11.2 So far as the second plea raised by the Appellant
assailing the impugned Award on the ground that the
claimant injured had sustained no injury by causing the
accident by the offending Truck. This plea of the fact has
been raised on behalf of the Appellant for the first time at
the stage of appeal; While before the learned Tribunal on
behalf of the Appellant Insurance Company in its written
statement has admitted that the claimant Ashim Parveen
@ Nagmi injured had sustained injury in the accident
caused by the contributory negligence of the driver of
Bolero as well as offending Truck. This admission made by
the Appellant-Insurance Company in the pleading of the
written statement is binding upon the Appellant Insurance
Company under Section 21 of Indian Evidence Act and cannot
deviate from the same at the stage of appeal for the first time.
11.7 The Hon’ble Apex Court held in RAMA KT BARMAN (DIED) THR. LRS VERSUS MD. MAHIM ALI & ORS. 2024 LiveLaw SC 637 that it is well settled principle of law that the Court cannot create any new case at the appellate stage for either of parties and Appellate Court is supposed to decide the issue involved in the suit based on pleading of parties.Para 14 reads as under:
14. Apart from the fact that none of the said substantial
questions of law formulated by the High Court were either
raised before the trial court or the appellate court, none of
parties was given any opportunity of leading the evidence on
the said issues. It is well-settled principle of law that the Court
cannot create any new case at the appellate stage for either
of the parties, and the appellate court is supposed to decide
the issues involved in the suit based on the pleadings of the
parties.
IN THE HIGH COURT OF JHARKHAND AT RANCHI
M.A.No. 101 of 2021
National Insurance Company Limited Vs Asmin Parveen @ Nagmi,
CORAM :MR. JUSTICE SUBHASH CHAND
Dated: 19.11.2024
2. No one appears on behalf of rest of the respondents.
3. This Appeal has been preferred on behalf of appellant-
National Insurance Company dissatisfied with the
Judgment/Award dated 31.08.2019 passed in Motor Accident
Claim Case No. 31 of 2018 by the learned District Judge-II
cum M.A.C.T., Giridih whereby the learned Tribunal has
directed to pay a sum of Rs. 2,85,275/-.
4. The brief facts leading to this Misc. Appeal are that the
Claim Petition was filed on behalf of claimant Asmin Parveen @
Nagmi with these averments that on 21.04.2017 she along
with her family members was going to her house by the Bolero
Vehicle No. JH-02U-5280 after having attended the marriage
ceremony from Deoghar and at 12:30 when she reached near
the village Jhalakdiha, the driver of the Truck No.
JH-11F-9616 driving the Truck rashly and negligently dashed
to the Bolero Vehicle whereby Md. Adil Ansari died at the spot
and the claimant along with other passengers sustained
injuries. They were brought to the Sadar Hospital for
treatment. Bengabad P.S. Case No. 128 of 2017 was registered
under Sections 279, 337, 338 and 304(A) of I.P.C. against the
driver of offending Truck No. JH-11F-9616. The claimant was
a private tutor cum B.Sc. student and was earning Rs.
10,000/- per month by giving tuition. She was 22 years old at
the time of accidence. Hence the compensation amount was
claimed.
5. Notice were issued to O.P.No.1 the owner of the offending
Truck, O.P.No.2 insured owner of the offending Truck,
O.P.No.3 driver of the offending Truck, owner of the Bolero
Vehicle No. JH-02U-5280 and O.P.No.6 driver of the Bolero
but none of them appeared. Hence the proceeding of the Claim
Petition was proceeded against them ex parte.
6. The O.P.No.4 the Insurance Company of the offending
Truck filed the written statement in which it was stated that
the Claim Petition was not maintainable indeed the said
accident was the result of head on collision between
Bolero vehicle and the Truck. The Insurance Company of the
Bolero vehicle has not been impleaded party to this Claim
Petition. The driver of Bolero was not having the valid and
effective driving licence who was also negligent in causing the
accident. It is further stated that injured Asmin Parveen @
Nagmi is herself guilty of wilful contributory negligence
and the case was of contributory negligence between the
driver of the Bolero and the driver of the offending Truck.
