Smt. Koushilya Bai Vs Omilal

1 - Omilal S/o Jhunuva Sahu Aged About 34 Years Village Sarbahara, Thana Gourela District Bilaspur, Chhattisgarh (Driver Of The Offending Vehicle Mahindra Max Pickup No. C.G.10/A/6021)

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2 - Rakesh Kumar S/o Bhurelal Bani Aged About 40 Years R/o Village Bangalipar Pendra Road District Bilaspur, Chhattisgarh (Owner of Offending Vehicle Mahindra Max Pickup No. C.G.10/A/6021)

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3 - The Oriental Insurance Company Limited Divisional Office Bilaspur, Chhattisgarh (Insurer of the Offending Vehicle Mahindra Max Pickup No. C.G.10/A/6021)

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... Respondents

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For Appellants : Shri A. L. Singraul, Advocate. For Respondent No.3 : Shri Sudhir Agrawal and Shri Shashank Agrawal, Advocates.

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Hon’ble Shri Justice Ravindra Kumar Agrawal, J

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Judgment reserved on 20.09.2024

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Judgment delivered on 04.12.2024

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1. Instant appeal under Section 173 of the Motor Vehicles Act, 1988 has been filed against the impugned award dated 08.12.2017 passed by the Motor Accident Claims Tribunal Mungeli in Claim Case No. H- 48/2009, whereby the claim case filed by the claimants have been dismissed.

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2. Brief facts of the are that, the claimant No.1 is the wife and claimants No.2&3 are sons of the deceased Ashok Kumar Pandey. On

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27.03.2008 at about 4:30 PM when the deceased Ashok Kumar Pandey was coming from Kewchi to Lamni by his motorcycle, near Atariya culvert, the non applicant No.1 driving his Max Pickup vehicle bearing registration No.CG-10-A6021 rashly and negligently, dashed the motorcycle of deceased from back side by which he fell down on the road and came under the wheel of said Pickup vehicle and he died on the spot. After the incident, the said Pickup vehicle fled away from the spot, but its number plate was fallen on the place of accident. On the basis of said number plate, the police inquired about the vehicle and the said vehicle was seized from a garage which was parked there for its repairing. After investigation, charge sheet was filed against the non applicant No.1-driver of Pickup vehicle.

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3. The claimants have filed a claim case with the pleading that deceased was a government employee of Forest Department and posted as Forest Guard at Lamni. His monthly salary was Rs.11,000/- and the claimants were dependent upon the income of the deceased. Therefore, they claimed a total compensation of Rs.24,55,000/- as compensation.

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4. The non applicants No.1&2 have contested the claim of the claimants with a pleading that no accident was occurred with the said Pickup vehicle. They also denied that after accident its number plate got broken down on the spot, and submitted that the registration number of the vehicle was painted in the body of vehicle and since their vehicle was not involved in the accident, the claimants are not entitled for compensation. They made further averment that at the time of alleged accident, the said vehicle had gone to Dindori from Pendra Road loaded with vegetables and reached at village Bazag at about 4 PM

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and from where the vehicle started running at about 8:30 and came to Pendra Road in the late night. The vehicle was illegally involved by the Assistant Sub Inspector of Police of Police Station Gourela because earlier they made complaint against him for illegal demand of bribe. They have also submitted that on 27.03.2008 the said vehicle had gone to Amarkantak for which they produced parking receipt and therefore prayed for dismissal of the claim application.

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5. The Non applicant No.3 have also contested the claim of the claimants and have submitted that merely on the basis of seizure of number plate of the vehicle from the spot, it cannot be said that the said vehicle was involved in the accident. The said number plate may belongs to any other vehicle also or it can also be planted against the present vehicle after hatching conspiracy against him. The owner and driver of the Pickup have produced sufficient evidence that his vehicle was not present on the spot at the relevant point of time, but it was there at Bazag District Dindori for which the parking receipt has also been issued by the Nagar Panchayat. It is also the defence of the insurance company that at the time of accident there was no valid permit, fitness certificate and valid driving license of the driver of the offending vehicle and thereby there was a breach of policy condition. Excessive compensation has been claimed by the claimants and therefore the claim case is liable to the dismissed.

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6. On the basis of pleadings made by the parties, the Tribunal has framed four issues. Initially the Tribunal had passed an award on 18.02.2010 and awarded compensation of Rs.5,68,892/-against the respondents and liability was fastened upon the insurance company to pay the compensation. The said award dated 18.02.2010 was challenged

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before this court by the insurance company as well as owner and driver of the Pickup vehicle by filing MAC No.228 of 2011 and MAC No.285 of 2011 respectively. The said appeals filed by the respondents were decided on 25.07.2013 by setting aside the impugned award dated 18.02.2010 and the matter was remitted back to the Tribunal for deciding the matter afresh after giving adequate opportunity of leading evidence to the claimants to prove involvement of vehicle in the accident. The parties were also granted opportunities to file additional documents, amend their pleadings and to lead evidence. After remanding case to the Tribunal, the parties led their evidence and thereafter the Tribunal has decided the claim case vide its award dated 08.12.2017 and dismissed the claim case filed by the claimants holding that the claimants have failed to prove involvement of the vehicle of non applicant No.1 & 2 in the accident, which is under challenge in the present appeal.

