National Insurance Company Ltd. vs Mohsina Bibi
2023 Latest Caselaw 547 Jhar

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        IN THE HIGH COURT OF JHARKHAND AT RANCHI
                        M.A. No. 155 of 2017

1. National Insurance Company Ltd., registered office-3, Middleton Street, Post
    Box No. 9229, P.S. and P.O. Kolkata-71, Kolkata-700071.
2. Branch Manager, National Insurance Co. Ltd., Shyam Bazar, P.O. and P.S. Dumka
3. Branch Manager, National Insurance Co. Ltd., Castair's Town Umapati Banerjee
    Road, P.O. and P.S. Deoghar, District-Deoghar, Jharkhand, represented through
    its Dy. Manager and Incharge Legal Cell, National Insurance Co. Ltd. Ranchi,
    Branch -II premises, Kutchery Road, P.O. Ranchi, P.S. Kotwali, District-Ranchi,
    Jharkhand
                                       ........ Opposite Party No.1 and 3/Appellants
                           Versus
1. Mohsina Bibi, wife of Late Mahmood Khan
2. Mussarat Bibi, daughter of late Mahmood Khan wife of Juman Khan,
3. Tamanna Bibi, daughter of late Mahmood Khan wife of Munna Khan
4. Farhat Bibi, daughter of late Mahmood Khan, wife of Raju Khan
5. Saddam Khan, son of late Mahmood Khan
6. Gulruz Khan, son of late Mahmood Khan
7. Maksud Khan, son of late Mahmood Khan
8. Roshni Khatoon daughter of late Mahmood Khan
9. Neha Khatoon, daughter of late Mahmood Khan
    All are residents of Mouza/village-Hirna, P.O. and P.S. Deoghar, District-
    Deoghar, Jharkhand.
                    ............. Claimants /Respondents
10. Dayanand Jha, son of Pandit Shibu Jha, resident of Jarmundi, P.O. and P.S.
    Jarmundi, District Dumka, Jharkhand..........Opposite Party No. 4/Respondent

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CORAM:      HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
                          ---------
For the Appellant          : Mr. G.C. Jha, Advocate
For the Resp. Nos. 1 to 9: Mr. S.K. Deo, Advocate
For the Resp. No. 10        : Mr. A.K. Choudhary, Advocate

15/Dated: 02/02/2023

Heard Mr. G.C. Jha, learned counsel for the appellant, Mr. S.K. Deo

learned counsel for the respondent nos. 1 to 9 and Mr. A.K. Choudhary, learned

counsel for the respondent no.10.

2. Aggrieved with judgment and award dated 05.10.2016 passed by the

learned District Judge-I-cum Motor Accident Claims Tribunal, Deoghar in M.A.C.T.

Case No. 22/2005, the appellant-Insurance Company has preferred this appeal.

3. A.S.I. Ram Raj Singh gave a written report dated 15.05.2005 to the

Officer-in-Charge, P.S. Gopikandhar District-Dumka stating therein that at 10.45 P.M.

when he reached Manjrabadi, then he saw a bus lying by the side of Dumka Pakur

main road, in a damaged condition. He saw two injured persons who revealed their

names as Md. Taslim Ansari and Gobardhan Yadav, who were also Khalasi and

conductor of Bus No. B.R. 12A-5222. They told that from Amarapara, they were going

to Dumka to pick up the passengers of marriage party but the vehicle met with an

accident in which driver Maboob Mian died on the spot, whose dead body was lying

there. Due to night the inquest report could not be prepared at that time and

everything was done in the morning. On the basis of the written report a police case

was instituted as Gopikandhar P.S. Case No. 09/2005 dated 16.05.2005 under sections

279, 337, 338, 304A I.P.C. against the driver Mahboob Mian of Bus No. B.R. 12A-5222.

On completion of investigation, police submitted chargesheet dated 28.06.2005 under

sections 279, 337, 338, 304-A I.P.C. against the driver Mahboob Mian of Bus No. 12-

5222.

4. Mr. G.C. Jha, learned counsel for the appellant at the outset submits

that F.I.R instituted was met with an accident in camouflage. He submits that

initially the registration number of the vehicle was disclosed in the case was BR-12A-

5222 however, in para 70 of the final form the registration number of the vehicle was

disclosed as BR 12-5222. He submits that the said vehicle is not insured and only by

way of camouflage, F.I.R. has been registered and that ground has been taken by the

insurance company before the learned tribunal however, the learned tribunal has not

appreciated the said contention of the insurance company in its right perspective. He

further submits that vehicle in question was not insured that is why camouflage has

been made with F.I.R. and in that view of matter the finding of the learned tribunal

is not correct. Lastly, Mr. Jha submits that driver was 100% negligent and in that view

of the matter compensation cannot be allowed as has been held by the Hon'ble

Supreme Court in several judgments as well as of judgement of coordinate Bench in

the case of "Smt. Ayasa Khatun & Ors. V. M/s Front Line Associates & Anr."

(M.A. No. 155 of 2016) decided on 20.06.2022 in the light of section 166 of M.V. Act.

5. Mr. A.K. Choudhary, learned counsel for the respondent no. 10 submits

that learned tribunal has held Issue No. II with regard to F.I.R. and the said issue

has been dealt with elaborately in para 9. 10 and 11 of the judgment. There is no

illegality in the judgment.

