Dismissed

National Insurance Company Limited, v. Chhamesh Kumar Sahu

Chhattisgarh HC29 Jan 2024MAC/1880/2023

Case brief

AI extract

What is this about?

Insurer appealed against a Tribunal award of compensation for injuries in a motorcycle accident, alleging licence breach, contributory negligence and false claim among relatives. The court found no evidence of policy breach or contributory negligence, held Section 158(6) non-compliance immaterial in this beneficial legislation, upheld the award as just, and dismissed the appeal.

What the court decided

AI extract

National Insurance Company Limited, Vs Chhamesh Kumar Sahu — Insurance | Chhattisgarh HC (2024)

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR MAC No. 1880 of 2023

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1. National Insurance Company Limited, Through - Branch Manager, 2nd Floor, Mobin Mahal, Lalganga Shopping Mall, GE Road, Raipur, Chhattisgarh

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--- Appellant

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Versus

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1. Chhamesh Kumar Sahu S/o Dayalu Ram Sahu Aged About 26 Years, R/o Behind Forest Colony, Shanti Nagar, Ward - Kanker, Thana- Kanker, Tehsil- Kanker,, Distt- North Baster, Kanker, Chhattisgarh.

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2. Deepak Kumar Sahu S/o Shri Chumman Lal Sahu Aged About 23 Years R/o MG Ward Kanker, Thana- Kanker, Tehsil- Kanker, Distt- North Bastar Kanker, Chhattisgarh.

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3. Chumman Lal Sahu S/o Ishwar Lal Sahu Aged About 50 Years R/o Mg Ward Kanker, Thana- Kanker, Tehsil- Kanker, DisttNorth Baster, Kanker, Chhattisgarh.

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---- Respondents

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For Appellant : Shri Sanjay Patel, Advocate.

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Hon'ble Shri Justice Ravindra Kumar Agrawal Order on Board

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30.01.2024

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1. This is insurers appeal under Section 173 of the Motor Vehicles Act, 1988 (in short, MV Act) against the award dated 31.07.2023 passed by the Motor Accident Claims Tribunal, North Bastar, Kanker (in short, the Tribunal) in Claim Case No.36/2022, whereby the Tribunal has partly allowed the claim application of respondent No.1 and has passed an award of Rs.3,25,695/- towards compensation along with interest @ 9

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percent per annum from the date of application till its actual payment.

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2. The facts emerges for consideration is that, the respondent No.1 filed a claim case under Section 166(1) of the MV Act claiming compensation to the tune of Rs. 7,90,000/- for the injuries received by him in a motor accident on 10.03.2020. The accident occurred when the applicant along with one Ishwar Lal Sahu were coming to their village Kanker from village Mudkhusra by their motorcycle bearing registration No.CG-19BF-1642 at about 10:30 in the night near village Govindpur, the non applicant No.1 came from his backside on his Bullet motorcycle bearing registration No.CG-19-BD-8411 (hereinafter called as ‘offending vehicle’) and dashed the motorcycle driven by the applicant/respondent No.1, by which they fell down and the applicant has received grievous injuries. The applicant was admitted in Govt. Komaldev District Hospital Kanker from 10.03.2020 to 12.03.2020 and thereafter he has been shifted for better medical treatment to Rajdhani Hospital Raipur where he was admitted from 12.03.2020 to 13.03.2020 and thereafter he again came back to Govt. Komaldev District Hospital, Kanker and remained hospitalized from 14.03.2020 to 24.03.2020. The applicant received fracture of his right hand in which rod has been implanted. Subsequently, the applicant was also treated by Dr. Sameer Baradiya, Durg who has treated his

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nasal bone and teeth and thereby his face was disfigured. The treatment of applicant was continued. He was aged about 26 years on the date of accident and was earning Rs.10,000/- per month from the business of Cable Operator. On account of accident he became permanent disabled and unable to perform his work. He claimed Rs.3 Lakhs on account of medical treatment, conveyance, special diet and assistance, Rs.1 Lakh for future medical treatment, Rs.50,000/- towards loss of income during the treatment, Rs.3 Lakhs on account of permanent disability, Rs.20,000/- for loss of pain and suffering, Rs.20,000/- towards loss of better life expectancy and thus total amount of Rs.7,90,000/- was claimed in his claim case.

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3. The non applicant/respondents No.2&3 have filed their reply of the claim application filed by the applicant before the Tribunal and has submitted that accident was occurred by dashing of two vehicles and therefore the principle of contributory negligence is applicable in the case. The driver, owner and the insurance company of the motorcycle bearing registration No.CG-19-BF-1644 which was being driven by the applicant has not been made party in the case, and therefore, for the reason of non joinder of necessary party, the claim application was liable to be dismissed. In their written statement, they have also submitted that on the date of accident the non applicant No.1 was having valid and effective driving license and his

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motorcycle was duly insured with the insurance company/non applicant No.3. If the Tribunal comes into conclusion that the applicant is entitled for any amount towards compensation, the insurance company is liable to pay the compensation amount.

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4. The non-applicant No.3/Insurance company has also filed its written statement and have submitted that the owner, driver and the insurance company of the motorcycle which was driven by the applicant were also necessary party and without impleading them in the claim case, the same is not maintainable on the ground of non joinder of necessary party. The accident occurred on account of negligence of the applicant himself. The applicant and non-applicant No.1&2 are relatives and only to get compensation, they collided with each other and filed a false claim case before the Tribunal. It is also submitted that the father of the applicant is an Assistant Sub Inspector at Police Station Kanker and with the collusion of the Investigating officer he involved the motorcycle of non applicant No.1 in the accident case. On the date of accident, the driver of Bullet Motorcycle bearing registration No.CG-19-BD-8411 was not having valid and effective driving license and thereby there was a breach of policy condition and thus the claim case be dismissed.

