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2019 DIGILAW 480 (JHR)

Nemchand Mahto v. Deoki Devi

2019-02-15

ANUBHA RAWAT CHOUDHARY

body2019
ORDER : 1. Heard Mrs. Jasvindar Mazumdar, counsel appearing on behalf of the appellants assisted by Mr. Rakesh Kumar Sinha, Advocate. 2. Heard Mr. Harendra Kumar Singh, counsel appearing on behalf of United India Insurance Company Limited. 3. Nobody appears on behalf of the other respondents. 4. Counsel for the appellants submits that these two appeals have been tagged together, in view of the fact that these cases arising out of same accident in which two persons had expired and separate claim petitions were filed before the learned court below with regard to each of them. 5. The counsel for the appellants submits that the case of the claimants in Claim Case No. 52 of 1997 (M.A. No. 200 of 2007) as well as in Claim Case No. 58 of 1997 (M.A. No. 199 of 2007) was that deceased Karu Rajak and deceased Basudeo Rajak, along with Mahesh Rajak, Ritlal Mahto and others were travelling by Trekker No. BR-13P-0298 and they had boarded on the said trekker at Bagodar and were going to Gopaldih. It is further stated that as soon as the trekker reached near Tirla More at about 9:00 a.m., a bus, driven by its driver, rashly and negligently, bearing Registration No. WHM-4860 coming from the side of Dumri and going towards Bagodar; dashed and collided from the opposite direction with Trekker No. BR-13P-0298. The accident caused damage to the trekker and also caused grievous injuries to the passengers of the trekker including the deceased Karu Rajak and Basudeo Rajak. It is further stated that Karu Rajak and Basudeo Rajak were brought to the hospital where they died during course of the treatment. Karu Rajak was the unmarried son of the claimants in Claim case no. 52 of 1997 (M.A No. 200 of 2007). Wife of Basudeo Rajak along with other claimants filed Claim Case No. 58 of 1997 (M.A. No. 199 of 2007). A Criminal Case was also registered which was Case No. 116 of 1997, under Section 279, 337 and 427 and 304(A) of the Indian Penal Code. 6. It is further submitted that the vehicles were insured, the deceased were third parties and the claimants were entitled to compensation. A Criminal Case was also registered which was Case No. 116 of 1997, under Section 279, 337 and 427 and 304(A) of the Indian Penal Code. 6. It is further submitted that the vehicles were insured, the deceased were third parties and the claimants were entitled to compensation. The counsel for the appellant submits that they are neither disputing the accident nor disputing the quantum of compensation but they are aggrieved only by the extent of liability which would intimately fall upon them, inter alia, due to non-production of the driving licence of the driver of the trekker. 7. The counsel for the appellants submits that the appellants are the owners of the trekker involved in the accident. She submits that one interlocutory application being I.A. No. 2401 of 2014 has been filed under Order 41, Rule 27 read with Section 151 of the Code of Civil Procedure, 1908 in M.A. No. 200 of 2007 and another interlocutory application being I.A. No. 2796 of 2012 has been filed under Order 41, Rule 27 read with Section 151 of the Code of Civil Procedure, 1908 in M.A. No. 199 of 2007 for the purposes of adducing additional evidence at the appellate stage in connection with the driving license of the driver of the trekker and the permit issued by the Office of Regional Transport Authority in connection with the trekker involved in the accident. She submits that both the interlocutory applications are for same reliefs. 8. While pressing aforesaid interlocutory applications for adducing additional evidence in the aforesaid two cases, the counsel has referred to Para 2 of the interlocutory application and has submitted that the appellants had handed over photocopy of the driving license of the driver to their counsels who informed them that it was filed, but was not marked exhibit. However, Counsel for the appellants, after going through the Lower Court Records which have been received, could not substantiate the statement made in Para 2 of the aforesaid interlocutory applications. She submits that for the ends of justice, the driving license be marked as an exhibit and the petition for adducing additional evidence may be allowed. She further submits that the genuineness of the driving license can certainly be verified from the official records of the concerned authority. She further submits that other documents in connection with the trekker may also be accepted by way of additional evidence. She further submits that the genuineness of the driving license can certainly be verified from the official records of the concerned authority. She further submits that other documents in connection with the trekker may also be accepted by way of additional evidence. 9. Counsel for the Respondent Insurance company, on the other hand, submits that the appellants before the learned court below had claimed that the trekker was driven by one Shambhu Mishir and one of the witnesses had stated that the trekker was being driven by the appellant himself, but before the, learned court below, neither the driving license of Shambhu Mishir was exhibited nor the driving license of the appellant was exhibited for the reasons best known to the appellants. He further submits that these documents were in exclusive possession of the appellants and accordingly, by applying the principle of Order 41 Rule 27 of the Code of Civil Procedure, there is no explanation in the petition for non-production of the driving license and other documents of the trekker before the learned court below and accordingly, the petition for additional evidence may not be allowed. The counsel submits that considering the materials already available on record, the impugned" judgments and awards have been rightly passed. 10. After hearing the counsel for the parties and after considering the materials on record, this Court finds that the case of the claimants, in short, was that the deceased Basudeo Rajak along with Karu Rajak, Mahesh Rajak, Ritlal Mahto and others were travelling by Trekker No. BR-13P-0298 which collided with a bus bearing Registration No. WMH-4860 which was coming from the other side. The driver of the bus was driving the bus rashly and negligently and the collusion caused damages to Trekker No. BR-13P-0298 and also caused grievous injuries to the passengers of the Trekker including the deceased Basudeo Rajak and Karu Rajak. Basudeo Rajak and Karu Rajak were brought to hospital where they died during course of treatment. It was further alleged that due to sudden death of the deceased Basudeo Rajak, the claimant in M.A No. 199 of 2007 lost her husband and deprived of conjugal life and the claimant nos. 2 and 3 lost their father and claimant no. 4 lost her son, who were fully dependent upon the deceased. Similarly, the claimants in M.A. Case no. 2 and 3 lost their father and claimant no. 4 lost her son, who were fully dependent upon the deceased. Similarly, the claimants in M.A. Case no. 200 of 2007 were the parents of the deceased who had lost their unmarried son in the accident. It was further stated that the vehicles were insured and the deceased were the 3rd party, as such, the claimants were entitled for compensation. A case being Bagodar P.S. Case No. 116/97 under Section 279, 337, 427 and 304(A) I.P.C. was lodged in connection with the said accident. In both the cases, the claimants had asked for grant of compensation. 11. Upon perusal of the Lower Court Records of both the cases, this Court finds that the owner of the bus involved in the case, Ram Kumar Barman was made Opposite Party No. 1; Oriental Insurance Company Limited, insurer of the bus, was made Opposite Party No. 2; Nemchand Mahto was made Opposite Party No. 3 and was stated to be the driver and owner of the trekker involved in the case; Basant Kumar was made Opposite Party No. 4 in the capacity of co-owner of the trekker; Bank of India was made Opposite Party No. 5 in the capacity of financer of the trekker; United India Insurance Company Limited was made Opposite Party No. 6 in the capacity of insurer of the trekker and Jay Prakash Tiwary was made Opposite Party No. 7 in the capacity of the driver of the bus. 12. Notices were issued to the opposite parties by the learned court below and all the opposite parties except the bank (Opposite Party No. 5) appeared in the Court and the hearing of the case against Opposite Party No. 5 was set ex-parte. Opposite Party Nos. 1 and 7 appeared, but they never filed any written statement and as such they were debarred from filing of written statement. The other opposite parties filed their respective written statements and contested the case. 13. The case of Opposite Party Nos. 3 and 4, owners of the trekker before the learned court below, in short, was that the claim was not maintainable and the deceased was not a bona fide passenger on the vehicle and that they had boarded the trekker without the knowledge and consent of the owner and driver of the trekker and without paying any fare. They further denied the incident totally. They further denied the incident totally. It was further stated that the trekker was insured with the United India Insurance Company Limited at the relevant point of time. It was the specific case of the said opposite parties nos. 3 and 4 that the driver of the trekker, Shri Shambhu Mishir, was holding valid and effective driving licence. 