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2007 DIGILAW 1754 (PAT)

Oriental Insurance Company Limited v. Firangi Ram

2007-11-08

S.N.HUSSAIN

body2007
Judgment 1. Heard learned counsel for the appellant Insurance Company as well as learned counsel for the respondents-claimants and also learned counsel for the respondent- owner of the vehicle. 2. This appeal is directed against the judgment dated 25.2.2004 passed by the learned Fast Track Court-I, Siwan allowing Claim Case No. 50 of 1981 and directing the Insurance Company to pay Rs. 4,21,000/- as compensation alongwith interest. 3. None of the parties challenge the quantum of compensation fixed by the learned court below or the interest fixed thereon. It is an admitted case that on 17.9.1981 the son, son-in-law and grandson of the claimants died in an accident caused by a truck bearing no. BRD 5159 which was owned by respondent no. 3. 4. Learned counsel for the appellant Insurance Company challenges the impugned judgment on three counts: The first ground is that as per the provision of Bihar Motor. Vehicles Accident Tribunals Rules, 1961, such accident claim cases have to be decided by a Tribunal consisting of the District Judge or the senior most Additional District Judge specifically notified by the Government, and thus the Fast Track Court-I has got no such authority nor it has been notified as such by the State Government. Hence he submits that the impugned judgment has been passed without any jurisdiction. The second ground taken by the appellant is that the learned Fast Track Court has specifically found that owner of the vehicle has shown the documents with respect to payment of premium for the truck in question in the years 1982, 1985, 1986, 1987 and 1988 but no document has been produced with respect to any payment of premium or any insurance policy for 1981 as the date of accident is dated 17.9.1981. Hence, he submits that there was no material before the Tribunal to assume that on the date of accident the vehicle in question was insured. Hence, he submits that there was no material before the Tribunal to assume that on the date of accident the vehicle in question was insured. The third ground taken by the appellant is that on the date of accident and on the date of filing of the claim case in the year 1981 the provisions of the Motor Vehicles Act, 1939 (IV of 1939) was applicable and hence the provisions of the Act of 1988 were not applicable to the facts and circumstances of this case and thus according to Sections 95(1) and (2) of the old Act of 1939 the liability of the insurer was limited only upto Rs. 50,000/- with respect to each of the deceased killed in the accident and the remaining amount had to be paid by the owner of the vehicle but the learned Fast Track Court has directed the entire compensation amount to be paid by the appellant Insurance Company. 5. On the other hand, learned counsel for the respondent, owner of the vehicle submits that Fast Track Court is a post equivalent to that of the Additional District Judge and hence the impugned judgment has been passed by a court having full jurisdiction to decide such matters. He further submits that in the year 1981 his truck was also insured having policy no. 3325/1/0/MB/222/81 which has been mentioned in paragraph 8 of his written statement filed in the court below but the learned court below did not consider the same only because no material was produced to support the same and the Insurance Company denied any such policy of insurance. He also avers that in view of the decision of Hon ble Apex Court in case of National Insurance Co. Ltd., New Delhi v/s. Jugal Kishore and Others reported in A.I.R. 1988 Supreme Court 719 (paragraph 10) the onus was upon the Insurance Company to produce the policy otherwise inference should be taken against them. In that regard he relies on a decision of this court in case of Branch Manager, The New India Assurance Co. Ltd., Bhagalpur V/s. Nakul Sah & Ors., 2002(1) P.L.J.R. 532. Learned counsel for the Appellant also relies upon two decisions of the Hon ble Apex Court and two decisions of this High Court in case of Ramashray Singh V/s. New India Assurance Co. Ltd. & Others repored in 2003 Vol. Ltd., Bhagalpur V/s. Nakul Sah & Ors., 2002(1) P.L.J.R. 532. Learned counsel for the Appellant also relies upon two decisions of the Hon ble Apex Court and two decisions of this High Court in case of Ramashray Singh V/s. New India Assurance Co. Ltd. & Others repored in 2003 Vol. 10 SCC 664, in case of New India Assurance Co. Ltd. V/s. CM. Jaya and Others, reported in 2002 Vol. 2 SCC 278, in case of Divisional Manager, Oriental Insurance Company Ltd. V/s. Most. Jaishree Verma & Ors. reported in 2005 Vol. 3 P.L.J.R. 738 and in case of Sardar Jai Singh Chawala V/s. Raksakhi Devi reported in 2006 Vol. 1 P.L.J.R. 630. 6. Considering the aforesaid averments of the parties and the materials on record, it is quite apparent that the claim of the policy of 1981 mentioned by the owner of the vehicles in his written statement filed in the Fast Track Court is not supported by any materials whatsoever and the insurance company has specifically denied existence of any such policy and furthermore the said question has not even been considered by the learned Fast Track Court. The learned Fast Track Court has not considered the provisions of the relevant Act and its applicability to the instant case with respect to the extent of liability of the Insurance Company for the payment of compensation. Furthermore, it is not apparent nor there is any material to show that the Fast Track Court which has decided the matter has been authorized to hear claim cases as a Tribunal by any Government notification. 7. In the said circumstances, this Miscellaneous Appeal is allowed. The impugned judgment is set aside and the matter is remanded to the learned District Judge, Siwan to place the case before a Tribunal specifically notified by the Government to hear accident claims cases which would decide the same afresh as per the specific provisions of law and the observance made hereinabove. Since the quantum of compensation and the interest thereupon is not in dispute, the Tribunal has not to go into these matters again and has to decide only the other questions raised by the appellant as mentioned above. Furthermore, since the matter is quite old and the claimants are suffering the Tribunal should decide the matter within two months from the date of the case referred to it. 8. Furthermore, since the matter is quite old and the claimants are suffering the Tribunal should decide the matter within two months from the date of the case referred to it. 8. Let the amount deposited by the appellant in this court at the time of filing of the appeal under the provision of Sec. 173 of the Motor Vehicles Act, be remitted to the Tribunal so that the same may be paid to the person concerned as per the final decision of the Tribunal.