Smt. Madhuri Bai Sannadya Vs Monchu @ Hemant

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NAFR

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Judgment reserved on : 24/01/2024

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Judgment delivered on : 21/02/2024

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HIGH COURT OF CHHATTISGARH, BILASPUR

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MAC No. 669 of 2017

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Smt. Madhuri Bai Sannadya Wd/o Late Sujit Kumar, Aged About 26 Years R/o Village Bhatgaon, Ward No.1, Post Sewar, Tahsil And P.S. Bilha, District Bilaspur, Chhattisgarh

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Ku. Akshani Sannadya D/o Late Sujit Kumar, Aged About 7 Months, R/o Village Bhatgaon, Ward No.1, Post Sewar, Tahsil And P.S. Bilha, District Bilaspur, Chhattisgarh

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Dilip Kumar Sannadya S/o Late Kunram Sannadya, Aged About 55 Years R/o Village Bhatgaon, Ward No.1, Post Sewar, Tahsil And P.S. Bilha, District Bilaspur, Chhattisgarh

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Smt. Pacho Bai W/o Dilip Kumar Sannadya, Aged About 51 Years R/o Village Bhatgaon, Ward No.1, Post Sewar, Tahsil And P.S. Bilha, District Bilaspur, Chhattisgarh

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Ajit Kumar Sannadya S/o Dilip Kumar Sannadya, Aged About 26 Years R/o Village Bhatgaon, Ward No.1, Post Sewar, Tahsil And P.S. Bilha, District Bilaspur, Chhattisgarh ..............Claimants

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---- Appellants

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Versus

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Monchu @ Hemant S/o Hirawan Das Vaishnav, Aged About 24 Years R/o Village Bhatgaon, Ward No.1, Post Sewar, Tahsil And P.S. Bilha, District Bilaspur, Chattisgarh ................Driver Of Offending Vehicle Tractor No. C.G.04 H M 6139 And Trolley No. C.G.04 H M 7083

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Smt. Gulab Bai Gendle W/o Shri Parmanand Gendle, Aged About 25 Years R/o Village Bhatgaon, Ward No.1, Post Sewar, Tahsil And P.S. Bilha, District Bilaspur, Chhattisgarh ................Owner Of Offending Vehicle Tractor No. C.G.04 H M 6139 And Trolley No. C.G.04 H M 7083

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The New India Insurance Co. Ltd., Through Branch Manager, Office Branch No. 460401, Shantikunj, Civil Line, Baloda Bazar, District Raipur Now District Balodabazar-Bhatapara Chhattisgarh ................Insurer Of Offending Vehicle Tractor No. C.G.04 H M 6139 And Trolley No. C.G.04 H M 7083

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Branch Manager, Ifco Tokio, General Insurance Company Limited, 205, 2nd Floor, M.S.Silver Plaza, In Front Of Udyog Bhawan, Near Mining Office, Ring Road No.1, Raipur, Chhattisgarh 492006

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---- Respondents

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For Appellant : Shri Aman Kesharwani, Advocate For Respondent No.3 : Shri Priyanshu Gupta, Advocate For Respondent No.4 : Shri Akash Diwan, Advocate

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Hon'ble Shri Justice Sachin Singh Rajput

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C A V Judgment

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This appeal under Section 173 of the Motor Vehicles Act, 1988 (for short ‘M.V.Act’) has been filed aggrieved by award dated 17/03/2017 passed by the Motor Accident Claims Tribunal, District-Bilaspur (CG) in MACT No.120/2015.

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The appellants/claimants filed claim application under Section 166 of MV Act claiming compensation on various counts on account of death of Sujit Kumar in an unfortunate accident that took place on 11/12/2014 by rash and negligent driving of the offending vehicle (Tractor) bearing registration No.CG-04HM-6139 by respondent No.1/driver, owned by respondent No.2/owner and insured with respondent No.3/insurance company and Trolley was insured with respondent No.4/insurance company. By the impugned award, learned Tribunal dismissed the claim application holding that owner and driver of the offending vehicle are not liable to pay compensation as there was no evidence of negligence on their part and the insurance companies were also not held liable to pay compensation as they had not entered into agreement covering the risk of other person.

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On the basis of pleadings in the claim application and written statement, learned Tribunal framed issues, decided those issues and dismissed the claim application.

