IN THE HIGH COURT OF JUDICATURE AT PATNA Miscellaneous Appeal No.103 of 2010 ------------- Against the Judgment and Award dated 8th December,2009 and 16.12.2009 passed in Claim Case no.17 of 2001 by Sri Birendra Kumar , District Judge-cum- Motor Vehicle Accident Claim Tribunal, Madhepura -------------- ========================================================== Branch Manager, National Insurence Company Ltd. Branch Office, Madhepura, District Madhepura and its sister office situated at Hospital Road, Forbesganj, District-Araria represented through Shri Anjani Kumar working as A.O. and duly constituted attorney of National Insurance Company having its Regional Office at 4th Floor, Sone Bhawan, P.S. Sachivalaya, District-Patna ( Opp.Party no.2) .... .... Appellant Versus 1. Ram Kuamri Devi Wife of Late Gajendra Prasad Yadav, resident of Village- Chaklasiripur, P.S. Madhepura, District-Madhepura ( Claimant) ---------------------Claimant/ Respondent 1st set 2. Santosh Kumar, Son of name not known, resident of court colony Birpur, P.S. Birpur, District-Supaul ( Opp.Party no.1) --------- Respondent 2nd Set ========================================================== Appearance: For the Appellant : Sri Shilendra Kumar, Advocate For the Respondent No.1: Sri. Shambhu Sharan Singh, Advocate (Amicus Curiae) For the Respondent no.2: Sri Sanjay Kumar Pandey, Advocate ========================================================== CORAM: HONOURABLE MR. JUSTICE RAKESH KUMAR ------------- ORAL JUDGMENT ------------ Rakesh Kumar, J. The present appeal under Section 173 of the Motor Vehicle Act,1988( hereinafter referred to as the “ M.V.Act”) has been preferred against the Judgment dated 8th December,2009 and Award dated 16.12.2009 passed by the learned District Judge-cum- Motor Vehicle Accident Claim Tribunal, Madhepura ( hereinafter referred to as the “Claim Tribunal”) in M.V. Claim Case no.17 of 2001. 2. In this case despite valid service of notice, the Respondent no.1/ Claimant had not appeared and thereafter by order dated Patna High Court MA No.103 of 2010 dt.15-10-2011 2 13.05.2011, Sri Shambhu Sharan Singh, learned counsel was appointed as amicus curiae to assist the Court on behalf of Respondent no.1/ Claimant. Sri Sanjay Kumar Pandey, learned counsel has appeared on behalf of Respondent no.1 i.e. owner of the offending vehicle. 3. Short fact of the case is that on 30.10.1998, while the husband of Respondent no.1/ Claimant was moving for purchasing certain goods from grocery shop and on way he was dashed by a mini bus, bearing Registration No.BR-1P-6053. The said mini bus was being run as “Jai Chandi Travels”. The accident had taken placed due to rash and negligent driving of the vehicle and, as such, an F.I.R. vide Madhepura P.S. Case No.277 of 1998 was registered against the driver of the offending vehicle. After investigation, chargesheet was submitted However , due to death of the driver by order dated 04.09.2000 the case against the driver was closed. After the accident, the Respondent no.1(widow of the deceased ) filed a case for compensation under the M.V.Act before the court of learned District Judge-cum- Motor Vehicle Accident Claim Tribunal, Madhepura vide M.V. Claim Case no.17 of 2001 arraying the owner of the vehicle as well as the Insurance Company i.e. the appellant as Opp.Parties. Before the Claim Tribunal, despite service of notice, the owner of the offending vehicle did not appear and, as such, the case proceeded against him ex parte. It was not disputed by the parties that the offending vehicle was insured by the appellant and the vehicle was under insurance cover at the time of accident. Before the Claim Tribunal, the claimant examined altogether five witnesses to prove its case. It further appears that none of the witnesses, who were examined in support of the claim case, were cross- Patna High Court MA No.103 of 2010 dt.15-10-2011 3 examined on behalf of the insurer. The Insurance Company had only filed a written statement before the court below raising some ornamental objections. 4. After hearing the parties and perusing the evidences brought on record, the learned claim tribunal by the impugned Judgment and Award has directed the insurer/appellant to pay total compensation amount of Rs.3, 70,000/- which includes loss of consortium and funeral expenses. Since Rs.50,000/- was already paid to the claimant as interim compensation, the total remaining compensation amount i.e. Rs.3,20,000/- was directed to be paid to the claimant along with interest @ 9% per annum , which was to be calculated from the date of admission of the claim petition i.e. 18.02.2002. From the impugned Judgment, it is further evident that the insurer had not brought on record any material to prove any breach of terms and conditions of the insurance policy. Since the owner of the vehicle had not appeared before the court below nor any evidence was brought on record regarding the driving licence of the driver of the offending vehicle , the claim tribunal granted opportunity to the insurer/appellant to recover the paid amount from the insured i.e. owner of the vehicle. 5. Sri Shailendra Kumar, learned counsel for the appellant has tried to establish that the learned claim tribunal even in absence of evidence regarding driving licence has illegally and incorrectly directed the appellant to make payment of the compensation amount. 6. Sri Shambhu Sharan Singh, learned counsel ( amicus curiae) appearing on behalf of the Respondent no.1 on the basis of averment made in the written statement, which was filed by the Patna High Court MA No.103 of 2010 dt.15-10-2011 4 Insurance Company before the court below submits that there is no averment in the written statement regarding non-availability of the valid driving licence of the vehicle in question. He has further argued that since the Insurance Company had even failed to cross-examine any of the witnesses , it would be difficult for the appellant to question the impugned Judgment and award. From the record, it appears that nothing was pleaded by the Insurance Company claiming that the offending vehicle at the time of accident was being driven by a person, who was not having any valid driving licence. It is further evident that none of the witnesses examined on behalf of the claimant was cross examined. In such a situation, it was very difficult for the learned counsel appearing on behalf of the appellant to question the legality of the impugned Judgment and award. 7. After going through the materials available on record, I find that the learned claim tribunal has committed no error and, as such, there is no requirement to interfere with the impugned judgment and award. Accordingly, appeal stands dismissed with direction to the appellant to pay the compensation amount along with interest, as directed by the claim tribunal i.e. @ 9% per annum from 18.2.2002 till the date of payment within a period of two months from the date of receipt/production of a copy of this order. 8. It goes without saying that that if so advised, the appellant can avail remedy in view of liberty granted by the claim tribunal. 9. In view of rejection of the appeal, the statutory amount deposited at the time of filing of this appeal may be remitted back to the court below for its payment to the claimant. Patna High Court MA No.103 of 2010 dt.15-10-2011 5 10. Before parting with the Judgment, I must appreciate the assistance rendered by Sri Shambhu Sharan Singh, learned counsel (amicus curiae), who after examining the entire record of the case has rendered assistance to the court. 11. Sri Shambhu Sharan Singh, learned counsel, who has appeared as amicus curiae in this case , shall be paid Rs.1500/-( fifteen hundred) as fee by High Court Legal Aid Committee, Patna. Patna High Court, Patna Dated : the 15th October,2011 Nawal Kishore Singh/N.A.F.R. ( Rakesh Kumar, J.)