6. Mr. S.K. Deo, learned counsel for the respondent nos. 1 to 9 submits that

liability has rightly been considered by the learned tribunal by way of framing Issue

No. IV which has been decided in para 12 of the judgment and on that ground

contention of the learned counsel for the appellant may not be accepted by this

Court.

7. In view of above submission of the learned counsel for the parties the

Court has gone through the material available on record including LCR which has been

received pursuant to earlier order passed by this Court. Mr. Jha placed the F.I.R.

elaborately before this Court. The Court has gone through the final form and finds

that chargesheet has been submitted and in para 70 of the final form, the Vehicle

No. BR 12 5222 has been mentioned and thus contention raised by Mr. Jha with

regard to vehicle in question was framed by the learned tribunal in Issue No. II

whether the deceased died in a road accident which took place on 15.05.2005 due to

rash and negligent driving of the driver of Bus bearing Registration No. B.R. 12-5222.

By deciding Issue No. II the learned tribunal has taken care of and considered the

F.I.R and found that the vehicle number which has been given in Pagal Baba Bus No.

B.R. 12A-5222 and the learned tribunal has held that no doubt from perusal of the

first document which is written report and F.I.R. it appears that it was Pagal Baba Bus

No. B.R. 12A-5222 met with an accident but in order to reach such a conclusion, the

other evidences which have been brought on record are required to be looked into

thereafter the learned tribunal has proceeded to decide the said issue. The learned

tribunal has considered that aspect of the matter that vehicle was released by the

order of the Court. The claimants have filed certified copy of ordersheet of G.R. Case

No. 527/2005, Gopikandhar P.S. Case No. 09/2005, State Vs. Mahbood Mian in the

Court of C.J.M, Dumka. The first ordersheet is of 17.05.2005 which has been drawn

after receipt of F.I.R. In this order sheet the vehicle number which has been entered is

Pagal Baba Bus No. B.R. 12A-5222 but in the entire subsequent orders the vehicle no.

B.R. 12-5222 has been mentioned in the courts order. By order dated 02.06.2005 the

learned Magistrate had released the vehicle. In that order sheet also the vehicle

number has been entered is B.R. 12-5222. After completion of investigation the police

filed charge sheet. In that charge sheet there is mentioning of Bus No. B.R. 12-5222.

8. In view of above discussion of the learned tribunal it is crystal clear that

vehicle no. B.R. 12-5222 was seized by the police and the learned Magistrate has

directed to release the said vehicle. Learned tribunal has considered that the

documents relating to ownership and papers issued from District Transport Officer

has been brought by the claimants which included the registration book permit of the

vehicle in which registration no. B.R. 12-5222 has been shown. The road permit has

been issued by Office of R.T.O., Santhal Pargana, Dumka and thereafter elaborately

discussing the evidences, the learned tribunal has negated the argument of the

Insurance Company. The court finds that Issue No. 1 has been decided by the

learned tribunal in accordance with law and there is no illegality. In that view of the

matter the contention of the learned counsel for the appellant is not accepted by this

Court. So far as argument of Mr. Jha with regard to 100% negligent on the part of

driver is concerned that is required to be considered in the facts and circumstances

of the each case. The question remains whether the insurance company has been

able to establish the case before the learned tribunal with regard to that contention

or not. The Court has gone through para 10 of the judgment and finds that the

learned tribunal has considered that there is no evidence available on record which

indicates that the offending vehicle was being driven by rash and negligent by its

driver. All the witnesses examined have stated that bus was being driven slowly and

properly by the driver. Moreover, the informant of that case was police man and that

argument was subject matter as Issue No. IV before the learned tribunal and

considering the entire aspect of the matter including oral evidences as well as material

available on record the learned tribunal came to the conclusion that due to injuries

caused in the accident of Pagal Baba Bus No. B.R. 12-5222 and the said driver died

in that accident. In that view of the matter the contention of the learned counsel for

the appellant-Insurance Company is not accepted by this Court. So far as the

judgment relied by Mr. Jha in the case of "Smt. Ayasa Khatun(supra) is concerned

the facts of that case are different in comparison of the present case. In that case the

vehicle was being driven very rash and negligent manner rammed the shop and house

of the informant and considering the evidence to that effect that has been held. The

facts of that case was different and in that footing that order was passed. This

judgment is not helping the appellant-insurance company. Accordingly, the appeal is

dismissed.

9. The statutory amount deposited before the court shall be transmitted

back to the learned tribunal. It has been pointed out by Mr. Jha that an amount of Rs.

6,00,000/- has been deposited by the Insurance Company by order dated 18.09.2018

of this Court before the learned tribunal and certain amount has already been paid to

the claimants. In view of above, rest of the amount shall be paid to the claimants

within six weeks from the date of receipt/production of a copy of this order. The

amount deposited by the Insurance Company shall be released in favour of the

claimants on proper verification. The award shall be satisfied within six weeks from

the date of receipt/production of a copy of this order.

10. Interim order dated 18.09.2018 is vacated.

11. Let L.C.R. be remitted back to the concerned court forthwith.

( Sanjay Kumar Dwivedi, J.)

Satyarthi/