Dismissed

Vinod Kumar Gupta v. Thumri Bai

Chhattisgarh HC3 Aug 2023MAC/1240/2015

Case brief

AI extract

What is this about?

This court dismissed two appeals filed by the vehicle owner challenging the Motor Accident Claims Tribunal's award of compensation. The court held the Tribunal rightly fixed liability on the vehicle owner due to rash and negligent driving, rejecting the plea of contributory negligence on the other driver due to lack of evidence.

What did the court decide?

Both appeals are dismissed; the impugned award of the Claims Tribunal is upheld.

Vinod Kumar Gupta Vs Thumri Bai — Motor Accident Claims | Chhattisgarh HC (2023)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR MAC No. 1240 of 2015

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Vinod Kumar Gupta S/o Pachkodi Sao, Aged About 50 Years R/o Village Khamhariya, Police Station and Tahsil - Udaypur, District – Surguja, Chhattisgarh.

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----Appellant

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Versus

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Thumri Bai W/o Late Nawal Sai, Aged About 55 Years.

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Semar Sai S/o Late Nawal Sai, Aged About 37 Years.

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Mohar Maniya W/o Somar Sai, Aged About 35 Years.

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All are by Caste - Harijan, R/o Village - Lalati, Police Station and Tahsil - Udaypur, District Surguja Chhattisgarh. (Claimants).

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Nandlal @ Pramod Kumar Jaiswal S/o Late Shivchand Prasad Jaiswal, Aged About 40 Years R/o Village Manipur-Ambikapur, Police Station and Tahsil - Ambikapur, District - Surguja Chhattisgarh.

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Branch Manager, Ifco Tokio General Insurance Company, 205, Second Floor, M. M. Silyari, Udhyog Bhawan, Ring Road No. 01, Raipur, Chhattisgarh.

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---- Respondents

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MAC No. 1242 of 2015

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Vinod Kumar Gupta S/o Pachkodi Sao, Aged About 50 Years R/o Village Khamhariya, Police Station and Tahsil - Udaypur, District – Surguja, Chhattisgarh.

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---- Petitioner

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Versus

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Chandermati W/o Late Chaliram, Aged About 26 Years.

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Rato W/o Sukhram, Aged About 55 Years.

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Sukhram S/o Late Kendaram, Aged About 58 Years.

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All are R/o Village - Rakkhi, Police Station and Tahsil - Udaypur, District Surguja Chhattisgarh. (Claimants).

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Nandlal @ Pramod Kumar Jaiswal S/o Late Shivchand Prasad Jaiswal, Aged About 40 Years R/o Village Manipur-Ambikapur, Police Station and Tahsil - Ambikapur, District - Surguja Chhattisgarh.

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Branch Manager, Ifco Tokio General Insurance Company, 205, Second Floor, M. M. Silyari, Udhyog Bhawan, Ring Road No. 01, Raipur, Chhattisgarh.

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---- Respondents

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For Appellant : Mr. Kawaljeet Singh, Advocate on behalf of Mr. Sanjay Agrawal, Advocate.
For Respondent Nos.1 to 3 : Mr. Aman Upadhyay, Advocate on behalf of Mr. Sushil Dubey, Advocate.
For Respondent No.4 : None though served.
For Respondent No.5 : Mr. Tessy Abraham, Advocate on behalf of Mr. Amrito Das, Advocate.

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Hon'ble Shri Justice Arvind Singh Chandel Judgment on Board

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03/08/2023.

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Since above two appeals arise out of the same incident and filed by appellant/owner of offending vehicle, they are being disposed off by this common order.

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Appellant -Owner of Pick-up bearing registration No.CG15-AC3194 (for short 'offending vehicle'), has filed these two appeals under Section 173 of the Motor Vehicles Act, 1988 (for short 'the Act of 1988') challenging the award dated 25.06.2015 passed by learned 2^nd Additional Motor Accident Claims Tribunal, Ambikapur, Surguja, (CG) (for short 'the Tribunal') in Claim Case No.36/2014 & Claim Case No.41/2014, whereby insurance company has been exonerated and Owner of

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offending vehicle i.e. appellant herein, has been held liable to satisfy the award.

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Facts relevant for disposal of this appeal are that on 03.03.2014, Chaliram, Naval Sai and others were traveling on offending vehicle, which was driven by non-applicant No.1/respondent No.4 herein (Nandlal @ Vinod Kumar Jaiswal) and going towards village -Lalati. On the way, at main road near PS- Lakhanpur at village -Laheptra, driver of offending vehicle drove the vehicle rashly and negligently, dashed it against tractor and turned turtle. As a result of which, Chaliram died on spot whereas Naval Sai died during course of treatment at District Hospital, Ambikapur. Accident was reported to the concerned Police Station and based upon which offence under Sections 279, 338 and 304 of Indian Penal Code was registered against Nandlal @ Vinod Kumar Jaiswal (driver of offending vehicle).

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Claimants, who are widow and legal heirs of deceased - Chaliram and Naval Sai respectively, have filed two separate applications under Section 166 of the Act of 1988 before the Tribunal seeking compensation on the ground of untimely death of deceased.

