Jharkhand High Court
The Oriental Insurance Company Limited vs Firoja Bibi on 20 August, 2025
Author: Gautam Kumar Choudhary
Bench: Gautam Kumar Choudhary
2025:JHHC:25010
IN THE HIGH COURT OF JHARKHAND AT RANCHI
M. A. No.571 of 2017
The Oriental Insurance Company Limited, having its Registered Office at
Oriental House, A 25/22, Asaf Ali Road, PO- Ajmeri Gate Extension, P.S.
Turkman Gate, New Delhi- 110002 and Branch office at Division No.V,
Delta House -4, Govt. Palace, North Calcutta (Now Kolkatta)- 700001.
District- Kokata (West Bengal) through its legal cell, Circular Road, PO &
PS.-Lalpur, Ranchi, District- Ranchi.
.... .. ... Appellant(s)
Versus
1. Firoja Bibi, Wife of Late Mohammad Harish, Resident of Village- Gangati,
P.O. & P.S. Jasidih, District- Deoghar.
....Claimant/ Respondent.
2. Kuljeet Singh, Son of Late Hornam Singh, Resident of 134-A.M.G. Road,
P.O. & P.S. Bara Bazar, Calcutta (Now Kolkata), West Bengal. (Owner of
Truck bearing Registration No. W.B. -25/9456.
3. Oriental Insurance Company Limited, Office at Market Complex, Netajee
Subhash Road, Deoghar, P.O. & P.S. Deoghar, District- Deoghar.
4. Md. Jahed, Son of Abdul Salam, Resident of Barasal, P.O. & P.S. Barasal,
District- North 24 Pargana (west Bengal), Driver of WB-25/9456.
...............Respondents/ Opp. Parties.
5. Abdul Hai, Son of Astuia Mian, Resident of Village-Gangati, P.O. & P.S.
Jasidih, District- Deoghar.
6. Jatun Bibi, Wife of Abdul Hai (mother of deceased Md. Harish), Resident
of Village- Gangati, P.O. & P.S. Jasidih, District-Dereghar.
7. Sajda Bibi, Wife of Salauddin Ansari, Daughter of Late Md. Harish, Resident
of Village Valuasar, P.O. & P.S. Debipur, District-Deoghar.
8. Sohada Khatoon, Daughter of Late Md. Harish.
9. Md. Basarat, Son of Late Md. Harish.
10. Sara Khatoon, Daughter of Late Md. Harish.
11. Md. Nasir, Son of Late Md. Harish.
8 to 11 are resident of Village- Gangati, P.O. & P.S. Jasidih, District-
Deoghar. .. ... ...Respondent(s)
...........
CORAM :HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY
.........
For the Appellant(s) : Mr. Manish Kumar, Advocate
Mr. Amit Sinha, Advocate
For the Resp. No. : Mr. Sameer Rajan, Advocate
......
12/ 20.08.2025. Heard, learned counsel for the parties.
1. In compliance of the order dated 14.03.2019, substituted service of
notice upon the Respondent Nos.2 and 4 has been effected by way of
paper publication and further, supplementary affidavit dated
18.07.2025 has been filed with regard to the same, along with the copy
of the paper cutting.
2. In this view of the matter, notice is declared to be validly served upon
Respondent Nos.2 and 4.
3. So far as the Respondent No.1 as well as Respondent Nos.5 to 11 are
concerned, they are the proforma defendants.
2025:JHHC:25010
4. Heard, learned counsel for the appellant on the aforesaid I.A. filed
under Section 5 of the Limitation Act for condonation of delay of about
67 days in preferring the instant Misc. Appeal.
5. Considering the grounds taken, the prayer for condonation of delay of
about 67 days in preferring the instant Misc. Appeal is allowed. The
aforesaid I.A. stands allowed.
M. A. No.571 of 2017.
6. The appellant- The Oriental Insurance Company Limited is in appeal
against the judgment and Award of compensation under Section 166
of the M.V. Act dated 24.04.2017 passed by learned 2nd Addl.