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Learned counsel for the appellant submits that the finding of learned Tribunal with regard to issue No.1A and 1B is perverse. Learned Tribunal ought to have seen that the accident had occurred and even if the deceased climbed on the tractor-trolley without the knowledge of the driver, it cannot be said that he contributed in causing the accident. The driver of the offending vehicle ought to have driven the offending vehicle with care and caution. He

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submits that due to his negligence the deceased lost his life. Therefore, he prays that the appeal may be allowed.

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Learned counsel for respondent No.3 and 4 / insurance companies oppose the submission and supports the award of the learned Tribunal. They submit that no premium was paid for any other person except driver / owner of the tractor-trolley. Only one person could sit in the tractor and no agreement was entered into by the insurance companies for any other person.

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I have heard learned counsel for the parties, considered their rival submission and perused the records.

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Learned Tribunal, while deciding issue No.1B held that the accident occurred due to the negligent act of the deceased. The claim application was filed inter alia pleading that the deceased while sitting in the offending vehicle was coming back to his native village–Bhatgaon at about 12:40 in the night, near Chitawar Khar, respondent No.1 drove the vehicle rashly and negligently, as a result of which the deceased fell down from it. He sustained severe injuries and was admitted in Primary Health Centre, Bilha, where he was declared dead. The accident was reported to the police station–Bilha upon which, under crime No.3/2015 offence was registered under Section 304-A of IPC against respondent No.1 / driver and after due investigation, charge sheet was filed before the Judicial Magistrate, 1st Class, Bilha, District – Bilaspur. Further pleading reflects that the deceased was aged about 36 years and was earning Rs.15,000/- per month working as Electronics Technician in Mahamaya Refrigeration, sales, service and maintenance, Rajendra Nagar, Bilaspur. Total compensation of Rs.32,50,000/- was claimed.

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Respondents 1 and 2 filed their written statement and denied averments of the claim application. It was pleaded that at the time of accident, respondent No.1 was driving the offending vehicle loaded with paddy from the field of the deceased and was being brought to the house of the deceased. They pleaded that the deceased climbed on the offending vehicle from behind without any intimation to the driver. When the driver saw him, he asked the deceased to get down but he remained seated on the paddy. It was further pleaded that without any information to the driver / respondent No.1, the deceased jumped from the offending vehicle and the accident occurred due

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to self negligence of the deceased. It was further pleaded that the driver of the offending vehicle had valid and effective driving license and the vehicle was insured with respondent no.3 / insurance company.

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Respondent No.3/ insurance company in its written statement pleaded that the deceased was traveling on the Trolley No.CG-04-HM-7083, he fell asleep due to which he fell down and died. The deceased is solely responsible for the accident. It was further pleaded that only tractor no.CG04-HM-6139 was insured with respondent No.3 / insurance company and no premium except the driver was charged. It was further pleaded that the trolley was insured with respondent No.4 / Ifco Tokio General Insurance co. Ltd. and the deceased was traveling on it and died due to his sole negligence.

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10.Respondent No.4/Ifco Tokio in its written statement denied averments of the claim application and pleaded that the deceased died while traveling on the tractor No.CG-04-HM-6139 in which there is no mistake on the part of Trolley No.CG-04-HM-7083 and no accident had occurred by Trolley No.CG-04-HM7083 and the trolley has been unnecessarily involved in the case. It was also pleaded that no premium was charged and no risk was covered for any other person except the owner / driver of the offending vehicle and the trolley was insured for agriculture purpose only.

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11.Madhuri Bai (AW1) was examined and deposed in the line of pleadings of the claim application. Since she has not seen the incident, she does not throw any light as to how the accident occurred. Ajit Kumar (AW2) also does not throw any light as to how the accident occurred and in his crossexamination, he has stated that he is stating the facts on the hearsay. Heeralal Kashyap (AW3) is an eye witness to the incident. He has stated in his affidavit under Order 18 Rule 4 CPC that he knows the deceased. On the date of incident, he was walking to his native village–Bhatgaon. When he reached about 10 kms away from Chitawar Khar, police station – Bilha, he saw that the deceased was sitting on the offending vehicle tractor No.CG-04HM-6139 and the driver was driving the offending vehicle rashly and negligently as a result of which, the deceased fell down, sustained severe injuries, he was taken to Primary Health Centre, Bilha and thereafter he died. He further stated that the police has recorded his statement with regard to

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the accident and he informed the police with regard to the accident. His testimony was demolished in his cross-examination where he has stated that it is true to say that he has not seen the accident and he has not read the affidavit and only signed on it. He cannot tell the number of tractor-trolley.

