Bajaj Allianz General Insurance Company Limited v. Anwarul Iqbal & Ors.

5) ( Smt. Bhuri Bai w/o Sukhdev, R/o Jungle Side Banki Mongra, Tahsil Katghora, District Korba (C.G.) {Owner of Motor Cycle No. C.G. 12/0-0572} 6) ^] Branch Manager, United India Insurance ^~ Company Limited Korba, District Korba (C.G.) {Insurer of Motor Cycle No. C.G. 12/0-0572} ^n MEMORANDUM OF APPEAL UNDER SECTION 173 OF THB MOTOR VEHICLES ACT 1988 AS AMENDED BY ACT OF 1994 /i^\, i^. HIGH COURT OF CHHATTISGARH AT BILASPUR SB : HON'BLE SHRI R.N. CHANDRAKAR, J M.A.(C)No. 487 of 2009 Appellant flnsurer) Bajaj AIIianz General Company insurance Respondent Claimant Versy^

1. Anwarul Iqbal & others. And M.A.(aNo. 498 of 2009 Appeliant The United India Insurance Co. Ltd. Korba Resoondent Claimant Versus

1. Anawaml Iqbal and others. POST FOR PRONOUNCEMENT OF ORDBR Sd/- R.N. Chandrakar Judge ^-12-2012 Sd/- JUDGE ^\0 -12-2012 B <-- ? HIGH COURT OF CHHATTISGARH AT BILASPUR Single Bench :- Hon'ble Shri R.N. Chandrakar. J P^BWB!^^ .X Appellant Bajaj Allianze jnsurance Co. Ltd. General M.A.fONo. 487 of 2009 Versus Respondents

1. Anwarullqbal

2. Mohammed Jsmail

6. Kumari Farhad Yasmin. Sanjeet Kumar Sinha Smt.BhuriBai United Insurance Company Branch Manager, India Limited. (. And M.A. (C) No. 498 of 2009 Appellant Non-apDlicant No.4 Division Manager, India Insurance Co. Ltd. the United Versus Respondents

