Single judge remitted three motor vehicle accident claims back to the Tribunal to decide the extent of liability of the truck and tempo vehicles, as the Tribunal had framed an issue on composite negligence but did not decide it.
Appeal allowed; Tribunal to decide the extent of liability of vehicles regarding composite negligence within 3 months.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JUDICATURE AT PATNA
Miscellaneous Appeal No.527 of 2010
=========================================================== Divisional Manager, United India Insurance Company Ltd. Rajendra Prasad Road, Khalifabagh, Bhagalpur through the Deputy Manager and Constituted attorney, Regional office, United India Insurance Compny Ltd., 3rd Floor, Chanakya Commercial Complex, “R” Block, Patna. .... .... Appellant/s Versus
WITH
=========================================================== Miscellaneous Appeal No. 526 of 2010 =========================================================== Divisional Manager, United India Insurance Company Ltd. Rajendra Prasad Road, Khalifabagh, Bhagalpur through the Deputy Manager and Constituted attorney, Regional office, United India Insurance Compny Ltd., 3rd Floor, Chanakya Commercial Complex, “R” Block, Patna. .... .... Appellant/s Versus
WITH
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=========================================================== Miscellaneous Appeal No. 528 of 2010
===========================================================
Divisional Manager, United India Insurance Company Ltd. Rajendra Prasad Road, Khalifabagh, Bhagalpur through the Deputy Manager and Constituted attorney, Regional office, United India Insurance Compny Ltd., 3rd Floor, Chanakya Commercial Complex, “R” Block, Patna. .... .... Appellant/s
Versus
=========================================================== Appearance : (In MA No.527 of 2010) For the Appellant/s : Mr. Durgesh Kumar Singh, Adv. For the Respondent/s : Mr. Sanjay Singh, Adv. Mr. B.K. Jha, Adv. (In MA No.526 of 2010) For the Appellant/s : Mr. Durgesh Kumar Singh, Adv. For the Respondent/s : Mr. Barun Kumar Chaudhary, Adv. (In MA No.528 of 2010) For the Appellant/s : Mr. Durgesh Kumar Singh, Adv. For the Respondent/s : Mr. Bimlesh Kumar Jha, Adv.
=========================================================== CORAM: HONOURABLE MR. JUSTICE PRAKASH CHANDRA JAISWAL
ORAL JUDGMENT
Date: 17-09-2018
Heard learned counsel for the appellants and learned counsel
for the respondent Oriental Insurance Company Limited on these
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appeals. None turned up on behalf of the claimants/respondents and owner of the truck and tempo despite service of notice.
2. These miscellaneous appeals have been preferred against the judgment dated 11.02.2010 and award dated 03.04.2010 passed by the learned 7th Additional District Judge-cum-Motor Vehicles Accident Claim Tribunal, Bhagalpur (hereinafter referred to as the „Tribunal‟), in claim cases No. 208 of 2004, 38 of 2005 and 41 of 2005 whereby the learned Tribunal directed the appellants-United Insurance Company Limited to pay compensation of Rs. 2,49,500/along with interest at the rate of 8 percent from the date of claim to Ashok Paswan the claimant of Claim Case No. 208 of 2004, Rs 2,64,500/- along with interest at the rate of 8 percent from the date of claim to the claimants of Claim Case No.38 of 2005 and Rs.1,69,500/along with interest at the rate of 8 percent from the date of claim to the claimants of Claim Case No.41 of 2005.
3. The factual matrix of the case is that three claim petitions were filed by the claimants for awarding compensation under Section 166 of M. V. Act on account of death of the three deceased in the motor vehicle accident, namely, Manju Devi of Claim Case No.208 of 2004, Pravin @ Chhuna Sah of Claim Case No.38 of 2005 and Indrajeet Singh of Claim Case No.41 of 2005 with the case in succinct
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that on 23.11.2004 at 1 PM the aforesaid deceased were travelling by tempo bearing registration no.BR 10D 5229 from Bhagalpur to Naugachia and while they were passing through Bikramshila Setu a truck, bearing registration no.BRJ 8539, coming from opposite direction, being driven rashly and negligently by its driver, dashed the aforesaid tempo resulting into the severe injury to the aforesaid deceased who were rushed to the hospital but they were declared brought dead. Regarding the aforesaid accident Parbatta P.S. Case No.428 of 2004 dated 23.11.2004 was instituted. The tempo is hailing to one Satyendra Narayan Singh and insured by the United India Insurance Company Limited while the truck in question is hailing to Afrinaz and allegedly insured by the Oriental Insurance Company Limited.