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12.Brijesh Dwivedi (AW4) is the witness to prove income of the deceased.

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13.Smt. Gulab Bai (NAW2) was examined. She has stated that the offending vehicle tractor-trolley was taken on rent by the deceased for transporting paddy. She further deposed that without the permission of the driver, the deceased – Sujeet Kumar climbed on the trolley from behind and when he asked him to get down, he did not do so. This witness also turned hostile in her cross examination in which she stated that she has not seen the incident. In her cross-examination, she has stated that she has given tractor and trolley on rent and received Rs.500/- from the deceased Sujit Kumar for one trip.

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14.Rajkumar Rajput (NAW4) deposed that the offending vehicle was being driven slowly and without permision and intimation to the driver the deceased climbed on the trolley from behind. The driver stopped the tractor and requested the deceased to get down but continued to sit on the tractor. In his cross-examination, he has stated that Sujit Kumar taken the tractor and trolley on rent. Monchu @ Hemant (NAW5), driver of the offending vehicle was examined and he also deposed that the deceased sat on the tractor without his permission and information and despite repeated requests, he did not get down. From the cumulative assessment of the evidence available on record, it appears that the deceased was traveling on the offending vehicle and despite request made by the driver, he did not get down. A perusal of criminal papers reflects that investigation was carried out against the driver of the offending vehicle and charge sheet was also filed.

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15.While dealing with an identical question in the matter of Bimla Devi and others Vs. Himachal Road Transport Corporation and others reported in (2009) 13 SCC 530 it has been held by the Supreme Court as under:

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“15. In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was necessary to be

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borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied. For the said purpose, the High Court should have taken into consideration the respective stories set forth by both the parties.”

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In the matter of United India Insurance Company Limited Vs. Shila Datta and others reported in (2011) 10 SCC 509 it has been held under:

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A claim petition for compensation in regard to a motor accident (filed by the injured or in case of death, by the dependant family members) before the Motor Accidents Claims Tribunal constituted under section 165 of the Act is neither a suit nor an adversarial lis in the traditional sense. It is a proceedings in terms of and regulated by the provisions of Chapter XII of the Act which is a complete Code in itself. We may in this context refer to the following significant aspects in regard to the Tribunals and determination of compensation by the Tribunals:

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(i) A proceedings for award of compensation in regard to a motor accident before the Tribunal can be initiated either on an application for compensation made by the persons aggrieved (the claimants) under section 166(1) or section 163-A of the Act or suo moto by the Tribunal, by treating any report of accident (forwarded to the tribunal under section 158(6) of the Act as an application for compensation under section 166 (4) of the Act.

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(ii) The rules of pleadings do not strictly apply as the claimant is required to make an application in a form prescribed under the Act. In fact, there is no pleading

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where the proceedings are suo moto initiated by the Tribunal.

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(iii) In a proceedings initiated suo moto by the tribunal, the owner and driver are the respondents. The insurer is not a respondent, but a noticee under section 149(2) of the Act. Where a claim petition is filed by the injured or by the legal representatives of a person dying in a motor accident, the driver and owner have to be impleaded as respondents. The claimants need not inplead the insurer as a party. But they have the choice of impleading the insurer also as a party respondent. When it is not impleaded as a party, the Tribunal is required to issue a notice under section 149(2) of the Act. If the insurer is impleaded as a party, it is issued as a regular notice of the proceedings.

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(iv) The words “receipt of an application for compensation” in section 168 refer not only to an application filed by the claimants claiming compensation but also to a suo motu registration of an application for compensation under section 166(4) of the Act on the basis of a report of an accident under section 158(6) of the Act.

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(v) Though the tribunal adjudicates on a claim and determines the compensation, it does not do so as in an adversarial litigation. On receipt of an application (either from the applicant or suo motu registration), the Tribunal gives notice to the insurer under section 149(2) of the Act, gives an opportunity of being heard to the parties to the claim petition as also the insurer, holds an inquiry into the claim and makes an award determining the amount of compensation which appears to it to be just. (Vide Section 168 of the Act).

