IN THE HIGH COURT OF JUDICATURE AT PATNA M.A. No.189 of 2010 BRANCH MANAGER NATIONAL INSURANCE COMPANEY, KANKERBAGH BRANCH, PATNA, THROUGH SRI ANJANI KUMAR, A.O.-CUM- AND DUTY CONSTITUTED ATTORNEY NATIONAL INSURANCE COMPANY LTC. REGIONL OFFICE 4TH FLOOR SONE BHAWAN, B.C. PATEL ROAD. P.O. G.P.O., P.S. SACHIWALAYA, PATNA, DISTRICT PATNA .. APPELLANT Versus 1. TARA DEVI, W/O LATE SUKHDEO MAHTO 2. SURAJ KUMAR MAHTO, S/O LATE SUKHDEO MAHTO (MINOR) 3. MANISH KUMAR MAHTO, S/O LATE SUKHDEO MAHTO (MINOR) 4. ROSHAN KUMARI, D/O LATE SUKHDEO MAHTO (MINOR) ALL MINORS UNDER THE GUARDIANSHIP OF RESPONDENT NO. 1, ALL RESIDENTS OF VILLAGE PIRARI, P.S. JALALPUR, DISTRICT SARAN 5. AMARNATH YADAV, S/O SRI RANAND YADAV, R/O SHYAMCHAK, P.S. BHAGWAN BAZAR, DISTRICT SARAN 6. SRI UMESH KUMAR SAH, S/O SRI DASRATH SAH, R/O VILLAGE KOTHIYA, P.S. JALALPUR, DISTRICT SARAN 7. BISHRUP MAHTO, S/O LATE GHUHU MAHTO 8. RAMUNI DEVI, W/O BISHRUP MAHTO BOTH RESIDENTS OF VILLAGE PIRARI, P.S. JALALPUR, DISTRICT SARAN .. RESPONDENTS **** /6/ 23.08.2010 Heard the counsel for the parties. 2. This Miscellaneous Appeal is directed against the order, dated 07th October, 2009, passed by the Additional District Judge I-cum-Motor Accident Claims Tribunal, Saran at Chapra, in Claim Case No. 67 of 2006 by which he has granted compensation to the claimants to the extent of Rs.2,96,560/- with interest at the rate of 6 per cent per annum from the date of presentation of the case. The appellant is the - 2 - insurance company. 3. From the perusal of the record, it appears that Tara Devi and three children are the claimants and they filed claim petition regarding the death of Sukhdeo Mahto, the husband of Tara Devi, who died in an accident by a Commander Jeep, bearing registration no. BR-04C-8545, while the jeep turned turtle in consequence of the collusion with a tempo, bearing registration no. BR-1P-2014. However, in the claim case appellant-opposite party appeared, but, adduced no evidence either oral or documentary and the appellant-opposite party, insurance company, of the said jeep gave interim compensation of Rs.40,000/- to the claimants, but, neither the insurance company by which the tempo was insured nor it’s owner or driver has been made party and after considering the evidence on record the Tribunal held the responsibility of the entire amount by the appellant, the insurance company of the jeep, and held that it is the choice of the heirs of deceased to select and relied upon a decision reported in 2008 A.C.J., 838 (Divisional Manager, New India Assurance Co. Ltd. & Anr. Vrs. Sabitri Devi & Ors.) with a liberty to the appellant to realize the amount for any breach in the term of policy. 4. The learned counsel for the appellant, however, has - 3 - not challenged the quantum or interest or even the accident. However, the contention raised by the learned counsel for the appellant that the accident took place by collusion of a jeep and tempo and submitted that it is a case of contributory negligence and from the first information report it can well be inferred that the collusion was between the two vehicles and in case of the collusion a contributory negligence can well infer and liability of each be fastened with the two vehicles and the appellant can well be ordered for payment with regard to part of the amount either 50 per cent or 60 per cent. 5. However, taking into consideration the submission, in fact and circumstance, it is true that first information report though not per se admissible in evidence can be looked into. In the first information report, itself, it has been mentioned that the jeep driver was negligently driving the vehicle and, further, it is the insurance company who has to plead and prove about the contributory negligence and in the impugned order, itself, it has well been taken note of that the opposite party adduced no evidence either oral or documentary and the appellant has paid the entire amount of interim compensation to the tune of Rs.40,000/- and, further, even the insurance company with which the tempo was insured has neither been - 4 - made party nor owner of the tempo has been made party and for the contributory negligence, the liability is to be shifted between the two insurance companies and the claimants who are poor and destitute and widow with three children of the deceased must not come in the litigation between the two insurance companies, hence, under the circumstance, the interest of justice does not demand that the claimants to suffer for litigation between the insurer of two vehicles for this dispute to pay in what proportion. 6. I am not inclined to interfere with the impugned order. However, liberty is granted to the appellant to pursue his remedy for realization of amount in accordance with law from insurer of tempo for contributory negligence, if any. Rupees twenty five thousand, deposited by the appellant, be sent down to lower Court for satisfaction of the claim and rest amount shall be paid by insurer within two months, failing which the claimant shall release the amount in accordance with law. 7. With these observations and directions, this application is dismissed. Cp:2/S.A. (Gopal Prasad, J. )