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7. Learned counsel for the appellants would submit that the Tribunal has erred in appreciating the evidence available on record. There is sufficient evidence with respect to involvement of offending vehicle in the accident. After investigation charge sheet was filed against the driver of the offending vehicle which has not been challenged by him in any higher forum and have not made any complaint to anyone that his vehicle has been falsely implicated in the offence. He would also submit that eyewitness to the accident have duly proved the accident and through the number plate found on the spot the police has traced out the vehicle involved in the accident and have filed charge against its driver. The defence taken by the non applicant are afterthought and the documents have been created by them only to avoid their liability.

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He would also submit that although some complaint have been made against the police officer who investigated the case, but the same itself is not sufficient to raise suspicion that no accident was occurred from the said vehicle. He would also submit that from the documents it clearly reveals that the offending vehicle was parked in a garage for its repairing and the vehicle was found damaged which itself shows that the said vehicle met with an accident and false defence has been taken by the non applicants. He would also submit that ample evidence is available on record to hold that the vehicle of non applicant No.1&2 was involved in the accident, yet the Tribunal comes into erroneous conclusion which is liable to be set aside and compensation may be awarded to the claimants.

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8. Learned counsel for the respondent No.3-insurance company while opposing the submissions made by the counsel for the appellants, submitted that it is a case of hit and run and the said Pickup vehicle was not involved in the accident. There was an official dispute with the investigating officer and the non applicant No.2, the owner of the vehicle, had lodged a complaint against him. There are discrepancies in the evidence of witnesses which itself creates doubt about accident and involvement of vehicle. Only on the basis of a broken number plate allegedly found on the spot, the vehicle of non applicant No.1&2 cannot be held involved in the accident. The person against whom complaint has been made by the non applicant No.2 is the investigating officer of the case and he himself has involved the vehicle of non applicant No.2 in the alleged accident. Therefore, considering the overall facts and circumstances of the case, suspicion over the involvement of the vehicle in the accident in question, the claimants are not entitled for

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any compensation and that the Tribunal has rightly dismissed their claim case and there is no merit their appeal.

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9. I have heard the counsel for the parties and perused the records.

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10. The death of deceased Ashok Kumar Pandey by the accident is not disputed by the parties and his death due to accident has also been proved by the documents annexed with the claim case as also the postmortem report Ex.A/5 and other documents Ex.A/3 to A/9.

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11. The involvement of said Pickup vehicle bearing registration No.CG-10A-6021 is disputed by the respondents. AW-3 Ratan Singh who is claiming to be eyewitness to the accident have stated in his examination in chief that he was also coming from his duty and saw that the said Mahindra Max Pickup vehicle No.CG-10-A-6021 have dashed the motorcycle of the deceased from back side by which the deceased died on the spot and the number plate of Pickup vehicle was broken down on the spot and then he informed about the accident to Forest Guard Maravi at Lamni. In cross examination he has stated that he did not see the accident, but number plate was lying there which was seen by him and he informed the same to the Forest Department. He clarified that since he saw the number plate of the vehicle lying their, therefore, he deposed that the accident was occurred in his presence.

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12. AW-4, Bhaduram Korram, also an eyewitness to the accident, have stated that on the date of accident he was going to Amarkantak and saw that a Pickup vehicle No.CG-10-A-6021 coming from Amarkantak side dashed the motorcycle of Pandey who was an employee of Forest Department by which he fell down and died on the spot. The vehicle which caused accident ran away towards Amarkantak, its number plate

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was broken down on the spot by which they got number of the vehicle and informed the employee of Forest Department. In cross examination though on some point he was not stand firmly, but from overall evidence of this witness it reflects that he witnessed the accident and informed about the accident to the employee of Forest Department. From reading of entire evidence of this witness, it cannot be held that this witness is a planted witness and have not seen the incident. The alleged accident was occurred on 27.03.2008 whereas AW-4, Bhaduram has been examined on 25.09.2017. In such a long gap of time, some discrepancies are natural in their evidence, but he remain firmed in saying that he has seen the accident, the number plate was lying there and he had given it to the employee of forest department. It may not have any effect as to whether the vehicle was going towards Amarkantak or coming from Amarkantak side. It also may not have any bearing that the said number plate was written in Black & White letters or Yellow & Black letters. Due the lapse of time, a person may lost his memory about the exact manner and things which were found at the time of accident and only for that reason he cannot be branded as planted witness. Further, the evidence of this witness is supported by the investigation carried out by the investigating officer who found involvement of vehicle in the accident and have seized the same and filed charge sheet against the driver of the offending Pickup vehicle. From the document Annexure NA-1 which is a mechanical inspection report of the vehicle, it also reflects that the said vehicle was parked in a garage for its repairing and it was found damaged.