14. The United Insurance Company Limited in its written statement had also alleged that the claim is not maintainable against the said Insurance Company. The Insurance Company denied all the allegations and it was alleged that the offending vehicle was the bus, therefore, liability, if any, to indemnify the claimant, was on the offending bus and the insurer of the bus namely, Oriental Insurance Company Limited. 15. So far as the case of Oriental Insurance Company Limited is concerned, it also denied its liability and said that the claim itself was not maintainable and denied the occurrence, manner and the place of occurrence and was also stated that the owner of the vehicle is required to produce all the documents relating to the vehicle, such as, the route permit, road permit, fitness certificate, registration certificate, insurance paper and the claimant was required to produce heirship certificate and it was also indicated that the driver of the vehicle is required to produce valid driving licence. 16. On the basis of pleadings of the parties the following issues were re-casted for the determination of claim application by the learned court below:- (i) Is the application of claimants maintainable? (ii) Have the claimants got valid cause of action for the present case? In claim case no. 58 of 1997 (iii) Whether the deceased, Basudeo Rajak @ Basudeo Ram died arising out of the use of Bus no. WMH-4860 and Trekker No. BR-13P-0298 due to rash and negligently driving of the drivers at the relevant time, date and place as alleged? In claim case no. 52 of 1997 Whether the deceased, Karu Rajak @ Kapan Rajak died arising out of the use of Bus no. WMH-4860 and Trekker No. BR-13P-0298 due for rash and negligently driving of the drivers at the relevant time, date and place as alleged? (iv) Whether the claimants are entitled for compensation as prayed for or to other relief? (v) Whether the driver of Trekker no. BR-13P-0298 was having a valid and effective driving licence at the relevant time of accident? WMH-4860 and Trekker No. BR-13P-0298 due for rash and negligently driving of the drivers at the relevant time, date and place as alleged? (iv) Whether the claimants are entitled for compensation as prayed for or to other relief? (v) Whether the driver of Trekker no. BR-13P-0298 was having a valid and effective driving licence at the relevant time of accident? (vi) Whether the claimants are liable for compensation and if so, upto what extent? (vii) To what relief or reliefs if any claimants are entitled to? 17. In support of their claim, the claimants in Claim Case no. 58 of 1997 (M.A. No. 199 of 2007), examined altogether three witnesses; A.W. 1 Baleshwar Rajak, A.W. 2 Saraswati Devi and A.W. 3 Amrit Rajak, whereas O.W. 1 have been examined on behalf of Opposite Party No. 6 (United India Insurance Co. Ltd.) and O.W. 2 and O.W. 3 have been examined on behalf of Opposite Party No. 2 (Oriental Insurance Co. Ltd.). Apart the oral evidence, some documentary evidence has been filed on behalf of the claimants which are Exhibit-1 death report, Exhibit-2 certified copy of F.I.R. in Bagodar P.S. Case No. 116/97, Exhibit-3 certified copy of charge-sheet in Bagodar P.S. Case No. 116/97, Exhibit-4 inquest report of deceased Basudeo Rajak @ Ram, Exhibit-5 certified copy of Post-mortem report, Exhibit-6 certified copy of injury slip, Exhibit-7 photo copy of Insurance policy, Exhibit-8 certified copy of order-sheet of Bagodar P.S. Case No. 116/97, Exrubit-9 certified copy of bond of Bus No. WMH-4860, Exhibit-10 certified copy of accident report of Bus No. WMH-4860, Exhibit-11 certified copy of accident report of Trekker No. BR-13P-0298, Exhibit-12 Original heirship certificate of deceased Basudeo Rajak, Exhibit-13 photo copy of receipt of Insurance co., Exhibit-14 photo copy of Insurance cover note of Bus No. WMH-4860, Exhibit-15 photo copy of Insurance Policy, Exhibit-16 photo copy of particulars of Bus No. WMH-4860, Exhibit-17 particulars of driving licence of Jay Prakash Tiwary, Exhibit-18 photo copy of permit no. 830/97-98 of WMH-4860. No paper has been filed on behalf of opposite party. 18. In support of their claim, the claimants in Claim Case No. 52 of 1997 (M.A No. 200 of 2007) examined altogether three witnesses A.W. 1 Baleshwar Rajak, A.W. 2 Deoki Devi and A.W. 3 Amrit Rajak, whereas O.W. 1 Ranbir Kumar has been examined on behalf of Opposite Party No. 6 (United India Insurance Co. 18. In support of their claim, the claimants in Claim Case No. 52 of 1997 (M.A No. 200 of 2007) examined altogether three witnesses A.W. 1 Baleshwar Rajak, A.W. 2 Deoki Devi and A.W. 3 Amrit Rajak, whereas O.W. 1 Ranbir Kumar has been examined on behalf of Opposite Party No. 6 (United India Insurance Co. Ltd.) and O.W. 2 Sanjay Kumar Rajak and O.W. 3 Gyandeo Mahto have been examined on behalf of Opposite Party No. 2 (Oriental Insurance