7. On the basis of the pleadings of the parties, the learned
Tribunal framed the following issues:
i. Is the suit maintainable in its present form ?
ii. Is there any cause of action for the suit ?
iii. Whether the accident took place on 21.04.2017 at
about 00:30 A.M. due to rash and negligent
driving of the driver of offending vehicle i.e. Truck
No. JH-11F-9616 causing injuries of the claimant
Asmin Parveen ?
4
iv. Was the driver of the alleged vehicle had valid and
effective driving licence and the offending vehicle
was insured with O.P.No.4 National Insurance
Company Limited on the date and time of accident
?
v. Is the Claimant entitled for compensation and if
so, for what amount and from whom ?
vi. To what relief or reliefs, if any, the Claimant is
entitled ?
8. On behalf of claimant in oral evidence examined P.W.1
Md. Naushad, P.W.2 Md. Israfil and P.W.3 Asmin Parween @
Nagmi claimant herself and in documentary evidence filed
exhibits Ext.-1 the C.C. of F.I.R. of Bengabad P.S. Case No.
128 of 2017, Ext.2- C.C. of Release Petition of Truck No.
JH-11F-9616, Xerox copy of Money Receipt No. 307 dt.
23.4.17 of Jain Hospital is marked ‘X’ for identification,
Original Discharge Slip of Jain Hospital is marked ‘X/1’ for
identification, Original Medicine Final Bill of the Mission
Hospital is marked ‘X/2’ for identification, Xerox copy of
Insurance Policy of Truck No. JH-11F-9616 is marked ‘X/3’ for
identification, Xerox copy of Authorization Certificate of Truck
No. JH-11F-9616 is marked ‘X/4’ for identification, Xerox copy
of Driving Licence of Ghanshyam Yadav is marked ‘X/5’ for
identification, Xerox copy of Registration Certificate of Truck
No. JH-11F-9616 is marked ‘X/6’ for identification.
9. On behalf of O.P.No.5 National Insurance Company
neither oral nor documentary evidence was adduced.
5
10. The learned Tribunal allowed the Claim Petition and
passed the impugned Award directing the Insurance Company
to pay the amount of Rs. 2,85,275/- along with simple interest
thereon @ 6% p.a. from the date of filing application till the
date of realization of the compensation amount. Further the
9% interest was also directed to be paid if the said
compensation amount was not paid by the Insurance
Company within 60 days from the date of the passing of the
Award.
11. The appellant has assailed the impugned Award on two
grounds firstly the penal interest is illegal; secondly the
claimant injured had not sustained any injury in the accident
alleged to be caused by the offending Truck.
11.1 So far as the first plea is concerned, from the perusal of
the impugned Award, it is found that the Appellant-Insurance
Company was directed to pay the amount of compensation
along with interest thereon within 60 days from the date of
passing the Award and in failure of the same the Insurance
Company was directed to pay the 9% interest on the amount
of compensation till the date of realization of the compensation
amount. Up to this extent the impugned Award by which
the penal interest has been directed to be paid is found
bad in the eye of law and same requires interference as the
penal interest should not have been awarded by the
6
learned Tribunal because the claimant had to get the
impugned Award executed under Section 174 of the M.V.
Act. As such in the impugned Award penal interest is
hereby struck off.
11.2 So far as the second plea raised by the Appellant
assailing the impugned Award on the ground that the
claimant injured had sustained no injury by causing the
accident by the offending Truck. This plea of the fact has
been raised on behalf of the Appellant for the first time at
the stage of appeal; While before the learned Tribunal on
behalf of the Appellant Insurance Company in its written
statement has admitted that the claimant Ashim Parveen
@ Nagmi injured had sustained injury in the accident
caused by the contributory negligence of the driver of
Bolero as well as offending Truck. This admission made by
the Appellant-Insurance Company in the pleading of the
written statement is binding upon the Appellant Insurance
Company under Section 21 of Indian Evidence Act and cannot
deviate from the same at the stage of appeal for the first time.
11.3 It is also pertinent herein that on behalf claimant to
prove the said accident caused by the offending Truck have
been examined altogether 03 witnesses P.W.1 Md. Naushad,
P.W.2 Md. Israfil and P.W.3 Asmin Parveen @ Nagmi.
