Anima Saha and anr. Vs. Bhagat Ram Mandhyan and anr. - Court Judgment

SooperKanoon Citationsooperkanoon.com/517534
SubjectMotor Vehicles
CourtJharkhand High Court
Decided OnMar-04-2009
Judge M.Y. Eqbal and; Jaya Roy, JJ.
Reported in[2009(2)JCR257(Jhr)]
AppellantAnima Saha and anr.
RespondentBhagat Ram Mandhyan and anr.
DispositionAppeal allowed
Excerpt:
- motor vehicles act, 1988[c.a.no.59/1988] section 166; [a.k. patnaik, cj, a.k. gohil & s. samvatsar, jj] application for compensation for personal injury death of injured claimant subsequently for some other reasons held, claim for personal injury will abate on the death of claimant. claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. - ojha, learned counsel appearing for the claimants-appellants submitted that in the claim application the number of the vehicle has been clearly mentioned i. 9. so far identity of vehicle is concerned, as noticed above in the claim application the evidence led by the claimants' witnesses and in the charge-sheet submitted by the police the number of the vehicle is clearly mentioned as utw 9222. a criminal case was instituted against the driver of truck bearing no.1. this appeal by the claimants-appellants is directed against the judgment and award passed by the motor accident claims tribunal, pakur in motor vehicle claim case no. 13 of 2004 whereby he dismissed the claim case holding that the identity of the offending vehicle has not been proved and the accident took place by which vehicle is doubtful.2. the claimants who are the widow and minor daughter filed the aforementioned claim case claiming compensation on the ground that the deceased-husband of appellant no. 1, gurupada saha, was a passenger in a truck bearing no. utw 9222 and while he was trying to get down from that truck, the truck proceeded, as a result of which, he fell on the ground and came under the wheel.3. the owner of the aforesaid truck bearing registration no. utw 9222 appeared and denied the factum of accident by the said truck. however he stated that truck no. utw 9222 was insured with the respondent-insurance company.4. the respondent-insurance company also appeared and contested the case on the ground, inter alia, that the truck in question i.e. truck bearing no. utw 9222 was a goods carrying vehicle and, therefore, the insurance company has no liability to' any person travelling in a goods carrying vehicle as a passenger.5. the tribunal while hearing the case took notice of the fact that in the fir the number of another vehicle was mentioned i.e. brj 9222 and nothing was brought on record to show as to under what circumstance, the number of the vehicle was changed in the charge-sheet. according to the tribunal, therefore, it is doubtful as to from which vehicle the accident took place and the deceased died.6. mr. ojha, learned counsel appearing for the claimants-appellants submitted that in the claim application the number of the vehicle has been clearly mentioned i.e. utw 9222 and the claimants' witnesses have also stated that the accident caused by the use of the vehicle no. utw 9222. learned counsel for the claimants-appellants further submitted that mistake in the description of the vehicle number in the fir was later clarified after investigation by the police and in the charge-sheet submitted by the police the number of the vehicle has been mentioned as utw 9222. according to the learned counsel, therefore, there is no discrepancy in the number of the vehicle by which accident took place.7. mr. g.c. jha, learned counsel appearing for the respondent-insurance company on the other hand argued that even if it is presumed that the accident took place by the vehicle no. utw 9222, the insurance company has no liability in case of death of a person travelling as passenger in a goods carrying vehicle.8. from perusal of the impugned judgment passed by the tribunal, it appears that the tribunal decided only one issue with regard to identity of the vehicle dismissed the claim case without deciding other issues as to liability of the insurance company and the quantum of compensation, if any, payable to the claimants.9. so far identity of vehicle is concerned, as noticed above in the claim application the evidence led by the claimants' witnesses and in the charge-sheet submitted by the police the number of the vehicle is clearly mentioned as utw 9222. a criminal case was instituted against the driver of truck bearing no. utw 9222. the tribunal, therefore, has not correctly decided the issue and wrongly held that the identity of the vehicle is doubtful.10. we do not agree with the finding recorded by the tribunal. we, therefore, hold that prima facie, it is evidently clear that the number of the offending vehicle is utw 9222.11. now, the question arises as to whether the insurance company has any liability for the alleged violation of the statutory provision of the insurance policy. this issue has not been decided by the tribunal. a very interested issue appears to be involved is as to under what circumstance, the accident took place. whether the deceased will be treated as a passenger or after having been fallen down from the truck, he ceases to be the passenger and comes within the category of third person. this issue has also not been decided by the tribunal. so far the quantum of compensation is concerned we need not go into it.12. in our view, therefore, this is a fit case where the matter should be remanded back to' the tribunal for deciding all these issues and for passing fresh judgment.13. this appeal is, therefore, allowed and the impugned judgment and award is set aside.14. the matter is remanded back to the court below for deciding the issues indicated hereinbefore with a direction to dispose of the claim case within three months from the date of receipt of copy of this order.
Judgment:

