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2012 DIGILAW 1644 (JHR)

Sumitra Devi v. National Insurance Co. Ltd.

2012-11-23

APARESH KUMAR SINGH

body2012
Order Heard learned counsel for the petitioners. 2. The Respondent no.1, National Insurance Company Ltd. was issued notice and from the office note, it appears that the notice was validly served as would appear from the service report. However, no one appears on behalf of the National Insurance Company Ltd. to contest the case, accordingly, this case is being decided at this stage ex parte. 3. The petitioners have challenged part of the Award dated 30th July, 2007 (Annexure-2) passed by Permanent Lok Adalat in P.L.A. Case No. 53/06, whereby a sum of Rs. 60,000/- from the total assessed compensation amount of Rs. 2,60,000/- by the Permanent Lok Adalat has been reduced on the ground of contributory negligence of the petitioner no.1's husband, who died in the course of the accident which took place for which claim application was made. 4. It is the contention of the petitioners that petitioner no.1's husband and father of the petitioner no.2, namely, Bilkhi Mahto had gone to Barahi Bazar along with Nakul Prasad Burnwal for purchasing goat. On return while they were traveling in Commander Jeep no. BR 13C 4699 when near village Merham Garha on G.T. Road, at about 3 P.M., a truck dashed the commander jeep from behind as a result of which the said Bhikhi Mahto was thrown out of the jeep and he sustained severe head injuries leading to his death during the course of his treatment. 5. Learned counsel for the petitioners has relied upon the F.I.R. enclosed as Annexure-1 being Barkatha P.S. Case No. 19/06 registered under Sections 279, 304A on the Fardbeyan of co-passenger Nakul Prasad Burnwal against the driver of Truck bearing no. HR 46 B 3325. Learned counsel for the petitioners further submits that the incidence as narrated in the F.I.R. itself disclosed that the said deceased was sitting in the middle row seat at the corner and as a result of the impact of the truck from behind he was thrown out on the road and got severally injured. He was given primary aid and thereafter he was referred to the Sadar Hospital, Hazaribagh and in course of going to the said hospital the said person died. It is submitted that the claimants-petitioners preferred a Prelitigative case no. 53/2006 before the Permanent Lok Adalat seeking compensation from the owner as well as Insurance Company. He was given primary aid and thereafter he was referred to the Sadar Hospital, Hazaribagh and in course of going to the said hospital the said person died. It is submitted that the claimants-petitioners preferred a Prelitigative case no. 53/2006 before the Permanent Lok Adalat seeking compensation from the owner as well as Insurance Company. The Insurance Company appeared on notice and the conciliation failed and the matter was decided on merit. It is further submitted that the Insurance Company in the written statement made a vague assertion that the deceased was sitting on the roof of the Commander Jeep, in question, and fell down on application of brake and as such the accident took place on account of the negligence of the deceased himself for which the Insurance Company should not be made liable. However, no evidence to support the aforesaid contention was made which apparently was also contrary to the Fardbeyan lodged by the co-passenger immediately after the incidence. The learned Permanent Lok Adalat disbelieved the contention of the Insurance Company that it was not liable to pay the insurance amount to the dependents of the deceased and proceeded to assess the compensation by applying the multiplier of 13 to the income of the deceased assessed at Rs. 2,500 per month and came to a figure of Rs. 2,60,000/-. However, strangely without any factum of contributory negligence having been conclusively established proceeded to deduct an amount of Rs. 60,000/- on account of contributory negligence of the deceased from the awarded amount which was finally assessed at Rs. 2 lakhs. 6. The petitioners, therefore, being aggrieved by the finding of the Permanent Lok Adalat based upon no evidence have challenged that part of the Award before this Court under Article 226 of the Constitution of India. It is the contention of the petitioners that though the Award of the Permanent Lok Adalat is final under the provisions of the Legal Services Authority Act, 1987, but if the Award or part of it is based no evidence or certain findings of the Lok Adalat are perverse, the writ court can always interfere in the impugned award in the exercise of its extra ordinary jurisdiction, and power of judicial review. 7. In the circumstances, part of the impugned Award by which a sum of Rs. 60,000/- has been reduced from the total compensation amount of Rs. 7. In the circumstances, part of the impugned Award by which a sum of Rs. 60,000/- has been reduced from the total compensation amount of Rs. 2,60,000/- has been assailed in the present writ application as already recorded hereinabove. The Insurance Company despite notice have chosen not to contest the case and are not represented through any counsel. 8. I have heard counsel for the petitioners and gone through the impugned Award as well as copy of the F.I.R. enclosed to the writ petition. From the facts narrated hereinabove, which are borne out of the records, it is apparent that the petitioner no. 1's husband was traveling in the Commander Jeep as narrated in the F.I.R. of co-passenger and fell down on the impact of the truck which hit the Commander Jeep from behind by which he sustained severe injuries and ultimately died while approaching the Sadar Hospital, Hazaribagh for treatment. The Insurance Company could not demolish the aforesaid contention of the petitioner and no evidence was produced on their behalf in support of their contention that the deceased was traveling on the roof of the jeep in question who fell down on application of the brake. In the absence of any cogent evidence learned Permanent Lok Adalat had no reason to render a finding of contributory negligence on the deceased for reducing the assessed amount by Rs. 60,000/- on that count. The finding of contributory negligence being not supported by any evidence, therefore, appears to be perverse and requires interference in the powers of judicial review under Article 226 of the Constitution of India. Accordingly, the said finding of the learned Permanent Lok Adalat by which a sum of Rs. 60,000/- has been reduced on account of contributory negligence of the deceased is set aside and it is held that the petitioners are entitled to full amount of Rs. 2,60,000/- assessed as compensation by the Permanent Lok Adalat to be paid as per the direction contained in the Award dated 30th July, 2007. 9. The writ petition is accordingly allowed in the aforesaid term.