ORIENTAL INSURANCE COMPANY LIMITED Vs. MD.MOSIN MISTRI

JUDGEMENT

(1.) THIS Miscellaneous Appeal has been filed by the Oriental Insurance Company Ltd. for setting aside the judgment dated 31.3.2000 passed by Sri Amitabh Kumar, Additional Motor Accident Claims Tribunal, Gaya, in M.A.C. Case No. 23/97/52/96 whereby he has been pleased to award a total compensation to the tune of Rs. 2,56,000.00 with 12% interest per annum from the date of filing of the application till payment in favour of the claimant nos. 1 to 5.

(2.) THE brief facts of the case are as follows: The deceased Md. Ehsan was a Motor Mechanic. On 11.8.98, he was hired by the owner of the truck bearing registration no. BR -17A/9020 to repair the said truck which had developed some problem at Sayed Raja (U.R). The deceased went to the spot and after checking the vehicle he removed the defect in the engine of the said truck. Thereafter, the driver of the truck took the truck to Gaya but on way to Gaya the vehicle again developed some trouble and since the deceased and the informant were accompanying the driver in the said truck they got down from the truck and while the deceased was checking the engine the driver started the truck, as a result of which, the deceased came under the wheel and died on the spot, whereas, informant Jamo Mian received serious injury. He was brought to the hospital and on his statement F.I.R. was instituted. It is said that the owner of the truck was also accompanying at that time and, as such, at his instance some wrong facts were entered into the F.I.R. Further case of the claimants is that at the time of accident the deceased was aged about 28 years and he was -earning Rs. 3500/ -per month.

(3.) DURING the hearing of the appeal, the learned Advocate Sri Ajay Kumar, appearing on behalf of the Oriental Insurance Company raised the plea that admittedly the F.I.R. with regard to the said accident was lodged on the basis of the statement of A.W. No. 3, Badiuz Zaman @ Jamo Mian, who had also received grievous injuries in the said accident. He submitted that this was his first version about the accident, according to which, some unknown vehicle was involved in the said accident and the F.I.R. will show that there is no such statement in the F.I.R. that truck bearing registration no. BR -17A/ 9020 was involved in the accident. He submitted that the learned Tribunal should have believed the very first version of witness Badiuz Zaman @ Jamo Mian and should have discarded his evidence given in the Court as being afterthought. In this regard, learned Advocate of the appellant has placed reliance upon an unreported judgment of this court given in M.A. No. 30 of 2001 (Branch Manager, The Oriental Insurance Company Ltd., Bhagalpur vs. Yogendra Thakur & Another). He has referred para 6 of the judgment which is being quoted below: