Miscellaneous Appeal No. 294 of 2011 · Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Miscellaneous Appeal No.294 of 2011 ====================================================== The New India Assurance Company Ltd. through the Deputy Manager (Legal Deptt) at Regional Office, B.S.F.C. Building, Fraser Road, Patna (For the Branch Office, New Indian Ass. Co. Ltd. at Ganesh Market, G.T. Road, Sasaram) ……..(O.P. No. 3/Appellant Versus 1.Ram Bilas Bind, s/o Late Narayan Bind. 2.Bahetra Devi, w/o Ram Blas Bind. 3.Ruha Kuwar, w/o Late Binod Kumar Bind. All residents of village – Mokari, P.S. Bhabhua, District Kaimur (Bhabhua). …….. (Petitioners)/Respondents 4.Tribhuwan Singh, s/o Ramjee Singh, Resident of village – Damodarpur, P.S. Chainpur, District – Kaimur (Bhabhua) (owner of the vehicle). …….. (O.P. No. 1)/Respondent 5.Brajesh Singh, s/o Tribhuwan Singh, Resident of village – Damodarpur, P.S. Chainpur, District – Kaimur (Bhabhua) (Driver of the vehicle) ……. (O.P. No. 2)/Respondent ====================================================== Appearance : For the Appellant : Mr. Mukteshwar Prasad Singh, Adv. For the Respondent Nos. 1 - 3 : Mr. Arvind Nath Pandey, Adv. Mr. Rang Nath Pandey, Adv. ====================================================== CORAM: HONOURABLE MR. JUSTICE AKHILESH CHANDRA C.A.V. ORDER 12 30-04-2013 This is an appeal preferred against the judgment dated 11th January, 2011 and award dated 04th April, 2012 passed by the District Judge-cum-Motor Vehicle Accident Claim Tribunal, Kaimur, Bhabhua in Claim Case No. 21 of 2008, awarding a sum of Rs. 6,37,000/- with a interest @ 6% per annum as compensation against the death of the deceased, namely, Binod Kumar Bind, who died in a road accident taking place on 07.05.2006 at about 5.00 p.m. towards East Kudasan Canal, P.S. – Bhabhua, District – Kaimur by a
Legal Reasoning
Patna High Court MA No.294 of 2011 (12) dt.30-04-2013 2/6 Tractor, bearing Registration No. – BR-45-7970. 2. It is contended by learned counsel the appellant (Insurer) that the claimants have not made out any specific case about the manner of accident, but claimed a sum of Rs. 4,80,000/- as compensation against the death of Binod Kumar Bind, son of claimants nos. 1 & 2 and husband of claimant no. 3. Though, they have said about the involvement of the said Tractor, bearing Registration No. – BR-45-7970 and claimed compensation only on the ground that deceased was the sole earning member of the family having income of Rs. 5,000/- per month, which is earned from agriculture and milk business, died at the age of 25 years, but while stating the case of the claimants, the Claim Tribunal gone beyond and narrated the story as stated in the First Information Report of Bhabhua Police Station Case No. 138 of 2006 relating to the accident and at the same time in spite of objections raised in written statement about the contributory negligence neither any issue was framed nor finding is given. Apart from the above, the claimants have not been able to establish their case which could have been dismissed, but much beyond their claim, they have been awarded compensation. On the other hand, learned counsel Patna High Court MA No.294 of 2011 (12) dt.30-04-2013 3/6 representing the respondents submitted that the claimants have been able to establish their case and no interference is required. 3. True it is that the claim has been put forward on behalf of the claimants on the format without any addition regarding narration of manner of the accident. Though,
Legal Reasoning
Exhibit - 2, the Fardbeyan of Sri Kumar Bind recorded at the hospital during treatment which forms basis of institution of Bhabhua P.S. Case No. 138 of 2006, speaks about the accident taking place with the Tractor “referred to above” and the informant was the pillion rider of the Scooter, bearing Registration No. – P.B. 39-9989 being driven by the deceased which was dashed by the Tractor, resulting into death of on the way to hospital for treatment. The Tractor-Tailor involved was without any number withholds by the villagers and the informant also sustained injuries but provided with treatment at the hospital. 4. Surprisingly enough, no such story relating to accident finds mentioned in the claim application, but the Claim Tribunal took the same as the case of the claimants, but at the same time, ignored the averments made in written statement of the appellant (Insurer) about the case of Patna High Court MA No.294 of 2011 (12) dt.30-04-2013 4/6 contributory negligence. No issue was framed for determination about the contribution of the deceased in the accident, proved fatal to him. 5. The claimants-respondents have produced as many as 8 documentary evidences, such as:- (i) C.C. of Formal F.I.R. (Exhibit - 1), (ii) C.C. of Fardbeyan (Exhibit - 2), (iii) Photocopy of Ins. Paper (Exhibit - 3), (iv) Photocopy of Certificate of Registration (Exhibit - 4), (v) Photocopy of D.L. (Exhibit - 5), (vi) Photocopy of Family Membership Certificate (Exhibit - 6), (vii) Photocopy of P.M. Report (Exhibit - 7) and (viii) C.C. of Charge-sheet (Exhibit - 8). Exhibit - 5, is photocopy of the driving licence, but not of the deceased rather the opposite party no. 2 said to be the driver of the Tractor. Besides the above documentary evidences, altogether three witnesses have been examined, they are, A.W. 1, Ram Bilash Bind, the father of the deceased coming to know about the accident through Jiwat Bind (A.W. 3) not an eye-witness mainly on the point of income of the deceased. A.W. 2, Runa Kunwar, is the widow of the deceased, not an eye-witness on the point of income of the deceased. A.W. 3, Jiwat Bind, claiming himself as eye- witness of the occurrence stating about the accident in which Patna High Court MA No.294 of 2011 (12) dt.30-04-2013 5/6 according to him the Tractor being negligently driven dashed with the Scooter of the deceased, who died at the spot and the pillion rider, Sri Kumar Bind also sustained injures. Undisputedly, the said injured, Sir Kumar Bind, is the informant and in Exhibit - 8 i.e. Certified Copy of Charge- sheet, appears as one of the witnesses, but for no reasons explained, the undisputed and one of the victim (injured) eye- witness of the occurrence, the informant of the criminal case, has been withhold. Had he been examined as a witness, details of the manner of the accident inclusive of the negligence or fault of the deceased, if any, could have been surfaced and his none examination, without any reason, whatsoever it may be, compels drawing of adverse interference. 6. Apart from the above from Exhibits - 2 & 8 as well as from the statement of A.W. 3, this much is surfaced that the deceased at the relevant time was driving a Scooter. The claimants are completely silent about the owner or insurer of the said Scooter and, at the same time, they are also conspicuously mum as to whether the deceased having any valid authority to drive such vehicle as no driving license of the deceased besides details of owner/insurer of the Scooter Patna High Court MA No.294 of 2011 (12) dt.30-04-2013 6/6 have been produced and none of these vital materials finds any consideration by the Claim Tribunal which adversely affects very root of the case of the respondents. 7. It is true that in such a beneficiary summary proceedings some liberal view while considering the pleading and proof, is to be taken, but at the same time, there is some limit of such liberty and latitude and this case appears crossed all such limits completely disentitles the claimants from any amount of compensation. However, the amount paid to them as “No Fault Basis” (under Section 140 of the Act), is not to be recovered from them.
Decision
8. Accordingly, the impugned order is set-aside and the appeal stands allowed. The statutory deposit is to be returned to the appellant (Insurer). Praveen-II/- (Akhilesh Chandra, J)