Afr High Court
Case Details
1 Digitally signed by BHOLA NATH KHATAI Date: 2025.04.22 18:30:28 +0530 2025:CGHC:18176 AFR HIGH COURT OF CHHATTISGARH AT BILASPUR MAC No. 502 of 2017 Reserved on 03.04.2025 Delivered on 22.04.2025 1. Smt. Jhariyarin Wd/o Late Jeevrakhan Nishad, Aged About 35 Years R/o Village Bhathapara Banjari, Post Bhathagaon, Tahsil Kurud, District Dhamtari, Chhattisgarh 2. Kumari Neelam Nishad D/o Late Jeevrakhan, Aged About 13 Years Minor Through Natural Guardian Mother Smt. Jhariyarin Wd/o Late Jeevrakhan Nishad, R/o Village Bhathapara Banjari, Post Bhathagaon, Tahsil Kurud, District Dhamtari, Chhattisgarh 3. Kumari Uma Nishad D/o Late Jeevrakhan, Aged About 14 Years Minor Through Natural Guardian Mother Smt. Jhariyarin Wd/o Late Jeevrakhan Nishad, R/o Village Bhathapara Banjari, Post Bhathagaon, Tahsil Kurud, District Dhamtari, Chhattisgarh 4. Tikesh Kumar Nishad S/o Late Jeevrakhan, Aged About 12 Years Minor Through Natural Guardian Mother Smt. Jhariyarin Wd/o Late Jeevrakhan Nishad, R/o Village Bhathapara Banjari, Post Bhathagaon, Tahsil Kurud, District Dhamtari, Chhattisgarh 5. Barsan Nishad S/o Late Bhagirathi, Aged About 70 Years R/o Village Bhathapara Banjari, Post Bhathagaon, Tahsil Kurud, District Dhamtari, Chhattisgarh ...............Claimants ... Appellants versus 2 1. Ramesh Sahu S/o Bisnath Sahu, Aged About 25 Years R/o Village Bagoud Bhathapara, Post Bagoud, Tahsil Kurud, District Dhamtari, Chhattisgarh ............… Driver Of The Tata Magic Bearing Registration No. C.G.04 H.M. 4588 2. Smt. Sohahdra Bai Sahu W/o Bhokluram, Aged About 50 Years R/o Village Sundar Nagar Ghot, Post Nawapara, Police Station, Tahsil Gobra Nawapara, District Raipur, Chhattisgarh ............… Owner Of The Tata Magic Bearing Registration No. C.G.04 H.M. 4588 3. Branch Manager, Bajaj Alliance General Insurance Company Limited, Shivmohan Bhawan, Vidhansabha Road, Pandri, Raipur, Post Pandri, Tahsil And District Raipur, Chhattisgarh .......… Insurer Of The Tata Magic Bearing Registration No. C.G.04 H.M. 4588 ... Respondent(s) For Appellants
Legal Reasoning
: Mr. Anil Gulati, Advocate For Respondent No.3 : Mr. Raj Awasthi, Advocate Hon'ble Shri Justice Sanjay Kumar Jaiswal CAV JUDGMENT 1. This appeal, under section 173 of the Motor Vehicles Act, 1988, has arisen out of the order dated 24.12.2016 passed by the Additional Motor Accident Claims Tribunal, Dhamtari (C.G.) in Claim Case No.52/2015 whereby the claim application preferred by the claimants has been rejected. 2. The claim of the appellant/claimants, in brief, is that on 29/04/2015, 40-year-old Jeevrakhan Nishad was travelling from village Kurud to village Bhatapara Banjari in a Tata Magic bearing registration No. CG 04 HM 4588 (hereinafter referred to as " the offending vehicle"), which was being driven by respondent No.1 Ramesh Sahu. At around 8:20 pm, Ramesh Sahu drove the said vehicle in a rash and 3 negligent manner, as a result of which it collided with the rear part of an unknown truck and got damaged. Jeevrakhan and driver Ramesh Sahu also got stuck in it. On receiving information, the Police reached the spot. Both of them were taken out of the vehicle and with the help of 108 ambulance, they were taken to the Community Health Centre, Kurud, where after first aid, Jeevrakhan was referred to Raipur. But while being taken to Raipur, he died on the way. Merg was recorded on the information of Manohar Lal Dewangan. Crime No. 224/2014 was registered at Police Station, Kurud and the offending vehicle along with documents were seized. It was claimed that due to the death of 40-year-old Jeevrakhan in the accident, the appellants, who are the wife, children and father of the deceased, have become destitute. Jeevrakhan used to earn Rs.200/- per day by farming and labour work, of which the appellants have been deprived. Therefore, they filed an application under section 166 of the Motor Vehicles Act claiming compensation of Rs 10,30,000/- under various heads. 3. Respondents No. 1 and 2, who are said to be the driver and registered owner of the offending vehicle respectively, submitted their reply denying the allegations made in the claim application and stating that at the time of accident, the driver of the offending vehicle was not respondent No.1 Ramesh but Rajesh Kumar son of Khedu Lal. In relation to the said accident, a crime was registered by the Police against an unknown truck driver but the truck could not be traced. Hence, the Police closed case No.29/2014. Respondent No.1 Ramesh Sahu himself is the aggrieved party. According to the seizure made by the Police, the driving license of driver Rajesh Kumar has been seized. The accident occurred due to the rash and negligence of the unknown truck driver against whom no claim has been filed. The driver of the offending vehicle was Rajesh who was a valid license holder and the offending vehicle was insured by respondent No.3. Therefore, respondent 4 No.3 insurance company is responsible for it and the claim application filed against them should be rejected. 