Jharkhand High Court
The New India Assurance Company ... vs Rajaram Hembrom on 28 April, 2022
IN THE HIGH COURT OF JHARKHAND AT RANCHI
M.A. No. 223 of 2009
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The New India Assurance Company Ltd., Branch Office Bhagalpur
.... .... .... Appellant
Versus
1. Rajaram Hembrom
2. Sheo Hembrom
3. Smt. Paku Soren
4. Bineshwar Gope
5. Subodh Kumar Yadav .... .... .... Respondents
CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY
For the Appellant : Mr. G.C. Jha, Advocate
For the Respondents :
CAV ON : 02.03.2022 PRONOUNCED ON 28 . 04 . 2022
1. Insurance Company has preferred the instant appeal against the
judgment and award of compensation under Section 166 of the M.V. Act made
in Title Claim Case No.55 of 2005 / 37 of 2007 whereby and whereunder the
liability to pay the compensation has been saddled on it.
2. The appeal has been preferred on the ground that it was the specific
case of the appellant-Insurance Company before the Court below that the
deceased was travelling on the roof of Sawari vehicle Jeep bearing registration
no.JH-17A-2093 and the said vehicle was overloaded with passengers.
Consequently, the deceased fell down from the roof top of the vehicle and died
in consequence to it. The pleading of the Insurance Company is supported by
the contents of F.I.R. of Pathargama P.S. Case No.101 of 2005 (Exhibit 3).
Overloading of passengers and permitting the deceased to travel on the roof
top, was a breach of terms and conditions of the insurance policy and
therefore, the Insurance Company was exempted from any liability under
Section 149 Sub-section 2 of the M.V. Act.
3. As per the case of the claimants, accident took place on 02.08.2005
when deceased Debi Hembrom was going to join his duty by the offending
vehicle bearing registration no.JH-17A-2093. It is contended that the deceased
was travelling inside the vehicle.
4. The owner, driver and insurer of the offending vehicle have been
impleaded in the case.
5. It is admitted position that the offending vehicle was under the
insurance cover of opposite party no.1-New India Assurance Company Ltd.
The claim case has been contested by the claimants inter alia on the ground
that there was breach of terms and conditions of the insurance policy because
passengers were permitted to travel on the roof top.
6. The learned Tribunal has recorded a finding that accident took place
due to rash and negligent driving by the driver of the offending vehicle.
7. With regard to the contention of the appellant that the deceased was
travelling on the roof top of the vehicle and died due to the accidental fall, has
not been supported by the evidence. A.W. 1-Sonalal Kisku has deposed in para
2 of his examination-in-chief that he fell down from the front seat of the
vehicle. In his cross-examination, he has deposed that he was not in that
vehicle but he was in another vehicle which was about 15-20 yards behind the
offending vehicle and he himself saw Debi Hembrom falling from the vehicle.
A.W. 2 and A.W. 3 are not the eye witness to the accident. Investigator on
behalf of Insurance Company has been examined as O.P.W. No.1. He has
deposed that he collected information during investigation regarding the
accident that the deceased was travelling on the roof top. This witness is not
an eye witness and therefore his testimony cannot be attached any importance.
The F.I.R. (Exhibit 3) has been adduced into evidence which has been
registered on the basis of the statement of Jitan Manjhi wherein it has been
stated that one person was travelling on the roof, who fell down from the
vehicle and died in the accident. The F.I.R. is not substantive piece of
evidence and the maker of it has not been examined to accept it and discard
the eyewitness account of A.W.1. Therefore, the direct eye witness A.W.1,
cannot be brushed aside who has deposed that the deceased at the relevant
time of the accident was inside the vehicle. Nothing significant could be
elicited in the cross-examination to disbelieve his account.
8. Under the circumstance, I do not find any infirmity in the impugned
judgment.
The appeal is accordingly dismissed. The Insurance Company is
permitted to withdraw statutory amount.
(Gautam Kumar Choudhary, J.)
Jharkhand High Court, Ranchi
Dated the 28th April, 2022
AFR / AKT
