Dismissed

The Oriental Insurance Co. Ltd. v. Smt. Munni and 8 Ors.

Allahabad HC19 Feb 2020FAFO/1114/2016

Case brief

AI extract

What is this about?

Appeal by Oriental Insurance Co. Ltd. against Motor Accident Claims Tribunal award dismissed. Court noted insurance company failed to examine driving witnesses and granted relief for refunding deposited amount if execution certificate filed within 30 days.

What did the court decide?

Prayer for refund of Rs. 25,000/- if execution certificate filed within 30 days is granted.

The Oriental Insurance Co. Ltd. Vs Smt. Munni and 8… — Motor Accident Claims | Allahabad HC (2020)

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Court No. - 53

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Case :- FIRST APPEAL FROM ORDER No. - 1114 of 2016

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Appellant :- The Oriental Insurance Co. Ltd. Respondent :- Smt. Munni And 8 Ors. Counsel for Appellant :- Arun Kumar Shukla Counsel for Respondent :- Azaz Ahmad,Durgesh Pratap Singh,Vijay Pratap Yadav

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Hon'ble Vivek Agarwal,J.

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Heard Sri Arun Kumar Shukla, learned counsel for the appellant and Sri Vijay Pratap Yadav, learned counsel for the respondent.

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This appeal has been filed by the Oriental Insurance Co. Ltd (for short the Insurance Company) being aggrieved by the award dated 13.1.2016 passed by Motor Accident Claims Tribunal / Additional District Judge, Court No. 1, Ghaziabad (for short the learned Claims Tribunal) in MACP No. 301 of 2013 whereby the claim petition filed by the claimants has been allowed by the learned Claims Tribunal.

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Counsel for the appellant submits that deceased Kamal Singh was, in fact, sitting on the mudguard of the Tractor as is apparent from the copy of the FIR which was lodged by Mahendra Singh on the same date of the accident. It is submitted that overlooking this piece of evidence claimant has been allowed to rely on the evidence of PW-2 (Vinay Kumar) and PW-3 (Bhopal Singh), who have deposed that they were working either in the same field or in the adjacent field where Kamal Singh was spreading compost in the field and at that time a Tractor No. UP-14 BC - 5009 driven by the driver rashly and negligently came and hit Kamal Singh as a result of which he sustained grievous injuries and died on the spot.

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Counsel for the appellant submits that even learned Claims Tribunal has not bothered to frame a issue in this regard and has passed award in favour of the claimants. However, it is submitted that Insurance Company failed to examine any of the witnesses before the learned Claims Tribunal. The learned Claims Tribunal has categorically noted on internal page-5 of the award while deciding issue no. 1 that Insurance Company did not examine the driver of the Tractor namely Yusuf, who would have been the best witness in regard to the accident to explain how accident took place.

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It is admitted position that no application was filed before the learned Claims Tribunal to frame the issues in regard to sitting

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of the deceased on the Bumper of the Tractor. Fact of the matter is that there is no contradiction in the evidence of PW-2 and PW-3 the independent witnesses, who have given evidence as to the manner in which accident took place.

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For the failure of the Insurance Company to examine the owner/driver of the Tractor or Mahendra Singh, who had lodged the FIR. Since the FIR has limited application and it is only to take cognizance of the criminal cases to which weightage cannot be assigned when Insurance Company has failed to examine witnesses in its favour to prove that accident had taken place when deceased had fallen down from the mudguard of the Tractor. For authority please see judgment in case of Oriental Assurance Company Ltd Vs. Abdul Sahid Khan; 1995 ACJ 624. Also, Oriental Assurance Co. Ltd Vs. Smt. Rehana Begham , 2009 (2) TAC 227 (All) wherein it is held that contents of FIR not usually accepted to be true unless corroborated by evidence.

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In view of such facts, the appeal fails and is dismissed.

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At this stage Sri Arun Kumar Shukla submits that in case the Insurance Company files application within 30 days seeking certificate from the executing court that award is satisfied then Rs. 25,000/- deposited by the Insurance Company be refunded to the Insurance Company else it be remitted to the learned Claims Tribunal for adjustment against the award. Said prayer granted.

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In above terms, appeal is disposed off.

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Order Date :- 19.2.2020 S.K.S.

The Oriental Insurance Co. Ltd. v. Smt. Munni and 8 Ors.

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The Oriental Insurance Co. Ltd. v. Smt. Munni and 8 Ors.

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