IN THE HIGH COURT OF JUDICATURE AT PATNA
MA No.148 of 2009
Branch Manager National Insurance Company Ltd. Chapra through Sri
Anjani Kumar A.O. cum and duly constituted Attorney National Insurance
Company Ltd. Regional Office 4th Floor Sone Bhawan B.C. Patel Road
P.O. G.P.O., P.S. - Sachiwalaya Patna District Patna -------- (Opp. Party
No. 2) ------- -------- Appellant
Versus
1. Usha Devi Wife of Late Surendra Prasad ----- (Claimant No. 1)
2. Nagendra Patel Son of Late Surendra Prasad ----(Minor) -----(Claimant
No. 2)
3. Jitendra Prasad Son of Late Surendra Prasad -----(Minor) ---- (Claimant
No. 3)
4. Krishna Kumar Son of Late Surendra Prasad -------- Minor --- (Claimant
No. 4)
5. Bharti Kumari Daughter Late Surendra Prasad --- Minor --- (Claimant No.
5).
6. Arti Kumari Daughter of Late Surendra Prasad ----- Minor ------ (Claimant
No. 6).
7. Priyanka Kumari Daughter of Late Surendra Prasad ----- Minor ----
(Claimant No. 7).
All minors under the guardianship of their Mother Respondent No. 1. All
residents of village & P.O. - Tajpurwa, P.S. - Marhowrah, District - Saran.
8. Madan Ray, Son of Shiv Ray, Resident of Village - Sitalpur Pirganj, P.O.
- Sitalpur, P.S. - Dariyapur, District - Saran ------ (Opp. Party No. 1) ------
------
———– Respondents
———–
8 5/08/2011 The present appeal under Section 173 of the Motor
Vehicle Act, 1988 has been preferred against judgment dated
09.01.2009 and award dated 22.01.2009 in Motor Vehicle Claim Case
No. 23 of 2005 passed by 1 st Additional District Judge, Saran-cum-
Motor Vehicle Accident Claims Tribunal, Saran at Chapra (hereinafter
referred to as the ‘Tribunal’). By the said judgment the learned
‘Tribunal’ has held that claimants are entitled to get Rs. 3,52,000/- as
total compensation amount and after adjusting Rs. 50,000/- which was
paid to the claimants as interim compensation, the appellant was
directed to pay compensation of Rs. 3,02,000/- with interest at the rate
of 6% per annum from the date of filing of the claim case till the date
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of realization. While directing the appellant to pay the compensation
amount the Claim Tribunal granted liberty to the appellant that if
Insurance Company feels violation of policy the Insurance Company
may recover the said amount from owner of the offending Jeep by
filing separate petition for execution.
Short fact of the case is that on 19.04.2001 husband of
Respondent No. 1 (claimant) namely Surendra Prasad, while urinating
on the road side was dashed by a Commander Jeep bearing
Registration No. B.R.4A/8326 which was being driven rashly and
negligently by the Driver of the vehicle. In the said accident the
husband of the Respondent No. 1 died on spot. Subsequently, a case
vide Dariyapur P.S. Case No. 27 of 2001 was registered against the
Driver of the offending vehicle. On the dead body of the deceased
post-mortem was conducted. Thereafter, the claimants i.e. Respondent
No. 1 (wife of deceased) and her children filed a claim case for
compensation of Rs. 5,00000/- on the ground that deceased was
earning about Rs. 4,000/- per month.
Before the Court below two witnesses were examined in
support of the claim case and number of documents were brought on
record. The F.I.R. i.e. Dariyapur P.S. Case No. 27 of 2001 was got
exhibited as ‘Exhibit-1’, Certified copy of the Final Report submitted
by the Police as ‘Exhibit-2’, Photo-Copy of the Post-Mortem Report
of the deceased was marked as ‘Exhibit-3’, Photo-Copy of Insurance
Policy as ‘Exhibit-4’, Certified copy of the protest-cum-complaint
petition no. 843 of 2005 as ‘Exhibit-5’, Order of cognizance as
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‘Exhibit -6’ and report of D.T.O., Saran as ‘Exhibit-7’.
