Shantibai Choudhary & Others v. Krishnakant Sahu & Others, by
Case Details
1 ABHIGYA SAXENA Digitally signed by ABHIGYA SAXENA 2025:CGHC:44959 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR MAC No. 949 of 2018 Reserved on 03/07/2025 Delivered on 03/09/2025 1 - The Oriental Insurance Company Limited Through Divisional Manager, Near Old Bus Stand Bilaspur, District Bilaspur Chhattisgarh. (Insurer Of Vehicle Mahendra Max No. C.G. - 10 B.A./5453), District : Bilaspur, Chhattisgarh ... Petitioner(s) versus 1 - Shantibai Choudhary W/o Late Shri Munnalal Choudhary, Aged About 40 Years R/o Near Appolo Hospital Lingiyadih, Thana Sarkanda, District Bilaspur Chhattisgarh., District : Bilaspur, Chhattisgarh
Legal Reasoning
2 - Taranlal Choudhary W/o Late Shri Munnalal Choudhary, Aged About 20 Years R/o Near Appolo Hospital Lingiyadih, Thana Sarkanda, District Bilaspur Chhattisgarh., District : Bilaspur, Chhattisgarh 3 - Pinki Choudhary, D/o Late Shri Munnalal Choudhary, Aged About 16 Years Minor, Through Guardian Mother Respondent No. 1 R/o Near Appolo Hospital Lingiyadih, Thana Sarkanda, District Bilaspur Chhattisgarh., District : Bilaspur, Chhattisgarh 4 - Prakash Chandra Choudhary S/o Late Shri Munnalal Choudhary, Aged About 14 Years Minor, Through Guardian Mother Respondent No. 1, R/o Near Appolo Hospital Lingiyadih, Thana Sarkanda, District Bilaspur Chhattisgarh., District : Bilaspur, Chhattisgarh 2 5 - Krishnakant Sahu S/o Dwarika Prasad Sahu, Aged About 32 Years R/o Chhindand, Ward No. 1, Baikunthpur, District Koria, C.G., (Driver Of Vehicle Mahendra Max No. C.G. -10 B.A./5453). (Driver), District : Koriya (Baikunthpur), Chhattisgarh 6 - Durga Prasad Yadav S/o Shri Shiv Prasad Yadav, Aged About 40 Years R/o Village Bhadwani Nevsa, Thana Pendra Road, District Bilaspur Chhattisgarh. (Owner Of Vehicle Mahendra Max No. C.G. -10 B.A./5453). (Owner), District : Bilaspur, Chhattisgarh ... Respondent(s) For Petitioner(s) : Mr. Sudhir Agrawal, Advocate For Respondent(s) : Ms. Nita Choubey, Advocate SB - Hon’ble Shri Justice Amitendra Kishore Prasad C A V Order 1. Heard. 2. This appeal is being preferred by the appellant–The Oriental Insurance Company Ltd., being aggrieved by the award dated 09.11.2017 passed in Claim Case No. 1241/2013, Shantibai Choudhary & Others Vs. Krishnakant Sahu & Others, by the Learned 6th Additional Motor Accident Claims Tribunal, Bilaspur (C.G.), presided over by Shri Pankaj Sharma, whereby the Tribunal has passed the final award dated 09.11.2017. 3. Facts of the case in brief are that as per FIR dated 24.10.2012 (Exhibit A-2), at about 6:00 PM, deceased Munnalal Choudhary, 3 while driving motorcycle No. MP 18 E/4007, died on the spot due to a dash by an unknown vehicle, and the fact of accident came to the knowledge of his son Taran Lal only at about 11:00 PM, whereafter he reached the spot with family members and lodged the FIR; however, in order to falsely implicate the insured vehicle Mahindra Max No. C.G.10 B.A. 5453, the claimants concocted a different version of the accident by showing the time as 10:00 PM and setting up a fabricated story with the collusion of police, as evident from the seizure memo (Exhibit A-5) and statement of AW- 3 Manoj Kumar; further, despite the mandatory requirement under Section 134 of the M.V. Act, the owner of the said vehicle neither intimated the insurer about the driver at the time of accident nor produced permit or valid driving licence, thus constituting breach of policy, more so as the vehicle insured under policy (Exhibit NA- 3-1) as a private vehicle was in fact a commercial vehicle as per registration certificate (Exhibit NA-3-7) proved by RTO witness Vikas Singh; hence, the appellant insurance company cannot be saddled with liability, alternatively, even if the claim is considered, contributory negligence of the deceased who himself was driving motorcycle No. MP 18 E/4007 must be accounted; besides, the Tribunal erred in assessing income of deceased at Rs. 43,029/- per month by adding quarterly bonus over and above salary of Rs. 36,726/- as pleaded in para 5 of plaint, wrongly granting 30% future prospects despite evidence (AW-4 R.K. Sharma) that deceased was not permanent employee, wrongly directing interest 4 from date of application and imposing penal rate, and holding insurer jointly and severally liable despite breach of policy; thus, the award suffers from grave illegality and is liable to be set aside in view of binding precedent in Surender Kumar Arora & Ors. v. Manoj Bisla & Ors., 2012 (3) TAC 353 (SC). 4. The counsel appearing for appellant–Insurance Company respectfully submits that the impugned award is contrary to the facts and law and is liable to be set aside on the following, amongst other, grounds: firstly, the insured vehicle was not involved in the accident dated 24.10.2012, inasmuch as the FIR (Exhibit A-2) lodged on the same day was against an unknown vehicle, and the statements of claimant witnesses themselves create serious doubt regarding the alleged involvement of the insured vehicle. A.W.3 Manoj in his deposition has given contradictory and unnatural statements regarding having seen the vehicle number in the light of his motorcycle, while atthe same time admitting that he did not inform the police on the pretext that others had informed. A.W.2 Taran, son of the deceased, admitted that he lodged the report on the next day describing the offending vehicle as unknown and further stated that information about the vehicle was given by one Kashiram, who was never examined before the Tribunal, thereby withholding the best evidence. Moreover, the Seizure Memo (Exhibit A-5) reveals that the insured vehicle was seized only after 69 days, raising further suspicion, 5 and there are contradictions in the timing of the accident, the FIR recording the time as 6:00 PM whereas the claim