MISCELLANEOUS APPEAL No. 30 OF 2008 ********* Against the judgment and award dated 13.11.2007 and 29.11.2007 respectively passed by Sri Chandrama Singh, A.D.J. F.T.C. VI-cum- M.V.A. Claim Tribunal, Munger in M.V.A. Claim Case No. 85 of 2003. ********* 1. THE BRANCH MANAGER, THE UNITED INDIA INSURANCE COMPANY LIMITED, MUNGER, BRANCH OFFICE AT PATNACITY, P.O.- PATNACITY, DISTRICT – PATNA (BIHAR). 2. THE DIVISIONAL MANAGER, THE UNITED INDIA INSURANCE COMPANY LIMITED, DIVISIONAL OFFICE AT BHAGALPUR, P.O.- BHAGALPUR, DISTRICT – BHAGALPUR APPEAL AND APPELLANTS THROUGH THE CONSTITUTED ATTORNEY THE DEPUTY MANAGER, REGIONAL OFFICE, UNITED INDIA INSURANCE COMPANY LIMITED, 3RD FLOOR, CHANAKYA COMMERCIAL COMPLEX, R’ BLOCK, PATNA. ………. OPPOSITE PARTIES No. 3, 4, / APPELLANTS Versus 1. SRI BIRENDRA KUMAR, SON OF LATE BANBARI YADAV. 2. SMT. NEELAM DEVI, WIFE OF BIRENDRA KUMAR BOTH RESIDENT OF VILLAGE AZIMGANJ, P.S. HAWELI KHARAGPUR, DISTRICT – MUNGER. …..CLAIMANTS/ RESPONDENTS. 3. SRI OMKAR KESHRI, SON OF LATE SRI LAXMI NARAYAN KESHRI, RESIDENT OF VILLAGE – HAZIGANJ, PATNACITY, P.S. – PATNACITY, DISTRICT- PATNA, AT PRESENT DANAPUR CANT., SADAR BAZAR, P.O. + P.S. – DANAPUR, DISTRICT – PATNA. (OWNER OF THE VEHICLE) .… OPPOSITE PARTY No. 1/RESPONDENT. 4. MD. SONU, SON OF KAMRUDDIN, RESIDENT OF VILLAGE- SULTANPUR, P.O. – BYPASS CAMP, DANAPUR CANT., DISTRICT – PATNA (BIHAR) (DRIVER OF THE VEHICLE).... OPPOSITE PARTY No. 2/ RESPONDENT ********* For the Appellants: Mr. Durgesh Kumar Singh, Advocate. For the Respondent Nos. 1 & 2: Mr. Raj Kumar Choudhary, Advocate. ********** P R E S E N T THE HON'BLE MR. JUSTICE RAKESH KUMAR ******** Rakesh Kumar, J. Heard Sri Durgesh Kumar Singh, learned counsel for the appellants and Sri Raj Kumar Chaudhary, learned counsel appearing on behalf of respondent nos. 1 & 2. (2) The present appeal has been preferred under Section 173 of the Motor Vehicle Act, 1988 against the judgment and order dated 13th November, 2007 passed by the Additional District Judge Fast Track Court No. VI-cum-M.V. Accident Claim Tribunal, Munger 2 (hereinafter referred to as the ‘Tribunal’), whereby, the learned ‘Tribunal’ has allowed the claim petition under Section 140 of the Motor Vehicle Act and directed the appellants to pay the amount of compensation of Rs. 25,000/- together with 7 % interest per annum from the date of filing of the case till the date of actual payment. (3) In the present case, a cross objection under Order 41 Rule 22 & 23 of the Code of Civil Procedure was filed by the claimants for enhancement of the compensation amount from Rs. 25,000/- to Rs. 2,50,000/- with 9 % interest from the date of application till the date of realization. (4) Both the matter i.e. appeal and cross objection were heard together. (5) Short fact of the case is that on 9.12.1999, as per the claimants, claimants' father sustained injury in a road accident by an offending vehicle i.e. Commander Mahendra Maxi bearing registration no. BR-1P/2043. It was claimed that after the accident father of the claimants was carried to the hospital, and subsequently, he was shifted to his residence. After the accident an F.I.R. vide Kharagpur P.S. Case No. 198 of 1999 was registered. During the course of treatment, on 15.04.2000, the father of the claimants died. Subsequent to the death, a charge sheet under Sections 279 & 337 of the Indian Penal Code was submitted on 31.05.2000 against the driver of the offending vehicle. Before the 'Tribunal', the claimants examined altogether four witness in support of the claim. In the case, F.I.R. i.e. Kharagpur P.S. Case No. 198 of 1999 and charge sheet filed by the Police were got exhibited as Exhibit No. 2 & 3 respectively. In 3 this case, after the death, no post-mortem examination was conducted, and