4. Respondent No.3 insurance company submitted its reply denying the allegations made in the claim application and stating that no accident was caused by the alleged offending vehicle. There was no negligence on the part of its driver. Despite repeated demands, the owner of the offending vehicle has not presented any valid documents. The offending vehicle was being driven in the absence of valid registration, permit and fitness. Therefore, the Insurance Company is not liable for any compensation. Hence, the claim application against the Insurance Company should be rejected. 5. In the case, Smt. Jhariyarin (AW-1) W/o deceased Jeevrakhan and spot/eye witness Chaituram Nishad (AW-2) were examined from the claimants side. Ramesh Sahu (R-1) was examined from the driver and owner side whereas, no witness was examined on behalf of the respondent No.3 insurance company. 6. Learned Tribunal, after hearing both the parties, on the basis of their pleadings and evidence, reached to the conclusion that the claimants party has failed to prove that the said accident occurred due to rash and negligent driving of the driver of the offending vehicle, Ramesh Sahu. The Tribunal also found that the insurance company has failed to prove in the absence of any evidence that any of the terms of insurance were violated in driving the offending vehicle. On the above basis, the Tribunal vide impugned order dated 24.12.2016 rejected the claim application without calculating the compensation in respect of the death of deceased Jeevrakhan. Hence, the impugned order has been challenged in this appeal. 7. Learned counsel for the appellants argues that the Tribunal, without relying on the statement of spot/eye witness Chaturam (AW-2), on the basis of the First Information Report and the closure report of 5 the Police, has accepted that the accident did not occur due to the negligence and rashness of driver Ramesh Sahu, which is not sustainable as it is against the law. He argues that from the evidence presented it is clear that the accident took place between the unknown truck and the offending vehicle as a result of which Jeevrakhan suffered grievous injuries and died. It has also been proved that the offending vehicle was being driven by respondent No.1 Ramesh Sahu at that time. The accident took place on account of rash and negligent driving by Ramesh Sahu. The case is not of contributory negligence but of composite negligence. Deceased Jeevrakhan himself was a passenger of the offending vehicle. He has no involvement in the negligence. Since the unknown truck could not be traced, its driver, owner and insurance company could not be made parties. Since the case is of composite negligence, the claimant had both the options that he could file a claim against only one vehicle and get the compensation amount and by not accepting it, the Tribunal has committed an error while rejecting their claim application. Hence, learned counsel for the appellants prayed for allowing the appeal by awarding suitable compensation in favour of the appellants. In support of his argument, he relied on the judgments of the Hon’ble Supreme Court in the case of National Insurance Company Ltd. v. Chamundeswari & Ors. (2021) 18 SCC 596 & Pawan Kumar & another v. M/s Harkishan Dass Mohan Lal & Others, 2014 (2) CGLJ 29 (SC). 8. There is no representation on behalf of respondents No. 1 and 2. 9. Learned counsel appearing for respondent No.3/Insurance Company would submit that in the facts and circumstances of the case, the impugned order of dismissal is just and proper and does not require any interference. He submits that the claimants have failed to prove that the driver of the vehicle in question was Ramesh Sahu. They have also failed to prove that the accident 6 occurred due to rash and negligent driving by the driver of the offending vehicle. If Ramesh is found to be the driver of the vehicle in question, it has been argued that Ramesh was not holding a valid and effective driving license, therefore the insurance conditions have been violated and the insurance company is not liable for any compensation. He also submits that the arguments raised in this appeal are not acceptable. Therefore, the appeal should be dismissed. 10. Heard learned counsel for both the parties and perused the record minutely. 