Bajaj Allianz General Insurance Co. ... vs Munni Kumari
2024 Latest Caselaw 9728 Jhar

Jharkhand High Court

Bajaj Allianz General Insurance Co. ... vs Munni Kumari on 1 October, 2024

Author: Subhash Chand

Bench: Subhash Chand

   IN THE HIGH COURT OF JHARKHAND AT RANCHI
         (Miscellaneous Appellate Jurisdiction)
              M.A. No. 294 of 2023
Bajaj Allianz General Insurance Co. Ltd. having its Office at 804,
8th Floor, Mahabir Tower, Main Road, Ranchi P.S. Hindpirih, P.O.
& District-Ranchi at present Parnami Heights, Circular Road,
P.S. Lalpur, P.O. & District-Ranchi through its Legal Executive
having its office at Parnami Heights, Circular Road, P.S. Lalpur,
P.O. & District-Ranchi.            ....             .... Appellant
                        Versus
1. Munni Kumari, wife of Late Ajeet Kumar
2. Ankit Kumar, son of Late Ajeet Kumar
3. Anshu Kumar, son of Late Ajeet Kumar
4. Kapildeo Prasad, son of Late Genesh Prasad
5. Amola Devi, wife of Kapildeo Prasad
   (Respondent No.2 & 3 are minors being represented through
   their mother Munni Kumari, Respondent No.1, being their
   natural guardian as their next friend)
   All resident of near Santoshi Mandir, Bhowra Upper Bazar,
   Bhowra, P.O. and P.S. Bhowra, District-Dhanbad.
6. Md. Mosinuddin, Son of Md. Sarfuddin Resident of Bhaga
  Bazar, P.O. Bhaga, P.S. Jharia, District-Dhanbad.
....                       ....           ....        .... Respondents
                       ---------

PRESENT HON'BLE MR. JUSTICE SUBHASH CHAND

For the Appellant : Mr. Alok Lal, Advocate For the Respondents : Mr. Rajiv Kumar Karan, Advocate

---------

C.A.V. on 26.09.2024 : Pronounced on 01.10.2024

---------

The instant Misc. Appeal has been preferred on behalf of the

appellant-Bajaj Allianz General Insurance Co. Ltd. against the

award dated 23.06.2023 whereby the appellant has been directed

to deposit the compensation of Rs.50,90,176/- to claimants

through RTGS or NEFT in the account number of Tribunal i.e.

21060110044674(IFSC-UCBA0002106) of UCO Bank, Civil Court,

Dhanbad along with simple interest @ 7.5% per annum from the date of filing of the claim petition till the payment within one

month from the receipt of the order.

2. Further the recovery right has been given to the appellant-

Insurance Company to recover the said compensation amount

from the owner of offending vehicle No. JH-10BC-0341.

3. The brief facts of the claim petition giving rise to file this

appeal are that on 18.08.2018 at about 02:00 p.m. deceased was

on foot near the Taxi stand Bhowra, meanwhile Tempo No.JH-

10BC-0341 being driven rashly and negligently dashed the

deceased as a result of which he sustained grievous injuries and

was brought to Jalan Hospital where he was declared dead about

07:30 p.m. during course of treatment. Said accident took place

on account of rash and negligent driving of the driver of Tempo

No. JH-10BC-0341. The F.I.R. of this case was also lodged with

the Jorapokhar (Bhowra O.P.) P.S. Case No. 89 of 2018 on

07.09.2019 under Section 279/304(A) of I.P.C. against the driver

of the Tempo No. JH-10BC-0341.

3.1 The deceased was 34 years old at the time of said accident.

After his death he left his legal heirs Munni Kumari, 28 years old,

the wife and two minor sons Ankit Kumar and Anshu Kumar, 10

years old and 08 years old respectively and Kapildeo Prasad and

Amola Devi, the father and the mother of the deceased. The

deceased was lawyer by the profession. His annual income for the

assessment year 2014-15 was 1,85,050/-, for the assessment year

of 2016-17 was Rs. 2,35,000/- and for the assessment year 2017-

18 was Rs.2,98,820/-. The owner of the said vehicle was Md.

Mosinuddin, Son of Md. Sarfuddin, R/o Bhaga Bazar, P.O. Bhaga,

P.S. jharia, District-Dhanbad (Jharkhand) and said vehicle was

also insured with M/s Bajaj Allianz General Insurance Co. Ltd.

