The need for proper appreciation of evidence and determination of insurance coverage before dismissing a claim application.

JUDGMENT :

RAJEEV RANJAN PRASAD, J.

1. Heard learned counsel for the appellant and learned counsel for the respondent no. 2(a) and 2(b) who have been arrayed as respondent no. 2/Insurer.

2. This appeal has been preferred for setting aside the order dated 31.01.2015 passed by learned Additional District Judge-VIII-cum-M.A.C.T. Hajipur, Vaishali (hereinafter referred to as the “Tribunal”) in Claim Case No. 57/2005 whereby and whereunder the learned Tribunal has been pleased to dismiss the claim application preferred by the present appellant.

3. The present claim was filed claiming a sum of Rs. 3,68,416/- as compensation on account of the permanent disability caused to the applicant–appellant in the accident which took place on 14.03.2005 at 7:15 A.M.

4. Learned counsel for the appellant submits that this appellant was driving the truck bearing HR-38K-5124 and while moving towards Gauhati the left tyre of the truck burst which led to an accident in which the appellant and two others got injured. One of the injured died in course of treatment in the hospital. So far as this appellant is concerned, he claims that he was admitted in one Paramount Hospital from where he was shifted to Bhudha Hospital and Research Centre for better treatment. He claimed that a sum of Rs. 1,66,258/- was paid to the nursing home and a sum of Rs. 41,038/- was incurred on purchase of medicines. He further claimed a sum of Rs. 21,000/-paid to the physiotherapist. Learned tribunal has recorded in its order that these bills were brought on the record of the claim case.

5. Learned counsel further submits that in respect of the said accident one Samuktala P.S. Case No. 27/2005 dated 15.03.2005 was registered for the offences alleged under Sections 279, 338 and 304B of the Indian Penal Code. After investigation even as the investigating agency found that the accident had taken place due to bursting of the tyre of the truck while moving on NH-31, the investigating agency submitted a charge-sheet against the petitioner alleging that he was driving the vehicle speedily. Learned counsel submits that the allegation that the driver was running the vehicle speedily was completely vague and a mere statement to that effect in the charge-sheet would not take away the claim of the appellant.

6. Learned counsel further submits that the learned Tribunal has dismissed the claim petition despite the fact that the claimant had produced himself and four other witnesses in support of his claim. He had also produced the number of documentary evidences which have been mentioned in paragraph ‘6’ of the impugned order.

7. It is submitted that as against the evidence of the claimant/appellant the insurance company or the owner of the vehicle had not produced any oral or documentary evidence.

8. Learned counsel has assailed the impugned order on various grounds. One of the grounds taken by learned counsel for the appellant is that learned Tribunal has completely erred in appreciating the materials available on the record. The Tribunal has recorded that from the materials available on the record it is not clear as to whether the disability has been caused in the said accident. This finding of the learned Tribunal has been recorded only because no specialized Medical Practitioner was examined. It is submitted that the Tribunal had no reason to disbelieve the oral as well as the documentary evidences which were available on the record particularly when the evidences were clinching and the Insurance Company had failed to controvert those evidences.

9. Learned counsel further submits that the Tribunal has further failed to appreciate that no doubt the charge-sheet has been filed against the petitioner but the cause of accident has been duly shown as the bursting of the tire. The investigating agency has vaguely stated that the driver of the vehicle was driving the vehicle speedily. It is a vague allegation and would not affect that claim of the petitioner.

10. Learned counsel has further assailed the