Miscellaneous Appeal No. 1009 of 2010 · Patna High Court
Case Details
Jk IN THE HIGH COURT OF JUDICATURE AT PATNA Miscellaneous Appeal No.1009 of 2010 ====================================================== 1. Sahnaj Parveen w/o Late Gulam Md. Khan 2.Imran Khan Nizami, son of Late Gulam Md. Khan 3. Mudssar Khan Nizami, son of Late Gulam Md. Khan 4. Faizan Md. Khan ( Minor), Son of Late Gulam Md. Khan, under guardianship of his mother Sahnaz Parveen 5. Nilofar Parveen (Minor), Daughter of Late Gulam Md. Khan, under guardianship of her mother Sahnaz Parveen All 1 to 5 r/o village-Piru, P.O. Piru, P.S. Hasanpura, District- Aurangabad, at present Yasin Zaffar, Munni Maszid, Gewal Bigha, P.S. Rampur, District- Gaya Versus .... .... Appellant/s 1. National Insurance Company Limited, through its Divisional Manager, Gaya Divisional Manager, Shanti Market, Church Road, Gandhi Maidan, P.S. Civil Lines, District- Gaya, Insurer of Vehicle No.BR1/ 8508 ( Truck) 2. Parsuram Singh, son of Sri N. Singh, r/o Village- Mokama, District- Begusarai, Owner of vehicle no.8508 .... .... Respondent/s ====================================================== Appearance : For the Appellant/s : Mr. Anil Chandra For the Respondent/s : Mr. ====================================================== CORAM: HONOURABLE MR. JUSTICE RAKESH KUMAR C.A.V. ORDER ------------------- 7 08 -04-2013 This is a peculiar appeal filed by claimants under Section 173 of the Motor Vehicle Act,1988 ( hereinafter referred to as the “M.V.Act”) against an order 15.09.2010 passed by the learned 3rd Additional District Judge-cum- Motor Vehicle Accident Claim Tribunal, Gaya ( hereinafter 2
Legal Reasoning
Patna High Court MA No.1009 of 2010 (7) dt.08-04-2013 2 / 9 referred to as the “Claim Tribunal”) in M.A.C. Case No. 107/2009. By the said order dated 15.09.2010, the learned Claim Tribunal has allowed the petition filed by claimants/appellants under Section 140 of the M.V.Act directing the owner of the vehicle i.e. Respondent no.2 in the present appeal, to pay interim compensation of Rs.50,000/- to the appellants. This is not an appeal preferred by the owner of the offending vehicle, who has been directed to pay interim compensation. Short fact of the case is that on 27.02.2009 at about 10.00 P.M. the husband of appellant no.1 and father of remaining appellants, while functioning as constable driver of the Patrolling Jeep, bearing Registration no. BR-27/1082, died in a road accident on N.H.31 near Vijay Petrol Pump, Dedaur More in the district of Nawada. It was claimed that the driver of a ten-wheeler truck, bearing Registration No. BR1-8508 after noticing the police jeep standing by the side of the road, deliberately and intentionally due to fear of checking, dashed the said commander Jeep in the result the husband of appellant no.1, namely, Gulam Md. Khan , driver constable, died on the spot and other received serious injuries.It was claimed that the accident had occurred due to rash and 3 Patna High Court MA No.1009 of 2010 (7) dt.08-04-2013 3 / 9 negligent driving intentionally and deliberately with ill-motive of the driver of the truck. The claim petition under Section 166 of the M.V.Act was filed. In the said case, one another petition under Section 140 of the M.V. Act was filed claiming interim compensation of Rs.50, 000/-. The learned Claim Tribunal by the impugned order allowed the petition filed under Section 140 of the M.V.Act on behalf of the appellants and directed the owner of the offending truck i.e. Respondent no.2 to pay interim compensation of Rs.50,000/- to the claimants/appellants. Though the petition under Section 140 of the M.V.Act for interim compensation was allowed by the learned Claim Tribunal, the present appeal has been preferred by the claimants themselves with a plea that the insurer of the vehicle i.e. Respondent no.1 is liable to pay even interim compensation.
