Jharkhand High Court
National Insurance Co. Ltd vs Rita Devi on 19 July, 2022
Author: Ananda Sen
Bench: Ananda Sen
IN THE HIGH COURT OF JHARKHAND AT RANCHI
M.A No. 353 of 2015
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1. National Insurance Co. Ltd., Hero Honda Vertical-101106 BMC House No.1 Connaughat Palace, New Delhi
2. National Insurance Co. Ltd. represented by Divisional Manager, Bokaro .... .... Appellant(s).
Versus
1. Rita Devi
2. Rabi Kumar
3. Indu Kumari
4. Vikky Kumar
5. Dhiraj Kumar Jha
6. Roop Narayan Jha
7. Sumit Kumar
8. Indrajeet Ram .... .... Respondent(s)
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CORAM : HON'BLE MR. JUSTICE ANANDA SEN.
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For the Appellant(S) : Mr. Ganesh C. Jha, Advocate For the Respondent Nos. 1 to 4: Md. Imtiaz Khan, Advocate Md. Jawed Sultan, Advocate 15/19.07.2022 In this appeal the insurance company is proceeding against the other respondent who is the owner of the motor vehicle bearing Registration No. JH 09F 4948.
2. The appellant-Insurance Company has challenged the part of the award dated 15.4.2015 passed in T.M.V No. 54 of 2012 by District Judge-IV-cum- MACT, Bokaro wherein the Tribunal has held that Motorcycle owner-cum-rider of Karizma motorcycle (New Vehicle) which was insured by the appellant herein was negligent to the tune of 70% thus directed the Insurance Company to pay 70% of the compensation amount, so assessed.
3. Mr. G.C. Jha, counsel appearing on behalf of the appellant submits that from the entire evidence it would be clear that if at all there is negligence, it was on the part of the rider of the motorcycle on which the deceased was a pillion rider. Two FIRs were registered, one immediately after the accident which was lodged by the owner of the Karizma motorcycle, insured by the appellant and the second FIR was registered after nearly 20 days of the accident by the owner of the motorcycle bearing Registration No. JH 09F 4948, in which the deceased was a pillion rider. Police investigated the cases and found that it was rider of the motorcycle bearing Registration NO. JH 09F 4948 who was responsible for the accident, thus the charge-sheet was submitted against him.
-2-Final form was submitted in the case which was lodged by the son of the deceased. He submits that this clearly suggest that the rider of the motorcycle JH 09F 4948 was solely responsible for the accident. That being so since the deceased was a pillion rider of JH 09F 4948, the owner of the said vehicle should have been directed to pay the entire amount of compensation so assessed by the Tribunal. He submits that the finding of the Tribunal that the rider of the newly purchased Karizma Motorcycle was responsible to the extent of 70% for the accident is perverse, beyond the evidence so recorded. The aforesaid is the ground taken by the Insurance Company in this appeal.
4. Counsel appearing on behalf of the claimants submits that the Tribunal has held that Dhiraj Kumar who was the owner and rider of the newly purchased Karizma motorcycle was negligent to the extent of 70% as he was riding on the main road rashly and negligently which dashed the motorcycle JH 09F 4948, upon which the deceased was a pillion rider. He further submits that since both were negligent, it was held by the Tribunal that extent of negligence of Dhiraj Kumar, who is the owner of the Karizma motorcycle was to the extent of 70%, the amount of compensation was accordingly apportioned in the ratio of 70:30 between the appellant and the owner of motorcycle bearing Registration No. JH 09F 4948.
5. Heard the counsel for the parties and I have gone through the record. The only dispute is in relation to the contributory negligence of the parties and the extent thereto. The quantum has not been challenged nor the fact that the newly purchased Karizma motorcycle was insured by the appellant. It is also admitted that motorcycle bearing Registration No. JH 09F 4948 on which the deceased was a pillion rider, was not insured. Thus the only fact which needs to be decided in this case is how the accident had occurred and who all are responsible for this accident.
6. To decide the aforesaid issue, I have gone through the Lower Court Records. The accident occurred on 14.5.2011. Two motorcycles were involved in the said accident one newly purchased Karizma motorcycle owner being Dhiraj Kumar and another motorcycle bearing Registration No. JH 09F 4948 which is Hero Honda Glamour owned by Indrajit Ram. Dhiraj Kumar got an FIR registered on 17.5.2011 stating therein that he was riding his new motorcycle on -3- 14.5.2011 and when he reached near Jay Jawan Petrol Pump near the crossing of Sector-III the another motorcycle bearing Registration No. JH 09F 4948 came at a high speed which was being driven rashly and negligently, dashed head on with his motorcycle as a result of which he sustained injury and his friend who was also a pillion rider fell down. They were taken to the hospital where they were treated. He stated that entire accident occurred because of the rashness and negligence of the other motorcycle. This FIR was registered as Bokaro Steel City P.S. Case No. 172 of 2011 dated 17.5.2011 under Section 279, 337, 338 of the IPC. Be it noted that the fardbeyan was recorded at Bokaro General Hospital on 15.5.2011 for the occurrence of 14.5.2011 but the FIR was registered on 17.5.2011.
