Research › Search › Judgment

Jharkhand High Court · body

2019 DIGILAW 848 (JHR)

Nibha Devi v. Raj Kumar Sahu

2019-04-10

S.N.PATHAK

body2019
JUDGMENT : 1. Heard the parties. 2. This appeal has been preferred against the Award dated 25.01.2014 passed by the learned District Judge-II-cum-Additional Claim Tribunal, Chatra in Claim Case No. 24 of 2008 whereby and where under the learned Tribunal has been pleased to dismiss the claim petition of the claimants on the ground no sufficient evidence to prove that Baijnath Sahu died in motor vehicle accident. 3. As per the claim application factual matrix is that on the basis of written information given by Barhan Sao on 27.09.2007 to the then Officer-in-Charge of Pratappur that his son-in-law Baijnath Sahu is missing and he has last contacted him on 26.09.2007 at about 2:00 pm and informed him that he is coming to Pratapur. But when he did not turn up till 8:00 pm on same day, he contacted his Samdhi-Bigar Sao and they together started search operation and could find motor cycle bearing Registration No. JH 13A 3256 on which his son-in-law was riding in a damaged state near Chiniyahi Bridge, Gerua at about 12:00 am. On the next morning they found dead body of Baijnath Sahu in the water. It was alleged that some unknown vehicle which was driven rashly and negligently dashed his son-in-law resulting into his death. After investigation, final form was filed. During Investigation it was found that some unknown vehicle dashed Baijnath Sahu, resulting into his death, but the identification of the vehicle could not be established. Further case of the claimants is that Baijnath Sahu was aged about 22 years old and he was by profession contractor and owner of brick kiln. He was self employed and was earning Rs. 6000/- per month. The motorcycle was insured with Reliance General Insurance Company Ltd., but the offending vehicle’s identification could not be established. On notice O.P. No.1 Raj Kumar Sahu/respondent No.1 appeared and filed his written statement stating therein that Baijnath Sahu was driving his motorcycle bearing Regn. No. JH 13 A3256. At the time of accident the motorcycle was insured with Reliance General Insurance Company Ltd vide Policy No. 1501372312103008 which was valid from 15.03.2007 to 14.03.2008. A copy of the policy was annexed with the record. O.P. No.2/respondent No.2-Insurance Company did not appear so the case was heard ex-parte against Insurance Company. 4. The parties appeared before the Tribunal and were heard. A copy of the policy was annexed with the record. O.P. No.2/respondent No.2-Insurance Company did not appear so the case was heard ex-parte against Insurance Company. 4. The parties appeared before the Tribunal and were heard. After examining the witnesses and perusing the evidences on record, the learned Tribunal framed the followings issues:- (I) Is the claim petition maintainable in present form ? (II) Has Baijnath Sahu died due to accident arising out of the use of Motor Cycle No. JH 13A 3256 which occurred on 26.09.2007 at Chhinrahi Pool, P.S Pratapur, District Chatra ? (III) Was the Motor Cycle bearing registration No. JH 13 A 3256 insured with O.P. No.2 i.e. Reliance General Insurance Company Ltd. ? (IV) What was the age and income of deceased Baijnath Sahu ? (V) Are claimants entitled to compensation if so what will be quantum of compensation and who will pay ? 5. The claimants have examined C.W.1 Prakash Yadav, C.W.2 Sita Devi, C.W.3 Chandi Ganjhu and C.W.4 Hulash Sao. The documents exhibited were Exhibit 1 Certified copy of FIR, Exhibit 2 certified copy of final form, Ext. 3 photo copy of Post mortem Report. The opposite party has examined D.W.1 Raj Kumar Sahu and have filed cover note dated 15.03.2007 of Reliance General Insurance Company Ltd. Original Police Paper, photo copy of registration certificate of motorcycle bearing registration No. JH 13 A 3256. 6. Learned Tribunal after perusal of the records and examining the evidences and after hearing learned counsel for the parties, dismissed the claim petition of the claimants on the ground that there is no sufficient evidence to prove that Baijnath Sahu died in a motor vehicle accident and claimants are not entitled to receive any compensation in this case, in want of sufficient proof regarding death of Baijnath Sahu in a motor accident. 7. It has been submitted by Mr. Vijay Kumar Sharma, learned counsel appearing for the appellants/claimants that the learned Tribunal has erred in passing the award/judgment against the claimants. 7. It has been submitted by Mr. Vijay Kumar Sharma, learned counsel appearing for the appellants/claimants that the learned Tribunal has erred in passing the award/judgment against the claimants. Learned counsel further submits that claim case has been preferred under Section 163 A of the Motor Vehicle Act and as per the provisions of Section 163 A (2) the claimants shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person, but the learned tribunal without applying his judicious mind decided the claim against the appellants. Learned counsel further argues that the claim of the claimants could not have burshed aside out rightly on the ground that death has not been proved. It was an admitted fact that the deceased died in a motor vehicle accident as the said fact has been incorporated by the Police Report and as the vehicle was insured with the Insurance Company/ Reliance General Insurance Company Ltd., the liability ought to have been fastened with the Insurance Company regarding payment of compensation. On the aforesaid grounds, learned counsel submits that the findings of the learned Tribunal is perverse and fit to be set aside. 8. On the other hand, Mrs. Swati Shalini, learned counsel appearing on behalf of the respondent No.2 vehemently opposes the contention of the learned counsel for the appellants and submits that it is not a case of vehicular accident. Death of the deceased is under a cloud and no sufficient evidence was there to prove that deceased has died in vehicular accident. 9. Be that as it may, having gone through the rival submissions of the parties and after perusal of the records, this Court is of the opinion that no other view can be taken by this Court as what has been taken by the learned Tribunal on the following grounds :- 1. There is nothing on record to show that viscera were preserved by the Doctor to ascertain the exact cause of death of Baijnath Sahu and the Doctor has not even opined that death was caused due to shock or due to hard and blunt substance. 2. There is nothing on record to show that viscera were preserved by the Doctor to ascertain the exact cause of death of Baijnath Sahu and the Doctor has not even opined that death was caused due to shock or due to hard and blunt substance. 2. The case of the claimants is that the deceased while travelling by motorcycle was dashed by unknown vehicle but his body was found in water and there is nothing on record to show that the motorcycle was found damaged. 3. Though the case has been filed under Section 163 A of the Motor Vehicles Act, but place of occurrence and cause of death should be proved beyond any reasonable doubt and death of deceased itself is under a cloud. 4. There is no satisfactory evidence to prove that the deceased died in a motor accident/vehicular accident. 10. With the aforesaid observations and directions, I do not find any illegality or infirmity in the impugned award and as such, rightly the learned tribunal has been held that the claimants are not entitled to receive any compensation in want of sufficient proof regarding death of Baijnath Sahu in a motor vehicle accident. According, the instant Appeal stands dismissed. 11. As a sequel to the disposal of the present Appeal, pending I.As. if any, also stand disposed of. 12. Let the LCR be returned back to court concerned.