Branch Manager vs Manjuara Bibi @ Rubi Bibi
2021 Latest Caselaw 888 Jhar

IN THE HIGH COURT OF JHARKHAND AT RANCHI
           (Civil Miscellaneous Appellate Jurisdiction)
                  M.A. No. 06 of 2015
                         ........

Branch Manager, National Insurance Company Ltd.

.... ..... Appellant Versus Manjuara Bibi @ Rubi Bibi @ Manuwara Bibi & Others .... ..... Respondents

CORAM: HON'BLE MR. JUSTICE KAILASH PRASAD DEO (Through : Video Conferencing) ............

For the Appellant : Mr. G.C. Jha, Advocate. For the Respondent Nos. 1 to 8 : Mr. Arvind Kumar Lall, Advocate.

: Md. Yasir Arafat, Advocate.

For the Respondent No. 10 : Mr. Shubham Mishra, Advocate.

........

08/23.02.2021.

Learned counsel for the appellant, Mr. G.C. Jha, has submitted that the appellant - National Insurance Co. Ltd. has preferred this appeal against the award dated 25.09.2014 passed by learned Principal District Judge-cum-M.A.C.T., Pakur in M.A.C.T. Case No. 83 of 2013, whereby the claimants (1) Manjuara Bibi @ Rubi Bibi @ Manuwara Bibi, wife of Late Amir Hussain (2) Rupa Khatoon (3) Shilpa Khatoon (4) Chompa Khatoon (5) Rupa Khatoon (6) Ashik Hussain (7) Bulbuli Khatoon and (8) Julekha Khatoon, claimant nos. (2) to (8) are minors represented through their mother claimant no. 1 Manjuara Bibi @ Rubi Bibi @ Manuwara Bibi, have been awarded compensation to the tune of Rs. 5,32,000/- along with simple interest @ 8% per annum from the date of filing of the claim petition.

Learned counsel for the appellant has submitted that as a matter of fact, two motorcycles bearing registration no. JH-04A-1630 (Bajaj Boxer) in which Amir Hussain was driving collided with another motorcycle Passion Pro bearing registration no. JH-04E-0430 and driver of both the motorcycles died. F.I.R. was lodged vide Maheshpur P.S. Case No. 207/2012 dated 23.12.2012 under Sections 279, 338, 427 and 304(A) of the I.P.C. against both the drivers namely Amir Hussain of motorcycle bearing registration no. JH04A-1630 (deceased in the present claim application) and Bikash Kumar Rakshit, driver of another motorcycle bearing registration no. JH- 04E-0430.

Learned counsel for the appellant has submitted that the appellant has preferred this appeal on the ground no. (D) & (E) with regard to contributory negligence. The learned Tribunal has framed Issue Nos. 4 & 5, which reads as follows:-

(4) Whether the deceased Amir Hussain died due to the rash and negligent driving of the vehicle no. JH-04E/0430? (5) Whether the vehicle bearing no. JH-04E/0430 was insured at the time of accident?

Learned counsel for the appellant has submitted that the learned Tribunal has given wrong finding without considering that it is head on collusion of two vehicles, as such there is contributory negligence on the part of both the drivers and the motorcycle which was driven by Bikash Kumar Rakshit bearing registration no. JH- 04E-0430 was insured before the National Insurance Company Limited, as such this Court may set aside the impugned award and deduct the amount of contributory negligence to the extent of 50%.

Learned counsel for the owner of the motorcycle bearing registration no. JH-04A-1630 Ajijur Rahman, informant of the Police Case has put his appearance through learned counsel Mr. Shubham Mishra.

Learned counsel for the claimants, Mr. Arvind Kumar Lall assisted by Md. Yasir Arafat has submitted that the learned Tribunal has taken note of such eventuality and has referred para-15 of the impugned judgment, which is re-produced hereunder:-

15. Besides oral evidence, the claimant proved documentary evidence Ext.1 certified copy of F.I.R., Ext. 4 c/c copy of charge- sheet, Ext.3 attested copy of postmortem report, Ext.-6 xerox copy of owner book, Ext. -7 xerox copy of D.L. and Ext. 8 xerox copy of M.V.I. Report, which reveals that deceased Amir Hussain had met with an accident on the relevant date and time of occurrence by offending motorcycle, due to it mechanical error i.e. Brake failure. The learned counsel appearing on behalf of the O.P. no. 2 has submitted that the accident has taken place due to rash and negligent driving of the deceased of the both motorcycle and as such the insurance company is not at all liable to pay the

compensation. The learned counsel for the claimant has submitted that the accident had not taken place due to rash and negligent driving of the deceased of the offending vehicle or driver of other motorcycle rather it was a mechanical defect as in order to save the life of himself as well as the persons, who were coming from opposite direction, the deceased tried to stop the vehicle by pressing back brake, resulting thereof the net-volt of the rod of the brake was shattered, resulting thereof, the offending motorcycle of the other deceased, dashed to the motorcycle of the brother of the informant. This fact has also been supported by the oral as well as documentary evidence (Ext. 8 which is the M.V.I. Report) available on record. In support of his contention, the learned counsel for the appellant on record. In support of his contention, the learned counsel for the appellant has placed a case law reported in ACCD 2008 (1) Page-81 to 83 and LJLR 2010 (3) Page 120 to 121.

Learned counsel for the Insurance Company has submitted that to peruse Ext.8, lower court records is necessary.

From perusal of record, it appears that LCR has already been received.

Learned counsel for the parties have submitted that the case may be listed when the physical court starts so as to place the L.C.R.

List this case when the physical court starts.

(Kailash Prasad Deo, J.) Sunil/-