IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.105 of 2005 SMRIT KUNTAL & ORS Versus SMT.KABERI DUBEY & ORS ----------- 11. 30 .09.2008. This appeal has been preferred by Smrit Kuntal & others against the judgment and award dated 14.10.2004 and 29.11.04 respectively passed by the Ist Additional District Judge-cum-Motor Vehicle Accident Claims Tribunal, Bhagalpur,in Claim Case No. 39 of 2002, whereby and whereunder the claim case was dismissed. Heard learned counsel for the appellants-claimants and respondents. The aforesaid Claim Case No. 39 of 2002 was disposed of with another Claim Case No. 40 of 2002 filed by Sharda Pandey and others against the same owner and Insurance Company of the offending vehicle arising out of the same accident causing death of two persons. A police case bearing Naugachia (Parbatta) P.S. Case No. 173 of 2001 for the offence under Sections 279, read with Section 304A of I.P.C. was instituted which occurred on 1. 9. 2001 at about 9.30 P.M. near Vikramshila Bridge in village- Jagatpur, P.S. Naugachia (Parbatta), District –Bhagalpur. The informant Bachha Prasad Singh, S.I. of Parbatta P.S. has recorded his statement in the same night at about 11 P.M. to this effect that he got an information that in village-Jagatpur near Vikramshila Bridge two persons died in a vehicular accident and as such he reached at the place of the accident and saw one scooter bearing Registration No.. BR-10A/5800 in damaged condition lying there about 50 yards north from 13 K.M. to Bhagalpur, Road Pillar, towards eastern flank of the road. 2 The informant noticed two dead persons lying by the side of the scooter. On opening the dicky of the scooter the informant found owner book of this scooter from which it was found to be the name of Laxmi Narayan Pandey, Deputy Manager, Zonal Office, State Bank of India, Bhagalpur. In the meantime, A.S.I. Raj Narayn Rai, deputed on the Vikramshila Bridge also arrived there and two persons also arrived there who disclosed their names as Shekhar Chandra Choudhary and Alok Chaturvedi, who identified the two dead bodies to be of Sunil Chandra Choudhary and Laxmi Narayan Pandey (deceased persons), which gave rise to these claim applications. Thereafter, the informant prepared the inquest report on the dead bodies of the deceased persons and mentioned his written report that some unknown vehicle might have crushed them to death. Accordingly, a case was registered and the investigation was entrusted to A.S.I. Raj Narayan Ram. It has been claimed by the claimants of Claim Case No. 39 of 2002 for which the instant appeal has been filed that Sunil Chandra Choudhary died in a road traffic accident by use of jeep bearing Registration No. ,B.R. 10B-0717, who was aged 38 years 7 months and 6 days,. When the accident took place the deceased was employed in the State Bank of India and was posted at Bazar Branch, Deoghar (Jharkhand) and was drawing a monthly salary of Rs. 13, 746/- only. The claimants have claimed a compensation of Rs. 23,42,588/- (Twenty three lacs forty two thousand and five hundred eighty eight) due to death of the deceased. It is claimed by the claimants of Claim Case No. 40 of 2002 that deceased Laxmi Narayan Pandey also died in the same road traffic accident by use of the same jeep bearing Registration No. BR-10B-0717. The deceased 3 was aged about 55 years three months and 25 days on the date of his death and he was employed as Deputy Manager, Zonal Office, State Bank of India, Bhagalpur, and was drawing a monthly salary of Rs.21,742.92/- (Twenty one thousand seven hundred forty two and odd). The claimants have, thus, claimed a total compensation of Rs. 16, 79, 292/- (Sixteen lacs seventy nine thousand and two hundred ninety two), due to the death of the deceased in the vehicular accident. The claim cases have been mainly contested by National Insurance Company wherein plea was taken regarding maintainability of the claim applications. Their claim is that claimants have not paid the requisite court fees and the owner of the vehicle never informed them about the accident, which is mandatory as per terms of the Insurance Policy. There was no eye witnesses of the alleged accident and the deceased persons died due to their own negligence. Thus, the deceased persons themselves contributed negligence in driving the scooter causing their death and they were influenced by liquor having no control upon themselves. It was also pleaded that their death occurred due to rash and negligent driving of their scooter which was dashed by a heavy vehicle as per F.I.R. A jeep can not be said to be a heavy vehicle and it is settled principle of law that pillion rider’s risk is not covered by the insurer. A separate written statement was also filed by owner of jeep bearing Registration No. BR-10B-0717 wherein it was pleaded that the jeep was insured with the National Insurance Company Ltd., Dumka Branch, vide Policy No. 171004/2001/6101017 during the period from 20.8.2001 to 19.8.2002. 4 On the basis of the pleading several issues were framed, the main issues being Issue Nos. III and IV. The learned Tribunal has considered evidence of twelve witnesses in support of their claims in both the claim cases in respect of deciding their claims as to whether death of the two persons namely, Sunil Chandra Choudhary and Laxmi Narayan Pandey occurred due to rash and negligent driving of the jeep bearing Registration No. BR-10B-0717 or whether it has been occurred by an unknown heavy vehicle. Learned Tribunal has examined the evidence of O.P.W.2 Anurag Kumar who was appointed as Advocate Commissioner after the order of the Claim Tribunal for inspection and verification of the spot of accident, who after inspection and measurement proved his report as Ext. B. He has measured the distance from ‘Kailash Parbati’ line hotel to the accident site upon riding a scooter by its milometer and found that the accident site was 1.25 K.M. away