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2024:CGHC:38635
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
MAC No. 938 of 2019
Branch Manager Hdfc Ergo General Insurance Co. Ltd. Branch Office
Ambedkar Chowk, Ambikapur, Thana And Tehsil Ambikapur, Disrtict-
Surguja, Chhattisgarh. Regional Officer At Dam Tower, 204-205, New
Palasia, Indore, Madhya Pradesh.
... Appellant/Insurer
versus
1. Lalita Ekka W/o Late Shri Prakash Ekka Aged About 47 Years.
2. Ranjit Ekka S/o Late Shri Prakash Ekka Aged About 36 Years.
3. Ashwani Ekka S/o Late Shri Prakash Ekka Aged About 19 Years.
4. Ku. Asinta Ekka D/o Late Shri Prakash Ekka Aged About 17 Years,
being a minor represented Through her natural guardian (Mother Smt.
Lalita Ekka).
All are R/o Sattipara, Near Arvind Press, Thana And Tehsil Ambikapur,
District- Surguja, Chhattisgarh. (Claimants).
5. Sunil Kumar Bharti S/o Shri Ram Sakal Bharti Aged About 23 Years
R/o Nadhira Babhani, Thana And District- Sonbhadra, Uttar Pradesh.
6. Deepak Kumar Singh S/o Shri Khadag Bahadur Singh R/o House
No.1, Jabalharipara, Bauripara, Shikri Road, Ambikapur, Thana And
Tehsil Ambikapur, District- Surguja, Chhattisgarh.
…………..Respondents
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For Appellant : Mr. Tessy Abraham, Advocate on behalf of Mr.
Amrito Das, Advocate
For Respondent Nos.1 to 4/Claimants : None.
For Respondent No.5/Driver : None.
For Respondents No.6/Owner : Mr. Rakesh Ku Jha, Advocate
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Hon'ble Shri Arvind Kumar Verma, Judge
Judgment on Board
30.09.2024
1. By the instant appeal, the appellant/Insurance Company is challenging
the legality and validity of the impugned award dated 20.03.2019
passed by the Motor Accident Claims Tribunal, Ambikapur, Distt -
Surguja, C.G (in short 'the Tribunal') in Claim Case/Central Filing
No.59/2017, whereby the Tribunal has awarded a total sum of
Rs.7,28,125/- in death case.
2.
Brief facts necessary for disposal of this appeal are that on 10.07.2016
after doing Masonry work at Kharsia Naka, Prakash Ekka (husband of
respondent No.1) was returning to his home on bicycle. On the way,
one truck bearing registration No.CG-15-CZ-7146 (for short, ‘offending
vehicle’), owned by respondent No.6 and driven by respondent No.5
rashly and negligently, dashed the bicycle of Prakash Ekka, due to
which, he fell down and suffered grievous injures and ,thereafter,
succumbed to the injuries.
3.
Due to unfortunate death of Prakash Ekka, claimants/respondent Nos.1
to 4, who are wife and children of deceased, filed a claim application
under Section 166 of the Motor Vehicles Act, 1988 (for short 'the Act of
1988) seeking total compensation of Rs.24,66,800/- under various
heads stating that they were completely dependent on the income of
the deceased.
4.
Respondent Nos.5 & 6, who are driver & owner of offending vehicle,
have submitted their reply to the claim application and contended that
accident took place on account of negligence of the deceased himself
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as on the date of the incident, he was riding a bicycle after consuming
alcohol and in an intoxicated state, he rushed into the back wheels of
offending vehicle due to which his leg stuck under the wheel and got
fractured. After two-three days of accident, he died due to some other
disease. They have also pleaded that on the date of accident the
offending vehicle was having valid permit, registration and driving
license and it was fully insured with the non-applicant No.3-Insurance
Company (appellant herein), hence, the insurance company is liable to
pay compensation, if any awarded by the Tribunal.
5.