The policy number of the same was OG-18-2441-1803-00000935.

As such for the same the compensation amount was paid.

4. On behalf of O.P.No.1 owner of the vehicle no written

statement was filed.

5. On behalf of O.P.No.2-Insurance Company written

statement was filed with these averments answering respondent

does not admit the averments made in the claim petition and the

petitioners are put to strict proof of those allegations. The driver of

the said offending vehicle was not holding a valid and effective

driving licence at the time of accident and he was not qualified for

holding the driving licence. As such there being the wilful breach

of terms and conditions of the policy, the respondent-Insurance

Company is not liable to pay any compensation to the claimants.

If any liability is saddled i.e. to be upon the respondent No.1

owner of the vehicle. The said vehicle was also plied on the road

without permit authorization and fitness at the time of accident.

Therefore, Insurance Company is not liable to indemnify the

insured i.e. owner of the offending vehicle. As per Section 158(6) of

the M.V. Act it was mandatory duty of the concerned Police

Station to forward all the relevant documents to the concerned

insurer within 30 days from the date of information but the same

has not been complied with. As such this claim petition is liable to

be dismissed on the very statutory non-compliance. The alleged

accident took place on 18.08.2018 whereas the F.I.R. of the same

was lodged on 07.09.2018 after delay of 20 days which shows that

the said accident was not genuine. The claimants in collusion with

the O.P.No.1 the owner of the vehicle in order to get the wrongful

gain has filed this claim petition based on wrong averments.

Indeed, it was a case of hit and run accident. The special provision

for making claim application in case of hit and run accident has

been made under clause 20 of Solatium Scheme, 1989. The said

clause 20 provides particular forum i.e. claim enquiry officer of

Sub-division or Taluka. In view of the above, the learned Tribunal

was not having any jurisdiction to decide the claim petition. In

view of the above, prayed to dismiss the claim petition.

6. The learned Tribunal has framed the following issues:

i. Whether the present suit is maintainable in present form ?

ii. Whether there is any cause of action over the present suit ?

iii. Whether the deceased namely Ajeet Kumar died in motor vehicle accident due to rash and negligent driving by the driver of Tempo being registration No.JH-10BC- 0341?

iv. Whether the driver of Tempo being registration No.JH-

10BC-0341 had valid and effective license at the time of accident ?

v. Whether the Tempo No.JH-10BC-0341 was insured with M/s Bajaj Allianz General Insurance Company Limited at the time of accident ?

vi. Whether the Tempo being registration No. JH-10BC-

0341 had valid permit at the time of accident ? vii. Whether the dependants of deceased namely Ajeet Kumar on account of his death are entitled for compensation ?

viii. What the amount/compensation of plaintiffs are entitled from defendants ?

ix. Whether the plaintiffs are entitled for any relief/reliefs ?

7. In oral evidence on behalf of claimants examined A.W.-1

Munni Kumari, A.W.2-Umesh Kumar and A.W.-3 Umesh Paswan

and in documentary evidence following documents were adduced:

1. Exhibit 1 Certified copy of FIR of Jorapokhar P.S. 89/18

2. Exhibit 2 Certified copy of charge sheet in Jorapokhar P.S. 89/18

3. Exhibit 3 Photo copy of postmortem report of deceased Ajeet Kumar

4. Exhibit 4 Advocate Id. Card of Bihar State Bar Council

5. Exhibit 5 Original certificate of member of Bihar State Bar Council, Patna

6. Exhibit 6 Marksheet of Class-X

7. Exhibit 7 Marksheet of B.A. Part-III

8. Exhibit 8 Acknowledgement of ITR for AY 2017-18

9. Exhibit 9 ITR of AY 2017-18

10. Exhibit 10 TDS for AY 2017-18

11. Exhibit 11 Mark sheet of LL.B Part-III

12. Mark X Photo copy of owner book of Vehicle No.JH-10BC-0341

13. Mark X/1 Photo copy of Insurance Policy of vehicle

14. Mark X/2 Photo copy of D.L. of driver Chottan Biswan

8. On behalf of O.P.No.2 D.W.1-Rohit Kumar was examined

and in documentary evidence filed Ext. A Insurance Policy of the

vehicle No.JH-10BC-0341 and Ext.B Questionnaire.