The Opposite Party-Respondent No. 1 was examined as
P.W. 1 and Jitendra Prasad claiming to be eye-witness was examined
as P.W. 2.
In the case before the Court below both owner of the
offending vehicle and the appellant i.e. Insurance Company appeared
and they filed their written statements. The Claim Tribunal framed
certain issues and thereafter by the impugned judgment had allowed
the claim case. Since on record there were no documentary proofs in
support of the income of the deceased the learned Claim Tribunal on
the basis of Minimum Wages Act assessed the income. The Tribunal
did not agree to the case of the claimants on the point of monthly
income of Rs. 4,000/- in respect of deceased. On the basis of
Minimum Wages Act the Court finally concluded and directed for
compensation amount of Rs. 3,52,000/-.
Sri Ashok Priyadarshi, learned counsel appearing on
behalf of the appellant while questioning the impugned judgment and
award has emphatically argued that it was a case of hit and run and as
such compensation was required to be paid in view of Section 161 of
the Motor Vehicle Act. It was argued by Sri Priyadarshi that Police
after investigation had submitted Final Form. Meaning thereby that
the case was found un-true and in such situation it cannot be
conclusively held that in the accident the offending vehicle was
insured by the appellant/Insurance Company.
Learned counsel has mainly questioned the judgment on
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the plea that it was a case of hit and run and none had seen the
occurrence nor anyone had noticed that the offending vehicle was the
same vehicle which has been alleged in the claim case by the
claimants.
Sri Ashok Priyadarshi has alternatively argued that the
claimants have miserably failed to establish that at the time of
accident the vehicle was being driven by the driver with the valid
driving licence. It was argued that no driving licence was brought on
record by either of the party. It was submitted that in view of Section
158 of the Motor Vehicle Act it was necessary to bring on record the
driving licence of the driver of the offending vehicle. Accordingly, on
the aforesaid grounds it has been argued that the impugned judgment
is liable to be set aside.
Besides hearing Sri Priyadarshi, learned counsel for the
appellant, I have also perused the materials available on record.
In this case it is true that initially after investigation Police
had submitted Final Report but on protest-cum-complaint petition
competent learned Magistrate had taken cognizance of the offences
against the driver of the offending vehicle. The claimants before the
Claim Tribunal has produced certified copy of the Protest-Cum-
Complaint Petition No. 843 of 2005 and also certified copy of Order
of cognizance dated 18.07.2005 in Complaint Case No. 843 of 2005
which were marked as Exhibits – ‘5’ & ‘6’ respectively. In view of
the fact that after submission of Final Report on protest petition the
competent court had already taken cognizance of the offence, the
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argument advanced by learned counsel for the appellant that it was a
case of hit and run appears to be not sustainable. Prima facie it has
come that the driver while using offending vehicle had dashed the
deceased due to rash and negligent driving. For deciding the claim
case, those facts were enough.
So far non- production of driving licence is concerned, the
Court is of the opinion that since the learned Claim Tribunal while
asking the appellant to make payment of the compensation amount has
already granted liberty to the appellant to recover the compensation
amount from the owner of the offending vehicle if Insurance
Company feels violation of the terms and conditions of the Policy, it
would not be appropriate to interfere with the impugned judgment. In
this case it is admitted position that the offending vehicle was insured
at the time of accident by the appellant.
In view of the facts and circumstances particularly the fact
that accident had taken place long back in the year 2001 the court is of
the opinion that it would not be appropriate to interfere with the
judgment and award. Accordingly the appeal stands rejected. In terms
of judgment and award liberty to the appellant is already there to
proceed against the owner if the appellant considers it desirable.
The appeal stands dismissed.
Office is directed to remit back statutory amount to the
court below forthwith for its payment to the claimants.
( Rakesh Kumar, J.)
Praful