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13. Further, the involvement of vehicle and filing of charge sheet against non applicant No.1 has not been questioned by them by making any

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proceeding before the higher forum which also supports the case of claimants that the vehicle of non applicants No.1&2 was involved in the accident and after investigation charge sheet has been filed.

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14. All the materials i.e. number plate of offending vehicle found on the spot; seizure of offending vehicle from the garage which was parked there in damaged condition for its repairing and filing of charge sheet as well as seizure of vehicle have not been challenged by them and also from the evidence of AW-3 and AW-4 it can be said the offending vehicle Pickup bearing No.CG-10-A-6201 was involved in the accident by which the deceased have died.

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15. Non applicant No.1&2 tried to build up their case that they have lodged a complaint much prior to the date of accident against the investigating officer that he was engaged in demanding illegal bribe and given threatening to them and therefore the said investigating officer has falsely implicated their vehicle in motor accident. From the document Ex.NA-6 & 7 it is not found proved that merely on the basis of a parking receipt issued by the Nagar Panchayat Amarkantak and a letter issued by the Councilor of Janpad Panchayat Bazag, it cannot be held that vehicle was not involved in the accident and not present on the spot at the relevant point of time.

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16. Although non applicant No.1&2 have made complaint to the Superintendent of Police, Bilaspur that his vehicle has been falsely implicated in the said accident for which they have made a complaint on 08.09.2008 (Ex.NA-8), but the same was made after about six months from the date of accident. NAW-1 Rakesh Kumar Bani have admitted in his evidence that after receiving notice from the court, he

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made the said complaint to the Superintendent of Police. Despite making his complaint, he has not pursued his complaint any further and have not taken any action against the alleged false implication of his vehicle in the accident. NAW-1 has admitted in paragraph 4 of his cross examination that on 20.06.2008 he submitted his claim with respect to his vehicle No.CG-10-A-6021 which his Ex.NA-13. There is no evidence led by the insurance company with respect to investigation report conducted on the Motor Claim Form submitted by NAW-1 Rakesh Kumar Bani. It has also not been produced by the insurance company as to what was the outcome of said Motor Claim Form submitted by Rakesh Kumar Bani. The Motor Claim Form submitted by him is with respect to accident dated 27.03.2008 at about

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4-5 PM from the said vehicle No.CG-10-A-6021.

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17. True it is that non applicant No.1&2 had made certain complaint against the investigating officer to the Superintendent of Police Bilaspur and Additional Collector, Pendra Road on 16.02.2008 Ex.NA-3 and 23.01.2008 Ex.NA-5 but the same itself does not make involvement of his vehicle suspicious because it may not have prejudicially affected the non applicant No.1&2 as the driver of vehicle was having valid and effective driving license as also the vehicle was duly insured with the insurance company. Therefore, even if some compensation is to be awarded in favour of claimants, the liability would be fastened upon the insurance company and therefore it cannot be said that non applicant No.1&2 have prejudicially affected or to give the undue advantage to claimants against the complaint made by non applicant No.1&2 against him. The Investigating officer could not have any interest even if compensation is said to be awarded in favour of the claimants.

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Therefore, the defence taken by the non applicants that since they have made complaint against the investigating officer, he falsely implicated their vehicle in the accident, is of no benefit to them.

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18. NAW-6, Malkit Singh, who is vehicle mechanic having workshop at Amarkantak Road, Old Gaurella, have stated in his evidence that on 28.03.2008 at about 10-11 AM the driver of the vehicle approached for body repairing of his vehicle. In the said vehicle, its number plate was fixed in its place.

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19. From the evidence of this witness it appears that number plate was already there in the vehicle when it was taken to garage for its repairing whereas, NAW-2, Omi Lal, who is the driver of vehicle, have stated that registration number of vehicle was written in the body of vehicle itself. He has not stated that front and rear number plate of the vehicle was already fixed in its body. The other non applicant’s witnesses are with respect to movement of vehicle towards Amarkantak and Bazag, who made their oral statement that the vehicle was not at the place of accident on the date of accident, but was at village Bazag and Amarkantak.

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20. NAW-5 have stated that he came to court to depose in the case on the instruction of Rakesh Kumar Bani. He did not remember about the date of accident. He admits that when the vehicle of Omilal left his shop, he did not know what happened thereafter.

