Smt. Salma Khan v. The Oriental Insurance Co. Ltd.

Smt. Mohrabee Sheikh, W/o Mohd. Ismaeel, aged about 75 Years R/o Sun City, Chandrashekhar Ward, Near Surya Mandir, Jagdalpur, Distt. Bastar, Chhattisgarh ..................Claimants,

Sachin Jaiswal, S/o Rajesh Jaiswal, aged about 21 Years Occupation Medical Student, Caste Kalar, R/o Ward No.10, Manpur, Surajpur, Distt. Surajpur, Chhattisgarh, Presently R/o Dimrapal Medical College, Boys Hostel, Room No.318, Geedam Road, P.S. Parpa, Distt. Bastar, Chhattisgarh .................Owner Cum Driver. ________________________________________________________ For the Appellant For Respondent No. 1 to 5 : Shri R.N.Pusty, Advocate. : Shri Praveen Dhurandhar, Advocate ________________________________________________________ --- Respondents -2- Hon'ble Shri Justice Sachin Singh Rajput Order on Board

02.01. 2024

This appeal under section 173 of the Motor Vehicle Act, 1988 (for short Act of 1988) has been filed by the appellant / Insurance Company being aggrieved by the award dated 02/12/2016 passed in M.A.C. No. 74/2016 passed by the I Additional Motor Accident Claims Tribunal, Jagdalpur, District - Bastar (C.G.) (for short Tribunal).

By the impugned award, the learned Tribunal allowed the application under section 166 of the Act of 1988 filed by the respondent No. 1 to 5 / Claimants and awarded total compensation to the tune of Rs. 43,74,260/- with interest at the rate of 9% per annum in the favour of the respondent no. 1 to 5 / claimants and against the appellant / Insurance Company.

Learned Tribunal awarded compensation in favour of the respondent No. 1 to 5 / Claimants on account of death of deceased Md. Abdul Rehman Khan that in an accident that took place on 02/01/2016 at about 05:00PM by the rash and negligent driving of the offending vehicle motorcycle bearing registration No.C.G.-17-KK-1433 by respondent No. 6 (driver / owner).

As per pleadings of claim application, the deceased Abdul Karim was an Accountant, Janpad Panchayat, Katekalyan, South Bastar and was earning Rs.40,000/- per month. The appellant as well as respondent No. 6 has filed their return statement and denied the averment of the claim application. Appellant / Insurance Company also took a plea that there is a collision between two motorcycles, -3- therefore, the deceased must have contributed to the accident and suitable deduction may be made while assessing the compensation. The learned Tribunal on the basis of the pleading of the parties, framed five issues. The learned Tribunal after recording the evidence on behalf of respective parties, decided the issues in favour of respondent No. 1 to 5 / claimants and awarded the aforestated compensation by the impugned award which is under challenge.

5. Learned counsel for the appellant submits that the appellant Insurance Company has taken two grounds in this appeal, firstly that the accident occurred as a result of head on collision between two motorcycle and therefore, appropriate deduction ought to have been made by the learned Tribunal while assessing the compensation. Secondly, he submits that the proper income tax amount that which the deceased could have been paying has not been deducted from his income, therefore, the quantum of compensation requires to be reduced. He further submits that the Insurance Company was not afforded proper opportunity to substantiate its pleading and in view of the above the appeal may be allowed and the matter may be remanded back to reconsideration on these issues.

6. Learned Counsel for the respondents opposing the submission and submits that proper opportunity to read evidence was granted to the appellant / Insurance Company and the Courts and Tribunal are required to see that just compensation is awarded to the claimants and Tribunal has awarded just compensation. So far as the question of contributory negligence the eye-witness AW/2 -4- Abdul Ameen was examined by the respondent. Hence, the finding recorded by the learned Tribunal does not require any interference.

I have heard the learned counsel appearing on behalf of the parties and perused the record minutely.

The issue No. 1 was framed with regard to rash and negligent driving of the offending vehicle by the respondent No. 6 Driver / Owner. On perusal of the record it appears that the Insurance Company had filed an application to call for the Sub-Inspector Shri Sanjeev Kumar Thakur in order to prove its defense. Thereafter, the learned Tribunal on couple occasions listed the matter on orders of miscellaneous applications, however, vide order dated 10/11/2016 closed the right of the Insurance Company to call for the witnesses. Admittedly the Insurance Company has taken a plea in its written statement that the deceased also contributed to the accident and this defense is also reflected from the written statement of the driver / owner of the offending vehicle. Under the given facts and circumstances of the case, this court is of the opinion that end of justice would be met if the appellant / Insurance Company is given an opportunity to examined its witness to prove its defence. Therefore, the impugned award is set a side and matter is remitted back to the learned Tribunal, permitting the appellant / Insurance Company to call for the witnesses which is to be examined to prove its pleading. The contention with regard to deduction of proper income tax is left open to be agitated before the learned claims Tribunal. The learned Tribunal shall decide the case in accordance with Law and the amount which has been -5- deposited in terms of the award shall not be recovered from the claimants.

In the given facts and circumstances of the facts and the material available on record, this court is of the opinion that end of justice would be met if parties are allowed to file additional documents, amend pleadings and to lead evidence if so desire. The remand is only for the purposes of determining the just compensation and to give findings with regard to contributory negligence. The insurance company is not entitle to take a plea of breach of policy. The learned Tribunal shall make all endeavor to decide the application within a reasonable period of time, preferably within a period of 06 months from the date of the first appearance of the parties. The parties are directed to appear before the learned Tribunal on 23rd February, 2024.

All pending applications are disposed off. Sd/- Judge (Sachin Singh Rajput) Ashish