1. This appeal by the claimants-appellants is directed against the judgment and award passed by the Motor Accident Claims Tribunal, Pakur in Motor Vehicle Claim Case No. 13 of 2004 whereby he dismissed the claim case holding that the identity of the offending vehicle has not been proved and the accident took place by which vehicle is doubtful.

2. The claimants who are the widow and minor daughter filed the aforementioned claim case claiming compensation on the ground that the deceased-husband of appellant No. 1, Gurupada Saha, was a passenger in a truck bearing No. UTW 9222 and while he was trying to get down from that truck, the truck proceeded, as a result of which, he fell on the ground and came under the wheel.

3. The owner of the aforesaid truck bearing registration No. UTW 9222 appeared and denied the factum of accident by the said truck. However he stated that truck No. UTW 9222 was insured with the respondent-Insurance Company.

4. The respondent-Insurance Company also appeared and contested the case on the ground, inter alia, that the truck in question i.e. truck bearing No. UTW 9222 was a goods carrying vehicle and, therefore, the Insurance Company has no liability to' any person travelling in a goods carrying vehicle as a passenger.

5. The Tribunal while hearing the case took notice of the fact that in the FIR the number of another vehicle was mentioned i.e. BRJ 9222 and nothing was brought on record to show as to under what circumstance, the number of the vehicle was changed in the charge-sheet. According to the Tribunal, therefore, it is doubtful as to from which vehicle the accident took place and the deceased died.

6. Mr. Ojha, learned Counsel appearing for the claimants-appellants submitted that in the claim application the number of the vehicle has been clearly mentioned i.e. UTW 9222 and the claimants' witnesses have also stated that the accident caused by the use of the vehicle No. UTW 9222. Learned Counsel for the claimants-appellants further submitted that mistake in the description of the vehicle number in the FIR was later clarified after investigation by the police and in the charge-sheet submitted by the police the number of the vehicle has been mentioned as UTW 9222. According to the learned Counsel, therefore, there is no discrepancy in the number of the vehicle by which accident took place.

7. Mr. G.C. Jha, learned Counsel appearing for the respondent-Insurance Company on the other hand argued that even if it is presumed that the accident took place by the vehicle No. UTW 9222, the Insurance Company has no liability in case of death of a person travelling as passenger in a goods carrying vehicle.

8. From perusal of the impugned judgment passed by the Tribunal, it appears that the Tribunal decided only one issue with regard to identity of the vehicle dismissed the claim case without deciding other issues as to liability of the Insurance Company and the quantum of compensation, if any, payable to the claimants.

9. So far identity of vehicle is concerned, as noticed above in the claim application the evidence led by the claimants' witnesses and in the charge-sheet submitted by the police the number of the vehicle is clearly mentioned as UTW 9222. A criminal case was instituted against the driver of Truck bearing No. UTW 9222. The Tribunal, therefore, has not correctly decided the issue and wrongly held that the identity of the vehicle is doubtful.

10. We do not agree with the finding recorded by the Tribunal. We, therefore, hold that prima facie, it is evidently clear that the number of the offending vehicle is UTW 9222.

11. Now, the question arises as to whether the Insurance Company has any liability for the alleged violation of the statutory provision of the Insurance policy. This issue has not been decided by the Tribunal. A very interested issue appears to be involved is as to under what circumstance, the accident took place. Whether the deceased will be treated as a passenger or after having been fallen down from the truck, he ceases to be the passenger and comes within the category of third person. This issue has also not been decided by the Tribunal. So far the quantum of compensation is concerned we need not go into it.

12. In our view, therefore, this is a fit case where the matter should be remanded back to' the Tribunal for deciding all these issues and for passing fresh judgment.

13. This appeal is, therefore, allowed and the impugned judgment and award is set aside.

14. The matter is remanded back to the Court below for deciding the issues indicated hereinbefore with a direction to dispose of the claim case within three months from the date of receipt of copy of this order.