7. For the same accident another FIR was registered on 9.6.2011 by Ravi Kumar son of the deceased. The deceased was a pillion rider of motorcycle bearing Registration NO. JH 09F 4948. The cousin of the informant i.e Sumit Kumar was the riding the said motorcycle. In the FIR, Ravi Kumar stated that when the motorcycle reached near Sector-III Jay Jawan Petrol Pump, Dhiraj Kumar who was riding a motorcycle rashly and negligently collided with the motorcycle bearing Registration No. JH 09F 4948 which resulted in an accident. His father who was a pillion rider fell down from motorcycle and sustained grievous injury on his head. His father was admitted in Muskan hospital on 14.5.2011 and was shifted to Bokaro General Hospital on 18.5.2011 where he died on 7.6.2011.
8. In the claim application field by the claimants three witness were examined, they are Ravi Kumar C.W.1 who happens to be the son of the deceased. Rajesh Ram C.W.3 who happens to be the neighbour of the deceased and Rita Devi C.W.2 who is the wife of the deceased. After going through the deposition, I find that none of them are eye witness to the said occurrence. The rider of the motorcycle i.e Sumit Kumar did not depose before the Tribunal. He was the best person to narrate about the accident and the manner in which the accident had occurred. Tribunal while deciding the issue of contributory negligence and while deciding the extent of negligence came to a conclusion that it has come in evidence that the motorcycle on which the deceased was riding was turning to Sector-III and the Karizma motorcycle which was on the main road rashly and negligently which dashed the motorcycle.
-4-This Court fails to understand on what basis this finding has been arrived at by the Tribunal when admittedly none of the eye witnesses were produced to depose before the Tribunal. There were only two documents before the Tribunal to decide the issue which are the two FIRs, being Bokaro Steel City P.S. Case No. 172 of 2011 and 220 of 2011. In each of the FIR, the author blames the other person. If both the FIRs is read, it would be quite clear that there is no such statement to conclude as concluded by the Tribunal, to the effect that there was a turning and the rider of the Karizma motorcycle was at fault. Further police investigated both the FIRs and filed charge-sheet only in Bokaro Steel City PS. Case No. 172 of 2011 against Sumit Kumar, who was the rider of the motorcycle on which the deceased was a pillion rider. FIR which was registered against Dhiraj Kumar was also investigated and final report was submitted stating therein that the fact stated therein is not correct. It is the case of the claimants that a protest petition was also filed and cognizance was taken on that protest. From the aforesaid fact it is clear that there is nothing on record to suggest the extent of negligence on the part of Dhiraj Kumar, whose vehicle was insured by the appellant. From the manner in which the accident had taken place, it is apparent that rider of both the motorcycles are at fault. This was also held by the Tribunal. But the Tribunal erred in giving a finding that Dhiraj Kumar, whose vehicle was insured with the appellant was 70% negligent. As held above there is nothing on record to suggest that Dhiraj Kumar was negligent to the extent of 70%. The manner in which the accident had occurred, which was a collision between two vehicles, it can be held that both the riders were negligent to the equal extent.
9. Once it has been held that both the drivers were negligent in equal extent, the compensation amount should be apportioned equally between owners of two motor vehicles i.e Dhiraj Kumar owner of New Karizma Motorcycle and Indrajit Ram owner of motorcycle bearing Registration No. JH 09F 4948. Admittedly, the appellant is the insurer of the vehicle owned by Dhiraj Kumar. The liability of the appellant-Insurance Company thus is, to the extent of 50% of the compensation amount which has been assessed by the Tribunal. The rest 50% should be paid by Indrajit Ram owner of motorcycle bearing Registration No. JH 09F 4948, since the said motorcycle was admittedly not insured.
-5-10. Since the quantum of compensation was not challenged by any of the parties, I am not entering into the aforesaid aspect, thus I am only interfering with the extent of liability of the Insurance Company, which is now fixed at 50%. I am not inclined to interfere with the other aspect of the award. The appellant- Insurance Company will calculate the entire amount of compensation along with interest and pay 50% of the said amount to the claimants after deducting the amount which they have already paid and the claimants have withdrawn, by virtue of the interim order. This exercise should be completed at the earliest. The claimants are at liberty to recover the rest of the amount from the owner of the motorcycle bearing registration No. JH 09F 4948. The statutory deposit which was deposited at the time of filing of this appeal by the Insurance Company should be refunded to the appellant.
11. According, this appeal is allowed to the aforesaid extent and award is thus modified.
(ANANDA SEN , J) anjali/cp2