Appellant/Insurance Company submitted its reply to claim application
and denied all adverse pleadings made therein. It was pleaded that the
insurance company is not liable to pay any amount of compensation as
on the date of alleged accident, offending vehicle was driven in breach
of condition of insurance policy.
6.
Learned Claims Tribunal after considering the pleadings and evidence
of the respective parties has partly allowed the claim application vide
impugned award and awarded total compensation of Rs.7,28,125/- by
holding that Prakash Ekka (husband of respondent No.1) has died in
the alleged accident occurred due to rash & negligent driving of
offending vehicle by non-applicant No.1/Sunil Kumar Bharti
(respondent No.5 herein).
7.
Learned counsel appearing for the appellant/Insurance Company
submits that the Tribunal has committed grave error in passing the
impugned award and directing the Insurance Company to pay the
amount of compensation to the claimants. The learned Tribunal ignored
that the claimants have failed to prove the fact that alleged accident
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took place by the offending vehicle. Claimants did not examine any eye
witness of the accident, however, accident took place on 10.07.2016
and FIR was registered on the same day against unknown vehicle.
Later on, after completion of investigation, vehicle bearing registration
No.CG-15-7646 was seized in this case. The charge-sheet does not
involved the insured offending vehicle, but despite that the offending
vehicle has been implicated in this case. Tribunal erred in recording the
finding that the vehicle bearing No.7646 was a typographical
mistake/error. Learned Tribunal failed to appreciate the fact that the
burden to prove the factum of accident is upon the claimants, however,
claimants have utterly failed to discharge the said burden. In
connivance with the claimants, respondent No.5 & 6/driver & owner of
offending vehicle have supported the fact of the alleged accident, but
denied the rash and negligent driving of offending vehicle by the driver,
thus itself demonstrate that offending vehicle has been falsely
implicated in this case after a lapse of more than 6 months of accident
only to extract money from the Insurance Company.
8.
Learned counsel for respondent No.6/Owner of offending vehicle
submits that deceased himself is responsible for the accident as in
intoxicated state, he rushed into the back wheel of offending vehicle
and suffered injuries. Deceased died due to some other disease after
two-three days of accident. He further submits that on the date of
accident, driver of offending vehicle was possessing valid and effective
driving license, said vehicle was having valid permit and registration
and it was fully insured with the non-applicant No.3-Insurance
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Company, hence, insurance company is liable to pay the amount of
compensation to the claimants.
9.
Heard learned counsel for the parties and perused the impugned
award as well as record of the case.
10.
Perusal or records would show that alleged accident took-place on
10.07.2016 near the petrol pump, ring road at Surguja and FIR was
registered against the unknown vehicle after lapse of two months on
the basis of marg intimation, however, the Police after investigating the
matter found that the offending vehicle (truck bearing registration
No.CG-15-CZ-7146) was involved in the alleged accident and seized
the said vehicle. Furthermore, driver and owner of offending vehicle in
their pleadings before the Tribunal have admitted the fact of accident
by the offending vehicle, but denied the fact of rash and negligent
driving of said vehicle by the driver. No doubt there is no eyewitness in
this case produced by the claimants side, but at the first instance,
negligence on the part of driver of offending vehicle is evident as after
accident, driver was run away from the spot alongwith the vehicle. If
negligence is not on the part of the driver than after accident, he took
the injured (since deceased) to the Hospital. Appellant/Insurance
Company also failed to adduce any evidence before the Tribunal with
regard to non-involvement of the offending vehicle in the alleged
accident. After admission, it is clear that accident took place by the
offending vehicle. Hence, in this case, principle of res ipsa loquitur
is applied.
11.
In view of above discussion, this Court is of the considered opinion that
learned Tribunal has rightly passed the impugned award and fastened
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the joint liability upon the non-applicants ie Insurance Company, Owner
& Driver of offending vehicle to pay the amount of compensation to the
claimants, which does not call for any interference.
12.
Accordingly, the appeal being devoid of merits is liable to be and is
hereby dismissed.
Sd/-
(Arvind Kumar Verma)
Judge
J/-