Patna High CourtAjjit Singh vs The State Of Bihar & Ors on 23 February, 2016Author:Kishore Kumar MandalBench:Kishore Kumar MandalIN THE HIGH COURT OF JUDICATURE AT PATNA

                 Civil Writ Jurisdiction Case No.6004 of 2013
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Ajjit Singh Son Of Late Janardan Prasad Singh Resident Of Mohalla - Durgabari,
St. Francis Academy School, P.O. GPO, Gaya, P.S. Civil Lines, District /Town -
Gaya

                                                          .... ....   Petitioner/s
                                      Versus
1. The State Of Bihar through Divisional Commissioner, Magadh Division, Gaya
2. The District Magistrate, Gaya
3. Gaya Municipal Corporation, Gaya through Its Town Commissioner, Gaya
4. National Insurance Company Ltd. Through Its Senior Branch Manager, Gaya
Branch Office, 'Santum', 85, G.B. Road, Gaya

                                                     .... .... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Mukesh Pd. Singh
For respondent no.3    Mr. Rabindra Kr. Priyadarshi
For respondent no. 4   Mr. Ashok Priyadarshi
For the State          Mr. Subhash Pd. Singh, G.A. 7
                       Mr. I.P. Mandal, AC to G.A.7
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CORAM: HONOURABLE MR. JUSTICE KISHORE KUMAR MANDAL
ORAL JUDGMENT
Date: 23-02-2016

               The     application prays for a writ of mandamus

   commanding the respondents, jointly and severally to pay the

   value of the Victa Sumo vehicle bearing Registration Mark and

   No. BR-2R-0205 which was burnt to ashes by the protesting

   crowd/mob on 13.07.2012 when the said vehicle was being

   used by the       Gaya    Municipal Corporation (for short 'the

   Corporation').

               The counsel for the petitioner submits        that during

   the pendency of this application his claim for reimbursement of
 Patna High Court CWJC No.6004 of 2013 dt.23-02-2016

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        the value of the vehicle by the National Insurance Company

        (respondent no.4) with which the vehicle was insured has been

        repudiated and the said order is not under challenge in the writ

        application.

                      The vehicle was registered in the name of the

        petitioner who engaged Sri Jitendra Sinha as the driver of the

        vehicle who was having valid driving licence at the relevant

        time. The vehicle in question was hired through a contract for

        use in connection with removal of unauthorized encroachments

        on the G.B. Road Gaya. The unauthorized encroachments were

        to be removed under the orders of the district administration.

        In course of removal of the encroachment, a protest was made

        by the mob/crowd assembled there. The enraged mob started

        pelting stones and set the vehicle on fire. The vehicle was

        completely burnt. An FIR was lodged against some named and

        unnamed        accuseds        for the        criminal acts committed on

        13.07.2012. The Fire Brigade Officer, who was also involved in

        the anti-encroachment drive, submitted a report on 28.07.2002

        stating that the vehicle was burnt by the protesting/rampaging

        mob/crowd. The petitioner laid a claim for the loss of his vehicle

        before the respondent Insurance Company with which                   the

        vehicle was insured. As stated, the claim of the petitioner was
 Patna High Court CWJC No.6004 of 2013 dt.23-02-20163/6repudiated by the Insurance Company. It is stated that the

        vehicle was taken on hire by the district administration or the

        respondent-Corporation and was in their control and as such

        the State-respondents are legally obliged to compensate the

        loss sustained by the petitioner.Heard Mr. Mukesh Prasad Singh for the petitioner,

        Mr. Rabindra Kr. Priyadarshi for the Corporation,      Mr. Ashok

        Priyadarshi for the respondent-Insurance Company as well as

        Mr. Subhash Pd. Singh, G.A.7 for the State.Counter affidavits on behalf of respondent nos. 2, 3

        & 4, have been filed. No rejoinder on behalf of the petitioner is

        filed.In the counter affidavit of respondent no.4, it     is

        stated that the writ application for such a money claim under the

        insurance policy is not maintainable. The claim of the petitioner

        has been repudiated. Against such refusal or repudiation to

        compensate the loss under the insurance policy of the vehicle,

        the petitioner can approach the consumer court/forum or the

        Ombudsman           of the respondent-Insurance Company.        The

        vehicle was insured as a private vehicle not to be              used

        commercially. It was not liable to be given on rent or hire.In the counter affidavit of respondent no.3, it has
 Patna High Court CWJC No.6004 of 2013 dt.23-02-20164/6been stated that the Victa Sumo vehicle was hired and used in

        connection with the removal of encroachments on road on

        13.07.2012.         The owner had rented the vehicle to the

        administration @ 700/- per day.                The petitioner has raised a

        claim in this regard against the respondent-Insurance Company

        and steps have been taken in this regard by the respondent-

        Insurance Company. Queries                    of the respondent-Insurance

        Company have been replied by the respondent stating that the

        vehicle was used on hire basis for enforcing anti encroachment

        drive.In the counter affidavit of respondent no.2 similar facts

        have been stated. The respondent has further stated that the

        vehicle was burnt and damaged by the protesting crowd while

        being used by the Municipal Corporation in course of

        maintaining law and order under the order of the Divisional

        Commissioner. The petitioner has not availed the remedy

        available to him by raising a claim in this regard before the

        respondent-Insurance Company and/or the ombudsman of the

        Insurance Company.Indisputably, the vehicle was registered as a private

        vehicle. On hire basis it was made over to either the Corporation

        or the administration. The possession of he vehicle was given
 Patna High Court CWJC No.6004 of 2013 dt.23-02-20165/6but the ownership thereof remained with the petitioner. It was

        insured. A claim was raised before the Insurance Company

        when the writ petition was filed. The respondent-Insurance

        Company, as stated by the petitioner, repudiated the claim

        giving reasons. The said order of the Insurance Company has

        not been challenged in the writ petition. The Court is not aware

        of the terms on which the vehicle was hired. Presumption in

        law is that the vehicle hired is insured against the loss by

        whatever reason. In an unexpected circumstance, the vehicle got

        burnt/damaged.          Merely because the Corporation or the

        administration was utilizing the vehicle on payment, can it be

        said that the respondent-administration or the Corporation is

        legally bound to compensate the loss. If a government vehicle

        utilized in an anti encroachment drive had been damaged/burnt,

        can a claim of such payment of compensation for the loss be

        legitimately raised against the officer on the duty overseeing

        the drive. If the answer is in negative, then the claim raised in

        this writ application should also be answered in negative. The

        writ court even otherwise is slow in granting such relief of

        payment of compensation as the same shall require evaluation

        or appreciation of diverse relevant facts, some of which have

        been noticed above. Merely on the basis of the fact that the
        Patna High Court CWJC No.6004 of 2013 dt.23-02-20166/6vehicle was burnt while under physical control of the

               administration or the Corporation would not be conclusive to

               resolve the dispute and grant the relief to the petitioner. The

               Insurance Company is party respondent. On a claim raised in

               this behalf the same has been rejected/repudiated. Instated of

               pursuing his remedy thereagainst, the petitioner has prayed for

               the relief against the State respondents. A money claim of such

               nature ought to have been raised in the court of competent civil

               jurisdiction and adduced relevant evidence in support thereof.Seen thus, this        court is not inclined to grant the relief

               by invocation of its extraordinary and prerogative writ

               jurisdiction leaving the petitioner to agitate his claim before the

               appropriate forum/court in accordance with law.The application stands disposed of.(Kishore Kumar Mandal, J)

HR/-U