9. The learned Tribunal after hearing the rival submission of

parties, passed the impugned award directing to pay the

compensation amount of Rs. 50,90,176/- to the claimants and

also directing the Insurance Company to recover the same amount

from the owner of the vehicle.

10. Aggrieved from the impugned Award, the instant appeal has

been preferred on behalf of Insurance Company.

11. Heard the learned Counsel for the appellant and the learned

Counsel for the respondent No.1 to 5 and perused the material on

record.

12. The learned Counsel for the appellant-Insurance Company

has assailed this impugned Award on the ground that indeed no

alleged accident took place by the offending vehicle. The F.I.R. of

this case was lodged after 20 days from the date of occurrence

against the unknown persons and during investigation the

claimants with the connivance of the owner of the offending

Tempo had shown the involvement of the offending vehicle in

causing the said accident. As such the accident itself was

doubtful. The learned Tribunal had not given its finding on this

very issue and had directed the Insurance Company to pay the

compensation amount giving the recovery rights. It is the settled

law that the recovery rights cannot be given when the Insurance

Company is not liable at all to pay the compensation amount and

in support of the submission, the learned Counsel for the

appellant relied upon the case law Anil & Ors. vrs. New India

Assurance Co. Ltd. & Ors. in (Civil Appeal No. 3291 of 2011)

decided on 19.01.2018 and Balu Krishna Chavan vrs. The

Reliance General Insurance Company Ltd. & Ors. 2022 LiveLaw

(SC) 932 and also relied the Judgment of the Co-ordinate Bench of

this Court In M.A.No. 365 of 2023 HDFC RGO General Insurance

Co. Ltd. Office Divisional Manager, Ranchi through Manager

Litigation & T.P. Claim Gandhi Maidan, Patna vrs. Kalicharan

Bedia @ Charan Bedia & Ors. Judgment dated 11th July, 2024.

13. Per contra, the learned Counsel for the

respondent/claimants vehemently opposed the contentions made

by learned Counsel for the appellant and contended that after the

accident the injured was taken to the Hospital for treatment.

During treatment he died and after his death the time was taken

in cremation and thereafter the F.I.R. was lodged against the

unknown vehicle by the informant and subsequently the eye-

witness of the said accident told to the Investigating Officer in

regard to the said accident and the I.O. after having concluded the

investigation in Jorapokhar (Bhowra O.P.) P.S. Case No. 89 of

2018 dated 07.09.2018 filed the charge-sheet against the driver of

the offending vehicle No.JH-10BC/0341. The claimants have

adduced the eye-witness of the occurrence. The factum of accident

is well proved, the same cannot be accepted to be doubtful on the

mere ground that the F.I.R. was lodged belated against the

unknown vehicle.

14. For disposal of this Misc. Appeal, one point of determination

arises which is as under:

Whether on 18.08.2018 at 2 O' clock the driver of the Tempo No. JH-10BC-0341 had dashed to the deceased by driving the Tempo rashly and negligently and on account of sustaining injuries he succumbed to injuries.

15. On behalf of the claimants/respondent herein to prove the

factum of accident in oral evidence have been examined two eye-

witness of the accident. A.W.2 Umesh Kumar and A.W.3 Umesh

Paswan and in documentary evidence has been adduced certified

copy of F.I.R. of Jorapokhar (Bhowra O.P.) P.S. Case No. 89 of

2018, Ext.2 Certified copy of charge-sheet in Jorapokhar P.S.

Case No. 89 of 2018, Ext.3 Photocopy of postmortem report of

deceased Ajeet Kumar, Ext.4 Advocate Id. Card of Bihar State Bar

Council of the deceased, Mark X Photocopy of owner book of

Vehicle No.JH-10BC-0341, Mark X/1 photocopy of Insurance

Policy of vehicle, Ext. X/2, Photocopy of D.L. of driver

Chottan Biswas.

15.1 P.W.2 Umesh Kumar in his Examination-in-chief says he is

familiar with deceased Ajeet Kumar. He has seen the accident

from his own eye. He was at the spot at the time of accident. The

deceased Ajeet Kumar was going to his house on foot. The driver

of the Temp No. JH-10BC-0341 rashly and negligently had

driven the same and dashed to Ajeet Kumar causing grievous

injuries and ultimately succumbed to those injuries.

In cross- examination this witness says he had seen the

accident from his own eye. Police also interrogated him. It is

wrong to say that he is giving false evidence in Court.