11.4 P.W.1 Md. Naushad is also the eye-witness of the said
accident. He has also stated that he was coming by the
Bolero vehicle after attending the marriage ceremony when
the said Bolero reached near village Jhalakdiha, the Truck
No. JH-11F-9616 dashed to the Bolero which was being
driven by its driver rashly and negligently causing death of
Md. Adil Ansari at the spot and other passenger including
Asmin Parveen sustained injury. This witness has also stated
that Asmin Parveen @ Nagmi had fracture in her left hand
and jaw as well. No contrary conclusion could be drawn on
behalf of the Insurance Company from this witness in
cross-examination. P.W.2 Md. Israfil is also the eye witness.
He was also travelling by the Bolero vehicle to which the
offending Truck had dashed has corroborated the claimant’s
story. P.W.3 is Asmin Parveen @ Nagmi injured eye
witness herself. She has also categorically stated that the
offending Truck No. JH-11F-9616 had dashed to the Bolero
vehicle which was being driven by its driver rashly and
negligently causing death of Md. Adil Ansari her cousin and
she and other family members sustained injuries.
11.5 On behalf of the claimant in documentary evidence also
adduced the F.I.R. of the Bengabad P.S. Case No. 128 of
2017 which was lodged against the driver of the Truck
JH-11F-9616. Moreover the prescription and medical bill
were also filed on behalf of the claimant/victim and the case
of claimant is proved from the ocular evidence and
documentary evidence as well, same was also
corroborated with the admission made by the
Appellant-Insurance Company in the pleadings of its
written statement who did not adduce any oral or
documentary evidence to controvert the pleading and
evidence of the claimant. As such for the first time this
factual plea cannot be raised on behalf of the Appellant
challenging the impugned Award.
11.6 The Hon’ble Apex Court held in Saroj v. Het Lal (2011)
1 SCC 388 para 18 reads as under:
18. On considering the rival arguments, it must be said that
the petition could not have been dismissed in totality.
Presuming it to be a hit-and-run case, the appellants were
entitled to at least Rs. 25,000 as per the provisions of Section
161(3)(a) of the Motor Vehicles Act. Therefore, both the courts
below have obviously failed to note this provision. But that is
not the end of the matter. In our opinion, both the courts
below have completely erred in giving the finding that it was a
hit-and-run case and that the vehicle concerned belonging to
Respondent 2 was not involved in the accident. Insofar as that
finding is concerned, it was an admitted position in the
pleadings of Respondent 2 that firstly, the Tata 207 vehicle
bearing Registration No. HR 38 L 6592 was involved in an
accident with the motorcycle bearing Registration No. HR 26 P
9413 which took place on 16-9-2005 at 3.30 p.m. and secondly,
the said vehicle was being driven by Respondent 1. This
admission in the pleadings which we have quoted in the order
was itself sufficient to hold that the vehicle concerned
belonging to Respondent 2 was involved in the accident. This
admission was never traversed by Respondent 2 and, thus,
there was no occasion to hold that the said vehicle was not
involved and that it was a hit-and-run case. It is surprising that
not only the Tribunal but the High Court also should have
ignored the vital admission on the part of Respondent 2. It
was nobody’s case that this admission of Respondent 2 was in
collusion between Respondent 2 and the appellants. Once this
position is clear, there is no occasion for holding that the
vehicle was not involved in the accident and on that count
exonerating the three respondents.
11.7 The Hon’ble Apex Court held in RAMA KT BARMAN (DIED) THR. LRS VERSUS MD. MAHIM ALI & ORS. 2024 LiveLaw SC 637 that it is well settled principle of law that the Court cannot create any new case at the appellate stage for either of parties and Appellate Court is supposed to decide the issue involved in the suit based on pleading of parties.Para 14 reads as under:
14. Apart from the fact that none of the said substantial
questions of law formulated by the High Court were either
raised before the trial court or the appellate court, none of
parties was given any opportunity of leading the evidence on
the said issues. It is well-settled principle of law that the Court
cannot create any new case at the appellate stage for either
of the parties, and the appellate court is supposed to decide
the issues involved in the suit based on the pleadings of the
parties.
12. In view of the above analysis of the evidence on record,
this Appeal is partly allowed to the extent that in the
impugned Award, the penal interest is struck off and the rest
of the part of appeal is dismissed affirming the impugned
Award except strucking off penal interest.
(Subhash Chand, J.)
No comments:
Post a Comment