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Judgment
I.A. No. 5718/2017
The present Interlocutory Application has been filed for condonation of delay of 547 days in preferring the appeal.
Perused the I.A. Reasons explained in the Interlocutory Application is accepted.
In view of the reason discussed in the I.A., the delay in filing the present Appeal is hereby condoned.
I.A. No. 5718 of 2017 stands allowed.
M.A. No. 392 of 2017
The present Miscellaneous Appeal has been preferred by the Manager, New India Assurance Company Limited against the award dated 26.09.2015 passed in M.V. Suit No. 203/2009 preferred by the claimant who has suffered grievous injury in motor vehicle accident on 18.10.2005.
Learned counsel for the appellant has submitted that the father of owner of the vehicle has filed an application before the Tribunal stating therein that the injured has climbed over the offending truck forcibly in spite of protest made by the father of the owner, giving threat with dire consequences, as such, he was not a bonafide passenger nor an employee of the truck, as such the claimant who has no concern with the vehicle has been awarded compensation to the tune of Rs. 37,883.66/- with interest @6% per annum from the date of claim application till its realization. Learned counsel for the appellant has further submitted that pursuant to the order passed by this Court vide order dated 28.11.2017 in I.A. No. 5719/2017 appellant has deposited Rs. 18,000/- in the court below within stipulated time granted by this Court and the same has also been withdrawn/released in favour of the claimant. Learned counsel for the appellant has further submitted that this case may be heard on merit as the appellant-New India Assurance Company has already deposited Rs. 19,000/- before this Court as a statutory amount to prefer the present appeal, as such, considering such submission on merit this court may allow the present appeal by setting aside the impugned award dated 26.09.2015.
Learned counsel for the appellant, has produced the copy of F.I.R. of Tundi P.S. Case No. 53/2005 dated 19.10.2005. From perusal of the same, it appears that no such averment has been made in the fardbeyan of Tundi P.S. Case No. 53/2005 dated 19.10.2005. Learned counsel for the appellant has relied upon a judgment passed by this Court in Most. Kamiya Devi & Ors. vs. Krishna Kumar Agarwal @ Tekriwal and Anr. reported in 2013 (1) T.A.C. 37 (Jhar.) where the appeal preferred by the claimant and the owner of the vehicle was dismissed by the tribunal and affirmed by this Court on the ground that deceased was not a gratuitous passenger as he boarded the truck quietly in the darkness while it was standing without knowledge of anyone on truck.
The fact of this case is different from the fact of the above cited case. In that case the person/owner or the driver has no knowledge but in the present case the driver or owner had knowledge even if relying upon such inadmissible document but instead of stopping the vehicle, driver has started the vehicle which led to grievous injury to the victim and as such the aforesaid judgment is not applicable.
Learned counsel for the appellant has further put reliance in the case of New India Insurance Company Limited vs. Asha Rani and Others as reported in (2003) 2 SCC 223; National Insurance Company Ltd. vs. Saju P. Paul and Others as reported in (2013) 2 SCC 41; United India Insurance Company Limited vs. Silwanti Lakra & Ors. as reported in 2010 1 JLJR 352 and National Insurance Company Limited vs. Savitri Devi as reported in (2013) 11 SCC 554.
Relying upon the aforesaid judgments, learned counsel for the appellant has submitted that on death of a gratuitous passenger on the truck the Insurance Company cannot be held liable.
Heard learned counsel for the appellant and from perusal of the record, it appears that father of the owner of the truck has not been examined in this case in support of such letter, whether the same has been issued by him or it has been brought on record by means of fraud? This document cannot be relied upon in absence of any legal proof of the same, though the learned trial court has exhibited the same and marked as Exhibit-A without its formal proof which is not admissible under the law.
From perusal of the impugned award, it appears that occurrence took place on 18.10.2005, the claim application was filed in the year, 2009 and the claimant has filed P.L. Suit No. 72/2006 before the Lok Adalat, Dhanbad which was subsequently withdrawn on 04.09.2008 to file a fresh case before appropriate forum. Thereafter the present case has been filed in the year, 2009. Since 2009, this case was pending before the Tribunal when it was finally allowed by awarding compensation of Rs. 37883.66/- along with interest @6% per annum from the date of claim application till its realization vide order dated 26.09.2015. The Miscellaneous appeal has been preferred in the year, 2017 after a delay of about two years and I.A. No. 5719/2017 has been disposed of vide order dated 28.11.2017. The claimant is the only sufferer in such litigation where the Insurance Company or the owner has not co-operated the trial court though the meager amount of approximately Rs. 38,000/- has been awarded by the trial court.
From perusal of the record, it appears that this victim was travelling on the vehicle and nowhere in the police case, it has been stated that the victim has forcibly climbed over the said truck in spite of protest made by father of the owner of the truck. Moreso, father of the owner of the truck has not been examined in this case. Apart from this, in the criminal case, the chargesheet has already been submitted against the driver Sunil Kumar, s/o Chhotu. Said Sunil Kumar has also not been examined and after filing of the chargesheet. There is no material to suggest that the victim was on the vehicle without the consent of the driver or the owner of the vehicle. The owner and driver have not been examined to show that victim was neither labourer or was employed on the said vehicle.
Under such background, it is difficult to held in appeal that the said passenger is gratuitous passenger or not. This plea which has been taken by the appellant is without any substance and contrary to the materials brought on record as it appears from the reasoned judgment in Parminder Singh vs. New India Assurance Co. Ltd. & Ors. passed in Civil Appeal No. 5123/2019. There is no legal admissible material on record to suggest that victim was not employed on the truck or he was not a gratuitous passenger on the truck. On the basis of an inadmissible document, such finding cannot be relied by the Appellate Court. From perusal of materials, it appears that Insurance Company has been saddled with compensation of approximately Rs. 38,000/- for the injury caused to the claimant in the year, 2005 and without having any substantial ground, the appeal has been preferred by the Insurance Company which is devoid of any merit.
Accordingly, considering the meager amount as well as no substance in this appeal, I am not inclined to interfere in this appeal.
As such, the appeal is hereby dismissed.
The Office is directed to transfer the statutory amount deposited before the Registrar General of this Court while preferring the appeal by the Insurance Company against the award passed by Motor Vehicle Accident Tribunal, Dhanbad in the name of the claimant within a period of 30 days from today.
The Tribunal on notice and proper verification shall release the same to the claimant.