The National Insurance Company Ltd.Throu.Regional Manager Vs Qamar Jahan and Ors.

Neutral Citation No. - 2025:AHC-LKO:25400

Court No. - 5

Case :- FIRST APPEAL FROM ORDER No. - 101 of 2019

Appellant :- The National Insurance Company Ltd.Throu.Regional Manager Respondent :- Qamar Jahan And Ors. Counsel for Appellant :- Satyajit Banerji Counsel for Respondent :- Shikha Srivastava,Kartik Panday,Sant Lal Dixit

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Hon'ble Abdul Moin,J.

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Heard.

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The instant appeal has been against the judgment and award dated 25.10.2018 passed in MACT Application No.20 of 2016 in Re: Qamar Jahan and Others vs. Raj Kumar Yadav and Another by II MACT / VI A.D.J., Gonda.

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By the aforesaid award, the learned Tribunal has awarded a sum of Rs.11,53,200/- in favour of the claimants along with interest at the rate of 7% per annum.

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Bereft of unnecessary details, the facts set forth by the learned counsel for the appellant / insurance company are that an accident is said to have occurred on 17.12.2015 wherein one Shri Hamid Ali, who was driving an Eicher Truck No. UP 43 T/6667, died.

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The accident is said to have occurred on the fateful day when the aforesaid truck had stopped in order to enable another truck, having number UP 70 T/0383 which was in front of it, to reverse. While the eicher truck had stopped, another truck coming from behind namely Truck No. UP 41 AT/0045 crashed into the truck being driven by Shri Hamid Ali and on account of the impact, the truck of Shri Hamid Ali went forward and

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dashed against the truck which was reversing and consequently, Shri Hamid Ali was crushed and died.

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Upon filing of the claim application, the learned Tribunal considered the averments / statements of one Shri Natthu Ram, who is said to be eye witness of the accident, wherein he reiterated the entire sequence of events as indicated above. The said witness was cross examined by the insurance company, which was the respondent No.2 in claim application, as specifically finds place in paragraph 12 of the judgment of the learned Tribunal, wherein also it emerged that three vehicles were involved in the accident.

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The learned Tribunal has also examined the surveyor from the insurance company namely Shri Gyan Prakash Tiwari who has indicated of having conducted a spot inspection of the insured vehicle namely UP 41 AT/0045 (the vehicle that had crashed in the vehicle being driven by Shri Hamid Ali) and indicated that the truck was damaged on the left side to the extent of the chassis. He also indicated that in the survey, he had also taken photographs of the truck involved in the accident to indicate that after the accident it was only a part of the truck number which was visible and that various parts of the truck were also found broken.

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On the basis of the aforesaid statements and the evidence as led before the learned Tribunal, the learned Tribunal decided issue no.1 which was as to whether on 17.12.2015 at about 06:00 a.m., an accident was caused on account of Vehicle No. UP 41 AT/0045 being driven rashly and negligently to have crashed into Truck No. UP 43 T/6667 (vehicle being driven by Shri Hamid Ali) which in turn resulted in the Vehicle No. UP 43 T/6667 dashing against the Vehicle No. UP 70 T/0383 which resulted in the driver (Shri Hamid Ali) getting stuck and having

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died on account of the said accident.

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The learned trial court, vide the impugned award dated 25.10.2018, has awarded a sum of Rs.11,53,200/- along with interest at the rate of 7% per annum to the claimants.

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Raising a challenge to the aforesaid judgment and award, the instant appeal has been filed.

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The grounds urged by the learned counsel for the appellant in order to challenge the impugned award are that -

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(a) he had filed an application No.31-Ga before the learned Tribunal for referring the matter to the SIT for further inquiry as it appears to be a frivolous claim. In this regard, reliance has been placed before the learned Trial court on the judgment of the Hon'ble Supreme Court in the case of Shafiq Ahmad vs. ICICI General Insurance Company Ltd. and Others. The learned Tribunal, however, failed to consider the said application in its correct perspective and rejected the same vide order dated 06.02.2018 which application should have been allowed considering that a frivolous claim had been set up before the learned Tribunal;

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(b) the learned Tribunal failed to appreciate that the insured Vehicle No. UP 41 AT/0045 was found damaged on the left side and if at all the said vehicle is said to have been involved in the said accident, the damage should have been on the front portion of the truck;

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(c) the learned Tribunal patently erred in believing the version of P.W. - 3 namely Natthu Ram and ignored that he had categorically stated that three vehicles were involved in the said accident and;

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(d) The vehicle number which was found to have been reversing namely UP 70 T/0383 is a two wheeler. In this regard, the particulars of the vehicle have been filed as annexure 3 to the application for interim relief.

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No other ground has been urged.

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On the other hand, learned counsel for the claimants have supported the award impugned.

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Having heard the learned counsels for the parties and perused the record, it emerges that an accident is said to have occurred on 17.12.2015 per which Shri Hamid Ali, who was driving an Eicher Truck No. UP 43 T/6667, died on account of being hit from behind by the insured vehicle namely Truck No. UP 41 AT/0045 which resulted in his vehicle moving ahead and dashing against the Truck No. UP 70 T/0383 which thus resulted in his death.

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The learned Tribunal while allowing the claim application has placed reliance on the testimony of an eye witness namely Shri Natthu Ram who indicated that he was an eye witness to the said accident and described the sequence of events and he also indicated that three vehicles were involved in the accident.

