Jharkhand High Court
Div. Manager vs Manoranjan Pandey on 13 February, 2025
Author: Gautam Kumar Choudhary
Bench: Gautam Kumar Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
M. A. No. 177 of 2016
Div. Manager, New India Assurance Co. Ltd., City Centre, Sector-4,
Bokaro Steel City, Bokaro. .... .. ... Appellant(s)
Versus
1.Manoranjan Pandey, S/o Late Surendra Nath Pandey
2.Manju Pandey, W/o Manoranjan Pandey
Both residing at village Ghagarjuri, P.O. Ghagarjuri, P.S. Purulia
(Mufassil), District- Purulia, West Bengal
3.Sibchandra Singh, S/o Late Daroga Singh, resident of Jhumaritilaiya
(Ranchi Patna Road), P.O. & P.S. Jhumaritilaiya, Dist. Koderma at
present C/o M/s Shiva Road @ Carriers, Bypass Road Chas, Dist.
Bokaro, Owner of trailor no. JH-12C-7818
4.Sunil Kumar Pandit, S/o Laxman Pandit, resident of village Turidih, P.O.
& P.S. Pindrajora, Dist. Bokaro (Driver), Opposite party no. 2
.. ... ...Respondent(s)
...........
CORAM :HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY
.........
For the Appellant (s) : Mr. Alok Lal, Advocate
Mr. Santosh Kumar, Advocate
For the Resp.(s) : Mr. Umesh Kumar Choubey, Advocate
......
22/ 13.02.2025. Heard, learned counsel for the parties.
1. The instant Misc. Appeal has been filed by the appellant- New India
Assurance Co. Ltd. against the Judgment dated 23.01.2016 passed in
T.M.V. No.02 of 2014 under Section 166 of the M.V. Act, whereby liability
has been fixed on the insurance company to pay the compensation.
2. It is argued by the learned counsel that as per the FIR, the incident took
place when the deceased who was driving the motorcycle dashed against
a stationary Trailor being JH12C 7818.
3. There is no eye witness to the incidence and the case rests on the
testimony of the parents of the deceased who were not present at the
place of occurrence. P.W.2 the father of the deceased, has deposed in
Para-2 of the cross-examination that FIR was lodged by one Ramesh
Pandit and has admitted in his cross-examination that it had been
correctly recorded. As per the FIR, incidence took place due to fault on
the part of the driver of the Motorcycle itself, then the liability could not
have been fixed on the insurer of the vehicle in view of the ratio laid down
by the Hon'ble Supreme Court in Nishan Singh Vs. Oriental Insurance
Co. Ltd., AIR 2018 SC 2118 and in the case of Amrit Pal Singh vs. Tata
AIG, in 2018 (7) SCC 558.
4. It is also submitted on behalf of the Insurance Company that no issue
was framed regarding the breach of the condition because of the permit
not being produced.
5. Learned counsel for the claimants/ respondent (s) has defended the
award. It is argued that learned Tribunal has recorded a finding of fact
that the trailor was parked without any proper signal which led to the
alleged accident. No evidence was led on behalf of the Insurance
Company that accident took place due to fault on the part of its driver.
6. Having considered the argument advanced on behalf of both sides, there
cannot be any dispute with the legal proposition urged on behalf of the
appellant that, FIR is not a substantive piece of evidence. It has been
held by the Apex Court in National Insurance Company Ltd. Vs.
Chamundeshwari & Ors., 2021 SCC OnLine SC 849 that the eye
witness account cannot be discarded in a claim case only on the basis of
certain contradiction appearing vis-à-vis what has come in the FIR. Even
otherwise a person can be contradicted by his previous statement under
Section 145 of the Evidence Act and not by the statement of any other
person.
7. However, where the Claimants have not adduced any eye witness in
support of the pleadings that accident took place due to rash and
negligent driving by the driver of the offending vehicle, we are left with no
option, save and except the FIR, according to which the accident took
place due to rash and negligent driving of the deceased himself. This
finds support from the evidence of the PW-1, the father of deceased who
has testified in his evidence, to the veracity of FIR. From which it can be
concluded that the accident was the outcome of the rash and negligent
driving by the deceased himself. In the absence of any contrary evidence,
finding of the learned Tribunal that accident took place due to the
offending vehicle being parked without any signal, is without any basis.
Under the circumstance, impugned judgment and award is set aside.
Miscellaneous Appeal is allowed.
New India Assurance Co. Ltd. is at liberty to withdraw the statutory
amount, if any, deposited at the time of preferring the instant Misc.
Appeal.
Pending I.A., if any, stands disposed of.
(Gautam Kumar Choudhary, J.)
Sandeep/Pawan
