IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.433 of 2005 National Insurance Company Ltd., represented through Sri P. K. Sinha, A.A.O. and Constituted Attorney of the National Insurance Co. Ltd., Regional Office at Sone Bhawan, 4th Floor, Veer Chand Patel Marge, Patna, P.S. – Sachiwalaya, District – Patna. …… Opposite Party No. 3 …. Appellant. Versus 1. Dipti Devi, wife of Late Mahabir Mahto. 2. Priyanka Kumari Minor, daughter of Late Mahabir Mahto, Minor represented through her mother and natural guardian the claimant no. 1. Both resident of village Karhagola, P.O. Barari, P.S. – Barari, District – Katihar. ……… Claimant ………….. Respondent Ist Party. 3. Ramdeo Roy, Son of Sri Jugeshwar Roy, resident of village Jalalgarh, P.O. + P.S. - Kasba, District – Purnia. Driver of vehicle bearing registration no. BPP – 9655 ……… Opposite Party No. 1 ……. Respondent. 4. Sanjay Kumar Agrawal, Son of Rameshwar Prasad Agrawal, resident of R. N. Datta Road, Forbisganj. P.O. and P.S. Forbisganj, Dist. Forbisganj. …….. Owner of the vehicle bearing registration no. BPP-9655 ……. Opposite Party No. 2 ……… Respondent 2nd Set. ----------- For the Appellant :- Mr. Shailendra Kumar, Advocate. For the O.P. No. 1 & 2 :- Mr. Ajit Ranjan Kumar, Advocate. 12/ 08.09.2010 Heard learned counsel for both the parties. This miscellaneous appeal is directed against the order dated 20th July 2005 passed by the Additional District Judge, in Claim Case No. 62 of 2004 Appeal No. 34 of 2004 by which the National Insurance Company has been directed to pay compensation to the tune of Rs. 1,70,500/- to the claimant along with the interest @ 6% per annum from the date of filing of the petition. 2 From the perusal of the records it appears that a claim petition was filed by the claimants on the ground that husband of the claimant no. 1 Mahabir Mahato died out of the accident while travelling on the bus on 19.04.2004 bearing no. BPP 9655 and the deceased was earning Rs.2,500/- per month. The Insurance Company appeared and contested and even taken stand that the deceased himself was at fault while boarding the bus as he was travelling on the roof of the bus. Hence, there is violation of term of policy and there was contributory negligence by the deceased. However, on the pleadings of the parties the following issues were framed by the Tribunal. 1. Is the compensation case as framed maintainable? 2. Have the applicants got any cause of action? 3. Whether the accident occurred out of the use of the Motor Vehicle bearing registration no. BPP 9655 (Agrawal Bus) and late Mahabir Mahto died in the said accident? 4. Whether the accident due to rash and 3 negligent driving of the driver of the concerned vehicle? 5. Whether the concerned vehicle was insured at the material time with the National Insurance Company Ltd.? 6. Whether the quantum of compensation, as claimed by the applicant in claim petition is just and proper? 7. Whether the driver of the vehicle had got valid driving license at the relevant time of accident? Issue no. 1 decided in favour of the claimant, with regard to issue nos. 2 and 3 it was held that the accident occurred on account of bus no. BPP 9655, while deciding issue no. 4 decided in favour of the claimant, while issue no. 5 and 7 also they were decided in favour of the claimant, while deciding issue no. 6, the daily earning of the victim was taken as Rs.200/- per day and the total amount of compensation after deducting 1/3rd was assessed as Rs.2,16,000/- and further on the head of funeral expenses Rs.2000/- and loss of consortium Rs.2500/- added and hence the total claim to the claimant was assessed as Rs.2,20,500/-. However, Rs.50,000/- having been paid and so the amount of Rs.1,70,500/- with 4 6% interest was ordered to be paid by the Insurance Company. The appellant is the Insurance Company. The Insurance Company, however, does not dispute the quantum or any other finding except contending that since the victim was travelling on the roof of the bus and hence he also has contributed. Learned counsel for the appellant, however, contended that in the objection or written statement the Insurance Company has taken the plea that he was travelling on the roof of the bus and has contended that the FIR is Ext. 1. However, the FIR was not sacrosanct that whatever mentioned in the fardbeyan be taken to be a fact. However, no evidence has been adduced by the Insurance Company nor even a suggestion has been made by the Insurance Company in the entire evidence about the travelling of the victim on the bus but in the evidence even in cross examination of A.W. 3 it has come that the victim was sitting inside the bus. There is neither the case of the claimant in the claim petition that the victim was travelling on the roof of the bus nor there is any evidence. However, merely because that there is mention in the fardbeyan it 5 cannot not be taken to hold that the victim was travelling on the bus when there is no apparent evidence adduced on behalf of the Insurance Company during enquiry or trial nor there is any material on the record of the case to suggest that he was travelling on the roof of the bus except the FIR. Hence, having taking into consideration the facts and circumstances there is no reliable evidence to infer that the victim was travelling at the time of the accident on the roof of the bus to contribute the negligence and further neither any issue framed to that effect nor any evidence led to infer that deceased was traveling on the roof of the bus at the time of accident. Hence, I do not find any merit in this appeal hence the appeal is dismissed. Learned counsel for the appellant, however, contended that Rs.25,000/- has been paid at the out set of the filing of the appeal be sent down to the lower court to be deposited in the accounts of the claimants. Kundan (Gopal Prasad, J.)