IN THE HIGH COURT OF JUDICATURE AT PATNA MA No 379 of 2007 National Insurance Company Ltd, Muzaffarpur, P.O., P S & District-Muzaffarpur through Shri Anjani Kumar and duly constituted Attorney National Insurance Company Ltd, Regional Office 4th Floor, Sone Bhavan, B C Patel Road, P O – G P O, P S – Sachiwalaya, Patna, District-Patna ……… ……… Appellant Versus 1.Sunita Devi, wife of late Subodh Kumar Rai @ Subodh Kumar (Claimant No 1) 2.Ritu Raj, son of late Subodh Kumar Rai @ Subodh Kumar (minor) (Claimant No 2) 3.Basant Raj, son of late Subodh Kumar Rai @ Subodh Kumar (minor) (Claimant No 3) 4.Khushi, son of late Subodh Kumar Rai @ Subodh Kumar (minor) (Claimant No 4), all minors under the guardianship of their mother, respondent No 1 5.Rana Pratap Rai, son of late Sadhu Rai (Claimant No 5) 6.Shail Devi, wife of Ram Pratap Rai (Claimant No 6), all claimants are residents of village – Simraha Basudeva, P.O.- Manpur, P. S.- Ahiyapur, District- Muzaffarpur 7.Sanjeev Kumar, son of Lal Babu Singh, resident of Azadpur Colony, P.S. & P.O. - Muzaffarpur, District- Muzaffarpur (Opposite Party No 1) ……. ……..Respondents ----------- 8. 19.05.2011 Heard Mr Ashok Priyadarshi, learned counsel for the appellant. Despite valid service of notice on respondents No 1 to 6/claimants, they preferred not to appear. The respondent No 7, who was owner of the offending vehicle has appeared through his counsel but at the time of hearing, none has appeared on his behalf. The present appeal has been preferred against the judgment and award dated 25.06.2007 passed in Claim Case No 105 of 2005 by the Additional Motor Vehicles Accident Claims Tribunal-Vth, Muzaffarpur (hereinafter to be referred to as the Tribunal) whereby the Tribunal has awarded compensation amount of Rs 1,79,500/- in favour of the claimants and the claim amount was directed to be paid by the appellant/National 2 Insurance Company Limited, Muzaffarpur. Since the claimants were paid Rs 50,000/- as an interim compensation under Section 140 of the Motor Vehicles Act, the said amount was deducted and Rs 1,29,500/- was required to be paid to the claimants. Short fact of the case is that on 06.05.2005, a public carrier bus in the name and style of Neel Kamal having registration No BR 06P – 2223 turned turtle near NH-57, Kari Chak Chowk, Gaighat, Muzaffarpur. In the said accident, three passengers died including one Subodh Kumar Rai. Thereafter, a first information report vide Gaighat P S Case No 74 of 2005 was registered on the same day for the offences under Sections 279, 337, 338 and 304A of the Indian Penal Code. Post mortem examination on the dead body of the deceased, Subodh Kumar Rai, was held on 07.05.2005 and as per the post mortem examination report, age of the deceased was considered as about 35 years. After investigation in the case, chargesheet was submitted against the driver. The claimants, who are widow, son, daughter, father and mother of the deceased, filed claim case under Section 167 of the Motor Vehicles Act. In the claim petition, it was asserted that the deceased on the date of death was aged about 25 years and he was earning Rs 3,000/- per month from milk business and, as such, the claimants had claimed compensation of Rs 4,50,000/- before the Tribunal. The claimants examined altogether five witnesses in support of the claim. Out of five witnesses, AW 3, Awadhesh Prasad Yadav and AW 5, Shiv Kumar Yadav, were co-passengers of the deceased and they had also sustained injuries in the said accident. AW 4, Manish Kumar was also one of the witnesses who had witnessed the accident. Consistently the witnesses have asserted that the accident had occurred 3 due to rash and negligent driving by the driver. In this case, the learned Tribunal framed six issues and after discussing the evidence and materials on record passed the impugned judgment in favour of the claimants. Mr Ashok Priyadarshi, learned counsel for the appellant has pin pointedly argued that once an issue was framed, it was required for the Tribunal to answer the same. It has been argued that Issue No 5 i.e. “whether the driver of vehicle possessed valid and effective driving licence of the date and time of alleged accident”, was not answered clearly by the Tribunal. Mr Priyadarshi has placed paragraph-10 of the judgment which deals with Issue No. 5. it would be appropriate to quote paragraph- 10 of the judgment which are as follows : “Owner of the bus has not appeared in this case nor he has filed any driving licence of the driver, so it cannot be said whether driver possessed valid and effective driving licence on the alleged date of occurrence or not, Issue No. 5 is decided accordingly.” After placing the aforesaid paragraph-10, Mr Priyadarshi has submitted that the answer given by the Tribunal to Issue No. 5 is not an answer in the eye of law. It is virtually a cryptic and illusive answer. It was further submitted that for the purpose of fixing responsibility on the appellant it was required for the owner or the claimant to establish that while accident had taken place, the driver was having a valid driving licence. In absence of valid licence, owner of the vehicle was required to make payment of the compensation amount and not the insurer. Accordingly, it has been submitted that the impugned judgment is liable to be set aside. Besides hearing learned counsel of the appellant, I have also 4 perused the materials available on the record. After going through the impugned judgment, the Court is satisfied that the Tribunal was required to answer Issue No 5 in specific term. However, it is an admitted position that, at the time of occurrence, the offending vehicle was insured with the appellant and, as such, primarily it was the liability of the Insurance Company to indemnify the owner and make payment of compensation amount to the claimants. At the same time, it was also necesssary on the part of the owner to place materials on record to satisfy the Tribunal that the vehicle in question was being driven by the authorized driver having valid licence and also to satisfy that owner had not breached the terms and conditions of the agreement with the insurer. Before the Claims Tribunal, the owner of the vehicle chose not to appear and, as such, the Tribunal had proceeded with the claim case ex parte against the order. Similarly, before this Court, despite the fact that owner entered his appearance through his counsel but at the time of hearing, none appeared on his behalf. The fact remains that in this case accident had taken place long back in the year, 2005 and the matter remained pending for such a long time and, as such, the Court is of the opinion that in case the matter is remanded back to the Court below, the whole object of the Act will be frustrated and the claimants will be deprived to receive compensation amount at the earliest and, as such, it would not be appropriate to interfere with the impugned judgment. Accordingly, the appeal stands rejected. However, since owner of the vehicle did not appear before the Court below nor Issue No 5 was properly answered, the Court is of the opinion that the Insurance Company i.e. the appellant can be entitled to take initiative for filing proper petition so that in case the appellant succeeds, 5 the appellant may get compensation amount recovered from the owner. With above observation and direction, the appeal stands rejected. The statutory amount which was deposited at the time of filing of the appeal under Section 173 (1) of the Motor Vehicles Act is directed to be remitted back to the Court below so that same may be paid to the claimants. Md.S. (Rakesh Kumar, J.)