11. The first question for consideration is whether the driver of the offending vehicle was Respondent No.1 Ramesh Sahu? 12. Confirming the pleadings of the claim application, Smt. Jhariyarin (AW-1) W/o deceased Jeevrakhan has stated that the driver of the offending vehicle Ramesh Sahu was her neighbour. Though Smt. Jhariyarin is not a spot witness, she has remained consistent in her statement that at the time of accident, the driver of the offending vehicle was Ramesh Sahu. As a spot witness Chaituram Nishad (AW-2) R/o Bhatapara, Banjari, has stated that he saw the accident. According to Chaturam Nishad, he used to work as a porter in Siddhi Ganesh Rice Mill of Kurud. On the date of incident, he was going from Kurud to his village Bhatapara on his bicycle after getting off from work in the evening when an accident took place between the offending vehicle and a truck near Chhattisgarh Dhaba at around 08.20 pm. The truck was parked on its side in the direction of Raipur while the offending vehicle was being driven by Ramesh Sahu. A Mahindra Travels bus was coming from Raipur towards Dhamtari. In an attempt to overtake the truck, when Ramesh Sahu saw the bus coming from the front at a high speed, he moved the offending vehicle to the side due to which it collided with the rear of the parked truck and the front part of the offending 7 vehicle got completely damaged and it got stuck in the truck. Jeevrakhan Nishad and driver Ramesh Sahu, who were trapped in the offending vehicle, were rescued after much effort with the help of the Police and sent to the Community Health Centre, Kurud where Jeevrakhan died during treatment. In cross-examination, this witness has not been able to tell the number of the parked truck. But, he remained consistent and unrebutted in his statement. He has denied the suggestion of the respondent that at the time of accident the offending vehicle was being driven by a person named Rajesh. 13. In rebuttal of the evidence presented by the claimants side, only Ramesh Sahu (respondent No.1) has been examined from the respondents side. According to him, he got injured in the accident but at the time of accident, he was not driving the offending vehicle but a person named Rajesh was driving it. However, he has accepted the fact that the collision took place between a truck and the offending vehicle in which he became unconscious due to head injury. 14. From the documentary evidence presented by the claimants side, which includes the Merg intimation (Ex.P-6) registered on the death of Jeevrakhan, Inquest report of the dead body Ex.P-7, application for post-mortem Ex. P-8, First Information Report Ex. P- 2, Spot Map Ex. P-3, seizure of Tata Magic from the spot Ex. P-4 and seizure from Ramesh Sahu Ex. P-5 along with the closure diary of police Station, Kurud Ex. P-1, it becomes clear that on the information of Ramesh Sahu's brother Sanjay Kumar Sahu, the First Information Report (Ex.P-2) was registered against an unknown truck driver at about 9:35 pm on the same day. Since the truck could not be traced, the closure report Ex. P-1 was issued by the Police. From perusal of the First Information Report Ex. P-2, it becomes clear that the offending vehicle was being driven by respondent No.1 Ramesh Sahu. It is also clear that Sanjay Kumar 8 Sahu reached there on getting information of the accident and saw the offending vehicle of his brother Ramesh Sahu (respondent No.1) standing in an accident condition, the front portion of which was completely damaged. Jeevrakhan and his brother Ramesh Sahu were trapped in the offending vehicle, who were taken out with the help of others and taken to Kurud Hospital by ambulance. He had received information that the driver of an unknown truck going towards Raipur was driving in a rash and negligent manner. When the driver of the said truck suddenly applied brakes, the offending vehicle coming from behind collided with the rear of the truck and met with an accident. Seizure Ex. P-4 shows that the offending vehicle was seized in a damaged condition from the spot. Seizure Ex. P-5 shows that the RC book of the offending vehicle along with other documents and the driving license of Rajesh were seized from respondent No.1 Ramesh Sahu. But there is no mention as to why the driving license of some other person was seized from Ramesh Sahu. Merely on the basis of seizure of the driving licence it cannot be said that Rajes was driving the offending vehicle at the time of the accident. 15. From the statement of spot witness Chaituram Nishad and the FIR (Ex. P-2) lodged immediately after the accident, it is evident that at the time of accident, respondent No.1 Ramesh Sahu was driving the offending vehicle. If the said Rajesh had driven the offending vehicle, he would have definitely been injured but no such person named Rajesh has been reported to be injured nor has any other evidence been presented in this regard. Therefore, this statement and pleading of Ramesh Sahu that Rajesh was driving the offending vehicle at the time of accident is not found to be reliable. The uncontroversial statement of witness Chaituram Nishad and the FIR (Ex.P-2) lodged immediately after the accident by Ramesh's brother Sanjay Kumar Sahu himself establish the fact that Ramesh was driving the offending vehicle at the time of 9 accident. 