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2007 DIGILAW 1436 (PAT)

Kalim v. Ajay Kumar Thakur

2007-08-30

S.N.HUSSAIN

body2007
Judgment 1. Heard learned counsel for the appellants and learned counsel for respondents no. 2 and 3, namely the Insurance Company and its authorities. No one appears for respondent no. 1, who is the owner of the vehicle, in spite of valid service of repeated notices upon him. 2. This appeal is directed against the judgment and award dated 8.4.2003, by which the learned Motor Accident Claims Tribunal, Khagaria, has dismissed Claim Case No. 21 of 2001 filed by the appellants. 3. The aforesaid claim case was filed by the appellants, who were parents and siblings of deceased Md. Munna, who died at the age of about 20 years on 19.12.1995 in an accident caused by Truck no. BPA 8355 while he was going on his cycle. It was the further case of the claimants that Beldaur RS. Case No. 56/95 was instituted due to the said occurrence and the final form was submitted in the said case, which specifically proved the accident by the said truck, in which the said boy had died. It was also claimed by the claimants that the said deceased was engaged in tailoring business and he was earning Rs. 2,000/- per month. He also submits that in course of investigation in the criminal case also several witnesses disclosed the said number of the truck involved in the accident killing the said deceased, but the Police did not seize the said truck. Hence, the claimants filed the said case under the provision of Sec. 140 of the Motor Vehicle Act, 1988 (hereinafter referred to as the Act for the sake of brevity). 4. In the aforesaid claim case, the Insurance Company and its authorities, who were opposite parties no. 2 and 3, filed their show cause on technical grounds that claim was not framed according to the provisions of the Act and Bihar Motor Vehicle Rules, 1992 (hereinafter referred to as the Rules for the sake of brevity). They did not admit the averments made in the claim petition as it was to be strictly proved by the claimants and that the owner of the vehicle was liable to file the original policy. 5. They did not admit the averments made in the claim petition as it was to be strictly proved by the claimants and that the owner of the vehicle was liable to file the original policy. 5. Opposite Party No. 1 the owner also filed a show cause in the claim case in which he did not deny that the accident had taken place on the said date by his truck and only stated that it was the liability of the Insurance Company to pay no fault interim compensation with respect to the vehicle, which was ensured with it. Relying upon a Division Bench decision of this Court in the case of Shri Mritunjay Kumar Singh vs. Oriental insurance Co. Ltd., reported in 2001(3) PLJR 592 , the learned court below passed the impugned judgment and award only on the ground that owner (respondent no. 1) has not whispered a single word with regard to the accident, whereas, the final report submitted by the police shows that there was no clue and asserted that although the death of the deceased occurred in a road accident, the vehicle, involved in the accident, was not known either to the informant or to the Police, hence, claimants were not entitled to any compensation under the head of no fault liability under sec. 140 of the Motor Vehicle Act. 6. Challenging the aforesaid order of the learned court below, learned counsel for the appellants submits that there was sufficient material to show that accident was caused by the truck in question belonging to opposite party no. 1 but the learned court below completely ignored the same and passed the impugned order, which is not legal and proper. 7. On the other hand, learned counsel for the Insurance Company and its authorities (respondents no. 2 and 3) vehemently opposes the contentions raised by learned counsel for the appellants and submits that the provision of Rule 246(9) of the Rules specifically provided that the Claims Tribunal shall proceed with the application for compensation on the basis of first information report, injury certificate or post mortem report in case of death, registration certificate of the motor vehicle involved in the accident, cover note, certificate of insurance or the policy, relating to the insurance, of the vehicle against third party risk and the nature of the treatment given by the Medical Officer, who has treated the victim. He further submits that since the first information report as well as the post mortem report does not show that the accident was caused by the abovementioned vehicle, whereas, the registration certificate, cover note and cetificate of insurance or the policy, relating to the insurance were not filed, the Tribunal was quite justified in rejecting the said plea of the applicant as the Tribunal according to the said provision of law was not entitled to see any other document. 8. After hearing learned counsel for the parties and considering the materials on record, including the impugned order, it is quite apparent that there were sufficient materials before the Police such as the statements of the witnesses etc. that the abovementioned truck had caused the accident and in that view of the matter the number of the said truck was mentioned in the final form but the Police did not seize the vehicle in question nor they made any relevant investigation in that regard and submitted a frivolous report that there was no clue. Furthermore, opposite party no. 1, who was owner of the truck, appeared in the claim case and filed a show cause, in which he did not deny that the accident was caused by his truck and clearly stated that since the same was ensured it was the duty of the Insurance Company to pay the compensation. 9. The statement of the owner of the vehicle itself was sufficient to pass an order with respect to compensation as it was an evidence better than the evidence as mentioned above and in presence of the specific non-denial of the claimants case there was no occasion to rely upon the frivolous police report etc. In the said circumstances, the court below committed a serious error of records as well as of law in completely ignoring the statements of the owner of the truck (respondent no. 1 himself) in passing the impugned order. 10. In the aforesaid facts and circumstances, this miscellaneous appeal is allowed and the order of the court below, is set aside and the Tribunal is directed to consider the matter afresh on the existing materials specially the show cause filed by respondent no. 1 himself) in passing the impugned order. 10. In the aforesaid facts and circumstances, this miscellaneous appeal is allowed and the order of the court below, is set aside and the Tribunal is directed to consider the matter afresh on the existing materials specially the show cause filed by respondent no. 1 and pass an appropriate order and also taking into consideration the principles of law settled by the two Division Bench decisions of this Court in the case of Kanhai Rai vs. Dharampal reported in 2001(3) PLJR 103 as well as in the case of Shri Mritunjay Kumar Singh (supra). However, there shall be no order as to costs.