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Claim application preferred by legal heirs of deceased (Chaliram) has been registered as Claim Case No.41/2014 and claim application of legal heirs of deceased (Naval Sai) has been registered as Claim Case No.36/2014.

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Non-applicant Nos.1 & 2/(Driver & Owner of offending vehicle), submitted their reply to application and denying the pleadings made therein. There was head on collusion between two vehicles therefore owner, driver or insurer of other vehicle, ie, Tractor, were also necessary parties. There was contributory negligence also on the part of other driver. It was further pleaded that on the date of accident, driver of offending vehicle was having valid and effective driving license and offending vehicle was insured with respondent/Insurance Company, hence liability, if any, to make payment of amount of compensation would be of Insurance Company.

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Non-applicant No.3/Insurance Company resisted the claim applications pleading that on the date of accident, offending vehicle was being plied in breach of condition of Insurance Policy. As there was breach of condition of insurance policy, therefore, insurance company is not liable to indemnify insured.

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On appreciation of pleadings and evidence placed on record by the respective parties, the Tribunal allowed claim applications in part, awarded a sum of Rs.3,05,000/- to legal heirs of deceased Naval Sai and Rs.7,09,000/- to legal heirs of deceased Chaliram as compensation, along with interest @ 6% p.a by holding that Chaliram and Naval Sai died in the accident occurred due to rash & negligent driving of offending vehicle by non-applicant No.1 (Nandlal @ Promod Ku Jaiswal) and further fastened liability upon owner of offending vehicles, ie, Non-

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applicant No.1 and 2 holding that there was breach of Insurance Policy.

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Learned counsel for the appellant in both appeals submits that none of eye-witnesses of the accident was examined by the claimants before the Claims Tribunal, therefore, it is not established that accident occurred due to rash and negligent driving of offending vehicle by driver of offending vehicle. As there was head on collusion between two vehicles, therefore, there should be 50% contributory negligence on the part of other driver of vehicle, ie, Tractor, but learned Tribunal has not considered this aspect and passed the impugned order.

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Learned counsel for the respondent-Insurance Company supported the award passed by the Claims Tribunal.

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Heard learned counsel for the parties and perused the record as also criminal case.

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Perusal of FIR would show that accident took place on 3.3.2014 at about 7:00 p.m and on the same day, the accident was reported to the concerned police station based on which crime bearing No.60/2014 was registered against the driver of offending vehicle. In FIR, it is mentioned that on the fateful day, when deceased and others were returning in offending vehicle, which was being driven by non-applicant No.1/respondent No.4 herein in high speed and negligent manner, colluded with tractor coming from opposite direction as a result offending vehicle overturned and deceased died on the

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spot itself. and After investigation, the final report has been submitted against respondent No.4. It is not the case of appellant or respondent No.4 that said final report submitted by the investigating agency has been challenged before any forum. The contents of FIR, which was registered on account of injuries suffered by the deceased, are in consonance with the allegations in claim application, hence there is no doubt that the offending vehicle was involved in the accident in question and it was being driven by respondent No.4 herein in a high speed and in a rash and negligent manner. There is no reason to interfere with the finding given by the Claims Tribunal with respect of involvement of offending vehicle in accident in question.

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As regards the question of contributory negligence. It is well settled that a party taking plea with regard to contributory negligence on the part of victim etc., must lead evidence with regard thereto and unless such evidence is led by the party, the plead with regard to the contributory negligence cannot succeed. The party must state specifically that there was some causal connection of the deceased with the damage suffered by it to hold that the conduct of the deceased amounted to contributory negligence. Similarly, there had to be some connection on the part of the deceased showing absence of reasonable care for his own safety which contributed to the damage.

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In the case at hand, though there was a pleading on the part of the driver and owner of offending vehicle that there was contributory negligence on the part of the other driver of vehicle, ie, Tractor, which was involved in the said incident, but no evidence to establish the plea of contributory negligence has been adduced. Documents of criminal case clearly shows that criminal case under Section 279, 337 and 304(A) of Indian Penal Code has been registered and charge-sheet has been filed against the driver of offending vehicle, ie, respondent No.4/non-applicant No.1 (Nandlal @ Promod Ku Jaiswal). Respondent No.4, who in the capacity of being driver of the offending vehicle, was the most important person to assert about contributory negligence on the part of tractor, has not stepped into witness box. When appellant failed to examine the driver of offending vehicle nor made any effort to bring any independent witness before the Claims Tribunal to establish the plea of contributory negligence on the part of driver of tractor. Only because the two vehicles had a head on collusion would not by itself be sufficient to draw an inference that there was a contributory negligence in respect of the driver of tractor at the time of accident. Therefore, in absence of any evidence substantiating plead of contributory negligence, it cannot be said that there was contributory negligence on the part of driver of other vehicle (Tractor).

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For the foregoing discussions, this Court is of the opinion that the learned Tribunal has rightly held that owner of offending

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vehicle is only liable to pay the compensation to the claimants. Both the appeals being sans merit are liable to be and are hereby dismissed.

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CC as per rules.

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Sd/(Arvind Singh Chandel) Judge

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J/-

Vinod Kumar Gupta v. Thumri Bai

Case brief

What is this about?

What did the court decide?

Vinod Kumar Gupta v. Thumri Bai

Case brief

What is this about?

What did the court decide?

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