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2018 DIGILAW 2257 (JHR)

United India Insurance Co. Ltd. v. Yakub Toppo

2018-10-11

RAJESH KUMAR

body2018
JUDGMENT : Heard the counsel for the appellant and counsel for the claimants. Nobody appears on behalf of the respondent No.6-the New India Assurance Co. Ltd. Vide order dated 03.03.2014, it has been observed that the case should proceed ex-parte against respondent No.6 as New India Assurance Company Ltd. has chosen not to appear. Even today also, nobody appears on behalf of respondent No.6. As per the pleading of the parties and the judgment passed by the Tribunal, the fact which emerges that on 23.11.2002, the deceased namely, Tej Kumar Toppo was travelling in motorcycle bearing Registration No.JH-01B-4261 as a pillion rider with his friend from village Hutar to Mandar. The vehicle was being driven by Arun Kumar Khalkho. It has been alleged that near Bijupara Basti, Bus bearing Registration No.BR-14P-3511 has dashed the motorcycle from behind as a result of which, Tej Kumar Toppo has suffered serious injury, who, subsequently, died during course of treatment on the same day. The deceased was constable in Bihar Regiment. The death and accident between two vehicles have not been disputed in the present appeal. Learned Tribunal has framed following issues: 1. Is the compensation case as framed maintainable? 2. Have the applicants any cause of action or right to claim compensation? 3. Does the claim case suffer from non joinder or misjoinder of necessary parties? 4. Was the death of the deceased Tej Kumar Toppo resulted due to motor vehicle accident arising out of the use of the offending Bus No.BR-14P-3511 and Motorcycle No.JH-01B-4261? 5. Was the accident occurred due to rash and negligent driving by the drivers of Bus No.BR-14P-3511 and Motorcycle No.JH-01B-4261? 6. Were the drivers of the vehicles i.e. BR-14P-3511 and Motorcycle No.JH-01B-4261 holding valid and effective driving license at the material time of accident? 7. Was the accident occurred due to collision of two vehicles as such compensation if awarded that should be apportioned 50:50 in between the owners and insurers of both the vehicles? 8. Are the applicants entitled to get compensation? If so from whom and to what extent? 9. Are the applicants entitled to get any other relief or reliefs? While dealing with the issue Nos.4, 5 and 7, finding has been recorded by the Tribunal that accident has occurred due to rash and negligent driving of Bus bearing No.BR-14P-3511. 8. Are the applicants entitled to get compensation? If so from whom and to what extent? 9. Are the applicants entitled to get any other relief or reliefs? While dealing with the issue Nos.4, 5 and 7, finding has been recorded by the Tribunal that accident has occurred due to rash and negligent driving of Bus bearing No.BR-14P-3511. From the finding, it appears that there was no contributory negligence so far as motorcycle is concerned and entire negligence has been attributed to the Bus. So far parameters are concerned, well documentary evidence are there and on that basis, finding has been recorded. Age has been assessed 23 years, 4 months and 20 days; income has been taken as Rs.5959/- per month; future prospect 50% has been granted; half of the income has been deducted towards personal expenses as the deceased was unmarried; multiplier of 18 has been granted. Thus, above factor is completely in consonance with the mandate of Apex Court judgment reported in 2017 4 JLJR (SC) 275 (National Insurance Company Limited Versus Pranay Sethi and others). The dispute raised, regarding contribution of the driver of Bus and motorcycle, has no concerned, so far as entitlement and quantum of compensation of the victim is concerned. Respondent No.6, who is insurer of the motorcycle, has chosen not to appear before this Court. From perusal of the record, especially investigation report (Ext.6) submitted by respondent No.6-The New India Assurance Co. Ltd., it appears that only factual details of the accident has been disclosed and no negligence of any party has been discussed at all. In comment, it has been mentioned that police has submitted charge sheet against the Bus Driver, finding him negligent and responsible for the accident. Thus, it appears that police, after investigation, has found the Bus driver responsible for the accident. In view of the above material, I do not find any error in the judgment dated 20.02.2013, so far as finding recorded by the learned Tribunal to the effect that owner of the bus was responsible for the accident. The accident has occurred due to rash and negligent driving by driver of the offending Bus. In view of the above discussion, I do not find any substance in the present appeal. Accordingly, present miscellaneous appeal is, hereby, dismissed. The accident has occurred due to rash and negligent driving by driver of the offending Bus. In view of the above discussion, I do not find any substance in the present appeal. Accordingly, present miscellaneous appeal is, hereby, dismissed. Statutory amount, if any, deposited by the appellant, shall be forwarded, in the name of the appellant, to the Executing Court for disbursement of the same.