Pradip Kumar Pandaya @ Pradip Jain ... vs Branch Manager
2022 Latest Caselaw 975 Jhar

                                        1




       IN THE HIGH COURT OF JHARKHAND AT RANCHI
                   M.A. No. 266 of 2013
Pradip Kumar Pandaya @ Pradip Jain son of Sri Fulchand Pandaya @
Fulchand Jain resident of Pani Tanki Road, Jhumri Telaiya, P.O. & P.S.-
Jhumri Telaiya, Distt- Koderma , at present resident of Mahesh Soni Chowk,
Hazaribagh Town, P.O. & P.S.- Hazaribagh, Distt- Hazaribagh.
                                            ..... .....           Appellant
                         Versus

 1. Branch Manager, New India Assurance Co. Ltd. Malviya Marg, Adarsha
     Bazar, P.O. & P.S. Sadr, Dist- Hazaribagh.
 2. Nirmal Kumar Sharma W/O. Jagdish Kumar Sharma, resident of 2/H/9
     Jala Lane, P.O. & P.S.- Ekbalpur, Kolkata- 700027.
 3. Divisional Manager, United India Insurance Co. Ltd. Laljee Hirjee Road,
     P.O. & P.S.- Kotwali, Dist- Ranchi.
 4. Sri Sudhir Kumar Mathur, son of Baldeo Ram, resident of Ishri Bazar,
     P.O. Ishri Bazar, P.S.- Dumari, Dist- Giridih.
                                              .... ....          Respondents
                                ------

CORAM : HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY

------

For the Appellant           :   Mr. Pradeep Kumar Prasad, Advocate
For the Respondents         :   Mr. Kumar Nilesh, Advocate
                                Mr. Alok Lal, Advocate
                                Mr. D.C. Ghose, Advocate.

CAV ON 11.02.2022                           PRONOUNCED ON 10 . 03. 2022

1. Appellant is the claimant who has preferred the instant appeal against the Judgment passed by the Motor Vehicle Accident Claim Tribunal, Hazaribagh in Claim Case No. 123 of 2001, whereby and whereunder the learned Tribunal dismissed the claim case of the claimant due to non- examination of claimants and other material witnesses.

2. The appellant/claimant filed the claim application under Sections 140 and 166 of the Motor Vehicle Act 1988 (hereinafter called as M.V. Act) for the permanent disability suffered by him in a motor vehicle accident on 18.09.2000 while on way to Patna from Jhumri Telaiya, District- Koderma along with Ravi Vishwas and Shiv Ratan Sharma by Maruti Car No. BR-17- E-4703 which met with an accident with trailer? bearing registration No. NL- 01A-2715. It is averred that the accident took place due to rash and negligent driving by the driver of the trailer. One of the occupants sustained fatal injuries and the claimant sustained serious injuries. Petitioner has asserted that he sustained grievous injuries in his person. There were multiple fractures. He

had to go for specialized treatment at Sir Ganga Ram Hospital, Old Rajendra Nagar New, Delhi. Koderma P.S. Case No. 338/2000 was registered against the driver of the trailer under Sections 279, 304A and 337 of IPC. Police on investigation found the case true and submitted charge-sheet against the driver of the trailer. It is averred that his age was 39 years on the date of motor accident and was having a monthly income of Rs. 10,650/-.

3. The owner and insurer of both the vehicles were impleaded in the claim case. Owner of the trailer did not appear and consequently ex-parte proceeding was drawn. The owner of the Maruti and the insurer of both the vehicles have appeared and contested the claim case.

4. Considering the pleadings of both the sides, the following issues have been framed for adjudication: -

(i) Whether the present claim case is maintainable?

(ii) Whether the accident was caused due to rash and negligent driving of the vehicle Trailor bearing No. NL-01A-2715 and Maruti Car bearing No. BR-17E-4703 resulting in injury causing permanent disablement of Pradip Kumar Pandaya @ Pradip Jain?

(iii) Whether the Trailer and Maruti Car both involved in the accident were duly insured on the relevant date of accident?

(iv) Whether the claimant is entitled for any amount of compensation and if yes, then to what extent and against which of the opposite parties?

5. On the factum of accident i.e. Issue No (ii) no finding has been recorded by the Tribunal since the claimant the injured had not been examined and, therefore, it declined to consider the other corroborative evidence on the factum of accident.

6. The appeal has been preferred on the ground that the other eye witnesses have supported the case of the claimant and therefore claim case ought not to have been dismissed on account of non-examination of the claimant.

7. The following are the main point for determination in the present appeal:

a. Whether the learned Tribunal was justified in dismissing the claim application for non-examination of the claimant who filed the case for injury suffered by him in the motor vehicle accident?

b. Whether the claimant is entitled for any amount of compensation and if yes, then to what extent and from which of the O.P.s?