1. Anawaml Iqbqat

2. Mohammed Ismaeel

3. Ku. Farhad Yashmin

4. Sanjeet Kumar Sinha

5. Divisjonal Manager, Bajaj Allianze Insurance Company Ltd.

6. SmtBhuriBai -^- MISCELLANEOUS APPEALS UNDERSECTION 173 OF THE MOTOR VEHICLES ACT Appearance: HnM.A.fClNo. 487/20091 Shri S.S. Rajput, counsel for the appellant. Shri Arun Kochar, counsel for respondents No. 1 to 3. Shri Amit Kumar, counset fbr respondent No.4. None for respondent No.5. Shri H.B. Agrawal, Sr. Advocate with Shri Pankaj Agrawal, counsel for respondent No.6. ; (In M.A.(Cl No. 498/2009) Shri H.B. Agrawal, Sr. Advocate with Shri Pankaj Agrawal, counsel for the appellant. Shri Arun Kochar, counsel for respondent No. 1 to3. Shri AmitKumar, counsel for respondent No.4. Shri S.S. Rajput, counsel for respondent No.5. None for respondent No.6. Order (Passedon J^ /im012) < 1) Since M.A.(C)Nos. 487 and 498 of 2009 fited by ttae tnsurance Company arise out of the same award dated 16.01.2009 passed in Claim Case Nos. 179/2007 by the Additional Motor Accident Claims Tribunal (for short 'the Tribunat'), Bilaspur, they are being disposed of by this common order. 2) As against the compensation of Rs.6,00,000/- claimed by the claimants by filing an application under Section 163-A of the Motor Vehicles Act, for death pf their brother Mohd. Munnawar in the motor accident which took piace on 07.01.2004, the learned Tribunal sum of Rs.1,55.000/- as compensation to the claimants along with interest @ 6% per annum from the date of filing of claim petition till the date ofactual has awarded a total payment. 3) Brief facts of the case are that on 07.01.2004 at about 7.30 p.m., Mohd. Munnawar Iqbal Ansari @ Maniwar (since deceased) was -'3- •<^ ^ coming to Bilaspur from Bankimongra on his motorcycle Hero Honda bearing registration No. CG-12/G-0572, when he reaehed near Andheripara Ratanpur, non~ applicant/respondent No.4-Sanjeet Kumar coming from opposite direction by driving his Santro car bearing registration No. €G- 12/7126 in a rash and negligent manner and all of a sudden a branch of Neem tree fell on the car while turning and he tumed his car in right side and dashed the deceased who was coming from his side, as a result of which deceased sustained grievous injuries. Thereafter he was taken to CIMS, Bilaspur for treatment where he succumbed to injuries at night. Information of the incident was given to police station, Ratanpur but In-charge ofthe police station did not register the F1R, therefore, com^aint was made against him to the higher authorities. Postmortem of the deceased was conducted by doctor. Claimant Mohd. Islam had filed aclaim petition under Section 163-A of the Act for seeking compensation of Rs.6,00,000/- but during the pendency of claim petition, claimant Mohd. Islam dlect and legal representatives of Mohd. Islam were added in the array of claimants. The learned Claims Tribunal on a close scrutiny of the evidence led, material placed and submissions made by the parties has awarded amount of Rs.1,55,000/- as compensation in favour of claimants and against the non-applicants along w'rth interest 7% per annum. ShriS.S. Rajput, learned counsel for the appellant in M.A.(C)No. 487/2009 submits that the Tribunal has committed gross error in deciding the claim petition. There is no cogent evidence available on record to show that offending vehicle car was involved in the alleged accident, hence, finding of the Tribunal perverse and contrary to the evidence on record. He further submits that the Tribunal ought to have seen that claimants have filed bogus claim in order to obtain the compensation frore the 4) 5) 6) -4- appellant. Neither FIR was registered nor any crime was registered against respondent No.2 with regard to the alleged accident. Therefore, claim petition filed by the ctaimants is a bogus one and deserved to be rejected. 7) Shri H.B. Agrawal, Sr. Advocate with Shri Pankaj Agrawal, learned counsel forthe appellant in M.A.(C) No.498/2009 submits that the driver of the motorcycle is not 3rd party as held by the in view of the judgment of Supreme Court reported in Tribunal 2009 H) T.A.C. 6 fSC) in the matter UnHed Indla Insurance Companv Limited V. M. Laxmi anel others. He further submits that in the facts and circumstances of the present case, deceased was not 3rd party, therefore, appeilant is liable to be exonerated from payment of compensation. 8) Shri Arun Kochar, learned counsel for respondents No. 1 to 3 in both the aforesaid appeals supported the impugned award passed by the Tribunal. He also placed reliance in the matter of Insurance Companv Limited.. Chancllaarh V. National A/icoffetta Rohtawand others. reported in 2002STPLfLEl314SS SC. in which SupremeCourt has held that no right to appeal to challenge the award on merits unless Section 170 satisffed the condition precedent and claim are confined under the ground of s. 149(2). Even if insured does not appeal against the award, no permission for an insurer to appeal on the ground of quantum of compensation and finding of negligence ofoffending vehjcte. 9) Shri Amit Kumar, learned counse! for respondent No.4 in both the aforesaid appeals supported the contentions of the appellarrts. 10) 11) I have heard the learned counsel for the parties, perused the impugned awards and records ofthe Claims Tribunal. A bare perusal of the records goes to show that no FIR has been iodgedagainst respondent No.4-Sanjeet Kumar. Postmortem report (Ex.A/1) was filed in the claim petition in which the name of deceased was as Manawar S/o Mohammad Nizam, aged about 'w:y 1 ^.-^/ ^ 1 ^- 22 years and same finds support by the inquest report (Ex.P/2) whereas in the merg intjmation (Ex.P/3), name of deceased has been mentioned as Mandevan S/o Mohd. Nizam, 32 years and that was corrected as Mohd. Islam. Therefore, these documents create suspicion and after correction, the merg intimation was recorded. Claimants were not examined the writer of the merg intimation, therefore, from the record, name mentioned in report, postmortem report and inquest name is Manawar S/o Mohd. Nizam and Mohd. Iqbal is notfather of deceased. Further, from perusal of other documents Ex;P/4,5, 6 and 7, it is clear that one complaint is addressed to the Police reveals the deceased Superintendent and Inspector General of Police, Bilaspur range but there is no other document available on record to show thal what inquiry has been made by police on the application. Thus, in view of the documents produced by the ciaimants, it is clear that the name of deceased was Manawar S/o Mohammad Nizam. The original application made by deceased Mohd. Islam is not proved by presenting other documents. Modh. Islam has stated in his statement urider Order 18 rule 4 of C.P.C. that his son was looking after his two trucks and used to pay Rs.3,250/- per month as salary. He also stated that after the death of his son, he had two trucks but no sale-deed/certificate has been sold that produced by him to that effect during the trial. Therefore, it is not established that claimant i.e Mohd. Isiam, who died during the pendency of claim petition, was actual father of deceased. 12) In view of the above, claimants have not succeeded in proving the impugned their case beyond shadow of doubt; award passed by the Tribunal is not just and proper. therefore, 13) Consequently, the appeals deserve to be allowed and are hereby allowed. The impugned award passed by the Tribunal is set aside. The amount, if any paid/deposited, by the appellants in both the aforesaid appeals to the claimants, the same shall be @ ,\ ';"^ ..-^^& ^' •i ^.-^' i ^ \^y "~l'^;® .9 ^ . -6- refunded to them. remedies available under the law. No order as to costs. The claimants are at liberty to avail Sd/- R.N. Chandrakar Judge 1>INNN^.