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21. In the matter of Sunita and Others Vs. Rajasthan State Road Transport Corporation and Another, 2020 (13) SCC 486 the Hon’ble Supreme Court has held that “….The approach in examining the evidence in accident claim case is not to find fault with non examination of some “best” eyewitness in the case but to analyse the

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evidence already on record to ascertain whether that is sufficient to answer the matters in issue on the touchstone of preponderance of probability…….”

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22. From the material produced by the parties it is prima facie sufficient to establish that accident is caused due to said Pickup vehicle No.CG-10A-6021 which has also been proved by documents Ex.A/3 to A/9, yet the Claims Tribunal have dismissed the claim case filed by the claimants holding that involvement of vehicle in the accident in question could not be proved by the claimants. This court is in disagreement with the findings recorded by the Tribunal and it is held that the claimants have successfully proved their case that accident caused on 27.03.2008 by the said Mahindra Pickup vehicle No.CG-10A-6021.

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23. Since it has been proved that the accident was caused by the said vehicle, now the second question would be what would be the appropriate compensation which may be awarded to the claimants.

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24. The claimants have pleaded in their pleading that the deceased Ashok Kumar Pandey was a government servant employed as Forest Guard in the Forest Department. His monthly salary was Rs.11,000/-. His salary certificate Ex.A-1 for the month of January, 2008 has been filed by the claimants in which his gross salary is shown as Rs.9790/- and net salary as Rs.8740/-. From his gross salary, an amount towards GPF and GIS, total Rs.1050/-was deducted and thereby his net salary comes to Rs.8740/-. The amount of GPS and GIS was the income of the deceased, therefore, the same is not deductible while calculating the amount of compensation. Therefore, the amount of compensation is to be awarded on the basis of the gross salary of the deceased

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which he was receiving at the time of accident i.e. Rs.9790/- per month.

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25. The deceased was aged about 58 years. AW-2, Vijay Kumar Pandey has also admitted in paragraph 4 of his cross examination that age of his father was 58 years at the time of accident. Therefore, in the facts and circumstances of the case as also in view of law laid down by the Supreme Court in cases of National Insurance Company Ltd. Vs. Pranay Sethi and Ors, 2017 Vol 16 SCC 680, Sarla Verma & Ors Vs. Delhi Transport Corporation & Ors. 2009 Vol 6 SCC 121 and Megma General Insurance Company Ltd. Vs. Nanuram @ Churu ram & Ors. 2018 Vol 18SCC 130 , this Court is computing the compensation as below-

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Monthlyincome of the deceased	9790/-
Futureprospect @ 15%	1469/-
Total Income	11,259/-
Income after deducting Personal	7506/-
Expenditure @ 1/3rd
Totalyearlyincome	7506X12 =90072/-
Multiplier of 9 applied to assess total loss of dependency	90072X9 =8,10,648/-
Funeral Expenses	15000
Loss of estate	15000
Loss of spousal and filial consortium	1,20,000/-
Total	9,60,648/-

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26. Therefore, the claimants are held entitled for total compensation of Rs. 9,60,648 /-. There is no evidence led by the insurance company that there is any breach of policy conditions. The said Pickup vehicle No.CG-10-A6021 was duly insured for the period from 21.06.2007 to 20.06.2008 and package policy was issued in its favour. Since there is no evidence about violation of any policy condition, the insurance company is held

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liable to pay compensation to the claimants. Further, the Claims Tribunal has also found while deciding the issue No.2 that there is no breach of any policy condition as driving license of non applicant No.1 was issued for the period from 20.08.1996 to 05.02.2020, thereafter endorsement for transport vehicle was made on 12.01.2004 to 04.04.2016 and the same was renewed for 24.10.2017 to 23.10.2020 which has been proved in the case vide document Ex. NA-14 & 15.

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27. Therefore, the appeal filed by the claimants is allowed in part and the claimants are held entitled for compensation of Rs. 9,60,648/- . The amount shall carry interest @ of 6% per annum from the date of claim application till its realization. The impugned award stands set aside.

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28. The insurance company is directed to deposit the amount of compensation as awarded by this court within a period of 90 days from today. On such deposit being made, an amount of Rs.4,00,000/- shall be kept in a fixed deposit in the name of claimant No.1-Smt. Koushilya Bai for a period of three years at any Nationalize Bank and the remaining amount shall be paid to the claimants through bank transaction/account paying cheque.

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29. Consequently the appeal is partly allowed. No order as to costs.

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Sd/- (Ravindra Kumar Agrawal) Judge

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inder

Smt. Koushilya Bai v. Omilal

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Smt. Koushilya Bai v. Omilal

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