from the line hotel from where P.W.8 Bido Mandal has claimed to have seen the accident and also denied the suggestion that the road mile stone is 500 yards away from the ‘Kailash Parvati’ line hotel. Learned Tribunal has also examined and considered the evidence of O.P.W. 3 Bachha Prasad Singh, who is the informant of the case. He was the first person to arrive at the accident site at 11 P.M. and recorded his own statement (Ext. C) wherein he has stated that the occurrence took place 50 yards north of the 13 K.M. mile stone and found the dead bodies and prepared the inquest report. He has proved the same in presence of the witnesses Bido Mandal (P.W.8) and Shekhar Chandra Choudhary (C.W.5) which has been marked as Ext. D. In the written report this witness has stated that he has 5 written upon the basis of his guess that the accident was caused due to involvement of an unknown vehicle. He has written the time of the accident in between 9.30 P.M. to 10 P.M. O.P.W.4 Chandra Kant Verma , Divisional Manger, National Insurance Company Ltd. Bhagalpur, has deposed in this case and proved the documents of jeep, the number of which was given to him by Bido Mandal. This witness has stated that he has given the number of the jeep on the basis of the statement of witnesses and confidential information as well as supervision note of senior officers. The Insurance Company has examined O.P.W.1 Onkar Nath Dubey, a retired Dy. S.P. who was appointed by the Insurance Company for investigation of the case, when the Insurance Company came to know about the facts of dubious concoction having been made by the claimants with sinister object for extracting huge amount through claims, since the deceased persons were bank employees getting better salaries. This witness has proved the bail application and copies of orders of A.C.J.M., Naugachia, allowing the requisition of the I.O. for issuance of warrant of arrest against the driver, Vakalatnama of the driver given to his Advocate, copy of bail bond which were marked as Exts. F. to I which bears the date of single day transaction in the court on 15. 1. 2002. This witness has stated in para 15 of his cross- examination that he came to know about the change of place of accident through Umesh Yadav of Village-Jagatpur i.e. P.O. Village. The learned Tribunal in para 15 of the judgment seems to have scrutinised the evidence of the parties and held that the accident as stated is an admitted fact. But the question as to whether the jeep in question bearing 6 Registration No. BR-10B-0717 brought up by the claimants was involved in the accident and against which the claim was made by the claimants is genuine or not or the accident took place by an unknown vehicle. The Insurance Company has objected the involvement of the jeep in question against which the claim was made for which they sought permission from the Claims Tribunal by filing an application under Section 170 of the M.V. A ct and got appointed his own Investigating Officer, a retired Dy.S.P. (O.P.W.1) Onkar Nath Dubey who investigated the case and had given his reports (Ext. A and A/1) corroborating the evidence of O.P.W. 3 Bachha Prasad Singh as well as Ext. C, the written report. The site of the accident and the distance of ‘Kailash Parvatri’ Line Hotel was attempted to be reduced by the I.O. (C.W.11) which was falsified by the two witnesses examined on behalf of the Insurance Company (O.P.W 1 and O.P.W.2). Reference of Case Diary and written report has also been made in the said paragraph of the judgment besides connivance of the I.O. which appears from Ext. G to Ext. I which was done on a single day. The claimants have brought claim of a huge amount and hence the official of the Insurance Company became conscious and took active and effective steps. In nut shell, the learned Tribunal in paragraphs 15 and 16 of judgment on consideration of evidence, facts and circumstances, manner of occurrence, initial role of police officers and witnesses, and possibility of means of light to identify the number plate of the speeding heavy vehicle causing death of the deceased persons, had ultimately concluded that the jeep in question was not involved in such accident and so the whole matter was decided against the claimants. In the result, the learned Tribunal dismissed the 7 claim petitions of the claimants by assigning good reasons in paragraphs 15, 16 and 17 of the impugned orders. Having gone through the reasonings assigned by the learned Tribunal and considering the facts, evidence, circumstances, manner of accident place of accident, possibility of witnessing the accident and thereby noticing the number of the offending speeding vehicle by the persons so claiming to have identified the same and not divulging such facts when the informant arrived at the place of site of the accident after one and half hours of the accident are suggestive of the facts that the reasonings assigned by the learned Tribunal in arriving its conclusion are not to be doubted or interfered with. Learned counsel for the appellant has submitted that the learned Tribunal has not considered evidence, circumstances and facts in right perspective, rather without meticulously examining such facts, hurriedly arrived at the conclusion that the jeep in question was not involved in such accident. In the facts and circumstances, I do not find any reason to set aside the impugned order by super imposing my views. I also find in such situation, when some death occurs, any body could manage to get any compensation by conniving with the owner and driver of the vehicle having proper insurance and effective driving licence,for the aforesaid period of accident, so as to realise hefty claim amount and for that the owner and the 8 driver of such vehicle by all means could be said gainers. In the circumstances, there is no merit in this appeal. Accordingly, this appeal stands dismissed. SKBOSE (Subash Chandra Jha)