4. The United India Insurance Company Limited and Oriental Insurance Company Limited put their appearance in the case and filed their separate written statement but the owner of both the vehicles did not turn up before the learned Tribunal despite service of notice, hence the case proceeded ex parte against them. Claimants adduced ocular as well as documentary evidence in buttress of their case.
5. During pendency of the case, Oriental Insurance Company Limited by filing a petition before the learned Tribunal prayed to
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expunge its name from the record as the aforesaid truck was not insured by the Oriental Insurance Company Limited and the policy certificate filed by the claimants is fake. The Oriental Insurance Company Limited by filing written statement has inter alia submitted that the policy of the truck in question was valid from 27.11.2004 to 26.11.2005 but the accident is of 23.11.2004, i.e. preceding to coming into force of the aforesaid policy. Hence, the Oriental Insurance Company is not liable to pay any compensation and it may be exonerated from payment of compensation.
6. After hearing the parties and perusing the record, the learned Tribunal passed the aforesaid judgment and award as detailed in earlier paragraph.
7. Being aggrieved and dissatisfied with the aforesaid judgment and award, the United India Insurance Company Limited has preferred the aforesaid three appeals.
8. It is submitted by learned counsel for the appellants that as per the F.I.R. and pleadings itself there was a head on collision when the tempo in question was passing through the Bikramshila Setu a truck coming from the opposite side being rashly and negligently driven by its driver dashed the tempo resulting into grievous injury to three of its passengers which proved fatal. Hence, the aforesaid
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accident was due to rash and negligent driving by the driver of the truck so the owner of the aforesaid truck is squarely liable to pay compensation, if any, and the owner or the insurer of the tempo is not liable for the same.
9. From perusal of record it appears that after perusing the pleadings of the parties and record, the learned Tribunal has framed several issues including issue no.4, which is reproduced herein below:
10. Whether it is a case of composite negligence?
11. Though the learned Tribunal has framed the aforesaid issue of composite negligence but has not given any specific finding on the said issue rather saddled the entire liability of payment of compensation on the insurer of the tempo finding the tempo liable for the accident. Once the Tribunal has framed the aforesaid issue it ought to have decided the same in specific and extent of liability of each of the vehicle as owner and insurer of the both the vehicles have been made parties to the case to come to the right conclusion in the case.
12. In the facts and circumstances of the case, the aforesaid judgment and award passed by the learned Tribunal is hereby set aside and all the three cases are remitted back to the learned Tribunal to decide the aforesaid issue and extent of liability of the vehicles after according opportunities to the parties to adduce the evidence and also
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after hearing the parties to the case within three months from the date of receipt/production of a copy of this judgment. Accordingly, these appeals stands disposed of.
13. Let the statutory amount deposited by the appellants in all the three appeals be returned to the United India Insurance Company Limited through cheque.
(Prakash Chandra Jaiswal, J)
Trivedi/-
| AFR/NAFR | NAFR |
|---|---|
| CAV DATE | NA |
| UploadingDate | 20.09.2018 |
| Transmission Date |
20.09.2018 |
3 issues framed by the court
Whether the Tribunal correctly exempted the truck owner/insurer from liability when composite negligence was a framed but undecided issue?
Whether the Tribunal should have decided the extent of liability of both vehicles after framing an issue on composite negligence?
Whether the appeal against the Tribunal's exonerating the truck insurer should be allowed?
Divisonal Manager, United India Insurance Company Ltd.
Ashok Paswan
Chandan Kumar Paswan
Ranjan Kumar Paswan
Banti Paswan
Lawlesh Kumar Paswan
Prakash Chandra Jaiswal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
