Rajiv Kumar Singh vs Rajesh Kumar Dubey @ Rajesh Kumar ...
2022 Latest Caselaw 5205 Jhar

        IN THE HIGH COURT OF JHARKHAND AT RANCHI

                                  M.A. No. 616 of 2017

      Rajiv Kumar Singh, son of late B.P. Singh, at present
      Resident of TATA Supervisor Flat, Quarter No. S-51,
      Digwadih No. 12, P.O. Jealgora, P.s. Jora Pokhar,
      District Dhanbad, permanent resident of Power House
      No. 3, Jamadobha, P.O. Jamadobha, District Dhanbad.
                                                            .... Appellant/ Defendant
                                 -VERSUS-
     1. Rajesh Kumar Dubey @ Rajesh Kumar Diwedi, son of late Srikant Dubey,
     2. Chandan Kumar Dubey,
     3. Nitesh Kumar Dubey
        Both are sons of Rajesh Kumar Dubey @ Rajesh Kumar Diwedi, resident of
        village Nunudih, near Electric Office, P.O. Patherdih, P.S. Sudamdih, district
        Dhanbad.
     4. Smt. Soniya Pandey, wife of Abhishek Pandey, C/o Bajnath Pandey, married
        daughter of Rajesh Kumar Dubey @ Rajesh Kumar Diwedi, resident of
        village Dalmia Nagar, Ekta Chowk, P.O. & P.S. Dalmia Nagar, Distt. Rohtas.

                                                            ...Respondents/ Plaintiffs
     CORAM: THE HON'BLE DR. JUSTICE S.N.PATHAK

       For the Appellant      :         Mr. Sachin Kumar, Advocate.
                                        Ms. Surabhi, Advocate
       For the Resp.          :         Mr. Rajiv Kr. Karna, Advocate
                                           ----------

11/ 22.12.2022 Heard the parties.

2. This appeal has been preferred by the appellant-opposite party against the Award/ Judgment dated 18.07.2017, passed by learned District Judge-XIV-cum-Motor Accident Claims Tribunal, Dhanbad in Title (MV) Suit No. 82 of 2015, whereby the learned Tribunal has allowed the claim application filed by the respondents-claimants and awarded compensation amount to the tune of Rs.5,41,500/- and the appellant was directed to pay A/c payee cheque of Rs.1,00,000/- each in favour of plaintiff-claimant Nos. 2 and 3 and another A/c Pay cheque of Rs.3,41,500 along with interest @ 6% per annum in favour of plaintiff- claimant No. 1.

3. As per the factual matrix, on 11.07.2014 at about 05:30 pm while the deceased, Meena Devi, was standing baside Sindri Dhanbad

road at Nunudih, a motorcycle bearing Reg. No. BR-17F-2820 coming from Sindri side in a very rash and negligent manner dashed her, as a result of which, she sustained severe and grievous injuries and subsequently, died in course of her treatment. Thereafter, the police has registered an FIR being Jorapokhar P.S. Case No. 244 of 2014 under Sections 279/304-A of the IPC against the driver of the said motorcycle. It was further pleaded that at the time of death, the deceased, Meena Devi was earning Rs.4500/- per month by means of stitching and weaving of clothes at home. On ground of her untimely death, the family members of the deceased suffered loss both financially and emotionally and as such, they filed complaint case before the learned Tribunal for payment of compensation.

4. The learned Tribunal registered the claim case of plaintiffs- claimants as Title (MV) Suit No. 82 of 2015 and issued notices to the opposite parties.

5. Upon receipt of the notice, the appellant-defendant appeared before the learned Tribunal and filed his written statement, challenging the maintainability of the suit on the ground of law as well as on facts. It was further stated that no such occurrence ever took place as alleged in the plaint and as a matter of fact, another motorcycle had dashed the motorcycle of the appellant-defendant, causing severe injuries to her as well and that motorcycle fled away from the place of occurrence and only under misconception the plaintiffs have lodged the FIR against the defendant. The appellant-defendant had also pleaded before the learned Tribunal that the plaint is not maintainable since the Insurance Co. was not made party in the plaint and as such, on these grounds the plaintiffs are not entitled for any compensation.

6. Learned Tribunal, on perusal of the documents brought on record and after hearing counsel for the parties and upon going through the written statement as well as other documents, framed following issues for proper and just adjudication of the case:-

i) Whether the suit is maintainable in present form or not?

ii) Whether any cause of action arose for this case or not?

iii) Whether the deceased Meena Devi died in a motor vehicle accident caused by rash and negligent driving of the vehicle (Hero Honda C.D. 100) bearing Registration No. BR-17F-2820 by its driver?

iv) Whether the driver of the motorcycle bearing no. BR-17F-2820 had valid driving license on the date of accident or not?

v) Whether the claimants are entitled for compensation as claimed or not?

vi) Whether the claimants/ plaintiffs are entitled for any other relief or not?

