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2015 DIGILAW 886 (JHR)

Sapna Mohanty v. National Insurance Co. Ltd.

2015-07-29

AMITAV K.GUPTA

body2015
Order : AMITAV K. GUPTA, J. These appeals are directed against the judgment/order dated 11.05.2012, passed by Additional District Judge-I cum Additional M.A.C.T., Singhbhum West at Chaibasa in Compensation Case nos. 28 and Compensation Case no. 27 of 2008 whereby the claim application of the claimants have been dismissed. 2. Learned counsel for the claimants has submitted that it is evident from the case of the claimants that the deceased Ganesh Mohanty and his brother-in-law Surjeet Beura were waiting near Chandro Line Hotel by the side of the motorcycle. At that time, Truck no. CG-04G-9858, being driven rashly and negligently, hit them due to which they sustained injury and succumbed to their injury on the way to the hospital. That for the said accident, Jhinkpani Police Station Case no. 14 of 2008 was registered under sections 279 and 304(A) of the Indian Penal Code. Learned counsel for the appellants has argued that the learned Tribunal has erred in law by relying on the argument pressed by the respondent-Insurance Company wherein reliance was placed on the first information report which was registered on the fardbeyan of Raju Beura. That the learned Tribunal had relied on the contents of the first information report that both the deceased were riding on motorcycle, which tried to overtake Truck no. CG-04G-9858 from behind due to which they alongwith the motorcycle were trapped under the rear wheels of the truck and sustained injuries, resulting in their death. It is argued that the learned Tribunal has failed to appreciate that the informant-Raju Beura has been examined as A.W.-3 and he had categorically stated that both the deceased were standing near the motorcycle at Chandro Line Hotel and at that time the driver of the Truck no. CG-04G-9858 dashed both the deceased persons due to which both of them were dragged for some distance by the truck. That the Truck was being driven rashly and negligently which was the cause of the injuries resulting in death of both the deceased. He has categorically stated that the police had taken his signature on blank paper in the hospital and since he was in a state of shock he had put his signature on the blank paper, on the assurance of the police, that without fardbeyan the deceased would not be entitled to any compensation. 3. He has categorically stated that the police had taken his signature on blank paper in the hospital and since he was in a state of shock he had put his signature on the blank paper, on the assurance of the police, that without fardbeyan the deceased would not be entitled to any compensation. 3. It is submitted that likewise A.W.-4 an eye-witness had stated in his deposition that while he was taking breakfast sitting outside the Chandro Line Hotel, he saw that both the deceased were standing near the motorcycle and at that time the offending vehicle hit them and dragged them along with the motorcycle for some distance. Both the deceased sustained serious injury and they died on the way to the hospital and the truck was being driven rashly and negligently. It has also been submitted that charge-sheet was submitted against the driver of the offending Truck no. CG-04G-9858, under sections 279 & 304(A) of the Indian Penal Code which shows that the deceased died due to the accident on account of rash and negligent driving of the truck. 4. That the Trial Court without appreciating the evidences has dismissed the claim application of the claimants only on the basis of fardbeyan. It is urged that the impugned order is fit to be set aside. 5. Learned counsel on behalf of respondent-Insurance Company has submitted that the claim applications have been filed only for making out the case which is contrary to the fardbeyan and it has been held by the Apex Court in the case of Oriental Insurance Co. Ltd. Vs. Premlata Shukla and Ors. reported in (2007), (3), TAC 11, (SC), that the factum of an accident could also be proved from the first information report and it is also to be noted that once a part of the contents of the document is admitted in evidence, the party bringing the same on record cannot be permitted to turn round and contend that the other contents contained in the rest part thereof had not been proved. It is also urged that the witnesses who have deposed have never made any statement before the police. It is also urged that the witnesses who have deposed have never made any statement before the police. Learned counsel has produced the case diary, and submitted that the informant in his restatement has reiterated the fats as narrated in the fardbeyan and from the case diary it would be evident that the dead bodies were recovered from beneath the rear of the Truck. That the learned Tribunal has discussed the evidence on record and rightly dismissed the claim applications and the appeals are fit be dismissed. 7. Heard, perused the impugned judgments and the copies of the deposition of the witnesses filed in the both applications. 8. A.W.-3 has come up with a case that his diseased brother and brother-in-law were standing beside the motorcycle. However, he had stated that the police had taken his signature on a blank paper. The trial court has considered the narration in the fardbeyan and also discussed the aspect that there has been no overwriting or tampering in the first information report as well as it has held that the motorcycle was not validly insured in terms of section 146 of the M.V. Act, and the accident took place in course of overtaking the Truck no CG-04G-9858. The testimony of A.W.-4, that the deceased was standing beside the motorcycle, and the Truck no. CG-04G-9858 which was being driven rashly and negligently, hit both the deceased and dragged them along with motorcycle will only lead to the conclusion that both the deceased were riding on the motorcycle as it cannot be vizualized or picturised that the person standing beside the motorcycle would have been dragged along with motorcycle by the Truck. 9. A.W.-3 who is the author of the fardbeyan has tried to make out a case that police had taken his signature on blank paper. Now, for filing the claim case he has produced the fardbeyan (F.I.R.) and he has nowhere stated that he had lodged any complaint that the police had not registered the first information report or recorded his statement properly or wrongly nor did he challenge the statement before any competent court. Mere filing of charge-sheet would not suffice to show that Truck no. CG-04G-9858 was driven rashly and negligently. The trial court has rightly held that after investigation the occurrence was found to be true that the deceased died while making an attempt to overtake the Truck. Mere filing of charge-sheet would not suffice to show that Truck no. CG-04G-9858 was driven rashly and negligently. The trial court has rightly held that after investigation the occurrence was found to be true that the deceased died while making an attempt to overtake the Truck. Looking into the evidence which has come on record as well as the case diary, it is evident that the motorcycle and deceased came under the truck while trying to overtake the truck. The evidence does not make out a case of contributory or composite negligence on the part of the truck rather it was the negligence on the part of the driver of the motorcycle. 10. Learned counsel for the respondent-Insurance Company submitted that- it has been held by the Apex Court in the case of Oriental Insurance Co. Ltd. Vs. Premlata Shukla and Ors. (Supra) that the factum of an accident could also be proved from the first information report and it is also to be noted that once a part of the contents of the document is admitted in evidence, the party bringing the same on record cannot be permitted to turn round and contend that the other contents contained in the rest part thereof had not been proved. 11. It is evident that the said first information report has been brought by the claimants in support of their claim. At this stage they cannot raise a contention that the contents of the documents are not correct. The injuries sustained and the evidence of the witnesses does not lend credence to the testimony that the accident has occurred as narrated by the witnesses in their deposition. Argument has been advanced on behalf of the learned advocates representing the legal representatives of the pillion rider. It is not in dispute that pillion rider is a third party both for the motorcycle owner or insurer and the truck owner or insurer. But, as already held, the truck owner/insurer is not liable even for contributory negligence and unfortunately the owner and insurer of the motorcycle has not been impleaded as a party. Hence, no award can be passed in favour of the claimants representing the estate of the deceased pillion rider. 12. In view of the discussions made above, I do not find any merit in both these appeals and the impugned order does not warrant any interference by this court. Hence, no award can be passed in favour of the claimants representing the estate of the deceased pillion rider. 12. In view of the discussions made above, I do not find any merit in both these appeals and the impugned order does not warrant any interference by this court. Hence, both these appeals are hereby dismissed.