Miscellaneous Appeal No. 325 of 2005 · Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Miscellaneous Appeal No.325 of 2005 ====================================================== 1. Office of the United India Insurance Company Ltd. Kolkata 2. The Branch Manger, United India Insurance Company Limited, Harhar Mahadeo Chauk, Begusarai Opposite Party No 1 and 2..... .... Appellant/s Versus 1. Sheetal Sah 2. Nepal Sah 3. Ram Ekbal Sah 4. Harendra Sah All sons of Saral Prasad @ Saral Sao, residents of village and P.O. Mela Dharahara, P.S. Kataya, District-Gopalganj Claimants …. ….. Respondents 5. M/s Sidhartha Carrier Pvt. Ltd. 60C Maulana Shaukat Ali Street, Kolkata-700 073 (Owner of the vehicle (Truck) No. W.B. 03B /3133) 6. Sri Sunil Agrawal, Director of Central Transport of India, 60C, Kolhu Opposite Party No. 3…. …. Respondent/s Tola Street, Kolkata- 700 073 7. Deepak Kumar Gupta, S/o Late Jay Krishn Gupta, resident of L.B. 7/3, Ashni Nagar, P.S. Baguihata, Kolkata, District-24 Pargana North, West Bengal
Legal Reasoning
Opposite Party No. 5 ….. …..Respondent ====================================================== Appearance: For the Appellant/s : Mr. Ram Chandra Lal Das Mr. Ashok Kumar For the Respondent/s : Mr. ====================================================== CORAM: HONOURABLE MR. JUSTICE JYOTI SARAN ORAL ORDER 16. 17-12-2013 Heard Mr. Ram Chandra Lal Das, learned counsel appearing for the appellant-insurance company and Mr. Sanjay Kumar Pandey No. 5 for the claimant-respondent no. 1. Despite valid service of notice on the respondent no. 7 who is attorney holder on behalf of the respondent no. 3, he has not chosen to appear. Notice has been validly served on other Patna High Court MA No.325 of 2005 (16) dt.17-12-2013 2 respondents but they have also not chosen to appear. Reg: I.A. No. 1482 of 2006 This interlocutory application has been filed under Section 5 of the Limitation Act praying for condonation of delay, if any, in filing the same. There is a delay of 50 days in filing of the appeal. It is submitted that the delay is not deliberate rather has occasioned in obtaining the departmental approval. For the reasons assigned, the delay is condoned. The prayer is allowed. I.A. No. 1482 of 2006 is allowed. Reg: M.A. No. 325 of 2005 This appeal filed under Section 173 of the Motor Vehicles Act is directed against the judgment and award dated 15.3.2005 / 24.03.2005 passed by the District Judge-cum-Chairman, Motor Vehicle Accident Clam Tribunal, Khagaria in Claim Case No. 24 of 2003, whereby the claim case filed under Section 140 of the Act has been allowed. Short fact of the matter leading to the claim case is that the deceased brother of the claimants was a driver in a truck bearing Registration No. W.B. 03B/3133 and was strangulated to death by his cleaner following some dispute regarding payment and Patna High Court MA No.325 of 2005 (16) dt.17-12-2013 3 whereafter the cleaner decamped with the truck together with the goods loaded thereon. Later on he was apprehended and a police case was registered giving rise to Parbatta P.S. Case No. 29 of 2003. Following the accidental death the claim case was filed under Section 140 of the Act and which has since been allowed and hence this appeal at the instance of the insurance company. I have heard Mr. Ram Chandra Lal Das, learned counsel appearing for the appellant-insurance company and Mr. Sanjay Kumar Pandey No. 5 who has appeared for the claimant- respondent no. 1 only. Mr. Das has sought to question the judgment and award on two grounds, namely: (a) It is not a case of accidental death in terms of the provisions underlying Sections 147 and 165 of the Act inasmuch as the death has not taken place in course of use of the motor vehicle. (b) The claimants being the brother of the deceased, in absence of any evidence supporting their claim of dependency on the deceased, the claim case at their instance was not maintainable. Mr. Pandey responding to the argument of Mr. Das on the issue of the death not being an accidental death, has relied upon two judgments which are reported in 2000(3) B.L.J. 2165 (National Insurance Company Ltd. vs. Sidhu Devi & Ors.) and Patna High Court MA No.325 of 2005 (16) dt.17-12-2013 4 (2000)5 SCC 113 (Rita Devi & Ors. vs. New India Assurance Company Ltd. & Anr.). On the strength of the two judgments it is submitted that the position has been clarified by the Courts and where the object of the killing is loot, dacoity or the like, it has been held to be a case arising out of use of the vehicle. On the issue of the claimants not satisfying the requirements of being dependent on the deceased, learned counsel has pointed out the specific statement made at paragraph-15 of the claim application in which it is stated that the claimant-respondent no. 1 and his family were totally dependent on the deceased. He thus submits that even if the other claimants may not be entitled to any compensation, the claimant-respondent no. 1 has made out a case for payment of compensation. I have heard learned counsel for the parties and I have perused the materials on record. Insofar as the issue of accidental death is concerned, the same stands answered by the judgment relied upon by Mr. Pandey and admittedly in the present case the cleaner after killing the deceased who was the driver of the truck fled away alongwith the goods and thus the case stands covered by the expression ‘death arising from use of the vehicle’ as envisaged under Section 147 and 165 of the Act. That would bring this Court to the second Patna High Court MA No.325 of 2005 (16) dt.17-12-2013 5 issue regarding dependency. This aspect has been dealt in a recent judgment of the Supreme Court reported in (2009) 6 SCC 121 (Sarla Verma & Ors. vs. Delhi Transport Corporation & Anr.). The Supreme Court dealing while on the issue of the dependency in paragraph 31 and 32 of the said judgment has held that in absence of any evidence to the contrary the brother and sister would ordinarily not be considered as dependents since they would be expected to have their own earning. Admittedly despite specific pleading having been made by the claimants that the claimant-respondent no. 1 and his family was wholly dependent on the deceased, no such evidence was led by them and the tribunal has proceeded to uphold the claim relying upon a judgment of the Supreme Court rendered on the issue of class one heir. An issue of class one heir and dependency is not one and the same thing and in any view a payment of compensation to the class one heir has been discussed in the judgment of Sarla Verma (supra) as taken note of hereinabove. Being a legal heir by itself would not be sufficient for claiming compensation unless and until it is shown that the claimant is wholly or partly dependent on the deceased. Admittedly no oral or documentary evidence was led by the claimants on the issue. The matter would require adjudication afresh on the issue of dependency. Patna High Court MA No.325 of 2005 (16) dt.17-12-2013 6 In consequence the judgment and award is set aside and the matter is remitted back to the tribunal for consideration and disposal of the matter afresh limited to the issue of dependency and which should be decided after due notice and opportunity of hearing to the contesting parties. Since it is an old matter it would
Decision
be expected that the claim case is disposed of within three months from the date of receipt / production of the records without undue adjournment to either of the parties. In view of the order so passed the appeal is allowed. Let the statutory amount deposited by the appellant- insurance company be returned to them in accordance with law. Let the Lower Court Record received in connection with Claim Case No. 24 of 2003 be returned to the court of District Judge-cum-Chairman, Motor Vehicle Accident Claim Tribunal, Khagaria. S.Sb/- (Jyoti Saran, J)