Miscellaneous Appeal No. 197 of 2010 · Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Miscellaneous Appeal No.197 of 2010 ====================================================== National Insurance Companey Ltd. Bada Bazar District- Munger represented through Shri Anjani Kumar working as A.O and duly Constituted Attorney of National Insurance Company having its Regional Office at 4th Floor, Sone Bhawan, P.S Sachiwalaya, District- Patna. .... .... Appellant/s Versus 1. Rekha Sinha, W/O Late Dayanand Prasad Singh (Decd.) R/O Village- Viman, P.S - Ariari, District - Shekhpura. 2. Keshab Kunal, S/O Late Dayanand Prasad Singh R/O Village- Viman, P.S - Ariari, District - Shekhpura. 3. Supriya Devanshi, D/O Late Dayanand Prasad Singh R/O Village- Viman, P.S - Ariari, District - Shekhpura. 4. Kumari Ojasvita, D/O Late Dayanand Prasad Singh R/O Village- Viman, P.S - Ariari, District - Shekhpura. 5. Kumari Tanya Devanshi, D/O Late Dayanand Prasad Singh R/O Village- Viman, P.S - Ariari, District - Shekhpura. 6. Sidrit Vats, S/O Late Dayanand Prasad Singh R/O Village- Viman, P.S - Ariari, District - Shekhpura.
Legal Reasoning
7. Sujit Kumar Paswan, S/O Shri Surendra Paswan, R/O Village- Purvi Tola Farda, P. S- Naya Ram Nagar, District - Munger Driver Of The Offending Vehicle bearing its Reg. No. BR 16 G/0988 8. Navin Mallik Palniyara R/O Rampur Colony Jamalpur, District- Munger, Owner of the offending Vehicle bearing its Reg. No. BR -16 G/0988 .... .... Respondent/s ====================================================== CORAM: HONOURABLE MR. JUSTICE JYOTI SARAN ORAL ORDER 13. 27-08-2013 Heard Mr. Shailendra Kumar, learned counsel appearing on behalf of the appellant, Dr. Anjani Prasad Singh, learned counsel appearing for respondent nos. 1 to 6, Mr. Birendra Singh appearing for the respondent no. 7 and Mr. Rajesh Kumar appearing for the respondent nos. 1 to 6. This appeal under Section 173 of the Motor Vehicles Act (hereinafter referred to as the ‘Act’) is directed against the Patna High Court MA No.197 of 2010 (13) dt.27-08-2013 2 judgment and award dated 27.11.2009 / 14.12.2009 passed in Claim Case No. 43 of 2005 by the Additional District and Sessions Judge-cum-Motor Vehicles Accident Claim Tribunal, Sheikhpura whereby the claim has been allowed with interest. The facts of the case in brief is that the deceased who is the husband of the claimant-respondent no. 1 and the father of the other claimants was dashed against by a truck which was allegedly being driven rashly and negligently by the driver. The deceased was riding his motorcycle which was unregistered and the truck was bearing registration no. BR-16G-0988. The truck driver was caught by the local people while he was trying to flee away from the place of accident and was handed over to the Police. The deceased was initially treated at the local dispensary and thereafter referred to the Sadar hospital where he succumbed to the injuries. An FIR was instituted on the statement made by the local Chaukidar Upendra Paswan giving rise to Khadagpur P.S. Case No. 63 of 2005 registered on 25.03.2005 under Section 279 and 304A of the Indian Penal Code. Upon notice being issued, neither the owner nor the driver of the truck appeared to contest the claim. The National Insurance Company who is the appellant before this Court appeared and contested the claim on several grounds including on ground that the motorcycle was unregistered Patna High Court MA No.197 of 2010 (13) dt.27-08-2013 3 and that the deceased was not holding a valid licence. The tribunal after considering the rival pleadings of the parties as well as the oral and documentary evidence led by them allowed a compensation of Rs. 13,27,872/- and after making additions towards funeral expenses, loss of estate, medical expenses and mental agony etc., the claimants were found entitled to a sum of Rs. 13,47,872/-. The National Insurance Company who is the insurer of the offending truck was directed to make payment of the compensation amount together with interest quantified at 12 per cent payable from the date of filing of the case. The insurance company being aggrieved is in appeal before this Court. Mr. Shailendra Kumar appearing for the insurance company has endeavoured to question the award on the following issues: (a) The sequence of events manifests that it is a case of contributory negligence; (b) The insurer of the motorcycle was not added as a party; and (c) Neither the motorcycle was bearing a registration number nor the driver possessed a valid driving licence. Mr. Kumar relying upon a judgment of this Court reported in 2005(3) B.L.J. 133 (Narayan Sah vs. Oriental Fire and General Insurance Company), more particularly to paragraph 10 and 11 of the judgment has submitted that upon failure of the claimants to Patna High Court MA No.197 of 2010 (13) dt.27-08-2013 4 arraign the insurer of any vehicle that is involved in an accident, the compensation amount has been proportionately reduced. For the same submission learned counsel has also relied upon a Bench decision passed in M.A. No. 21 of 2010 (Branch Manager, National Insurance Company vs. Bechu Goswami). On the strength of the judicial pronouncement it is submitted that since the claimants have not chosen to implead the insurance company insurer of the motorcycle, the compensation should be appropriately reduced. He further submits that since the motorcycle was not duly registered and that the deceased did not have a valid licence, the claimant was not entitled to compensation. The argument of Mr. Shailendra Kumar has been contested by Mr. Rajesh Kumar appearing for the claimants who submits that although opportunity was there with the insurance company to question the claimants on all these issues before the tribunal but this was not done as is manifest from the judgment passed by the tribunal. I have heard learned counsel for the parties and I have perused the materials on record which have been produced under the orders of this Court. The entire gamut of argument of Mr. Kumar rests on his contention that the occurrence in question is a Patna High Court MA No.197 of 2010 (13) dt.27-08-2013 5 case of contributory negligence. Surprisingly even though such an issue has been set up before this Court, no evidence was led by the insurance company to prove the same before the tribunal nor the claimants were cross-examined on this issue. An issue of contributory negligence is an issue of fact and has to be established by evidence. The investigation report of the appellant was led as Exhibit-A before the tribunal but there is no such allegation on the deceased of having contributed to the accident, yet an issue to that effect has been set up in appeal. The uncontroverted position is that there is complete absence of evidence on the part of the insurance company to establish contributory negligence and in which circumstance, the issue no. 1 raised by the appellant has to fail. Once the issue of contributory negligence is not proved, there is no necessity for arraigning the insurer of the motorcycle as a party to the proceedings. That brings this Court to the last of the issue regarding absence of registration number and the validity of the licence. It is by now well settled that until the insurance company is able to prove that all these issues were relevant factors and have contributed to the accident, the same would have no bearing on the conclusion drawn by the tribunal. In view of my discussion and findings hereinabove, I am Patna High Court MA No.197 of 2010 (13) dt.27-08-2013 6 not persuaded to interfere with the judgment and award impugned and this appeal is accordingly dismissed. Let the statutory amount deposited by the insurance company be remitted to the tribunal concerned for its disbursement in accordance with law. Let the lower court records be remitted to the tribunal concerned forthwith. S.Sb/- (Jyoti Saran, J)