7. In support of their case, the plaintiffs have examined two witness and adduced documentary evidences also which were marked as exhibits. On the other hand, the defendant had also examined two witnesses, however, he had not adduced any documentary evidences.

8. Learned Court below after hearing the parties and after perusing the exhibited documents and oral evidences, elaborately dealt the issues framed and thereafter, found that the claimants are entitled to receive compensation amount. Resultantly, the learned Tribunal awarded compensation of Rs.5,41,500/- and the appellant-defendant was directed to pay A/c payee cheque of Rs.1,00,000/- each in favour of plaintiff- claimant Nos. 2 and 3 and another A/c Pay cheque of Rs.3,41,500 along with interest @ 6% per annum in favour of plaintiff-claimant No. 1.

9. The correctness of the said award has been challenged in the instant miscellaneous appeal.

10. Mr. Sachin Kumar, learned counsel appearing for the appellant- defendant submits that the learned Tribunal has failed to appreciate that only because the FIR is lodged against the appellant and charge-sheet is submitted by the police against the appellant, it could not be said that the alleged accident took place by the motorcycle of the appellant resulting in death of the deceased, particularly on the basis of material available on record. The burden of proving their case is upon the claimants, which part has not been taken into consideration by the learned Tribunal while awarding compensation in favour of the Claimants. Learned counsel further argues that the learned Tribunal has failed to consider the fact that the FIR was lodged after five days from the date of occurrence and the claimants have not explained the reasons for such delay. Learned counsel

further argues that upon perusing the evidences of the witnesses examined by the claimants, it appears that there is contradiction in their depositions and the learned Tribunal has committed serious error in relying the statement of these witnesses. In the instant case no independent witness was examined by the claimants. Learned counsel further argues that the FIR and charge-sheet cannot be treated as a piece of evidence. Learned counsel accordingly submits that for the aforesaid facts and reasons, the Award passed by the learned Tribunal is not sustainable in the eyes of law and is fit to be quashed and set aside.

11. On the other hand, learned counsel appearing for the respondent-claimants vehemently opposes the contention of the learned counsel for the appellant-defendant and submits that the learned Tribunal has considered every aspects of the matter and thereafter, came to the conclusion that the claimants are entitled for compensation to be paid by the appellant-defendant and accordingly, passed its Award, which requires no interference.

12. Having heard the parties and upon considering the materials available on record, this Court is of the considered opinion that no interference is warranted in the impugned Judgment. From perusal of documents brought on record and going through the Lower Court Record, it appears that the accident is admitted as well as the death of Meena Devi due to rash and negligent driving of the vehicle no BR 17F 2820.

13. Since appellant/defendant was the owner of the said motorcycle and no pleading has been advanced regarding the fact of insurance, therefore, the owner is liable to pay the amount of compensation admissible to the plaintiff-respondent in the instant case. Since no plea has been raise regarding quantum by the either sides and since the accident as well as death is admitted by the concerned motorcycle and owner of the motorcycle entered his appearance and was heard at length and after examination of the cases and evidences which could not be proved that there was no accident. The post-mortem report of the disease

- Meena Devi (Ext.-3) also refers to cause of death as a result of hard and forced injuries which can be said to be caused by road accident.

14. In issue nos. 1 to 3 before the Trial Court established after examination of Ext.-1, 2 and 3 that the death has been caused by rash and negligent driving of the motorcycle for which owner was responsible. Not even any independent witness brought on record to prove the non- complicity of the defendant in the said accident which caused death of Meena Devi.

15. In fact even charge-sheet also supported claim of the plaintiff. Since the plaintiffs were successful in establishing their case of road accident, death of Meena Devi due to rash and negligent driving of the motorcycle no. BR-17F-2820 by its driver/ defendant, rightly the issues were decided in favour of the plaintiff. Nothing to interfere. The Tribunal has rightly decided quantum of compensation.

16. This Court is in full agreement with the verdict of the trial court and hereby direct the owner of the vehicle i.e. appellant/ defendant to pay entire amount if not yet been paid till date as per terms and conditions of court below.

17. This appeal is accordingly dismissed.

18. Office is directed to send the LCR to the Court concerned at the earliest.

19. Pending I.As, if any, also stand disposed of.

(Dr. S.N. Pathak, J.) RC/ kunal/-