National Insurance Co. Ltd vs Mansa Oraon
2021 Latest Caselaw 2844 Jhar

            IN THE HIGH COURT OF JHARKHAND AT RANCHI
                   (Civil Miscellaneous Appellate Jurisdiction)
                           M.A. No. 318 of 2018
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      National Insurance Co. Ltd.                               ....... Appellant
                                  Versus
      1.Mansa Oraon
      2.Fuleshwari Devi
      3. Suman Kumari (Minor)
      4.Budhi Devi
      5.Ghashi Ram
      6.M/S Oriental Insurance Co. Ltd.
      7.Anand Mohan Gorai
      8.G.P. Agarwal                                          ......Respondents
                                 With
                          M.A. No. 317 of 2018
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      National Insurance Co. Ltd.                             ....... Appellant
                                  Versus
      1.Smt. Bari Devi
      2.Manglu Oraon
      3.Ghashi Ram
      4.M/S Oriental Insurance Co. Ltd.
      5.Anand Mohan Gorai
      6.G.P. Agarwal                                    ......Respondents
                               ..........
            CORAM:       HON'BLE MR. JUSTICE KAILASH PRASAD DEO
                         (Through : Video Conferencing)
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      For the Appellant        : Mr. Amaresh Kumar, Advocate (in both cases)
      For the Resp./OICL       : Mr. Manish Kumar, Advocate (in both cases)

For the Respondent/owner :Mr. Shankar Lal Agarwal, Advocate

06/Dated: 11/08/2021.

Since both the appeals are arising out of common accident, as such, both are being heard together and disposed of by this common judgment. Heard, learned counsel for the parties.

Both Miscellaneous Appeals have been preferred by the appellant- National Insurance Company Limited against two awards passed on the same date i.e. 27.01.2018, passed by learned Presiding Officer Motor Vehicles Accident Claims Tribunal, Ranchi, in Motor Accident Claim Case Nos. 149 of 2009 and 150 of 2009, whereby the liability has been fastened upon all the three vehicles collided with each other causing death of the deceased persons for which two claim applications have been preferred separately.

The brief fact of this case is that on 06.02.2008 workers of a political party named 'Jharkhand Vikash Morcha' were returning to Jamshedpur Tata from Ranchi after participating rally travelling in a Trekker

Mahendra Savari Jeep bearing registration No.JH05N-7308 behind the said vehicle a Truck registration No.JH11B-3626 loaded with gas Cylinders was also going to Jamshedpur Tata from Ranchi while the said Trekker Jeep reached near Murpa Line Hotel at Village- Murpa, P.S.- Tamar on N.H. 33, District- Ranchi, another Turbo Truck registration No.JH01P-8401 coming from opposite direction dashed against the Trekker Mahendra Jeep bearing registration No.JH05N-7308 from the front side and simultaneously dashed against the Truck bearing registration No.JH11B-3662 also which was plying just behind the Trekker Jeep resulting five persons of the Trekker Mahendra Jeep died on spot and driver, namely, Lal Oraon and Khalasi namely, Gadi Oraon of the Turbo Truck registration No.JH01P-8401 also died on the spot. MAC Case No.149 of 2009 has been filed by the claimants (parents) of the deceased namely, Gadi Oraon whereas MAC Case No.150 of 2009 has been filed by the claimants (wife, minor daughter and parents) of the deceased namely, Lal Oraon.

Learned counsel for the appellant, Mr. Amaresh Kumar has submitted that after the accident, police registered Tamar P.S. Case No.07 of 2008 dated 06.02.2008 against the driver of the offending vehicle, truck bearing registration No.JH11B-3626 loaded with gas cylinders and vehicle Turbo Truck bearing registration No.JH01P-8401 of which driver and cleaner died on the spot, for the offence registered under Sections 279, 337, 338 and 304A IPC and after thorough investigation, the police submitted chargesheet vide No.33 of 2008 dated 30.04.2008, under Sections 279, 337, 338 and 304A IPC showing death of the driver and cleaner of Turbo Truck bearing registration No.JH01P-8401 as dead.

Learned counsel for the appellant has further submitted that appellant- National Insurance Co. Ltd. is admittedly insurer of Trekker Mahendra Jeep bearing registration No.JH05N-7308, which was neither made accused in the FIR of Tamar P.S. case No.07 of 2008 nor chargesheeted by the police after investigation in the chargesheet No.33 of 2008, as such, the finding recorded by the learned Tribunal fixing the liability upon all the three vehicles involved in the accident without

