Patna High Court - Orders
Divisional Manager National Insurance ... vs Ashish Kumar & Ors on 11 October, 2012
Author: Rakesh Kumar
Bench: Rakesh Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
Miscellaneous Appeal No. 141 of 2011
==================================================
Divisional Manager, National Insurance Co. Ltd. Patna, through its
Regional Manager, Birchand Patel Marg, Patna
.... .... Appellant/Opposite Party No. 4
Versus
1. Ashish Kumar s/o Late Basudeo Prasad residence of Mohalla-
Madhubani Kali Ashthan post + P. S. -Khajanchi Hat, District-
Purnia, A/P Dariyapur Gola, P. S. Kadamkuan Dist. Patna
...................Claimant/Respondent No.1
2. Birendra Kumar s/o Ram Chandra Sao resident of village
Bakipur Gorakh, P. O. + P. S. -Fatua, District- Patna.
(Owner of Truck bearing registration no. AS-25-A-7581)
..............Opposite party No. 1/Respondent No.2
3. Raju Paswan @ Raju s/o Karmu Paswan, r/o village - Hajiganj
near Luccy Biscuit Factory, P. S. Chowk, Patna City, Dist. Patna
(Driver of Truck bearing registration no. AS-25-A-7581)
.............Opposite party No.2/Respondent no.3
4. The United India Insurance Co. Ltd. through its Divisional
Manager, Divisional Office-1, Laxmi Apartment, Times of India
building, Freser Road Dist. Patna.
(Insurer of the truck bearing no. AS-25A/7581)
............Opposite Party No.3/Respondent no. 4
==================================================
CORAM: HONOURABLE MR. JUSTICE RAKESH KUMAR
ORAL ORDER
9. 11-10-2012Heard Sri Abhay Kumar Sinha, learned counsel for the appellant and Sri Durgesh Kumar Singh, learned counsel, who has appeared on behalf of respondent no. 4/United India Insurance Company Limited.
The present appeal was heard and being disposed of, even without issuing notice to remaining respondents, particularly claimants.
The present appeal, under Section 173 of the 2 Patna High Court MA No.141 of 2011 (9) dt.11-10-2012 2/7 Motor Vehicles Act, 1988, has been preferred against judgment dated 30-08-2010 and award dated 13-02-2012 passed by the learned Additional District Judge-XI -cum- Motor Vehicles Accident Claims Tribunal, Patna (hereinafter referred to as "Tribunal") in M. V. Claim Case No. 298 of 2007. By the said order, learned Tribunal has allowed two claim petitions i.e. Claim Case No. 298 of 2007 and Claim Case No. 299 of 2007, which were filed by the claimant/respondent no. 1, whose father and mother both died in a vehicular accident. The accident had occurred due to collusion of a truck and Maruti van and as such, the learned Tribunal has directed insurer of both the vehicles to pay total compensation amount of Rs. 1,60,500/-, in respect of Claim Case No. 298 of 2007, which was directed to be equally distributed by insurer of both the vehicles. Meaning thereby that 50% each of total compensation amount was directed to be paid by the appellant/National Insurance Company Ltd. as well as respondent no. 4/United India Insurance Company Limited.
Short fact of the case is that on 11-06-2007, 3 Patna High Court MA No.141 of 2011 (9) dt.11-10-2012 3/7 mother and father of claimant/respondent no. 1 had left Purnea for Patna on a Maruti van, bearing registration no. BR-10F-2293. The Maruti van was being driven by a driver and while on 12-06-2007 at about 5:10 AM, reached near village Baikatpur (Khushrupur), the said Maruti van was dashed by a truck, bearing registration no. AS-25A-7581. In the said accident, both father and mother of the claimant/respondent no. 1 died. After the accident, an F.I.R., vide Khushrupur P.S. Case No. 40 of 2007 was registered. After conducting post-mortem examination and completion of other formalities, two claim cases were filed by the respondent no. 1 (son of the deceased). The first case i.e. Claim Case No. 298 of 2007 was filed against the opposite parties for compensation of Rs. 5,00,000/- with loss of Estate, funeral expenses and interest thereon for the death of his father and another case i.e. Claim Case No. 299 of 2007 was in relation to the death of his mother and claimed compensation of Rs. 2,00,000/-. Both persons had died in one accident. Hence, both the cases were heard together and learned Tribunal, by the impugned judgment and award, 4 Patna High Court MA No.141 of 2011 (9) dt.11-10-2012 4/7 allowed both the claim petitions. In respect of claim case no. 298 of 2007, the present appeal has been preferred by the appellant/National Insurance Company Ltd. (insurer of the Maruti van).
