Jharkhand High Court
Kapil Bhuiya vs Durgawati Devi on 25 February, 2025
Author: Gautam Kumar Choudhary
Bench: Gautam Kumar Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
M.A. No. 206 of 2015
Kapil Bhuiya, S/o Sri Govind Bhuiya, R/o Qr. No. 75 Durbudih P.O.-Birsinghpur,
P.S.-Nirsha, District-Dhanbad at present working at Khoodia colliery under M/S
C.C.L (Owner of Trekker vide its Reg. No. BR-12-A-4704
.... .... Appellant
Versus
1. Durgawati Devi, W/o Late Rajkumar Yadav
2. Bajrangi Kumar, S/o Late Rajkumar Yadav
3. Janki Kumari, D/o Late Rajkumar Yadav, respondent no. 2 & 3 are minor,
hence they are represented through natural guardian their mother i.e., the
respondent no. 1, all 1 to 3 are resident of Raja Colliery Nirsha, P.O &
P.S.- Nirsha, District-Dhanbad
4. Sri Swapan Kumar Mandal, S/o Atul Mandal, R/o village Damkara Barwa,
P.O.-Nagnagar, P.S.-Barwadda, District- Dhanbad (Owner of Tata 407
Pick-up Van, Reg. No. JH-10C-8979)
5. The Branch Manager, the Oriental Insurance Company Ltd. At Rathod
Mansion, 1st floor, Bank More, Dhanbad (Insurer of Tata 407 Pick-up Van,
Reg. No. JH-10C-8979)
... .... Respondents
CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY
For the Appellant : Mr. Shashikant Ojha, Advocate
Mr. S.K. Murthy, Advocate
For the Respondents : Mr. S.K. Laik, Advocate
------
Order No. 09 / Dated : 25.02.2025.
Heard, learned counsel for the parties.
1. Owner of the offending vehicle is in appeal against the judgment/ Award of
compensation under 166 of M.V. Act dated 21.02.2015 passed by learned
District Judge-X cum Presiding Officer M.A.C.T, Dhanbad, in Title (MV)
Claim Case No. 165/2008, whereby and whereunder liability to pay
compensation has been fixed on him.
2. As per the finding of the learned Tribunal the accident took place due to rash
and negligent driving by the drivers of both the vehicles and consequently
liability has been equally fixed on the owner/insurer of both the vehicles.
Since the Trekker bearing registration no. BR-12-A-4704 was not insured at
the relevant time of accident, therefore the owner has been held liable to pay
the compensation amount.
3. Appeal is preferred on the ground that the Trekker bearing registration no.
BR-12-A-4704 was not the offending vehicle, it was Tata 407 Pick-up Van
bearing registration no. JH-10C-8979 which had dashed the Trekker resulting
in accident. Issue No. IV regarding the negligence on the part of Tata 407
Pick-up Van bearing registration no. JH-10C-8979 was framed, but it has not
been properly answered, considering the evidence on record.
4. Learned counsel on behalf of the claimant is in appearance and submits that
deceased was driver of the Trekker bearing registration no. BR-12-A-4704
and learned Tribunal recorded a finding of contributory negligence on his part
and 50% of compensation amount of Rs. 4,35,500/- with interest @ 8% to be
paid by the appellant.
5. Although the owner and the insurer of the Tata 407 Pick-up Van bearing
registration no. JH-10C-8979, entered into appearance before the Tribunal
but have not appeared before this Court despite the notice having been
validly served.
6. Main point for determination in this appeal is if the accident was caused solely
due to rash and negligent driving by the driver of Tata 407 Pick-up Van
bearing registration no. JH-10C-8979?
7. On perusal of the records of the case, it appears that claimant examined
altogether three witnesses. C.W.-1 is the only eye witness to the accident,
who was examined on behalf of the claimants. He has attributed the accident
to the rash and negligent driving by the driver of Tata 407. However, D.W no.
1 examined on behalf of the defendant no. 3 (appellant), has also attributed
the accident, due to rash and negligent driving by the driver of the Tata 407.
No contrary evidence has been led to show that there was any negligence on
the part of the driver of the trekker which resulted in the accident.
8. From Ext. 1, it appears that Barkatta P.S. Case No. 39/2005 was registered
under Sections 279, 337 & 338 of the IPC against the driver of both the
vehicles. Police on investigation found case true and submitted charge-sheet
against the driver of the Tata 407. However, the accident has been attributed
to rash and negligent driver by the both the vehicles. It has been held in 2009
ACC 680 Oriental Insurance Company Limited Vrs. Kamli that FIR is not
a substantive piece of evidence and as such it cannot be placed on a pedestal
higher than the statement made before the claim's tribunal on oath.
9. This Court is of the view that oral evidence given on oath cannot be brushed
aside, to record a finding that it was a case of contributory negligence on
account of the fault of driver of both the vehicles, only on the basis of the FIR
and charge-sheet.
10. In this view of matter, the finding of the learned Tribunal regarding
contributory negligence, thereby fixing liability to pay 50% of the
compensation amount on the appellant who is the owner of the Trekker is set
aside. Respondent No.5, Oriental Insurance Company, insurer of Tata 407
Pick-up Van bearing registration no. JH-10C-8979, shall be liable to pay the
full compensation as awarded by the Tribunal to the claimants.
11. Respondent No.5 is accordingly directed to pay the full compensation amount
within a month of this order, by depositing the same with the Tribunal, and
the same shall be disbursed to the claimants as per the terms fixed by it.
Amount already paid by the Insurance Company shall be deducted from the
final compensation amount.
12. Appellant is permitted to withdraw the statutory amount, if any, deposited at
the time of preferring the instant Misc. Appeal.
Miscellaneous Appeal is accordingly allowed.
Pending I.A (s)., If any, stands disposed of.
(Gautam Kumar Choudhary, J.)
Pawan/ -