Legal Reasoning
Sri B.N.P.Singh, learned counsel, who was assisted by Sri Anil Chandra, learned counsel for the appellants has argued that since the offending vehicle /truck was under the insurance cover of Respondent no.1, Respondent no.1 was required to indemnify the owner of the offending vehicle/truck and Insurance Company is liable to pay even interim compensation amount. In support of his 4 Patna High Court MA No.1009 of 2010 (7) dt.08-04-2013 4 / 9 argument, Sri Singh has heavily relied on a single Bench Judgment , reported in 2006(1) PLJR 603; Shanti Devi Vs. Basmati Devi and 2001(3) PLJR 103( Kanhai Rai & Ors.Vs. Sri Dharampal & Ors). It was argued that in view of the aforesaid Judgments, the Insurance Company is liable to pay interim compensation under Section 140 of the M.V.Act and not the owner and, as such, it was pleaded to partly set aside the impugned order and direct Respondent no.1 to pay interim compensation of Rs.50,000/-. Sri Prakash Kumar, learned counsel appearing on behalf of Respondent no.1 i.e. National Insurance Company Limited has vehemently opposed the prayer of the appellants. It was submitted by learned counsel for the National Insurance Company Limited that by filing rejoinder to the petition filed on behalf of the claimants/appellants under Section 140 of the M.V.Act, the Insurance Company has raised serious objection. It was submitted that in the present case, as per the case of the claimants/appellants, it was intentional murder and it may not be treated as a case of death occurred in a vehicular accident. He submits that the claimants themselves had pleaded that after noticing the Patrolling Jeep standing by the side of the road, the driver of the offending vehicle/truck apprehending 5 Patna High Court MA No.1009 of 2010 (7) dt.08-04-2013 5 / 9 search of the truck intentionally dashed the patrolling jeep and, as such, it was a case of murder and not case of death in a road accident occurred due to rash and negligent driving of the offending vehicle/ truck. He submits that in case of murder simplicitor, no compensation is required to be paid either under Section 140 or Section 166 of the M.V.Act. In support of his submission, he has referred to a Single Bench Judgment of this Court, reported in 2002 (4) PLJR 341; Ranju Rani alias Ranju Devi & Ors. Vs. Branch Manager, the New India Assurance Co. Ltd. He submits that in view of Ranju Rani’s case (supra), in the present case, the appellants are not entitled to get compensation amount, since it was a case of murder and not a case of death in road accident occurred due to rash and negligent driving. He has further argued that in any event, the petition filed under Section 140 of the M.V.Act on behalf of the claimants/appellants was allowed by the learned Claim Tribunal and direction was given to the owner of the offending vehicle to pay interim compensation and, as such, the claimants/appellants were not entitled to file the present appeal. Besides hearing learned counsel for the parties, I have also examined the materials available on record. From 6 Patna High Court MA No.1009 of 2010 (7) dt.08-04-2013 6 / 9 the impugned order, it is evident that the owner of the offending vehicle despite notice had not appeared and the petition filed under Section 140 of the M.V.Act on behalf of the claimants/appellants proceeded ex parte. The owner of the offending vehicle has not even bothered to come forward and say that the offending truck at the time of accident was under the insurance cover of Respondent no.1 i.e. National Insurance Company Limited and, as such, the learned Claim Tribunal has rightly allowed the petition filed under Section 140 of the M.V.Act by way of directing the owner of the vehicle to pay interim compensation. So far as the question as to whether in the present case, death had occurred in a road accident due to rash and negligent driving of the vehicle or it was a case of intentional murder, those facts can well be examined by the Claim Tribunal, while hearing the main petition filed under Section 166 of the M.V.Act. Those issues can well be adjudicated after allowing the parties to adduce evidence. A petition under Section 140 of the M.V.Act is primarily decided on the basis of liability to pay compensation on the principle of no fault where parties are not required to lead evidence and establish the same. Similarly. Shanti Devi’s case, on which reliance was placed on behalf of the appellants, in the said 7 Patna High Court MA No.1009 of 2010 (7) dt.08-04-2013 7 / 9 case, the appellant was none else but the owner of the offending vehicle, who was directed to pay interim compensation under Section 140 of the M.V.Act. The appeal was not preferred by the claimants, whose petition under Section 140 of the M.V. Act was allowed, whereas in the present case instead of owner, who has been directed to pay interim compensation under Section 140 of the M.V.Act, the claimants themselves have filed the present appeal. Similarly, in Kanhai Rai’case ( supra) on which heavy reliance was placed by learned counsel for the appellants, the learned Claim Tribunal , while allowing the petition under Section 140 of the M.V.Act, had directed the insurer of the offending vehicle to pay compensation, which was assailed by the Insurance Company by filing an appeal before this Court and a Single Bench of this Court had allowed the appeal and directed the owner of the offending vehicle to pay interim compensation. Thereafter, the owner of the offending vehicle had preferred Letters Patent Appeal before a Division Bench of this Court and the Division Bench allowed the L.P.A. and restore the order passed by the learned Claim Tribunal, whereas in the present case, the owner of the offending vehicle , who has been directed to pay the interim compensation, is not before 8 Patna High Court MA No.1009 of 2010 (7) dt.08-04-2013 8 / 9 this Court , but the claimants themselves have filed the present appeal , whose petition under Section 140 of the M.V.Act was allowed and owner of the offending vehicle was directed to pay the compensation amount. Accordingly, in the facts and under the circumstances of the present case, the appellants may not get any help from the aforesaid two Judgments. In any event, the entire fact is to be examined, while proceeding with the main claim petition filed under Section 166 of the M.V.Act. Since the impugned order has not been assailed by the owner of the offending vehicle, who has been directed to pay the interim compensation, the Court is of the opinion that the order may not be interfered with as per instance of the claimants/appellants, whose petition under Section 140 of the M.V.Act has been allowed. I do not find any ground for interference with the impugned order that, too, on an appeal preferred by the claimants/ appellants, whose petition has already been allowed. The appeal stands dismissed. It goes without say that merely dismissal of this appeal may not be treated as a certificate in favour of Respondent no.1/ National Insurance Company Limited. The 9 Patna High Court MA No.1009 of 2010 (7) dt.08-04-2013 9 / 9 liability either of the owner or the Insurance Company can be examined and decided by the Claim Tribunal at the time of final adjudication of the petition filed under Section 166 of the M.V.Act on behalf of the claimants/appellants. NKS/- (Rakesh Kumar, J)