High Court Patna High Court - Orders

Most.Sakhiya Devi @ Usha Devi vs Dharmendra Kumar &Amp; Ors on 2 November, 2010

Patna High Court – Orders
Most.Sakhiya Devi @ Usha Devi vs Dharmendra Kumar &Amp; Ors on 2 November, 2010
                       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.
                                                     -----------

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
2

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.)