16. As far as the question of rash and negligent driving is concerned, in this regard it is clear that eyewitness Chaituram Nishad (AW-2), has been consistent and unrebutted in his statement. His statement has been corroborated by the driver of the offending vehicle, Ramesh Sahu himself, who has also accepted that the accident occurred due to the collision between an unknown truck and his vehicle. Chaituram Nishad has also been consistent in his statement that while trying to overtake the truck, the driver of the offending vehicle, Ramesh Sahu, took the vehicle to the side to avoid the Mahindra Travels bus coming from the front at a high speed, due to which it collided from behind with the truck going ahead. Thus, according to eye witness Chaituram Nishad, the accident took place on account of the rash and negligence of the driver of the offending vehicle, Ramesh Sahu and this witness has been unrebutted in his statement. This fact is also clear from First Information Report (Ex. P-2) that the offending vehicle collided with the truck from behind. 17. The Hon'ble Supreme Court in the case of National Insurance Company Limited v. Chamundeswari and Others reported in (2021) 18 SCC 596 has held that if the statements of the eye witnesses examined before the court are not contradicted/rebutted by other witnesses present at the spot, the same cannot be considered as contradicted/rebutted on the basis of the First Information Report. In paragraph-8 of the said judgment it has been observed as under:- “8. It is clear from the evidence on record of PW–1 as well as PW–3 that the Eicher van which was going in front of the car, has taken a sudden right turn without giving any signal or indicator. The evidence of PW–1 & PW–3 is categorical and in absence of any rebuttal evidence by examining the driver of Eicher van, the High Court has rightly held that the accident occurred 10 only due to the negligence of the driver of Eicher van. It is to be noted that PW–1 herself travelled in the very car and PW–3, who has given statement before the police, was examined as eye–witness. In view of such evidence on record, there is no reason to give weightage to the contents of the First Information Report. If any evidence before the Tribunal runs contrary to the contents in the First Information Report, the evidence which is recorded before the Tribunal has to be given weightage over the contents of the First Information Report.” 18. In the case at hand, it is clear from the entire evidence presented that the accident occurred as a result of the collision of the offending vehicle with the rear portion of an unknown truck. Eye witness Chaituram Nishad has been consistent and unrebutted in his statement that the accident occurred due to the negligence and rashness of the driver of the offending vehicle, Ramesh Sahu. In the above situation, when the statement of Ramesh Sahu is not reliable, then the fact in the First Information Report (Exhibit P-2) does not contradict/rebut the statement of Chaituram that the accident occurred due to the sudden braking by the truck driver. 19. On the basis of the above discussion, it is found to be proved that Jeevrakhan died due to grievous injuries suffered in the accident which occurred as a result of the offending vehicle being driven rashly negligently by respondent No.1 Ramesh Sahu. Therefore, the conclusion of the Tribunal in this regard is not found to be correct and the said conclusion is not worth sustaining. 20. In the second question, the Tribunal has concluded that in the absence of any evidence by the insurance company, it has failed to prove that any insurance condition has been violated in driving the offending vehicle. In this context, on perusal of the evidence it is clear that respondent no.3 insurance company is the insurer of the offending vehicle. It has been proved that the driver of the said vehicle was Ramesh Sahu (respondent no.1). There is no clear evidence to show that any condition of registration has been 11 violated in driving the offending vehicle. There is also lack of clear evidence to show that the vehicle in question was driven without permit and fitness because seizure Ex.P-5 shows seizure of the fitness of the vehicle. The driving license of the said Rajesh is also said to have been seized. But on the basis of close analysis of evidence, it has been found that the driver of the offending vehicle at the time of accident was not Rajesh but Ramesh Sahu (R-1). Ramesh Sahu has also been examined before the court. He has not presented his driving licence. In cross-examination, he has admitted that he does not have a driving license. In this situation, when the vehicle in question was insured and the driver of the said vehicle was Ramesh Sahu who did not have a valid license, the statement and argument of the insurance company is found to be proved that the insurance conditions have been violated by driving the vehicle in the absence of a valid and effective driving license. Therefore, the conclusion given by the Tribunal on question No.2 is not found to be correct.