8. Legally a claim case cannot and should not be thrown overboard merely because the injured claimant has not been examined particularly when there were other evidences on record on the factum of accident. This is for the reason that the adjudication in claim cases is not adversarial litigation but under Section 168 & 169 of the MV Act summary inquiry is to be held. Even in normal suit non-examination of the plaintiff will not be fatal in all cases. Court can draw an adverse inference under Section 114 of the Evidence Act depending on the facts and circumstances of a case. But the presumption of fact under section 114 is not a mandatory presumption but a discretionary presumption which can be rebutted. It has been held in :

" Pandurang Jivaji Apte v. Ramchandra Gangadhar Ashtekar, (1981) 4 SCC 569 at page 572

11. In our opinion the question of drawing an adverse inference against Apte and Bavdekar on account of their absence from the court would arise only when there was no other evidence on the record on the point in issue. The first appellate court had relied upon the admission of the decree-holder himself and normally there could be no better proof than the admission of a party. The High Court, however, has observed in its judgment that the decree-holder has made no admission in his evidence which would justify refusal to draw adverse inference for the failure of Apte and Bavdekar to step into the witness-box".

In the facts of the case where there were other eye witnesses on record on the factum of accident, mere non-examination of the claimant cannot be a ground to dismiss his case.

9. On Issue No. II i.e. factum of accident the F.I.R was registered being Koderma P.S. Case No.338/2000 (Ext.-1) under Sections 279, 304A and 337 of the IPC on the very same day of the accident that is 18.09.2000 against the driver of truck-container bearing registration number NL-01A-2715. Police on investigation found the case true and submitted chargesheet (Ext.-2) against the driver Nand Kishore Singh. The claimant was injured in the accident is supported by different documents regarding the treatment of the claimant which have been not formally proved but marked as Exts. X, Y and Z Series for identification. It appears that these documents were not filed in original and the photocopy was filed therefore they have not been formally marked as exhibits since they were secondary and not primary evidence. In an enquiry under Motor Vehicle Act the principles of evidence do not apply in its

absolute rigidity and therefore there is no reason to discard these evidences, when their veracity is not under challenge.

Apart from the documentary evidence two eye witnesses namely CW 1 & CW 2 have been examined. CW1 has deposed that he was also travelling in the same Maruti car which met with the accident. He has deposed that the accident took place due to the rash and negligent driving by the driver of the trailer. He was also injured and admitted in hospital for treatment. CW2 has also attributed the accident to the rash and negligent driving by the driver of the offending vehicle. It has been further deposed by him that the claimant Pradeep Jain Sustained fracture of his hip and leg and his treatment was made at Sir Ganga Ram Hospital New Delhi. On these evidence Issue No. II is decided in favour of the claimant that accident took place due to rash and negligent driving by the driver of the trailer.

10. From the above discussion it follows that the owner of the trailer O.P. No.1 bearing registration number NL-01-A2715 shall be liable to pay the compensation amount. The owner of the trailer has not appeared but the insurer of the trailer has appeared and filed the written statement. The policy of insurance has not been formally proved but has been brought on record marked as Z/10 for identification, from which it is evident that the trailer number NL 01A-2715 was under insurance cover of the New India Assurance Co Ltd. The insurance company has appeared and filed its written statement wherein there is no denial that offending vehicle was under its insurance cover at the relevant time of accident. In this view of the matter O.P.No.1 shall be liable to pay the compensation amount.

11. On the quantum of compensation, the permanent disablement certificate issued by the competent authority with respect to disablement of the claimant has not been filed and proved. Under the circumstance the claim of compensation for future loss of earning on account of disablement shall not be admissible. However, from the discharge summary (Ext. X/1) issued by the Department of orthopaedics Sir Ganga Ram Hospital New Delhi it appears that claimant Pradeep Jain S/o Phool Chand Jain was admitted in the hospital on 22nd September, 2000 and discharged on 2nd October, 2000 where he was treated for fracture of right shaft femur, with fracture basal neck femur right, with fracture shaft humerus right, with multiple fracture ribs with bilateral haemothorax with multiple capital CLW and abrasions. Total medical

expenditure as shown in the cash Bill No. 12559 dated 2nd October, 2000 was Rs.136,189. Both the witnesses have stated that the claimant sustained serious injuries and was treated at Koderma Hospital and in Sir Ganga Ram Hospital New Delhi. On these evidences the claimant will be entitled to the compensation amount as under:

     Sl. No.                    Heads                        Calculations

       1                  Medical Expenses                   Rs. 1,36,189/-

       2.                 Pain and suffering                 Rs 1,50.000/-

       3                  Loss of amenities                   Rs 50,000

       4.                    Grand Total                     Rs. 3,36,189

In view of the fact that no other bill with regard to travel and other expenditure incurred by the claimant has been brought on record, therefore it is not being allowed. O.P. No.2 New India Assurance Co. Ltd. is liable to pay compensation of Rs 3,36,189/- with simple interest at the rate of 7.5% per annum from the date of filing the claim application to the claimant and is accordingly directed to make the payment of the compensation amount to the tribunal within a month of this order. The Tribunal shall make payment to the claimant after due identification and verification.

The appeal is allowed as at above.

(Gautam Kumar Choudhary, J.)

Jharkhand High Court, Ranchi Dated the 10th March, 2022 AFR / Anit