Co. Ltd.). Besides, oral evidence some documentary evidence Exhibit-1 original death certificate, Exhibit-2 certified copy of F.I.R. in Bagodar P.S. Case No. 116/97, Exhibit-3 certified copy of charge-sheet in Bagodar P.S. Case No. 116/97, Exhibit-4 inquest report of deceased Kara Rajak, Exhibit-5 certified copy of Post-mortem report, Exhibit-6 certified copy of injury report of Kara Rajak, Exhibit-7 photo copy of Insurance Policy of United India Insurance Company Limited, Exhibit-8 certified copy of order-sheet of Bagodar P.S. Case No. 116/97, Exhibit-9 certified copy of bond of Bus No. WMH-4860, Exhibit-10 certified copy of accident report of Bus No. WMH-4860, Exhibit-11 certified copy of accident report of Trekker No. BR-13P-0298, Exhibit-12 Original heirship certificate of deceased Kara Rajak, Exhibit-13 Insurance cover note No. A-3/044061 of Bus No. WMH-4860, Exhibit-14 Receipt No. 31/066039 in the name of Sri R.K. Burman, Exhibit-15 photo copy of Insurance Policy of Bus No. WMH-4860, Exhibit-16 particulars of driving licence of Jai Prakash Tiwari, Exhibit-17 particulars of registration of Bus No. WMH-4860, Exhibit-18 Permit of Bus No. WMH-4860 have been produced on behalf of the claimants, whereas Ext. A and B certificate of driving licence dated 23.12.98 and report have been produced on behalf of opposite parties in support of their case. 19. While examining the issue no. (i), the learned court below has held that all the witnesses examined on behalf of the claimants and opposite parties have stated that on 13.07.1997 at about 9:00 A.M. the Trekker No. BR-13P-0298 was going towards Gopaldih and near Tirla More at G.T. Road, the Trekker collided with a Bus bearing Registration No. WMH-4860 which was coming from opposite direction in which both the deceased persons sustained injuries and died during the course of treatment. This fact was supported by the oral and documentary evidences of the claimants in both the cases. This fact was supported by the oral and documentary evidences of the claimants in both the cases. Apart from this, the witnesses of the opposite parties also admitted the accident which took place on 13.07.1997 at Tirla More in which both the deceased persons sustained injury and died during course of treatment. The learned court below, on the basis of oral and documentary evidences on record, further held that due to rash and negligent driving of Trekker No. BR-13P-0298 and Bus No. WMH-4860, the accident-took place on 13.07.1997 at about 9:00 A.M. near Tirla More. Accordingly, this issue was decided in favour of the claimants. 20. While deciding Issue Nos. (i) (ii) and (iv) the learned court below in both the cases held that the applicants are the legal heirs of the deceased persons and decided all the three issues in favour of the claimants. 21. While deciding Issue No. (v), the learned court below in both the cases held that it was submitted on behalf of the claimants and Opposite Party Nos. 3 and 4 that the driver of the Trekker No. BR-13P-0298 was having valid driving licence, but no driving license has-been filed nor has any vehicular paper has been filed on behalf of driver/owner of the Trekker No. BR-13P-0298. There is no evidence on the record to show that the driver of the Trekker No. BR-13P-0298 was haying any valid driving licence at the relevant time of accident. Accordingly, this issue was decided against the Opposite Party Nos. 3 and 4 in both the cases. 22. While deciding Issue Nos. (vi) and (vii) the learned court below in both the cases held that both the deceased died due to use of motor vehicle WMH-4860 and Trekker No. BR-13P-0298 due to rash and negligent driving of both the vehicles and both the vehicles were insured at the relevant time of accident and the deceased being the 3rd party, as such, the claimants are entitled for compensation. It was further held that both the vehicles collided with each other and there is contributory negligence on the part of the driver of both the vehicles. As such, the learned court below in both the cases held that the owner of both the vehicles are liable for payment of compensation to the claimants. It was further held that both the vehicles collided with each other and there is contributory negligence on the part of the driver of both the vehicles. As such, the learned court below in both the cases held that the owner of both the vehicles are liable for payment of compensation to the claimants. The offending Bus No. WMH-4860 being heavy vehicle, as such, its negligence was held to be greater than the Trekker, which is a light vehicle. The negligence of the Bus was held to be to the extent of 60% and negligence of the Trekker was held to be to the extent of 40%. In the result, the learned court below in both the cases held that the owner of the bus and owner of the Trekker and their respective insurers were held liable to pay compensation to the claimants. Since the vehicles were insured, as such, the insurer of both the vehicles were held liable to indemnify the owner of the vehicles in terms and conditions of the insurance policy. It was submitted on behalf of Opposite Party No. 6 (United India Insurance Co. Ltd.) that the driver and owner of the vehicle was having no driving license and no valid paper and considering this aspect of the matter, the learned court below held that the insurer is liable to pay compensation to the claimants and may realize the same from the owner of the vehicle, if there is violation of any terms and conditions of the policy. 