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(vi) The Tribunal is required to follow such summary procedure as it thinks fit. It may choose one or more

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persons possessing special knowledge of and matters relevant to inquiry, to assist it in holding the enquiry (vide section 169 of the Act).

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(vii) The award of the Tribunal should specify the person(s) to whom compensation should be paid. It should also specify the amount which shall be paid by the insurer or owner or driver of the vehicle involved in the accident or by all or any of them. (Vide section 168 of the Act).

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(viii) The Tribunal should deliver copies of the award to the parties concerned within 15 days from the date of the award.(Vide section 168 (2) of the Act).

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We have referred to the aforesaid provisions to show that an award by the tribunal cannot be seen as an adversarial adjudication between the litigating parties to a dispute, but a statutory determination of compensation on the occurrence of an accident, after due enquiry, in accordance with the statute.”

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17.Further, in the matter of Dulcina Fernandes and others Vs. Joaquim Xavier Cruz and another reported in (2013) 10 SCC 646, it has been held as under:

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It would hardly need a mention that the plea of negligence on the part of the first respondent who was driving the pick-up van as set up by the claimants was required to be decided by the learned Tribunal on the touchstone of preponderance of probability and certainly not on the basis of proof beyond reasonable doubt.

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In United India Insurance Co. Ltd. v. Shila Datta while considering the nature of a claim petition under the Motor Vehicles Act, 1988 a three judge Bench of this Court has culled out certain propositions of which Propositions (ii),

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(v) and (vi) would be relevant to the facts of the present case and, therefore, may be extracted hereinbelow:

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“10. (ii) The rules of the pleadings do not strictly apply as the claimant is required to make an application in a form prescribed under the Act. In fact, there is no pleading where the proceedings are suo motu initiated by the Tribunal.

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(v)Though the Tribunal adjudicates on a claim and determines the compensation, it doews not do so as in an adversarial litigation.…

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(vi) The Tribunal is required to follow such summary procedure as it thinks fit. It may choose one or more persons possessing special knowledge of and matters relevant to inquiry, to assist it in holding the enquiry.”

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18.In the light of the above legal position, facts of this case is examined. It is true that the deceased did not follow the request made by the driver to get down from the offending vehicle and at the same time, it cannot be ignored that if the deceased was not getting down from the vehicle, the driver ought to have stopped the vehicle then and there and until and unless, the deceased get down from the vehicle, he should have refused to drive the offending vehicle. The fact remains that despite knowing that the deceased was sitting on the offending vehicle, the driver continued to drive the vehicle. From the evidence on record, oral and documentary, negligence is apparent against the driver. True it is that under given facts and circumstances available on record, there may be some negligence on the part of the deceased but the deceased solely cannot be held responsible for the negligence for causing the accident resulting into his death. Therefore, in the opinion of this Court, the finding with regard to issue No.1A and 1B appears to be erroneous and is liable to be set aside.

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19.So far as issue No.2 with regard to violation of terms and conditions of the

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insurance policy which has been decided in favour of respondent No.3 and 4 / insurance company appears to be based upon proper appreciation of evidence of the insurance company. In the light of judgment of Supreme Court in the case of Oriental Insurance Co. Ltd. v. Brij Mohan and ors., (2007) 7 SCC 56 , the finding with regard to this issue is affirmed.

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20.In view of above, while maintaining the finding with regard to issue no.2, this Court feels it appropriate to remit the matter to the Tribunal to decide issue No.1A and 1B afresh with regard to percentage of negligence between driver of the offending vehicle and deceased and to determine just compensation in favour of the appellants / claimants.

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21.Parties shall appear before the learned Tribunal on 5^th of April, 2024. Learned Tribunal shall ensure appearance of respondents 1 and 2/driver and owner of the offending vehicle. Learned Tribunal shall make all endeavour to decide the claim application expeditiously, preferably within 6 months from the date of first appearance.

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Sd/-

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(Sachin Singh Rajput ) Judge

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Deepti

Smt. Madhuri Bai Sannadya v. Monchu @ Hemant

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Smt. Madhuri Bai Sannadya v. Monchu @ Hemant

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