JAYA ROY,J. - (1.) HEARD the learned counsel for the appellant and the learned counsel for the respondents.
(2.) FROM the record I find according to the order dated 4.9.2012, the appeal is fixed for final hearing with the consent of both the parties. The opposite party/ Insurance Co. has filed this appeal in this court against the Judgment and award dated 21.05.2008 passed by Ist Additional District Judge -cum M.A.C.T. Bokaro in Title (M.V.) Suit No.22 of 2001 whereby the tribunal has allowed the claim petition filed by the claimants/ respondents. The fact of the case lies in a narrow campus. The claimant's case is that the compensation case was originally filed by Ravan Manjhi (father of the deceased who died during pendency of the case) and his wife Muni Devi for awarding compensation on account of motor accidental death of their only son Sundarlal Soren, who was 29 years of age. It is to mention here that at the time of filing the claim case, the wife of the deceased namely Smt. Urmila Devi was made opposite party, as proforma opposite party no.4 but during pendency of the case, Smt. Urmila Devi appeared and filed a petition for making her and her two minor daughters as applicant and as such Urmila Devi and her two minor daughters Suman Kumari and Nisha Kumari became applicant no.2,3 and 4 respectively. The mother of the deceased namely Muni Devi was applicant no.1 Further case of the applicants in brief is that on 12.03.99 at about 9.30 A.M. Manoranjan Manjhi along with Ramkishun Rajwar, Virendra Sharma, Ranjeet Kumar, Ghanshyam Manjhi, Gangasagar Noniya, Sunderlal Soren (deceased), Bechan Manjhi, Sameshwar Singh was traveling on a Tata 407, being registration No. BR17(P) 6616, from Digadih No.12 Dinobali More, to village Telo was going to perform Tilak ceremony of his daughter. It is alleged that at about 11.30 A.M., when the said vehicle reached at Hirak Road, near over bridge, the driver of the said vehicle started to drive the vehicle in very rash and negligent manner, resulting which the vehicle over turned in the right side of the road, in which Manoranjan Singh one Ganga Sagar and Sundralal Soren (victim) sustained injuries and other persons also sustained injury. Thereupon, Manoranjan Manjhi with other injured persons were brought to Dugdha Colliery Hospital for treatment but on the way Ganga Sagar and Sundralal Soren died. Sundralal Soren was an employee of BCCL being staff No. 01333772 and he was drawing a monthly salary of Rs.4496.00, excluding D.A. He was aged about 29 years. Deceased was only earning member of his family. He died leaving behind his parents and wife and two minor daughters. The applicants claimed compensation of Rs.8,00,000/- (Rupees eight lakhs) with interest from date of filing of the application. The opposite party no.1/ respondent no.5 Mukesh Kumar Singh, the owner of the aforesaid vehicle and opposite party no.3 Seikh Akhtar/ respondent no.6 the driver of the said vehicle never appeared in the case inspite of proper service of notice on them, only opposite party no.2/appellant Oriental Insurance Co. appeared and filed written statement controverting the statements made in the claim petition challenging the maintainability of the case stating interalia that claim is barred and the claim in defective for non joinder of the party. It is stated that opposite party no.3/respondent no.6 Seikh Akhtar has been charge sheeted in G.R. Case No. 177/99 (the case which was filed in respect of the accident) as Driver of Tata 407 bearing registration No. BR 17(P) 6616. It is also denied that the deceased was BCCL employee and was getting monthly pay of Rs.4496.00. It is admitted that the vehicle No. BR-17(P) 6616 was insured with the company at the relevant time of the alleged accident. It is owner's duty to prove that the person was driving the said vehicle had valid bonafide driving license. It has been further stated that another suit which arises out the same accident filed by Kalawati Devi before the District Judge, Dhanbad T. (M.V.) Suit No. 63/99 in which the owner of the vehicle (opposite party no.1/respondent no.5) filed written statement, stating therein that he himself was driving the alleged vehicle. If the owner of the vehicle or driver failed to produce valid driving license, the liability of paying the compensation will shift to the owner of the vehicle. The Insurance Co. is not liable to pay the compensation amount.
(3.) IN order to prove the case, the claimants has examined altogether nine witnesses. A.W. no.1 Urmila Devi being wife of the deceased, A.W.2 Muni Devi the mother of the deceased, A.W.3 Shankar Manjhi being an employee of BSL, A.W.5 Sohan Manjhi, who has proved the F.I.R. relating to accidental death of Sundralal Soren which has been marked as Exhibit-3 & 3/1. A.W.7 is Suman, minor daughter of the deceased aged about 6 years. She has stated that her mother solemnized second marriage after death of her father. She has stated that her mother told her to live with her grand mother as her grand mother will maintain them. She further said after the death of her father, her mother got service in the said department. A.W.9 is Subhash Chandra Gorai. Besides the aforesaid oral evidence, the fardbeyan of the case is marked as Exhibit-3, F.I.R. is Exhibit-3/1, Post Mortem Report is Exhibit-4, Registration No. in BCCL of Sundralal Soren is marked as X for identification, pay slip of Sundralal is Exhibit-5, certified copy of the charge sheet is Exhibit-6 has been produced by the applicant. In order to prove the case the Insurance Co. has examined one Sandeep Chatterjee as O.P.W.1, an employee of Oriental Insurance Co. at Bokaro through his affidavit in which he has stated that alleged offending vehicle being Registration no. BR17(P) 6616 was insured by his company for the period 28.12.98 to 27.12.99. it is further being stated the insurance company called upon the owner of the offending vehicle to produce the photo copy of the driving license of driver which is relevant document of the said vehicle but the owner and driver did not produce the same. It is further stated that one of the claimants of the deceased namely Ganga Sagar Nonia of the said accident, has filed a claim case before Dhanbad court, in which driver of the vehicle did not appear where as the owner of the said vehicle appeared and filed his written statement stating therein that on the relevant day, time and place of occurrence, he was driving the said vehicle, where as the police submitted charge sheet against one Seikh Akhtar the driver of the said vehicle. It is contended that as the said driver had no driving license, therefore to escape from paying compensation, the owner of the vehicle adduced false evidence before the said court. The certified copy of the W.S. Filed by the Mukesh Kumar Singh owner of the vehicle in T (M.V.) Suit no. 63/99 before District Judge, Dhanbad has been marked as Exhibit-'A'. The registered letter dated 15.2.05 signed by the Divisional Manager sent to owner of the vehicle being registration No. BR-17(P) 6616 is Exhibit-'B' carbon copy of registered letter sent to the owner regarding vehicle is marked as Exhibit B/1, envelop is exhibit-C, certified copy of Insurance policy is Exhibit C1. After hearing the counsel of the claimant and Insurance Co. and on the basis of the aforesaid oral and documentary evidence, the tribunal has come to the finding that Sunderlal Soren has died in the said vehicular accident due to rash and negligent driving by the driver of the offending vehicle. At para 22 of the judgment, the tribunal has come to a finding that Insurance Co. has failed to prove the fact that owner of the vehicle has violated the terms and condition of the Insurance Policy. ;