15.2 P.W.2-Umesh Paswan in his Examination-in-chief says that

he has seen the accident from his own eyes. At the time of

accident, he was taking food in a nearby Hotel. This

occurrence took place in his presence. When Ajeet Kumar was

going on foot to his house and reached near the old Taxi

stand Bhowra P.S. Jorapokhar, District-Dhanbad the Tempo

No. JH-10BC-0341 driven by its driver rashly and negligently

dashed to Ajeet Kumar causing grievous injury who

succumbed to injuries in the Hospital. In this accident there is

no fault of deceased Ajeet Kumar rather it was caused on account

of the rash and negligent driving of the driver of the Tempo.

In cross-examination this witness says he was familiar with

deceased. The occurrence was seen by him from his own eye.

Police also interrogated him. The deceased was Advocate by

profession.

15.3 From the perusal of the certified copy of the F.I.R. which is

Ext.1, it is found that the date of occurrence is shown

18.08.2018. Time is shown 14 hours and the information was

given with the Police Station concerned on 07.09.2018 at 11:30.

The informant is Kapildeo Prasad. This F.I.R. was lodged against

the owner and driver of unknown Tempo.

15.4 The informant-Kapildeo Prasad is the father of deceased.

Certified copy of charge-sheet is Ext.2 in Jorapokhar (Bhowra

O.P.) P.S. Case No. 89 of 2018. This charge-sheet was filed

against the accused Chottan Biswas S/o Sapan Biswas under

Section 279/304(A) of I.P.C. The charge-sheeted witness are

informant Kapildeo Prasad, Shashi Bhushan Paswsn, Umesh

Paswan, Umesh Yadav and Shakti Kumar Tiwari, the

Investigating Officer.

15.5 The postmortem report of deceased Ajeet Kumar is Ext.3 in

which cause of death is shown due to shock and haemorrhage as

a result of ante-mortem injury.

15.6 On behalf of Insurance Company, the Insurance Policy No.

OG-18-2441-1803-00000935 (Ext.A) and original questionnaire of

the claimant (Ext.B) are filed and in oral evidence D.W.1 Rohit

Kumar was examined.

16. The learned Counsel for the appellant has raised this plea

that the delay in lodging F.I.R. against the unknown persons

makes the F.I.R. fake and doubtful. Moreover, there is no

compliance of Section 158 (6) and 159 of M.V. Act, 1988. As such

if the charge-sheet has been filed by the I.O. in connivance of the

owner and the claimants, the same makes the claim petition

exclusively fake. In view of the above submitted that when the

Appellant-Insurance Company is not liable at all to pay the

compensation, the recovery rights cannot be given in this case.

16.1 Section 158(6) of the M.V. Act reads as under:

"As soon as any information regarding any accident involving death or bodily injury to any person is recorded or report under this section is completed by a police officer, the officer-in-charge of the police station shall forward a copy of the same within thirty days from the date of recording of information or, as the case may be, on completion of such report to the Claims Tribunal having jurisdiction and a copy thereof to the concerned insurer, and where a copy is made available to the owner, he shall also within thirty days of receipt of such

report, forward the same to such Claim Tribunal and insurer."

16.2 Section 159 of the M.V. Act reads as under:

*159. Information to be given regarding accident.- The police officer shall, during the investigation, prepare an accident information report to facilitate the settlement of claim in such form and manner, within three months and containing such particulars and submit the same to the Claims Tribunal and such other agency as may be prescribed.

17. Prior the Amendment of 2019 in Section 158 (6) and post

amendment Section 159 of M.V. Act mandates that the Police

Officer shall during investigation prepare an accident information

report to facilitate the settlement of claim in such a form and

manner within three months containing such particulars and

submits the same to the Claim Tribunal and also to the Insurance

Company.

17.1 Herein in this case admittedly there is no compliance of

Section 158 (6) and 159 of the M.V. Act.

18. Now the Court has to consider whether the non-

compliance of the same makes itself the claim petition fake ?

18.1 Admittedly the F.I.R. of this case was lodged after 20 days of

the accident against the unknown persons and during

investigation the two eye-witnesses came forward who were

examined as A.W.2 and A.W.3. These two eye-witnesses have

categorically stated that the said accident was caused in their

presence by the offending Tempo which was driven by its driver

rashly and negligently.

18.2 So far as the delay in lodging the F.I.R. is concerned, the

same cannot be said to be fatal. It may not give some rise to the

doubt in regard to the veracity of the accident.