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The learned Tribunal has also placed reliance on the inspection report conducted by the surveyor of the insurance company who indicated of the damage being caused to the insured vehicle namely Truck No. UP 41 AT/0045 which is said to have dashed against the vehicle being driving by Shri Hamid Ali from the back and damage was also noticed in the said vehicle to the extent that the broken parts were found and the vehicle was damaged on the left side till the chassis.

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Incidentally, despite the insurance company having

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examined the eye witness namely Shri Natthu Ram, his statement could not be contradicted or controverted.

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After considering the same, the learned Tribunal has passed the award impugned.

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The insurance company has challenged the award on the grounds as already indicated above.

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So far as the grounds (a) and (b) are concerned, i.e. the insurance company had filed an application No.31-Ga before the learned Tribunal for referring the matter to the SIT for further inquiry and the learned Tribunal failed to appreciate that the insured Vehicle No. UP 41 AT/0045 was found damaged on the left side and if at all the said vehicle is said to have been involved in the said accident, the damage should have been on the front portion of the truck, a perusal of the application No.31-Ga would indicate that the application had been filed by contending that the vehicle No. UP 43 AT/0045 had not been damaged on the front side and consequently there appears to be contradiction in the statement of the witnesses and the F.I.R.

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The learned Tribunal, vide its order dated 06.02.2018, had rejected the said application (copy of said application is part of annexure 2 to the application for interim relief) by indicating that a charge sheet has been filed against the driver and that the evidence of the claimants has also ended and thus it is apparent that the application has only been filed in order to delay the matter.

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Learned Tribunal has also perused the report of the surveyor from the records (paper No.38Ga/3) from which it emerges that the damage of the vehicle is on the left side channel which have been found to be pressed/torn, the chassis has been badly

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pressed, propeller shaft bent and its joint shift from crown / differential, left shocker bent, air servo dram pressed, left side load body three wooden battey torn, body angle left side bent which all indicates about the accident which has been caused by the insured vehicle.

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Incidentally, the order dated 06.02.2018 has attained finality and has never been challenged by the insurance company at any stretch of time, neither there is any averment to the said effect in the appeal nor has been argued by the learned counsel for the appellant.

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Even otherwise, the award passed by the learned Trial court has been passed while considering the report of the surveyor wherein the damage of the insured vehicle had been found on the left side to the extent that the damage was right up to level of the chassis and the broken parts were also found. It was not necessary that the vehicle involved should have only hit the vehicle of the victim in the middle rather, in this case, it has clearly emerged that the vehicle was damaged on the left side meaning thereby that the accident transpired upon the vehicle, hitting the vehicle of Shri Hamid Ali from the back that had caused damage to the left side of insured vehicle and also resulted in the vehicle of Shri Hamid Ali moving forward and dashing against the another vehicle with the result that Shri Hamid Ali was crushed and died. Thus the aforesaid ground is found to be patently fallacious and is rejected.

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So far as the ground (c) is concerned i.e. the learned Tribunal patently erred in believing the version of P.W. - 3 namely Natthu Ram and ignored that he had categorically stated that three vehicles were involved in the said accident, the same is also found to be patently fallacious. The reason is that the statement of eye witness namely Shri Nathu Ram has been

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considered considering the factual position which existed on the spot of three vehicles being involved in the accident namely one vehicle which was reversing and in order to enable it to reverse, the vehicle being driven by Shri Hamid Ali having stopped and the third vehicle i.e. the insured vehicle having come from the back, being driven rashly and negligently, and dashed against the vehicle of Shri Hamid Ali and on account of the impact, the vehicle of Shri Hamid Ali having moved ahead and dashed against the first vehicle with the result that Shri Hamid Ali was crushed in the said accident. Nothing further emerges from the statement of Shri Natthu Ram.

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Incidentally, the insurance company had cross-examined Shri Natthu Ram but no contradiction appeared in his statement and consequently, it cannot be said that there was any contradiction in the statement of Shri Natthu Ram in indicating about the incident. Thus the said ground is also rejected.

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So far as the ground (d) is concerned namely the vehicle number which was found to have been reversing namely UP 70 T/0383 is a two wheeler, it would be suffice to state that in the appeal, the aforesaid photocopy of the registration of a vehicle has been filed indicating that a vehicle involved in the accident is a two wheeler.

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Incidentally, no such averment was made before the learned trial court nor the said vehicle particulars have been filed by the appellant as additional evidence under Order 41, Rule 27 of C.P.C. before this Court praying for production of additional evidence in the appellate court i.e. before this Court herein in the appeal. By merely making the particulars of the said vehicle as annexure along with an application for interim relief the same cannot be construed to be an additional evidence, as required under Order 41, Rule 27 of C.P.C., before this Court.

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Moreover nothing precluded or restrained the insurance company from filing the said document before the learned trial court nor any reasons emerge as to why the aforesaid document was not filed before the learned trial court.

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Keeping in view of the aforesaid discussion, no case for interference in judgment and award dated 25.10.2018 is made out.

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Accordingly, the appeal is dismissed.

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The trial court records be transmitted back.

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Order Date :- 2.5.2025 S. Shivhare

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Digitally signed by :- SHASHANK SHIVHARE High Court of Judicature at Allahabad, Lucknow Bench

The National Insurance Company Ltd.Throu.Regional Manager v. Qamar Jahan and Ors.

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The National Insurance Company Ltd.Throu.Regional Manager v. Qamar Jahan and Ors.

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