Pramod Kumar Singh vs Mithilesh Kumar Singh And Anr
2023 Latest Caselaw 198 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                Miscellaneous Appeal No.204 of 2015
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Pramod Kumar Singh S/o Muni Lal Singh, Resident of Village - Ekara, P.S. - Hajipur Sadar, District - Vaishali.

... ... Appellant/Claimant Versus

1. Mithilesh Kumar Singh S/o Nand Kishore Singh, Resident of Village -

Ekara,P.S. - Hajipur Sadar, District - Vaishali.

... ... Respondent no. 1/Owner, Opposite Party No. 1

2. New India Assurance Company Ltd.

(a) Branch Manager New India Assurance Company Ltd., A-58-59, Sector 16, Nodia, Gautam Budh Nagar - 201301

(b) Branch Manager, New India Assurance company Ltd., Cinema Road, Hajipur.

... .. Respondent no. 2/Insurer, Opposite Party no. 2

======================================================= Appearance :

For the Appellant/s : Mr.Alok Kumar @ Alok Kr Shahi, Advocate For the Respondent/s: Mr.Sanjay Singh, Advocate ======================================================= CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD ORAL JUDGMENT Date : 17-01-2023 Heard learned counsel for the appellant and learned

counsel for the respondent no. 2(a) and 2(b) who have been

arrayed as respondent no. 2/Insurer.

This appeal has been preferred for setting aside the order

dated 31.01.2015 passed by learned Additional District Judge -

VIII - cum - M.A.C.T., Hajipur, Vaishali (hereinafter referred to

as the "Tribunal") in Claim Case No. 57/2005 whereby and

whereunder the learned Tribunal has been pleased to dismiss the

claim application preferred by the present appellant. Patna High Court MA No.204 of 2015 dt.17-01-2023

The present claim was filed claiming a sum of Rs.

3,68,416/- as compensation on account of the permanent disability

caused to the applicant-appellant in the accident which took place

on 14.03.2005 at 7:15 A.M.

Learned counsel for the appellant submits that this

appellant was driving the truck bearing HR38K 5124 and while

moving towards Gauhati the left tyre of the truck burst which led

to an accident in which the appellant and two others got injured.

One of the injured died in course of treatment in the hospital. So

far as this appellant is concerned, he claims that he was admitted

in one Paramount Hospital from where he was shifted to Bhudha

Hospital and Research Centre for better treatment. He claimed that

a sum of Rs. 1,66,258/- was paid to the nursing home and a sum of

Rs. 41,038/- was incurred on purchase of medicines. He further

claimed a sum of Rs. 21,000/- paid to the physiotherapist. Learned

tribunal has recorded in it's order that these bills were brought on

the record of the claim case.

Learned counsel further submits that in respect of the

said accident one Samuktala P.S. Case No. 27/2005 dated

15.03.2005 was registered for the offences alleged under Sections

279, 338 and 304B of the Indian Penal Code. After investigation

even as the investigating agency found that the accident had taken Patna High Court MA No.204 of 2015 dt.17-01-2023

place due to bursting of the tyre of the truck while moving on NH-

31, the investigating agency submitted a charge-sheet against the

petitioner alleging that he was driving the vehicle speedily.

Learned counsel submits that the allegation that the driver was

running the vehicle speedily was completely vague and a mere

statement to that effect in the charge-sheet would not take away

the claim of the appellant.

Learned counsel further submits that the learned

Tribunal has dismissed the claim petition despite the fact that the

claimant had produced himself and four other witnesses in support

of his claim. He had also produced the number of documentary

evidences which have been mentioned in paragraph '6' of the

impugned order.

It is submitted that as against the evidence of the

claimant/appellant the insurance company or the owner of the

vehicle had not produced any oral or documentary evidence.

Learned counsel has assailed the impugned order on

various grounds. One of the grounds taken by learned counsel for

the appellant is that learned Tribunal has completely erred in

appreciating the materials available on the record. The Tribunal

has recorded that from the materials available on the record it is

not clear as to whether the disability has been caused in the said Patna High Court MA No.204 of 2015 dt.17-01-2023

accident. This finding of the learned Tribunal has been recorded

only because no specialized Medical Practitioner was examined. It

is submitted that the Tribunal had no reason to disbelieve the oral

as well as the documentary evidences which were available on the

record particularly when the evidences were clinching and the

Insurance Company had failed to controvert those evidences.

Learned counsel further submits that the Tribunal has

further failed to appreciate that no doubt the chargesheet has been

filed against the petitioner but the cause of accident has been duly

shown as the bursting of the tire. The investigating agency has

vaguely stated that the driver of the vehicle was driving the vehicle

speedily. It is a vague allegation and would not affect that claim of

the petitioner.

Learned counsel has further assailed the finding of the

learned Tribunal that the driver and the assistant driver who were

on the Truck were not insured under the policy. Learned counsel

submits that it was not the case of the Insurance Company. He has

drawn the attention of this Court towards the evidence of the

applicant-appellant. In course of his Examination-in-Chief, the

appellant has stated inter alia that he had suffered permanent

disability because of the injury suffered by him on his right leg. In

course of his cross-examination, the Insurance Company has not Patna High Court MA No.204 of 2015 dt.17-01-2023

questioned the statement of the appellant that he suffered the

disability because of the accident. The Insurance Company never

took a plea that the policy did not cover the risk of driver and the

assistant driver.

Learned counsel has placed before this Court a copy of

the insurance policy and submits that it was a commercial vehicle

package policy in which the premium was collected by the

Insurance Company as OD Premium as well as TP Premium. It is

his submission that when the Insurance Company had not denied

the existence of the policy and coverage of risk, it was wrong on

the part of the Tribunal to record a finding that the driver and the

assistant driver on the vehicle were not covered under the policy.

Mr. Sanjay Singh, learned counsel for the Insurance

Company has though opposed the appeal but at the same time

learned counsel does not dispute the submission that the learned

Tribunal has recorded the findings as regards the policy document

without there being any evidence to that effect led on behalf of the

Insurance Company.

Having heard learned counsel for the appellant as well

as the Insurance Company and upon perusal of the impugned

order, this Court is of the considered opinion that the learned

Tribunal has failed to appreciate the evidences available on the Patna High Court MA No.204 of 2015 dt.17-01-2023

record as regards the accident, cause of accident and the sufferance

of disability on the part of the appellant. This Court has gone

through the evidences of the claimant's witnesses and that of the

claimant which have been made available in course of hearing.

This Court does not find any case of the Insurance Company in the

cross-examination that the appellant had not suffered injury in the

said accident. This being the position, learned Tribunal could not

have come to a conclusion that the applicant/appellant had not

proved that he had suffered disability to the extent of 20% in the

said accident. The Tribunal, in the opinion of this Court, is not

justified in taking an adverse view only because a specialized

doctor was not examined to say so. The Tribunal has further erred

in recording a finding that the insurance documents does not show

coverage of risk on the life of the driver and the assistant driver. As

stated above, the insurance documents were not proved before the

Tribunal and there was no such plea of the Insurance Company.

For the reasons stated hereinabove, this Court sets-aside

the impugned order and remit the matter to the Tribunal to

consider the claim application afresh on the basis of the materials

available on the record after giving an opportunity to both the

sides to lead any other or further evidence in the matter. Let the Patna High Court MA No.204 of 2015 dt.17-01-2023

claim case be disposed of within a period of six months from the

date of receipt/ communication of this order.

(Rajeev Ranjan Prasad, J) Rajeev/Tusharika-

AFR/NAFR
CAV DATE
Uploading Date        18.1.2023
Transmission Date