Sri Abhay Kumar Sinha, learned counsel for the appellant submits that in the accident, there was no fault on the part of the driver of the Maruti van, which was under
insurance cover of the appellant, but it was the driver of the truck in question, which was being driven rashly and negligently and due to rash and negligent act of the driver of the truck, accident had occurred. He submits that the fact regarding act of negligence and rashness on the part of the driver of the truck is evident due to the reason that after investigation, police submitted charge-sheet only against the driver of the truck. On this sole ground, it has been argued that in any event, the appellant was not liable to be directed for paying any compensation amount, rather it was the insurer of the truck i.e. respondent no. 4, which was required to be directed for payment of total compensation amount.5 Patna High Court MA No.141 of 2011 (9) dt.11-10-2012
5/7
On merit of the case, nothing has been argued. Only on the ground that it was fault of the driver of the truck, it has been prayed to set aside the order to the extent, whereby, 50% of the compensation amount was directed to be paid by the appellant/National Insurance Co. Ltd.
Sri Durgesh Kumar Singh, learned counsel appearing on behalf of respondent no. 4/United India Insurance Co. Ltd. has opposed the prayer of the appellant. He submits that since in the accident, driver of the Maruti van-cum-owner of the Maruti van died, he was not shown as charge-sheeted accused in Khushrupur P. S. Case No. 40 of 2007 i.e. „Exhibit-2‟. He further submits that since it was a case of collusion of two vehicles, it would be difficult to fix liability only on driver of one vehicle. According to learned counsel for the respondent no. 4, the learned Tribunal has rightly directed insurer of both the vehicles to equally pay the compensation amount. He further submits that as per judgment and award of the learned Tribunal, 50% of the compensation amount, which was required to be paid by respondent no. 4, has already been paid alongwith interest, 6 Patna High Court MA No.141 of 2011 (9) dt.11-10-2012 6/7 as directed by the Tribunal.
Besides hearing the parties, I have also perused the materials available on record. From the materials available on record, it is evident that the appellant had not led any evidence before the Tribunal, save and except, filing ornamental written statement. For the purpose of raising the claim that in the accident only driver of truck was at fault, onus was on the appellant to lead evidence and prove that driver of Maruti van, which was ensured by the appellant, was not at fault. In absence of any such evidence in a case of collusion between two vehicles, it can well be presumed that driver of both the vehicles were rash and negligent.
The Court appreciates the submission made by Sri Durgesh Kumar Singh, learned counsel for respondent no. 4 on the point that non-mentioning the name of the driver of Maruti van in the charge-sheet makes no difference due to the reason that driver of the Maruti van had died in that accident.
I do not find any ground for interference with 7 Patna High Court MA No.141 of 2011 (9) dt.11-10-2012 7/7 the judgment and award. Moreover, the amount of compensation, which has been directed to be paid was also meager i.e. Rs. 1,60,500/-, out of which, 50% amount has already been paid by respondent no. 4/United India Insurance Company Ltd.
Accordingly, in view of the fact that it was a case of collusion of two vehicles and no other evidence was led on behalf of appellant to establish that driver of truck was only rash and negligent, the Court has got no option but to dismiss the appeal.
The learned Tribunal has rightly directed the insurer of both the vehicles to equally distribute compensation amount.
The appeal stands dismissed.
The appellant/National Insurance Co. Ltd. is directed to pay the compensation amount in terms of the order of the learned Tribunal to the claimants/respondent no. 1 within a period of two months from the date of production/receipt of a copy of this order.
(Rakesh Kumar, J.) Anay