IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.252 of 1992 1. Ramesh Singh, son of Paltoo Singh. 2. Rakesh Kumar Singh, S/o. Ramesh Singh. Minor son under the guardianship of his father, both residents of Jhoomari Tilaiya, P.S. – Jhoomari Tilaiya, Distt. – Hazaribagh, ……………….. O.P. ………….. Appellants. Versus 1. Chinta Devi, w/o. Prayag Goshwami, decd. Resident of village – Rajapur, Indaul, P.S. – Akbarpur, Distt. – Nawada. ……… Applicant …………Respondent Ist. Set. 2. Oriental Insurance Company, Hazaribagh, Distt. – Hazaribagh. …….. O.P. ……….. Respondent, 2nd Set. 3. Prahlad Kumar Verma, son of Firangi Prasad Verma. Driver of vehicle No. B.H.W. 1892, Resident of Jhoomari Tilaiya, P.S. Jhoomari Tilaiya, Distt. – Hazaribagh. …….. O.P. …………… Respondent 3rd Set. ----------- 23/ 27.07.2010 Heard learned counsel for the parties. 2. This miscellaneous appeal is directed against the order dated 29.06.1992 passed by Sri Hari Bhushan Prasad Sinha, learned 4th Additional Sessions Judge, Nawada in Motor Vehicle Claim Case No. 01 of 1991 / 28 of 1988 by which the appellant has been granted compensation of Rs.65,000/-. However, it has further been held that under Section 95(i) (b) (ii) of the Motor Vehicles Act, 1939 would be applicable to this case having been filed prior to New Motor Vehicle Act 1988. The Insurance Company is only liable to pay Rs.15,000/- per passenger 2 and the rest of the amount to be paid by the owner. 3. As per the case of the applicant her husband was the passenger on the trecker in question. So the Insurance Company is only liable to pay Rs.15,000/- which has already been paid by it as ad interim compensation. Subtracting this amount of 15,000/- the applicant is entitled for 50,000/- more which is not payable by the Insurance Company and hence it is required to be paid by the opposite party no. 1, the owner of the vehicle in question. The owner of the vehicle has preferred this appeal. 4. The learned counsel for the appellant, however, challenged the above finding by the Tribunal on the ground that the Tribunal has wrongly applied Section 95(i)(b)(ii) of the Motor Vehicle Act 1939 and has contended that the case falls under Section 95(i)(b) of the Motor Vehicle Act 1939 as there is no case that the deceased was a passenger of the vehicle and contended that after going through the evidence, it can well be inferred that the deceased died not being a passenger but as other than a passenger and it can well be inferred that the vehicle dashed while going on the road and hence 3 Section 95(i)(b)(ii) of the Motor Vehicle Act, 1939 is not applicable. 5. Learned counsel for the Insurance Company, however, contended that the Tribunal has rightly applied the law and fact as the case is covered under Section 95(i)(b)(ii) of the Motor Vehicle Act as there is evidence and it can well be inferred that the deceased was travelling as a passenger on the vehicle which met with an accident and hence on the rival submission of the parties, the question for consideration is whether the deceased was a passenger or was a person other than passenger on the vehicle which met with the accident i.e. and whether the case is covered under Section 95(i)(b)(i) or covered under Section 95(i)(b)(ii) of the Motor Vehicle Act. 6. However, going into facts and the findings by the learned lower Court, the learned Tribunal has taken into consideration the evidence of A.W. 2 Chinta Devi who is the applicant and wife of deceased herself has stated that she came to know that her husband fell down from the trecker in question and died and the Tribunal took into consideration this fact and evidence and while 4 considering the applicability of Section 95(i)(b)(ii) held that her husband was a passenger on the trecker in question. 7. Learned counsel for the appellant has challenged the findings and contends that Chinta Devi is not the eye witness of the occurrence and she has stated that she has learnt about the occurrence and her evidence cannot be relied as admissible and hence the finding of Tribunal is not correct. 8. However, in the petition of the claim before the Tribunal it has been stated that the deceased was traveling by that vehicle and he caught the vehicle at Rajouli to Nawada and vehicle which was being driven rashly and negligently dashed with a tree and deceased Prayag Goswami died on the spot. 9. The owner even filed written statement and has stated in his written statement that the vehicle is already insured and Ramesh Singh is the owner of the vehicle but not refuted that deceased was not travelling on vehicle. 10. However, during the evidence the applicant witness A.W 1 Saudagar Goswami has stated 5 that his elder brother Prayag Goswami has died on 25.05.1988 by accident of trecker and he learnt that his brother has been taken to the police station. A.W. 2 Chinta Devi has stated that her husband died in the accident and she learnt that he fell down from the trecker in question and died. A.W. 3 is Suresh Goswami and he has stated that he was not present at the place of occurrence i.e. Angharbari. The evidence of A.W. 4 who is the only witness who has stated that Suresh Goswami informed him about the occurrence. However, there is no eye witness to the occurrence at all. None of the witness examined said specifically about the occurrence having been taken place in their presence and they simply said that there was a simple accident. 11. However, A.W. 2 has specifically stated that she learnt that the deceased fell down from the death. The case of the applicant in the petition for compensation of the claim specifically mentioned in Column 10 and 22 that the deceased Pryag Goswami died while traveling on the vehicle which met with the accident. 12. Insurance copy of insurance bill which has been marked as Ext. A, mentions that the vehicle was 6 having sitting capacity 6 + 1 and also mentions limit of 6 passengers and was insured for 6 passengers of Rs.15,000/- . 13. Learned counsel for the appellant, however, contended that since one of the witnesses Suresh Goswami has stated in his evidence that he does the business of ferry and the deceased was also a person who was doing the business of ferry and hence contend that it may be inferred that the deceased was also doing the ferry business in the locality when the accident took place and it may be deemed that the trecker dashed the deceased while he was roaming on the road for doing ferry and therefore it should have been held that the deceased was not a passenger of the vehicle and was a person other than passenger who died out of road accident by the vehicle. However, the argument is based on imagination and without any basis and any conclusion arrived on that basis cannot be accepted as there is neither any pleading, averment nor any proof or suggestion. 14. However, having regard to the fact, in the claim petition itself, there is a specific mention that deceased was a passenger and traveling on the trecker and 7 there is evidence of A.W. 2 that her husband fell down from the trecker and hence on that basis the finding recorded by the Tribunal is well considered and not required to be interfered with. 15. After having heard the learned counsel for the parties and taking into consideration the entire facts and circumstances of the case, this Court comes to an irresistible conclusion that the deceased was a passenger in the vehicle in question and the Tribunal was justified in making Sections 95(i)(b)(ii) of the Motor Vehicles Act 1939 applicable to the facts of the case and hence the applicant is entitled to the amount fixed by the Tribunal. In the result, I do not find any merit in this appeal and hence the same is dismissed. Kundan (Gopal Prasad, J.)