petition pleads10:00 PM. 5. The appellant specifically pleaded that this was a case of "Hit and Run" and that the insured vehicle was falsely implicated, which stands fortified by the principles laid down by the Hon’ble Supreme Court in Anil & Ors. v. New India Assurance Co. Ltd. (2018 ACJ 729), Nepal Singh v. Upendra (2008 (3) TAC 668 SC), and by the Chhattisgarh High Court in Phoolchand & Ors. v. Amit Kumar (MAC 1919/2018 decided on 20.06.2025), wherein it has been held that unnatural conduct of alleged eyewitnesses and unexplained source of knowledge of vehicle number cast serious doubt on their testimony. Secondly, even assuming without admitting the involvement of the insured vehicle, it is established that respondent No. 5/driver Krishnakant Sahu was not holding a valid and effective driving licence at the time of accident. Neither in compliance with Section 134 of the Motor Vehicles Act nor before the Tribunal was any licence produced; even in Seizure Memo (Exhibit A-5) no licence document was submitted, and despite application under Order XI Rule 12 CPC, the owner and driver failed to disclose the details of the licence. As per law laid down in Oriental Insurance Co. Ltd. v. Anusuiya Bai (MAC 1250/2011, decided on 06.09.2012) and DM, National Insurance Co. Ltd. v. Ranjeet Toppo (MAC 356/2015, decided 6 on28.01.2021), the initial burden to prove existence of a valid licence lies on owner/driver, and in its absence the case must be treated as one of “No Driving Licence.” 6. He moreover asserts that the insured Mahindra Max being a commercial passenger vehicle with seating capacity of nine including driver required a valid permit, which was not produced, thereby constituting a fundamental breach of policy condition. Thirdly, the Tribunal has erred in assessing the income of deceased. While the pleadings and evidence of A.W.1 (widow), A.W.2 (son), and A.W.4 (SECL employee) established that the deceased Munnalal was earning Rs. 36,726/- per month as proved by salary slip Exhibit A-7/A-7A, the Tribunal wrongly assessed the income at Rs. 43,029/- per month. In terms of the law laid down by the Hon’ble Supreme Court in National Insurance Co. Ltd. v. Indira Srivastava (2008 (2) SCC 763), allowances such as transport subsidy, night allowance, Sunday wages, profession tax, andincome tax are to be excluded, which the Tribunal failed to do, resulting in an inflated income assessment. Lastly, the Tribunal committed grave error in awarding penal interest at the rate of 7%, which is contrary to the judgment of the Hon’ble Supreme Court in National Insurance Co. Ltd. v. Keshav Bahadur (2004 (2) SCC 370, para 14), wherein it is clearly held that no penal interest can be imposed against the 7 Insurance Company. In view of the aforesaid, the impugned award is wholly unsustainable and is liable to be set aside. 7. On the other hand, learned Counsel for the claimants/respondents submits that the learned Tribunal has rightly and lawfully passed the award of compensation after due appreciation of oral and documentary evidence on record, and has further rightly fastened the liability upon the appellant–Insurance Company, as the offending vehicle was duly insured under a valid and effective policy issued by the said Insurance Company. The arguments advanced on behalf of the appellant are wholly incorrect, misconceived, and devoid of merit, and the same cannot be relied upon for setting aside the impugned award. It is further submitted that though there do exist valid grounds for seeking enhancement of the compensation awarded, the claimants/respondents, having not preferred any cross-appeal or cross-objection, are not pressing the said issue. Nevertheless, if this Hon’ble Court, in the exercise of its appellate jurisdiction, deems fit to consider the aspect of enhancement, the same may also be taken into consideration in the interest of justice. 8. I have heard learned counsel for the parties and perused the documents available on record with utmost circumspection. 9. The principal grounds urged by the appellant–Insurance Company are that the insured vehicle was not involved in the accident, and 8 in any case, there was breach of policy conditions as the vehicle was a commercial vehicle being plied contrary to the terms of the insurance policy and the driver was not holding a valid and effective driving licence at the relevant time. The Tribunal, however, did not accept these contentions and fastened the liability upon the appellant–Insurance Company to satisfy the award. 10. Upon consideration of the pleadings, evidence, and material placed on record, this Court finds no merit in the contentions of the appellant–Insurance Company. The Insurance Company has failed to establish that the insured vehicle was being run in contravention of the terms and conditions of the policy, or that the driver was not in possession of a valid and effective driving licence at the time of accident. The findings recorded by the learned Tribunal are based upon due appreciation of evidence and do not suffer from perversity or illegality so as to warrant interference in appellate jurisdiction. 11. Accordingly, the arguments advanced on behalf of the appellant– Insurance Company are wholly misconceived and untenable. The appeal, being devoid of substance, deserves to be and is hereby dismissed. 12. So far as the submission of learned counsel for the claimants with respect to enhancement of compensation is concerned, it is 9 to be noted that the claimants have neither preferred any cross- appeal nor cross-objection seeking enhancement. In the absence thereof, no order for enhancement of compensation can be passed in the present appeal. 13. Resultantly, the appeal filed by the appellant–The Oriental Insurance Company Ltd. stands dismissed.
Decision
No order as to costs. Sd/- (Amitendra Kishore Prasad) JUDGE Saxena