IN THE HIGH COURT OF JUDICATURE AT PATNA
Misc. Appeal No.434 of 2009
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Kamlesh Prasad, S/o Laldhar Prasad of Village – Nigarha, P.O. and P.S. –
Sigori, District – Patna.
…. ….Opposite Party Appellant
Versus
1. Pujan Rai , S/o Sri Jamuna Rai, Resident of Village – Lekhan Tola,
P.O. & P.S. – Bihta, District – Patna (Opposite Party).
2. Smita Devi, W/o Late Rakesh Kumar
3. Roshan Kumar (Minor) Son of Late Rakesh Kumar
4. Munni Kumari (Minor) Daughter of Late Rakesh Kumar
5. Niketa Kumari (Minor) daughter of Late Rakesh Kumar, Minors are
under the guardianship of their mother Smita Devi, the natural
guardian who has no interest adverse to those of the minors.
6. Santi Devi, W/o Late Nawal Kishore Yadav, All residents of
Mohalla Noor Pur, P.S. – Malsalami, District – Patna.
…. …. Claimants Respondents
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Appearance :
For the Appellant/s : Mr. S.K.Bhartee
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6 11-07-2011 Heard Sri S.K. Bhartee, learned counsel for the
appellant.
The present appeal has been preferred under
Section 173 of the Motor Vehicle Act, 1988 against an order
passed on remand by the Addl. District & Sessions Judge IX,
Patna, in Claim Case No. 58 of 2005.
The appellant who is owner of offending
vehicle i.e. truck bearing registration no. HR-13-1696 has
succeeded in defeating the right of the claimant for interim
compensation for a long time.
From the order it appears that after filing of the
claim case by respondent no. 2, whose husband died in an
accident in which the vehicle of the appellant was involved,
in the said case a petition under Section 140 of the Motor
Vehicle Act was filed for ad-interim compensation and same
was allowed by the court below. Thereafter the appellant
preferred an appeal before this court vide M.A. No. 75 of
2006. By order dated 05.08.2008 a bench of this court set
aside the impugned order and remitted back the matter to the
Tribunal for passing a fresh order after giving both sides an
opportunity of hearing and considering the objections raised
on behalf of the appellant. The order passed in M.A. No. 75
of 2006 is on record as Annexure – 1 to the memo ofappeal.
After the matter was remitted back one another
development took place in which the driver of the offending
vehicle who was put on trial got an order of acquittal on
03.09.2008 in Bihta P.S. Case No. 49 of 2005/G.R. Case No.
412 of 2005.
Emboldened with the order of acquittal the
appellant who is the owner of the vehicle filed a petition on
28.11.2008 before the court below praying therein to reject
the claim petition dated 19.08.2005 and made a prayer for
refund of Rs. 25,000/- which was paid as ad-interim
compensation out of interim compensation amount of Rs.
50,000/-.
The petition filed by the appellant was rejected
by impugned order i.e. order dated 26.05.2009.
Sri Bhartee, learned counsel for the
appellant has argued that truck in question was standing by
the side of the road and husband of the claimant died in an
accident in which another vehicle was involved and due to
that reason the driver of the appellant, who was
charge-sheeted by the Police, was acquitted by the court of
Judicial Magistrate Ist Class, Danapur. Learned counsel for
the appellant has referred to Annexure – 2 to the petition
which is photo-copy of order dated 3rd September, 2008
passed in Bihta P.S. Case No. 49 of 2005/G.R. Case No. 412
of 2005. On this ground alone it has been prayed to set aside
the order.
In the present case it is not in dispute that
driver of the appellant was charge-sheeted by the Police for
an accident in which husband of the claimant died.
On perusal of the impugned order it is further
evident that prima facie there were materials on record to
suggest that due to rash and negligent act of the driver of the
offending vehicle accident had taken place. It is also clear
that the truck after seizure was released in favour of the
petitioner being owner of the vehicle.
After going through the impugned order this
court is also prima facie satisfied that there were materials
on record to draw at least an inference that in the accident
the vehicle of the appellant was involved.
In a case for interim compensation filed under
Section 140 of the Motor Vehicle Act it is not necessary to
lead evidence for coming to the conclusion as to who was
responsible for the accident. Section 140 (3) makes it clear
that in such claim claimant shall not be required to plead and
establish the case. For better appreciation it is apt to quote
Section 140(3) of the Motor Vehicle Act which is as follows:
“In any claim for compensation under
sub-section (1), the claimant shall not be required to plead
and establish that the death or permanent disablement in
respect of which the claim has been made was due to any
wrongful act, neglect or default of the owner or owners of
the vehicle or vehicles concerned or of any other person.”
The court is of the opinion that if Tribunal is
prima facie satisfied with the materials on record theTribunal is competent to pass an order for compensation
under Section 140 of the Act. The impugned order makes it
clear that the court below had examined the materials on
record and thereafter the petition filed by the appellant for
rejecting the claim petition was rejected. The order
impugned assigned a detailed reason which requires no
interference. Accordingly, the appeal stands rejected.
(Rakesh Kumar, J)
PRAFUL KUMAR/-