18.3 The Hon'ble Apex Court held in Surendra Kumar Bhilawe

vrs. New India Assurance Com. Ltd. (2020) 18 SCC 224:

50. The FIR was lodged within three days of the accident. In the case of a major accident of the kind as in this case, where the said truck had turned turtle and fallen into a river, slight delay if any, on the part of the traumatised driver to lodge an FIR, cannot defeat the legitimate claim of the insured. Of course in our view, there was no delay at all in lodging the FIR. In case of a serious accident in course of inter-State transportation of goods, delay of 20 days in lodging a claim is also no delay at all. It is nobody's case that the claim application filed by the appellant was time-barred. Moreover, the insurer had, in any case, duly sent its Surveyors/Assessors to assess the loss. The claim of the appellant could not have, in this case, been resisted, either on the ground of delay in lodging the FIR, or on the ground of delay in lodging an accident information report, or on the ground of delay in making a claim.

18.4 The Hon'ble Apex Court in Safiq Ahmed vrs. ICICI Lombard

General Insurance Company Ltd. (2021) 11 SCC 813 and in

Gohar Mohammed vrs. Uttar Pradesh State Road Transport

Corporation & Ors. (2023) 4 SCC 381 has laid down the several

guidelines pertaining to Section 158(6) and 159 of the M.V. Act

wherein the duty has been casted upon the Police Officer of the

Police Station concerned to apprise to the accidental report along

with relevant documents to the Tribunal and the Insurance

Company as well.

18.5 In this case the F.I.R. which was lodged against the

unknown persons so the information of the I.O. could not be

given to the Tribunal or the Insurance Company as well. During

investigation when the I.O. interrogated two eye-witnesses and

on the basis of the documentary evidence and ocular evidence

he filed the charge-sheet against the driver of the vehicle

though information of the same was not given to the Insurance

Company or the Tribunal in regard to the charge-sheet filed by

the I.O.

18.6 It is also the settled law that in case of motor accident claim

petition the strict Rule of Evidence Act, C.P.C. or Criminal

Procedure Code are not applicable and the very touchstone of

proving the case beyond reasonable doubt of the criminal cases is

also not applicable in cases of proving motor accident claim petition

wherein the touch stone is the preponderance of probabilities.

18.7 The Hon'ble Apex Court held in Parmeshwari vrs. Amir

Chand (2011) 11 SCC 635:

The strict principals of proof in criminal cases are not attracted in Motor Accident Claim Petition. The preponderance of probabilities is applicable.

13. The other so-called reason in the High Court's order was that as the claim petition was filed after four months of the accident, the same is "a device to grab money from the insurance company". This finding in the absence of any material is certainly perverse. The High Court appears to be not cognizant of the principle that in a road accident claim, the strict principles of proof in a criminal case are not attracted. The following observations of this Court in Bimla Devi v. Himachal RTC are very pertinent: (SCC p. 534, para 15)

15. In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was necessary to be borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants. The claimants were merely to establish their case on the touchstone of preponderance of probability.

The standard of proof beyond reasonable doubt could not have been applied."

18.8 The Hon'ble Apex Court held in National Insurance

Company vrs. Chamundshwari 2021 Live Law SC 529:

In motor accident claim cases evidence recorded by the Tribunal is to be given weight over the contents of the F.I.R. in case of contradiction.

8............ In view of such evidence on record, there is no reason to give weightage to the contents of the First Information Report. If any evidence before the Tribunal runs contrary to the contents in the First Information Report, the evidence which is recorded before the Tribunal has to be given weightage over the contents of the First Information Report.

18.9 The Hon'ble Apex Court held in Rajwati @ Rajjo versus

United India Insurance Company Ltd. 2022 LiveLaw (SC) 1016:

The strict Rules of evidence Act as applicable in criminal cases are not applicable in Motor Accident compensation cases

19. It is well settled that Motor Vehicles Act, 1988 is a beneficial piece of legislation and as such, while dealing with compensation cases, once the actual occurrence of the accident has been established, the Tribunal's role would be to award just and fair compensation. As held by this Court in Sunita (Supra) and Kusum Lata (Supra), strict rules of evidence as applicable in a criminal trial, are not applicable in motor accident compensation cases, i.e., to say, "the standard of proof to be borne in mind must be of preponderance of probability and not the strict standard of proof beyond all reasonable doubt which is followed in criminal cases".