having any material on record is perverse finding, as such, the Trekker Mahendra Jeep bearing registration No.JH05N-7308 may be dispensed with from liability of accident, consequent thereto insurer of the said Trekker Mahendra Jeep bearing registration No.JH05N-7308, National Insurance Co. Ltd. may also be exonerated from liability of award as awarded by the learned Tribunal against National Insurance Co. Ltd. to the 1/3rd rather the award may be fastened upon both the vehicles i.e. Tata Turbo Truck bearing registration No.JH01P-8401 and truck bearing registration No.JH11B-3626 loaded with gas cylinders. Learned counsel for the appellant has further submitted that there is no evidence that Trekker Mahendra Jeep bearing registration No.JH05N- 7308 has any role in the said accident and in absence of any evidence, the impugned order may be set aside, as this Court in Miscellaneous Appeal No.171 of 2017 disposed on 20.01.2020 relying upon the judgment passed by the Apex Court in the case of Meera Devi and Another Vs. H.R.T.C. and Others, reported in (2014) Acci. C.R. 469(SC) has considered that the vehicle, which has not been chargesheeted by the police cannot be fastened with the liability.

Learned counsel for the appellant has further submitted that insurer of both the offending vehicles i.e. Tata Turbo Truck bearing registration No.JH01P-8401 and Truck bearing registration No.JH11B-3626 have not adduced any evidence with regard to the composite negligence, as such, finding recorded by the learned Tribunal is perverse and bad in law. Learned counsel for the respondent/owner of vehicle i.e. Truck bearing Registration No.JH11B-3626, Mr. Shankar Lal Agarwal has submitted that since the contributory negligence has been admitted by the National Insurance Co. Ltd. in the written statement, which will be apparent from para 6 of the impugned Award itself that there was composite negligence involving three vehicles, Truck bearing registration No.JH11B-3626, Tata Turbo Truck bearing registration No.JH01P-8401 and Trekker Mahendra Jeep bearing registration No.JH05N-7308, the Insurance Company cannot be allowed to argue that there is no evidence against the National Insurance Co. Ltd., who was insurer of Trekker

Mahendra Jeep bearing registration No.JH05N-7308.

Learned counsel for the respondent/owner, Mr. Shankar Lal Agarwal has further submitted that 1/3rd of the liability has already been settled with the claimant, as such, the respondent no.6, the owner has nothing to say on this issue.

Learned counsel for the respondent-M/s Oriental Insurance Co. Ltd., Mr. Manish Kumar insurer of Turbo truck bearing registration No.JH01P- 8401 has vehemently opposed and submitted that once the National Insurance Co. Ltd. has admitted their liability in the written statement, which has been mentioned at para 6 and has been pointed out by learned counsel for the respondent no.6, the Insurance Company cannot assail the same once they have admitted their composite negligence and involvement of all three vehicles in the written statement. Learned counsel, Mr. Manish Kumar has further submitted that the evidence, which has been appreciated by the learned Tribunal while adjudicating the issue no.3 and issue no.4 reads as follows i.e. issue no.3- "Whether the death of the deceased persons namely, Lal Oraon and Gadi Oraon resulted to the alleged vehicular accident caused due to driving of the offending Truck bearing registration No.JH11B-3626, Mahendra Savari Jeep registration No.JH05N-7308 and Turbo Truck registration No.JH01P-8408 rashly and negligently" and issue no.4- "Whether it is a case of composite negligence involving the vehicles Truck registration No.JH11B-3626, Turbo Truck registration No.JH01P-8401 and Trekker Mahendra Savari Jeep registration no.JH05N-7308, if yes to what extent?" The same has been discussed by the learned Tribunal in para 11 of the impugned Award while dealing with both the issues i.e. issue nos.3 and 4.

Mr. Manish Kumar, learned counsel for the Oriental Insurance Company Ltd. in support of his submission has referred the evidence of A.W.-1 (Ajit Kumar Singh) an eye witness to the occurrence, who has stated at para 26 of the cross-examination that all the vehicles involved in the accident are heavy vehicles, but he has not seen the registration number of them.

Mr. Manish Kumar, learned counsel for the Oriental Insurance Company Ltd. has further submitted that though this witness has said

that he failed to prove factum of the alleged accident, but this does not show that he has not seen the place of occurrence where all the three vehicles were standing after accident. A common/prudent man can only say about collision of three vehicles, but the witness cannot be expert to say that the onus of accident lies upon which vehicle.

Learned counsel for the respondent, Mr. Manish Kumar has further submitted that similarly A.W.-2 (Manglu Oraon) though being the father of one of the deceased- Gadi Oraon has categorically stated that he is not an eye witness of the occurrence, but this witness has described the place of accident after the accident, where Maxi Jeep was found in between the two vehicles i.e. Truck and Turbo Truck, as such, it is a composite negligence of all the three vehicles.