as such, on record, post-mortem report was not brought. (6) Sri Durgesh Kumar Singh, learned counsel for the appellants while questioning the impugned order for compensation has drawn my attention to paragraph no. 13 of the impugned judgment. For proper appreciation, it would be necessary to quote the same which is as follows: “Thus, from the oral as well as the documentary evidence it has only been proved that an accident took place on the alleged date, time and place by the vehicle no. BR1P2043 on account of rash and negligence driving of the vehicle by driver in which, the father of the applicant no. 1 sustained injury on his person but it has not been proved that the deceased died due to injury sustained in the alleged accident, rather it appears that the deceased died due to natural death on account of some other factor, due to natural death and not death by the accident. It has been also proved that the said vehicle in question, was under the coverage of Insurance Policy of the United India Insurance Company Ltd. So, the case of the applicant comes for only consideration of sustaining injury by rash and negligence driving of the driver under no fault liability and accordingly the claimants are entitled to get compensation only u/s 140 of M.V. Act for sustaining injury and not for causing death due to accident u/s 166 M.V. Act.” (7) From the facts noticed by the 'Tribunal', it is evident, that before the 'Tribunal', it was not at all established as to how death 4 had occurred. (8) Learned counsel for the appellants submits that in absence of any material to show the cause of death, the learned 'Tribunal' was required to reject the claim petition. It was submitted that in view of material on record, it was evident, that neither it was a case of disablement nor a case of death due to accident. (9) Learned counsel for the respondent nos. 1 & 2/claimants, has vehemently opposed the appeal and submitted, that on the basis of materials on record, the claim 'Tribunal' was required to address the claim petition which was filed under Section 166 of the Act and claim for Rs. 2,50,000/- was required to be allowed and the learned 'Tribunal' without assigning any detail reason has not entertained the claim for compensation of Rs. 2,50,000/-. (10) It was submitted that it is true that post-mortem report was not brought on record since no post-mortem examination on the dead body was conducted but fact remains that death had occurred due to the accident which took place on 9.12.1999. (11) It was further submitted that due to poverty the claimants were not in a position to pursue the matter properly, and as such, despite best efforts made by the claimants post-mortem examination could not be done. However, it has not been disputed that death of father of the claimants had occurred at his residence, not in hospital. (12) Besides hearing learned counsel for the parties, I have also perused the materials available on record. From the materials on record, it would be difficult, to proceed on the objection 5 petition, and as such, the court is of the opinion that cross objection is liable to be ignored. So far the judgment and order of the 'Tribunal' in respect of imposing compensation of Rs. 25,000/- is concerned, the court is of the opinion, that in view of meager amount of compensation coupled with the fact that accident initially had occurred and father of the claimants had received injuries, it would not be appropriate to interfere with the impugned order. (13) Accordingly, the appeal stands rejected. The amount deposited at the time of filing of the present appeal may be remitted back to the 'Tribunal' for payment to the claimants. Patna High Court, Patna. Dated 3rd May, 2011 N.A.F.R./Praful (Rakesh Kumar, J.)