Sessions Judge-cum- Motor Vehicle Accident Claim Tribunal,
Deoghar in M. V. Claim No.24/2000 whereby it has been held that the
offending truck bearing Registration No.WB 25 9546 was under the
Insurance cover of appellant- Insurance Company and accordingly,
liability has been fastened on the Insurance company.
7. The factum of accident in which Md. Harish died in a motor vehicle
accident involving truck bearing Registration No.WB 25 9546 is not
under-challenge. The dispute is with regard to insurance of the said
vehicle by the appellant- Insurance company.
8. It is argued by Mr. Manish Kumar, learned counsel for the appellant-
Insurance Company that the owner of the vehicle did not appear
before the learned Tribunal and consequently ex-parte proceeding
was drawn on 01.04.2015.
9. The Truck was seized by the Police after the accident, and was
released by the order of Court by submitting the documents including
the insurance paper which was filed by the claimant along with the
claim application.
10. As per the copy of the Insurance company of the truck vide Policy
No. 31/5216/1999 or 31/5981/2000 from 05.03.2000 to 04.03.2001
and on verification of these documents, it was found to be a forged
document as the said policy was never issued by the Insurance
Company to cover the risk of the owner of the truck.
11. The Insurance Company made a specific averment regarding the
same in Para-14 of the Written Statement denying the insurance of the
said truck. The Policy No.5216 of 1999 was issued with respect to
vehicle bearing Registration No.WB03 / A 8590 and not with respect
to the offending vehicle bearing Registration No.WB 25 9546.
2025:JHHC:25010
12. In support of the pleading, the evidence was led by DW.1 on behalf
of appellant- Insurance Company wherein he refuted that any such
policy was issued. Despite this definite pleading and evidence, learned
Tribunal has awarded the compensation fixing the liability upon the
appellant - Insurance Company only on the ground that the Xerox
copy of the insurance policy was the basis for release of the truck in
the criminal case.
13. The owner of the vehicle has neither appeared before this Court
nor before the learned Tribunal and the instant M.A. is being heard ex-
parte against him.
14. This Court is of the view that the learned Tribunal misdirected itself
by fixing liability upon the appellant- Insurance Company. In view of
the specific pleading and evidence, it was incumbent on the part of the
owner/ respondent to have appeared before the learned Tribunal to
rebut the evidence that the vehicle was not insured under Section 102
of the Indian Evidence Act.
15. When a person is bound to prove the existence of any fact, it is
said that the burden of proof lies on that person." Section 102 states:
"The burden of proof in a suit or proceeding lies on that person who
would fail if no evidence at all were given on either side." This
section shows that the initial burden of proving a prima facie case
in his favour is cast on the plaintiff; when he gives such evidence as
will support a prima facie case, the onus shifts on to the defendant
to adduce rebutting evidence to meet the case made out by the
plaintiff. As the case continues to develop the onus may shift back
again to the plaintiff.
16. Here in the present Case, the insurance company not only pleaded
but also led evidence to rebut the evidence of the claimant that the
offending vehicle was under the insurance cover of Oriental insurance
company. The owner of the vehicle at no stage appeared to lead any
contrary evidence. Under the circumstance it was not open to the
tribunal to record a finding that the said vehicle was insured and to fix
the liability on the insurance company. In view of the non-appearance
of the owner of the vehicle and non-production of general insurance
paper is a circumstance, on which an adverse inference is liable to be
drawn under Section 114(g) of the Evidence Act.
2025:JHHC:25010
17. Under the circumstance the impugned order so far fixing the liability
on the insurance company is accordingly set aside.
18. The instant M.A. stands allowed and the Respondent/ owner of the
vehicle is liable to make payment of compensation along with interest
@ 7.5% per annum from the date of filing of the claim application till
its realization within a month of this order.
19. The Statutory amount deposited at the time of preferring the instant
M.A. to be refunded to the appellant -Insurance Company by this
Court at the earliest.
Miscellaneous Appeal is allowed. Pending I.A., if any, also
stands disposed of.
(Gautam Kumar Choudhary, J.)
Sandeep/-
