional Office at
4th Floor, Sone Bhawan, P.S. Sachivalaya, District-Patna ( Opp.Party no.2)
…. …. Appellant
Versus
1. Ram Kuamri Devi Wife of Late Gajendra Prasad Yadav, resident of Village-
Chaklasiripur, P.S. Madhepura, District-Madhepura ( Claimant)
———————Claimant/ Respondent 1st set
2. Santosh Kumar, Son of name not known, resident of court colony Birpur, P.S.
Birpur, District-Supaul ( Opp.Party no.1) ——— Respondent 2nd Set
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Appearance:
For the Appellant : Sri Shilendra Kumar, Advocate
For the Respondent No.1: Sri. Shambhu Sharan Singh, Advocate
(Amicus Curiae)
For the Respondent no.2: Sri Sanjay Kumar Pandey, Advocate
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CORAM: HONOURABLE MR. JUSTICE RAKESH KUMAR
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ORAL JUDGMENT
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Rakesh Kumar, J. The present appeal under Section 173 of the Motor Vehicle
Act,1988( hereinafter referred to as the ” M.V.Act”) has been preferred
against the Judgment dated 8th December,2009 and Award dated
16.12.2009 passed by the learned District Judge-cum- Motor Vehicle
Accident Claim Tribunal, Madhepura ( hereinafter referred to as the
“Claim Tribunal”) in M.V. Claim Case no.17 of 2001.
2. In this case despite valid service of notice, the Respondent
no.1/ Claimant had not appeared and thereafter by order dated
Patna High Court MA No.103 of 2010 dt.15-10-2011 2
13.05.2011, Sri Shambhu Sharan Singh, learned counsel was appointed
as amicus curiae to assist the Court on behalf of Respondent no.1/
Claimant. Sri Sanjay Kumar Pandey, learned counsel has appeared on
behalf of Respondent no.1 i.e. owner of the offending vehicle.
3. Short fact of the case is that on 30.10.1998, while the
husband of Respondent no.1/ Claimant was moving for purchasing
certain goods from grocery shop and on way he was dashed by a mini
bus, bearing Registration No.BR-1P-6053. The said mini bus was being
run as “Jai Chandi Travels”. The accident had taken placed due to rash
and negligent driving of the vehicle and, as such, an F.I.R. vide
Madhepura P.S. Case No.277 of 1998 was registered against the driver
of the offending vehicle. After investigation, chargesheet was submitted
However , due to death of the driver by order dated 04.09.2000 the case
against the driver was closed. After the accident, the Respondent
no.1(widow of the deceased ) filed a case for compensation under the
M.V.Act before the court of learned District Judge-cum- Motor Vehicle
Accident Claim Tribunal, Madhepura vide M.V. Claim Case no.17 of
2001 arraying the owner of the vehicle as well as the Insurance
Company i.e. the appellant as Opp.Parties. Before the Claim Tribunal,
despite service of notice, the owner of the offending vehicle did not
appear and, as such, the case proceeded against him ex parte. It was not
disputed by the parties that the offending vehicle was insured by the
appellant and the vehicle was under insurance cover at the time of
accident. Before the Claim Tribunal, the claimant examined altogether
five witnesses to prove its case. It further appears that none of the
witnesses, who were examined in support of the claim case, were cross-
Patna High Court MA No.103 of 2010 dt.15-10-2011 3
examined on behalf of the insurer. The Insurance Company had only
filed a written statement before the court below raising some ornamental
objections.
4. After hearing the parties and perusing the evidences
brought on record, the learned claim tribunal by the impugned Judgment
and Award has directed the insurer/appellant to pay total compensation
amount of Rs.3, 70,000/- which includes loss of consortium and funeral
expenses. Since Rs.50,000/- was already paid to the claimant as interim
compensation, the total remaining compensation amount i.e.
Rs.3,20,000/- was directed to be paid to the claimant along with interest
@ 9% per annum , which was to be calculated from the date of
admission of the claim petition i.e. 18.02.2002. From the impugned
Judgment, it is further evident that the insurer had not brought on record
any material to prove any breach of terms and conditions of the
insurance policy. Since the owner of the vehicle had not appeared
before the court below nor any evidence was brought on record
regarding the driving licence of the driver of the offending vehicle , the
claim tribunal granted opportunity to the insurer/appellant to recover
the paid amount from the insured i.e. owner of the vehicle.
5. Sri Shailendra Kumar, learned counsel for the appellant
has tried to establish that the learned claim tribunal even in absence of
evidence regarding driving licence has illegally and incorrectly directed
the appellant to make payment of the compensation amount.
6. Sri Shambhu Sharan Singh, learned counsel ( amicus
curiae) appearing on behalf of the Respondent no.1 on the basis of
averment made in the written statement, which was filed by the
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Insurance Company before the court below submits that there is no
averment in the written statement regarding non-availability of the valid
driving licence of the vehicle in question. He has further argued that
since the Insurance Company had even failed to cross-examine any of
the witnesses , it would be difficult for the appellant to question the
impugned Judgment and award. From the record, it appears that nothing
was pleaded by the Insurance Company claiming that the offending
vehicle at the time of accident was being driven by a person, who was
not having any valid driving licence. It is further evident that none of
the witnesses examined on behalf of the claimant was cross examined.
In such a situation, it was very difficult for the learned counsel
appearing on behalf of the appellant to question the legality of the
impugned Judgment and award.
7. After going through the materials available on record, I
find that the learned claim tribunal has committed no error and, as such,
there is no requirement to interfere with the impugned judgment and
award. Accordingly, appeal stands dismissed with direction to the
appellant to pay the compensation amount along with interest, as
directed by the claim tribunal i.e. @ 9% per annum from 18.2.2002 till
the date of payment within a period of two months from the date of
receipt/production of a copy of this order.
8. It goes without saying that that if so advised, the appellant
can avail remedy in view of liberty granted by the claim tribunal.
9. In view of rejection of the appeal, the statutory amount
deposited at the time of filing of this appeal may be remitted back to the
court below for its payment to the claimant.
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10. Before parting with the Judgment, I must appreciate the
assistance rendered by Sri Shambhu Sharan Singh, learned counsel
(amicus curiae), who after examining the entire record of the case has
rendered assistance to the court.
11. Sri Shambhu Sharan Singh, learned counsel, who has
appeared as amicus curiae in this case , shall be paid Rs.1500/-( fifteen
hundred) as fee by High Court Legal Aid Committee, Patna.
( Rakesh Kumar, J.)
Patna High Court, Patna
Dated : the 15th October,2011
Nawal Kishore Singh/N.A.F.R.