Decision
21. On the basis of the above evidence analysis, the impugned order is not found to be sustainable and the same is hereby set aside. 22. As regards quantum, from the evidence presented by the claimants side, it is clear that the age of deceased Jeevrakhan was 40 years. There are total 5 claimants who are the wife, children and father of the deceased. Deceased Jeevrakhan is said to be an agricultural labourer and his daily income was Rs.200/- i.e. monthly income was Rs. 6,000/-. 23. Though it is claimed that at the time of accident the deceased was earning Rs.6,000 per month from labour and agriculture work, no documentary evidence regarding his income has been brought on record. The accident occurred on 29.04.2015 and the minimum wages of even an unskilled labour at that point of time was Rs.5787. Hence, the income of the deceased is assessed at 12 Rs.5787 per month i.e. Rs.69,444 per annum, as minimum wages at that time. As per National Insurance Company Ltd., Vs. Pranay Sethi and Others, (2017) 16 SCC 680, the future prospects would be 25% of the income. After adding 25% towards future prospects i.e. Rs.17,361, the amount comes to Rs.86,805/-. There are total five claimants, so after deducting 1/4th of the income i.e. Rs.21701.25 in round figure Rs.21701 towards personal expenses, the amount comes to Rs.65,104/-. 24. In the light of the judgments of the Hon’ble Supreme Court in Sarla Verma (Smt.) and others vs. Delhi Transport Corporation and another reported in (2009) 6 SCC 121, National Insurance Company Ltd., Vs. Pranay Sethi and Others, (2017) 16 SCC 680 and Magma General Insurance Co. Ltd. v. Nanu Ram @ Chuhru Ram & Ors; (2018) 18 SCC 130, the compensation is being computed as below:- Sl. No. Particulars Calculation 2. 3. 4. 5. 6. 7. 8. 9. 1. Monthly income of the deceased Yearly income Future prospects (25% of the in- come) Total 5787 69444 17361 86805 Personal expenses (1/4th of the income) 21701.25 in round figure Rs. 21701 Loss of dependency 65104 Total loss of dependency (apply- ing multiplier of 15) 65104 x 15 = 976560 Funeral Expenses Loss of estate 15000 15000 10. Spousal consortium and love & affection (Rs.40,000 to each claimants) 40000 x 5 = 200000 Total compensation Rs.12,06,560 13 25. So far as the question of liability for the above compensation is concerned, from the analysis of evidence, it is found that the accident occurred due to collision between two vehicles. One vehicle was an unknown truck, hence no charge sheet has been filed against it by the Police. The other vehicle was the offending vehicle in which deceased Jeevrakhan himself was riding. Respondents No. 1, 2 and 3 have been found to be the driver, registered owner and insurer of the offending vehicle respectively. It has been proved that the accident occurred due to rash and negligent driving of the offending vehicle by respondent No.1 Ramesh Sahu and therefore violation of insurance conditions has been found. 26. At this stage, learned counsel for the appellants requested for an order of pay and recover which was opposed by the insurance company. 27. Admittedly, the offending vehicle was duly insured with the Insurance Company but due to breach of policy condition the Insurance Company has been exonerated from its liability. However, the Hon’ble Supreme Court in the case of Amrit Paul Singh and Another Vs. Tata AIG General Insurance Company Limited and others reported in (2018) 7 SCC 558 has laid down the principle of ‘pay and recover’ by ordering the insurance company to pay first and then recover. 28. Accordingly, it is directed that the Insurance Company of the offending vehicle shall first pay the compensation awarded to the claimants and then recover the same jointly or severally from the driver and the registered owner of the vehicle in question. 29. Accordingly, the appeal is allowed. The impugned order dated 24.12.2016 is set aside. It is directed that the claimants shall be entitled for compensation of Rs.12,06,560/- with interest @ 6% per 14 annum from the date of filing of the claim application till its realization. The Tribunal shall pass an order regarding apportionment, investment and disbursement of the compensation amount in accordance with the law/rules. 30. Records of the Tribunal along with a copy of this judgment be sent back forthwith for compliance and necessary action. 31. The Registry is directed to communicate the claimants in writing “the compensation amount” awarded in this appeal against the order passed by the Claims Tribunal. The said communication be made in Hindi (Deonagri) language and the help of paralegal workers may be availed with a co-ordination of Secretary, Legal Aid of the concerned area wherein the claimants reside. Sd/- (Sanjay Kumar Jaiswal) Judge Khatai