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5. In support of his claim case filed by the applicant, he has filed final report of criminal case filed against the non applicant No.1, FIR, spot map, property seizure memo and MLC report as

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Ex.P/1 to Ex.P/5. With respect to treatment of the applicant, he has filed documents Ex.P/6 to Ex.P/21, medical bills Ex. P/22 to P/68 and examined himself as PW-1 to prove the documents filed by him.

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6. After considering oral as well documentary evidence led by the parties, the Tribunal has partly allowed the claim application of the applicant and has awarded the compensation amount as mentioned in para-1 of this judgment. Hence this appeal.

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7. Learned counsel for the appellant would argue that the award passed by the Tribunal is erroneous and contrary to law applicable to the facts of the case. The driver of the offending vehicle is not having valid and effective driving license at the time of accident and there is breach of policy condition. There is inordinate delay in lodging FIR after the accident which smells false implication of the motorcycle of non applicant No.1. The police has not forwarded any information to the insurance company as soon as he received the information of accident as provided under Section 158(6) of the MV Act. The accident occurred due to applicant’s own negligence that too dashed with the cattle on the road. The applicant/respondent No.1 is contributory negligent in the accident. He would further submit that the applicant is the nephew of non applicant No.2 and cousin brother of non applicant No.1 and thereby they hatched conspiracy to get compensation from the insurance company.

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He would also submit that the interest part as also the compensation awarded both are on the higher side that too without proving the medical bills and injuries by examining the treating doctors and therefore the appeal may be allowed and the impugned award may be set aside.

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8. I have heard the counsel for the appellant and perused the records with utmost care and cautious.

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9. The appellant/non-applicant No.3 have pleaded in his written statement that non-applicant No.1 was not having valid and effective driving license on the date of accident and thereby there is a breach of policy condition. To prove their contention that there is a breach of policy condition, the non-applicant No.3/insurance company has not examined any witness in their support that the driver of the offending vehicle was not having any valid and effective driving license on the date of accident. There is no ground in the appeal memo filed by the insurance company that there is breach of any of the policy condition so that they may absolve from their liability. While deciding the claim case filed by the applicant, the issue No.5 has also been framed by the Tribunal regarding breach of policy condition, if any. While deciding the issue No.5, the Tribunal comes into conclusion that breach of any of the policy condition has not been proved by the insurance company and thereby, the issue regarding breach of policy condition is set at rest.

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10. So far as the other ground of contributory negligence is concerned, no evidence led by the non-applicant No.1&2 or even by the non-applicant No.3/insurance company that the applicant was negligent in any manner at the time of accident so that it can be held that there was a contributory negligence. Since the contributory negligence is not proved by the nonapplicants, there is no necessity for the applicant to implead the owner, driver and the insurer of the vehicle driven by him and to claim against his own vehicle.

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11. In the case, the issue No.2 has been decided by the Tribunal by considering the evidence led by the applicant i.e. the final report, Ex.P/1, FIR, Ex.P/2 in which the report has been made against non-applicant No.1 for rashly and negligently driving his motorcycle, and therefore, it cannot be said that the applicant was also negligent in driving his vehicle.

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12. The other ground raised by the insurance company is that the police has not intimated about the accident as provided under Section 158(6) of the MV Act and therefore a forged claim case has been made by the applicant. Although, Section 158(6) of the MV Act provides for information regarding any accident involving death or badly injury to any person is recorded by the police, he shall immediately forward a copy to the Tribunal is provided, however, non compliance of the same would not be fatal for the applicant in view of the fact that it is a beneficial

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law, the applicant admittedly received injuries on the accident and remedy to file a claim case under Section 166 of the MV Act is also available to the applicant. Therefore, even if the insurance company is not informed by the police, that itself would not create any doubt that no accident was occurred or the applicant has filed a fake claim case. The applicant has filed a duly constituted claim application duly supported with documentary evidence on the basis of which the Tribunal has awarded compensation amount to the applicant.

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13. Further, there is no bar to file claim application by the applicant even if the non applicants are his relatives because it is a case where the accident occurred and the applicant received injuries irrespective of the fact that offending vehicle was owned or driven by his relative or any other person.

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14. The further argument of the insurance company is that the Tribunal has awarded the amount of compensation in very higher side without there being any examination of treating doctor. The Tribunal has considered the injuries received by the applicant and also the expenses incurred towards medicines, conveyance, special diet etc. Although, the disability certificate Ex.P/12 was filed by the applicant in which his disability is shown to the extent of 40 percent, but in absence of examination of doctor, no any amount of compensation has been awarded towards permanent disability. The Tribunal has

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awarded Rs.2,51,295/-towards medical bills produced by the applicant which was incurred by him during treatment, total Rs.40,000/- on account of conveyance, special diet, nursing assistant and pain and suffering, Rs.34,400/- awarded towards loss of income during treatment and, thus, has awarded a total compensation of Rs.3,25,695/-, which, by no stretch of imagination, can be said to be either exorbitant or on the higher side looking to price index and cost of living and also the expenses towards treatment.

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15. From the over all discussion, the appellant-insurance company is failed to make out a strong case for interference with the impugned award passed by the Tribunal. The amount awarded is just and proper and therefore the appeal filed by the appellant/insurance company being devoid of merit deserves to be and is hereby dismissed.

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Sd/(Ravindra Kumar Agrawal) Judge

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inder

National Insurance Company Limited, v. Chhamesh Kumar Sahu

Case brief

What is this about?

What the court decided

National Insurance Company Limited, v. Chhamesh Kumar Sahu

Case brief

What is this about?

What the court decided

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