Manik Chand Gupta vs Sheo Shankar Prasad Swarnkar & ...
2021 Latest Caselaw 1470 Jhar

IN THE HIGH COURT OF JHARKHAND AT RANCHI
           (Civil Miscellaneous Appellate Jurisdiction)
                  M.A. No. 215 of 2018
                         ........

Manik Chand Gupta                      .... ..... Appellant
                             Versus
Sheo Shankar Prasad Swarnkar & Others         ..... Respondents

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

For the Appellant : Mr. Sumeet Gadodia, Advocate.

For the Respondents            :
                                   ........
06/23.03.2021.

Heard, learned counsel for the appellant, Mr. Sumeet Gadodia. Manik Chand Gupta, son of Late Sita Ram Saw has preferred this appeal against the award dated 27.01.2018 passed by learned District Judge-II-cum-M.A.C.T., Giridih in Motor Accident Claims Case No. 15/2008, whereby the claimants namely, (1) Sheo Shankar Prasad Swarnkar, son of Ram Awatar Prasad Swarnkar, (2) Binod Prasad Swarnkar, son of Ram Awatar Prasad Swarnkar, (3) Shyam Sunder Prasad Swarnkar, son of Ram Awatar Prasad Swarnkar, (4) Dewanti Devi, Daughter of Ram Awatar Prasad Swarnkar and (5) Shanti Devi, Daughter of Ram Awatar Prasad Swarnkar have been awarded compensation to the tune of Rs. 3,34,000/- along with simple interest @ 6% per annum from the date of filing of the claim application i.e. 29.05.2008 till the realization of the compensation amount payable within 60 days, failing which interest shall be calculated @ 9% per annum.

Learned counsel for the appellant has submitted that the motorcycle on which the deceased was moving stands in the name of one Anil Kumar, son of Late Khiru Pandit, resident of Isari Bazar, Master Muhalla Behind Bus Stand, Isari Bazar, P.S. - Nimiaghat, District - Giridih. As per the first information report, which was lodged on the statement of said Anil Kumar, the motorcycle, which was driven by deceased Kamal Kumar Swarnkar @ Kamli @ Kamal Prasad Swarnkar himself, who met with an accident with water tanker standing on the middle of the road, by Opposite Party No. 2 Manik Chand Gupta. An F.I.R. has been lodged as Dumri P.S. Case No. 63/2007 dated 05.11.2007 under Sections 279, 337 and 304A

I.P.C. and after investigation, police has submitted final form against the deceased Kamal Kumar Swarnkar @ Kamli @ Kamal Prasad Swarnkar.

Learned counsel for the appellant has submitted that Exhibit-3 certified copy of F.I.R. of Dumri P.S. Case No. 63/2007, Exhibit-4 certified copy of charge sheet of Dumri P.S. Case No. 63/2007 and Exhibit-5 certified copy of order sheet of Dumri P.S. Case No. 63/2007 have been brought on record by the claimants, but the learned Tribunal while passing impugned award recorded findings at para-15 of the impugned award, which is full of contradictory finding. In the initial part, the learned Tribunal has considered that the deceased was driving the motorcycle, but in the subsequent part, the learned Tribunal has considered that Anil Kumar was driving the vehicle and Anil Kumar being the Opposite Party no. 4 is the solitary eye-witness, he has not examined himself in the Court but in the last part, the learned Tribunal has held that the Insurance Company i.e. United India Assurance Company is not liable to pay the compensation because the deceased was neither owner nor driver as claimants have claimed in their evidence, as such, Insurance Company is not liable to pay the same.

Learned counsel for the appellant has thus submitted that such contradictory finding given by the learned Tribunal is prejudicing the case of the appellant, as such, notice may be issued and lower court records may be called for.

It appears that learned counsel, Mr. Ankit Kumar, A.C. to S.C. (Mines)-I appearing on behalf of respondent no. 6 (The Executive Engineer, P.W.D., Giridih), as such, no notice is required to be issued upon him.

Learned counsel for the appellant is directed to serve two copies of memo of appeal along with impugned judgment upon learned counsel, Mr. Manish Kumar, who normally appears on behalf of respondent no. 7 i.e. the United India Assurance Company Limited.

Let notice be issued upon the claimants / respondent nos. 1 to 5 namely, (1) Sheo Shankar Prasad Swarnkar, (2) Binod Prasad

Swarnkar, (3) Shyam Sunder Prasad Swarnkar, (4) Dewanti Devi, and (5) Shanti Devi and owner of the offending vehicle namely, Anil Kumar, under both process i.e. under registered cover with A/D as well as under ordinary process, for which requisites etc., must be filed within one week.

In the meantime, lower court records may be called for. Put up this case after service of notice.

(Kailash Prasad Deo, J.) Sunil/-