19 The Insurance Company was made liable to pay as the said

vehicle was plied without the permit, on this very ground the

recovery right which has been given to the Insurance Company by

the learned Tribunal.

19.1 The Hon'ble Apex Court held in Amrit Paul Singh vrs. TATA

AIG General Insurance Company Limited (2018) 7 SCC 558:

The insurer cannot be absolved from the liability on the ground of route permit and consequently recovery right may be given to the Insurance Company for the said breach of conditions of insurance policy.

24. In the case at hand, it is clearly demonstrable from the materials brought on record that the vehicle at the time of the accident did not have a permit. The appellants had taken the stand that the vehicle was not involved in the accident. That apart, they had not stated whether the

vehicle had temporary permit or any other kind of permit. The exceptions that have been carved out under Section 66 of the Act, needless to emphasise, are to be pleaded and proved. The exceptions cannot be taken aid of in the course of an argument to seek absolution from liability. ..........................Therefore, the Tribunal as well as the High Court had directed that the insurer was required to pay the compensation amount to the claimants with interest with the stipulation that the insurer shall be entitled to recover the same from the owner and the driver. The said directions are in consonance with the principles stated in Swaran Singh and other cases pertaining to pay and recover principle.

20 The claim petition cannot be said to be fake reason being in

this case the owner of the Tempo was also impleaded as party and

the owner of the Tempo was very much aware that he had no route

permit of the Tempo and the liability would ultimately be fixed

upon the owner. Had there been any connivance of the owner of

the driver with the claimants he would not at all have permitted

the claimants to falsely implicate his Tempo in the alleged accident.

20.1 In this case the learned Tribunal has held that the driver of

the offending vehicle was also having the valid and effective driving

licence and the insurance was also valid and effective on the date

of accident; but the very offending Tempo was plied without permit.

As such the ultimate liability would be of the owner and the

Insurance Company has been directed to pay the compensation

amount with the liberty to recover the same from the owner. The

same can be done by the learned Tribunal because there was

no fundamental breach of the terms and conditions of the

insurance policy.

20.2 The learned Counsel for the appellant has relied upon

the Judgment of Balu Krishna Chavan vrs. The Reliance

General Insurance Company Ltd. & Ors. 2022 LiveLaw (SC)

932 the benefit of this Judgment of Hon'ble Apex Court

cannot be given to the appellant reason being the Hon'ble

Apex Court in the Judgment of Balu Krishna Chavan (supra)

has held that if the Insurance Company is not at all liable to

pay the amount of compensation then no direction to pay and

recover can be made. In this very case the deceased was

gratuitous passenger in the said vehicle in view of para 7 of

the Judgment. In that case no liability can be fastened to the

Insurance Company. The present case is distinguished from

the Judgment of Hon'ble Apex Court Balu Krishna Chavan

(supra) on the ground that in the case in hand the offending

vehicle was insured by the appellant and the insurance was

valid and effective on the date of accident. The driver of the

offending vehicle who has driven the Tempo rashly and

negligently causing death of husband of claimant No.1

admittedly was also having the valid and effective driving

licence.

The learned Tribunal had directed the appellant-

Insurance Company to pay and recover the compensation on

the ground that the said offending Tempo was driven without

permit. Breach of the insurance policy which is one of the

breach of condition of the policy but cannot be accepted as a

fundamental breach of insurance policy. In view of the above,

the direction of pay and recover the compensation amount is

justified to meet the ends of justice by the learned Tribunal

under the facts and circumstances as narrated hereinabove. `

21. Therefore, taking into consideration the eye-witness account

and the F.I.R., charge-sheet and the postmortem report the factum

of accident is very much proved. There cannot be any doubt in

regard to the fake claim as alleged by the learned Counsel for the

appellant.

22. In view of the above I am of the considered view that the claim

petition cannot be said fake as submitted by learned Counsel for

the appellant. Accordingly, aforesaid point of determination is

being decided against the appellant and in favour of the

respondent.

23. In view of critical analysis of the evidence on record as stated

hereinabove, this Misc. Appeal deserves to be dismissed.

24. This Misc. Appeal is hereby dismissed. The impugned Award

is confirmed.

25. The statutory amount of Rs. 25,000/- if paid shall be

adjusted in the amount of the compensation to be paid and

recover.

(Subhash Chand, J.) P.K.S./A.F.R.