23. Admittedly, the vehicles involved in this case were insured and the only point which has been argued before this Court is regarding the petition for additional evidence filed by the appellants and the specific case of the appellants is that, if the additional evidence is taken into consideration, the appellants would be absolved of their liability to pay any amount to the claimants, as the entire liability, to the extent it relates to the trekker, would fall upon the insurer of the trekker, who would pay and recover from the appellants as the appellants could not produce the driving licence of the driver and connected papers of the trekker which they want to adduce in evidence through additional evidence. The counsel also submits that there is no dispute that if the interlocutory applications are not allowed, then the appellants have no case on merits. The counsel also submits that there is no dispute that if the interlocutory applications are not allowed, then the appellants have no case on merits. Accordingly, the counsel for the appellants has not argued on any other point during the course of arguments. 24. This Court finds that as per the provision of Order 41 Rule 27 of the Code of Civil Procedure, 1908, the parties to an appeal in order to produce additional evidence, oral or documentary, has to satisfy the condition precedent for getting the additional evidence admitted at the appellate stage. It has been specifically provided under Order 41 Rule, 27 (1) (aa) that the parties seeking to produce additional evidence should establish that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence be produced by him at the time when the decree, appeal was passed. 25. This Court further finds that there is no explanation on behalf of the appellants for non-production of the documents including the driving licence of the driver and accordingly this Court is not inclined to allow the petitions for additional evidence in both the cases. Otherwise also, this Court finds that the written statement was filed by the appellants before the learned court below in both the cases under the signature of both the appellants and in the said written statement, it was specifically stated that the trekker was being driven by one Shambhu Mishir. However, from the perusal of the driving licence which is sought to be adduced by the appellants by way of additional evidence, the photocopy of the driving licence is that of the appellant no. 1 and not that of Shambhu Mishir. Considering this aspect of the matter also, the petition for additional evidence in both the cases are not fit to be allowed. Accordingly, no ground for adducing additional evidence at the appellate stage has been made out by the appellants. Therefore, interlocutory applications being I.A. No. 2401 of 2014 and I.A. No. 2796 of 2012 are hereby rejected. 26. Considering this aspect of the matter also, the petition for additional evidence in both the cases are not fit to be allowed. Accordingly, no ground for adducing additional evidence at the appellate stage has been made out by the appellants. Therefore, interlocutory applications being I.A. No. 2401 of 2014 and I.A. No. 2796 of 2012 are hereby rejected. 26. So far as the merit of the cases on the basis of the materials produced before the learned court below is concerned, no arguments have been advanced by the counsel for appellants in view of the fact that their entire case at this appellate stage rests on the additional evidence sought to be adduced by the appellants and admittedly in absence of the additional evidence the appellants do not have a case on merits. 27. Further, this Court finds that the learned court below has passed the impugned judgments and awards after considering all the materials on record, both oral and documentary evidences and has passed well-reasoned judgments. There being no illegality or perversity, the impugned judgments do not call for any interference by this Court. 28. In view of the aforesaid facts and circumstances, this Court does not find any merit in these appeals, which are hereby dismissed. Appeals dismissed.