Jharkhand High Court
National Insurance Co. Ltd vs Sanju Devi on 24 November, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
M.A No. 379 of 2016
National Insurance Co. Ltd. .... .... Appellant(s).
Versus
1. Sanju Devi
2. Jiriya Devi
3. Rajendra Kumar Mahto
4. Doli Kumari
5. Priyanka Kumari
6. Pramod Kumar
7. Bideshi Roy
.... .... Respondent(s)
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CORAM : HON'BLE MR. JUSTICE ANANDA SEN.
THROUGH : VIDEO CONFERENCING
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For the Appellant(S) : Mr. Manish Kumar, Advocate
For the Respondents-Claimants : Mr. Suraj Singh, Advocate
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9/24.11.2021
Heard the counsel for the parties.
2. In this appeal, appellant has challenged the award dated 18.01.2016
passed in T.M.V No. 91 of 2012 by District Judge-1st -Cum -Motor Accident
Claim Tribunal, Bokaro.
3. Insurance Company challenges the award on the ground of liability and
submits that the Tribunal failed to take into consideration that there was
contributory negligence on the part of the owner and the driver of the motorcycle
bearing Registration No. JH 09A 5566 as three persons were riding on the same
motorcycle which is against the provision of law. He submits that in other two
connected cases before the Tribunal, contributory negligence was attributed with
the owner of the vehicle and 20% was deducted on account of contributory
negligence. He submits that in this case the aspect of contributory negligence was
overlooked by the Tribunal. Another ground which the Insurance Company has
taken is in respect of absence of permit of the offending vehicle being Tractor
Trailer having Registration No. JH 09L 0519 and JH 09L 0520. He submits that
in absence of permit the offending vehicle could not ply on road. He submit that
it is a statutory violation for which the owner should be made liable to pay the
compensation. Further a ground has been taken on the point of interest which is
on much higher side. These are the only grounds taken by the Insurance Company.
4. On 01.01.2012 the deceased along with Asari Mahto, Tatvir Mahto was
going to the house of their friend Pdmalochan Mahto of village Dabarbahal When
the motorcycle reached near a pond outside the village a tractor and trailer which
was being driven in a rash and negligent manner dashed the motorcycle which
resulted in injury to Sarvan @ Sharban Mahato who later on died. The claim
application was filed seeking compensation. The Tribunal after considering the
evidence led by the parties awarded the compensation to the tune of Rs. 38,
11,400/-.
5. The Insurance Company has preferred this appeal on the grounds
mentioned above. Considering the points which has been raised by the Insurance
Company, it is not necessary to deal with the quantum of compensation. Insurance
Company has raised point of contributory negligence. From the impugned
judgment, I find that no issue was framed on the point of contributory negligence.
I have also gone through the written statement filed by the Insurance Company
before the Tribunal. In the said written statement, in paragraph no.4 it has been
mentioned that due to collision between the vehicles i.e. tractor-trailer and
motorcycle, accident had occurred so it can be said that there was an element of
contributory negligence. It has also been mentioned that since in the motorcycle
three persons were sitting, it will be presumed that there was contributory
negligence on the part of the person driving the motorcycle. This Court is not in
agreement with the submission of the learned counsel for the Insurance Company.
First of all there has to be a positive evidence to show that there was a contributory
negligence. Merely when in a motorcycle three persons were sitting, it cannot be
presumed that there was a contributory negligence on their part. There is nothing
on record to suggest that only as three person were sitting in a motorcycle, the
accident had occurred. In absence of such positive evidence, it cannot be
concluded that there was contributory negligence. Further I do not find that any
issue to the aforesaid aspect was framed by the court. Further I find that Insurance
Company has also not led any evidence. If the Insurance Company has taken a
plea that there was a contributory negligence, it was incumbent upon them to lead
evidence on the aforesaid contention and prove the same. Thus in absence of
evidence it cannot be said that there was a contributory negligence on the part of
the owner of the motorcycle.
6. On the point of permit, I find that Insurance Company in their written
statement has not taken any specific plea to the effect that tractor and trailer was
driven without valid permit. When it is the contention of the Insurance Company
that the vehicle was being driven without valid permit, specific plea has to be
taken by way of evidence in their written statement. This specific plea has not
been taken and only vague assertion has been made that there was violation of
policy. Documents like permit, driving licence etc. should be produced. This court
feels that this statement is absolutely vague. In view of vague statement made in
the written statement Insurance Company cannot succeed. So far as interest is
concerned this Court feels that the Tribunal has correctly awarded interest @ 9%.
So far as contention of the learned counsel that a claim Tribunal of another
District, in two cases have considered the contributory negligence, I find that there
is no material in the LCR in support of the said contention.
7. Basing what has been held above, this appeal stands dismissed.
8. The Statutory amount deposited by the Insurance Company at the time of
filing of this appeal should be refunded to the Insurance Company.
(ANANDA SEN , J)
anjali/ C.P 2
