Subhash Chandrakar v. Smt. Sartta Nishad

(SB: Hon'ble Mr. N.K. Aaarwal. J.) Present : Fffritl.tW> mntW—rNrtlBr] Mr. P.P. Sahu, counsel for the appellants. Mr. S.S. Rajputand Ms. Renu Singh, counselfor respondent No.3. 'v' AWARD (11.10.2012) <2/'I-

This is owner and driver's appeal against the ao/ard dated

11.8.2011 passed by IVth Additional Motor Aecident C!aims Tribunal, Raipur (for short "the Tribunal") in Claim Case No. 214/2011. 2; As against the compensation of Rs.5,25,(%X)/- claimed by unfortunate parents of deceased Yogendra @ Golu @ Yuvraj, aged about 16 yeare, by filing claim petition under Section 166 of the Motor Vehicles Act, 1988 (for short the Act') for his death In the motor accident on 08.02.2010, the Tribunal awarded a total sum of Rs. 1,80,000/- to the claimants along wtth interest @ 7.5 % per annum from the date of fiiing of claim petition tltl its aetual paynent. ^a.

The Tribunal, on a close scrutiny of the evidence led, held: the accident had occurred due to rash and negligert drivfng of Tractor bearing registration No. CG G-1772 by its driver Domar Singh Sahu i.e. appellant No. 2; Yogendra @ Golu @ Yuvraj died on account of ttae injuries sustained by him in the said accident; <l-. the respondent No.S/lnsurance Company not liabte for payment of compensation, as deceased was sitting in the tractor as a passenger and was not covered under the poticy issued in the case by respondent No.3; and assessed and awarded aforementtoned sum as compensatfon to the ciaimants hotding appellante i.e. owner and driver tiable for payment of compensation.

Shri P.P. Sahu, leamed counse! appearing for the appellants would sybmit : deceased Yogendra @ Golu @ Yuvraj was not Sractor but was sitting under the bridge and, therefore, has fallen in error in exonerating the respondent ^

3.3/lnsurance Company from Ifs liability of payment of compensation. He wouid further submit: the amount of compensation of Rs.1,80,000/- awarded by the Tribunal for Ihe death of 16 years of boy is shockingfy on hlgher side.

On the other hand, Shri Sachln Singh Rajput, leamed counsel appearing for the respondent No.S/lnsurance Company, by referring to F.I.R. (Ex.P-1)would submtt: the dece^ed was sitting on the engme of the tractor and, therefore, the Tribunal h^ not committed any error in exonerating e Insurance Company from ite li?bility of payment of compensation. .6. i have heard Seamed coun^l appearing for the parties and peru^d the material availabie on record including award impugned.

As per First Information Report (Ex.P-t) and Merg Intimation <t~ (Ex.P-4), deceased was sitting on the engine oftbefractor.

Jal Narayan Yadav (AW-2), who lodged the FiR (Ex.P-1) had admitted his signature over the F.I.R. in paragraph 4 of his statement and his e^lanatioo that he is ncrt aware what is written in the F.i.R., on the face, fs after thought and is not plauslbte and convincing and further Ram Kumar (AW-1) has also admitted m para 8 of his statement that as per claim petition, para 3, dece^ed Yogendra @ Golu @ Yuvraj dfed as he fell down from the tractor.

In the claim petition, no specific case has been pteaded by •the daimants that the deceased was under the bric^e at the time of accident. F.i.R. maker - Jai Narayan Yadav (AW-2) and the f! •;^ ^ ''%.. * '.?*... .*.: 4 ^y appellants are of same village. CIaim petition was fited after two months of lodging of F.i.R. and considering every aspect of the matter, 1 do not find any inflrmity in the approach of the Trfbunal in hoiding deceased was sltting en the engine of the tractor at the time of accident.

Moreover, the claimants have relied upon F.I.R. (Ex.P-1) for the purpose of proving the accident and negligenee of the driver of the offending vehicle - Tractor.

The Supreme Court in ther^ case of Orientol Insuraiwe Qompany Llmfted v. Premlata Shukla and ottters, (2007) 13 SCC 476 has heid that a party objeciing to the admlssibility of a document must raise its otqection at the appropriate tlme. If the objection-is not raised and the document is ailowed to be marked, and that too at the instance of a party which had proved the same and wherefor consent of the other party has been obtained, the -il^ party proving the document cannot be permitted to turn around and raise a contention that the contents of the document had not been provecl and, thus, should not be relied upon, and observed In para 14asunder: "14. Once a part of it is relied upon by both the the iearnect Tribunal cannot be said to parties, have committed any illegality in relying upon the irrespective of the contents of the other part, document having been proved or not. contents have been proved, the question of reliance thereupon onty upon a part thereof and not upon the rest, on the technical ground that the same had not been proved in accordance vsrith law, wou!dnot arise. " If ^ ,,< ••'-^. ""'^ ^s-y

Therefore, the contention raised by counsel fw appellants that the deceased was not sitting in the tractor but was sitting in the brldge is devoid of merit.lndisputably, the appellantffnsurance company is neither statutorily liable to cover the risk of passenger sitting in the tractor nor has assumed such risk by entering into special contract with the owner of the vehicle and by charging extra premium therefor, in the absence whereof, the respondent No.S/tnsurance Company cannot be liable to pay compensation to the ctaimant and the Tribunal has rightly exonerated the respondente No.S/lnsurance Company from ite liability to pay compensation.

Tribunal has awarded a totat sum of Rs.1,80,000/- to the claimants for the death of 1 6 years old boy, which by n®streteh of imagination, can be termed as shcxskingly on higher side Therefore, the second contention rased by Shri Sahu is also devoid of merit.

For the reasons mentioned hereinabove, the appeal being d?void of merit, is liable to be and is hereby dismissed. No order as to costs. Sd/- N.K. Agarwal ! Judge