Learned counsel for the respondent, Mr. Manish Kumar has further submitted that A.W.-3 (Praveen Oraon) has categorically stated that he saw the Maxi jeep was going from Ranchi side towards Tata, behind the said vehicle a truck loaded with gas cylinders was going from Ranchi side towards Tata. Another Turbo truck was coming from Tata towards Ranchi side. The Maxi jeep, which was coming from Ranchi side towards Tata collided against the Turbo Truck from front side and also collided against the another truck involved in the accident, but he has fairly submitted that he cannot say that due to whose negligence the alleged accident took place.

Learned counsel for the respondent, Mr. Manish Kumar has further submitted that it is very difficult to say that whose vehicle got mechanical fault, whose vehicle was rashly and negligently driven or it was composite negligence of all the three vehicles, which caused in death of persons, as such, the learned Tribunal on the basis of the evidence adduced and brought before the motor vehicle accident Claim Tribunal has rightly fastened the liability upon all the three vehicles involved in the accident.

Learned counsel for the respondent, Mr. Manish Kumar has further submitted that even though the FIR was lodged against two vehicles and chargesheet was also submitted against two vehicles, the same will not affect the learned Tribunal from appreciating the evidence adduced before the learned Tribunal. It is fault on the part of the police department to look into such matter, though the Apex Court has issued such direction in the case of Jai Prakash Vs. National Insurance Co. Ltd., reported in 2010 (2) SCC 607,

but till date in the State of Jharkhand, the police department is not serious about compliance of the judgment passed by the Apex Court in the case of Jai Prakash (supra), which has also been circulated to the Chief Secretary, to the Director General of Police and to the Registrar General of High Courts of all the States in India, but for inaction on the part of the police, benefit cannot be granted to one of the vehicle, when there is consistent evidence that all the three vehicles met with an accident and there is specific pleadings of the National Insurance Co. Ltd. (appellant) in the written statement, that it is composite negligence of all the three vehicles, as such, learned counsel for the respondent-Oriental Insurance Co. Ltd. has submitted that the appeal being devoid of merits may be dismissed.

After hearing learned counsel for the parties and on the basis of materials available on record and aforesaid judgment relied upon by the counsel for the appellant, it appears that this Court in M.A. No.171 of 2017 has taken two factors (i) that there was nothing on record to establish the contributory negligence on the part of the insured vehicle of the appellant, Indica Car bearing registration No. JH05J-9629 and (ii) police has only submitted chargesheet against tourist bus bearing registration No.WB25A-9665, but in the present case there is ample material on record to establish the contributory negligence of all three vehicles even the written statement of the National Insurance Co. Ltd. (appellant), who is the insurer of the vehicle bearing registration No.JH05N-7308 has admitted in the written statement that it is composite negligence of all the three vehicles.

So far the evidence of A.W.1 (Ajit Kumar Singh), A.W.2 (Manglu Oraon) and A.W.3 (Praveen Oraon) are concerned, the same also satisfied the Court that the accident took place because of the involvement of all the three vehicles as they were found at place of occurrence and the witnesses have also seen prior to their accident and even after the accident. Under the aforesaid circumstances, the fact of the present case is different from the fact of the case decided by this Court in M.A. No.171 of 2017.

So far the judgment relied upon by learned counsel for the appellant in the case of Meera Devi (Supra), is concerned, it appears that to prove contributory negligence, there must be cogent evidence. Since in the present case there is cogent evidence on record as A.W.1 (Ajit Kumar Singh), A.W.2 (Manglu Oraon) and A.W.3 (Praveen Oraon), which have been discussed by the learned Tribunal at para 11 of the impugned award coupled with the fact that, the

Insurance Company has also admitted the same in the written statement, the judgment passed by the Apex Court is not applicable in the facts and circumstances of the present case for the appellant- National Insurance Co. Ltd. where there was no specific evidence to prove that accident has taken place due to rash and negligent driving of the deceased- scooterist, but in the present case, three vehicles have collided and there is no contrary evidence brought on record by the appellant- National Insurance Company Limited that which vehicle was rash and negligent, as such, this Court cannot enter into such nicety of the evidence in a benevolent legislation, as such, this Court is not inclined to interfere with the same.

Accordingly, both the Miscellaneous Appeals preferred by the National Insurance Company Ltd. being devoid of merits are hereby dismissed. The Statutory amount deposited by the appellant- Insurance Company in both the appeals at the time of preferring the appeal under Section 173 of MV Act shall be remitted to the learned Tribunal by learned Registrar General of this Court within four weeks from today, so as to indemnify the same to the claimants after due notice and verification.

However, it is expected that Insurance Company shall indemnify the balance amount of the award to the claimants within a reasonable time as the accident is of dated 06.02.2008 and more than 13 years has elapsed. Both the I.As. i.e. I.A. No.6694 of 2018 in M.A. No.317 of 2018 and I.A. No. 6695 of 2018 in M.A. No.318 of 2018 stand closed.

(Kailash Prasad Deo, J.)

sandeep/R.S.