IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.148 of 2009 Branch Manager National Insurance Company Ltd. Chapra through Sri Anjani Kumar A.O. cum and duly constituted Attorney National Insurance Company Ltd. Regional Office 4th Floor Sone Bhawan B.C. Patel Road P.O. G.P.O., P.S. – Sachiwalaya Patna District Patna -------- (Opp. Party No. 2) ------- -------- Appellant Versus 1. Usha Devi Wife of Late Surendra Prasad ----- (Claimant No. 1) 2. Nagendra Patel Son of Late Surendra Prasad ----(Minor) -----(Claimant No. 2) 3. Jitendra Prasad Son of Late Surendra Prasad -----(Minor) ---- (Claimant No. 3) 4. Krishna Kumar Son of Late Surendra Prasad -------- Minor --- (Claimant No. 4) 5. Bharti Kumari Daughter Late Surendra Prasad --- Minor --- (Claimant No. 5). 6. Arti Kumari Daughter of Late Surendra Prasad ----- Minor ------ (Claimant No. 6). 7. Priyanka Kumari Daughter of Late Surendra Prasad ----- Minor ---- (Claimant No. 7). All minors under the guardianship of their Mother Respondent No. 1. All residents of village & P.O. – Tajpurwa, P.S. – Marhowrah, District – Saran. 8. Madan Ray, Son of Shiv Ray, Resident of Village – Sitalpur Pirganj, P.O. – Sitalpur, P.S. – Dariyapur, District – Saran ------ (Opp. Party No. 1) ------ ------ ----------- Respondents ----------- 8 5/08/2011 The present appeal under Section 173 of the Motor Vehicle Act, 1988 has been preferred against judgment dated 09.01.2009 and award dated 22.01.2009 in Motor Vehicle Claim Case No. 23 of 2005 passed by 1st Additional District Judge, Saran-cum- Motor Vehicle Accident Claims Tribunal, Saran at Chapra (hereinafter referred to as the ‘Tribunal’). By the said judgment the learned ‘Tribunal’ has held that claimants are entitled to get Rs. 3,52,000/- as total compensation amount and after adjusting Rs. 50,000/- which was paid to the claimants as interim compensation, the appellant was directed to pay compensation of Rs. 3,02,000/- with interest at the rate of 6% per annum from the date of filing of the claim case till the date 2 of realization. While directing the appellant to pay the compensation amount the Claim Tribunal granted liberty to the appellant that if Insurance Company feels violation of policy the Insurance Company may recover the said amount from owner of the offending Jeep by filing separate petition for execution. Short fact of the case is that on 19.04.2001 husband of Respondent No. 1 (claimant) namely Surendra Prasad, while urinating on the road side was dashed by a Commander Jeep bearing Registration No. B.R.4A/8326 which was being driven rashly and negligently by the Driver of the vehicle. In the said accident the husband of the Respondent No. 1 died on spot. Subsequently, a case vide Dariyapur P.S. Case No. 27 of 2001 was registered against the Driver of the offending vehicle. On the dead body of the deceased post-mortem was conducted. Thereafter, the claimants i.e. Respondent No. 1 (wife of deceased) and her children filed a claim case for compensation of Rs. 5,00000/- on the ground that deceased was earning about Rs. 4,000/- per month. Before the Court below two witnesses were examined in support of the claim case and number of documents were brought on record. The F.I.R. i.e. Dariyapur P.S. Case No. 27 of 2001 was got exhibited as ‘Exhibit-1’, Certified copy of the Final Report submitted by the Police as ‘Exhibit-2’, Photo-Copy of the Post-Mortem Report of the deceased was marked as ‘Exhibit-3’, Photo-Copy of Insurance Policy as ‘Exhibit-4’, Certified copy of the protest-cum-complaint petition no. 843 of 2005 as ‘Exhibit-5’, Order of cognizance as 3 ‘Exhibit -6’ and report of D.T.O., Saran as ‘Exhibit-7’. The Opposite Party-Respondent No. 1 was examined as P.W. 1 and Jitendra Prasad claiming to be eye-witness was examined as P.W. 2. In the case before the Court below both owner of the offending vehicle and the appellant i.e. Insurance Company appeared and they filed their written statements. The Claim Tribunal framed certain issues and thereafter by the impugned judgment had allowed the claim case. Since on record there were no documentary proofs in support of the income of the deceased the learned Claim Tribunal on the basis of Minimum Wages Act assessed the income. The Tribunal did not agree to the case of the claimants on the point of monthly income of Rs. 4,000/- in respect of deceased. On the basis of Minimum Wages Act the Court finally concluded and directed for compensation amount of Rs. 3,52,000/-. Sri Ashok Priyadarshi, learned counsel appearing on behalf of the appellant while questioning the impugned judgment and award has emphatically argued that it was a case of hit and run and as such compensation was required to be paid in view of Section 161 of the Motor Vehicle Act. It was argued by Sri Priyadarshi that Police after investigation had submitted Final Form. Meaning thereby that the case was found un-true and in such situation it cannot be conclusively held that in the accident the offending vehicle was insured by the appellant/Insurance Company. Learned counsel has mainly questioned the judgment on 4 the plea that it was a case of hit and run and none had seen the occurrence nor anyone had noticed that the offending vehicle was the same vehicle which has been alleged in the claim case by the claimants. Sri Ashok Priyadarshi has alternatively argued that the claimants have miserably failed to establish that at the time of accident the vehicle was being driven by the driver with the valid driving licence. It was argued that no driving licence was brought on record by either of the party. It was submitted that in view of Section 158 of the Motor Vehicle Act it was necessary to bring on record the driving licence of the driver of the offending vehicle. Accordingly, on the aforesaid grounds it has been argued that the impugned judgment is liable to be set aside. Besides hearing Sri Priyadarshi, learned counsel for the appellant, I have also perused the materials available on record. In this case it is true that initially after investigation Police had submitted Final Report but on protest-cum-complaint petition competent learned Magistrate had taken cognizance of the offences against the driver of the offending vehicle. The claimants before the Claim Tribunal has produced certified copy of the Protest-Cum- Complaint Petition No. 843 of 2005 and also certified copy of Order of cognizance dated 18.07.2005 in Complaint Case No. 843 of 2005 which were marked as Exhibits – ‘5’ & ‘6’ respectively. In view of the fact that after submission of Final Report on protest petition the competent court had already taken cognizance of the offence, the 5 argument advanced by learned counsel for the appellant that it was a case of hit and run appears to be not sustainable. Prima facie it has come that the driver while using offending vehicle had dashed the deceased due to rash and negligent driving. For deciding the claim case, those facts were enough. So far non- production of driving licence is concerned, the Court is of the opinion that since the learned Claim Tribunal while asking the appellant to make payment of the compensation amount has already granted liberty to the appellant to recover the compensation amount from the owner of the offending vehicle if Insurance Company feels violation of the terms and conditions of the Policy, it would not be appropriate to interfere with the impugned judgment. In this case it is admitted position that the offending vehicle was insured at the time of accident by the appellant. In view of the facts and circumstances particularly the fact that accident had taken place long back in the year 2001 the court is of the opinion that it would not be appropriate to interfere with the judgment and award. Accordingly the appeal stands rejected. In terms of judgment and award liberty to the appellant is already there to proceed against the owner if the appellant considers it desirable. The appeal stands dismissed. Office is directed to remit back statutory amount to the court below forthwith for its payment to the claimants. Praful ( Rakesh Kumar, J.)