Deepak Vs Sushil Yadav

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2025:CGHC:26099

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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MAC No. 1032 of 2019

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Deepak S/o Late Ghuran Aged About 16 Years Caste Pathari, Minor Through Natural Guardian Mther Vimata (Appellant No. 2)

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Smt. Sukhman W/o Late Ghuran Aged About 52 Years Caste Pathari, Both are R/o Village Khadhoura, Tahsil Khadgawan, At Present. Potedad, Police Station And Tahsil Baikunthpur, District Korea Chhattisgarh.

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--- Appellants/ Claimants

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versus

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Sushil Yadav S/o Shivcharan Ram Aged About 40 Years Caste Ahir, R/o Village Patarapali, Tahsil And Police Station Baikunthpur, District Korea Chhattisgarh. ( Owner )

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Durga Prasad Tiwari S/o Ganesh Prasad Tiwari Aged About 25 Years Caste Brahman R/o Basdevpur, Police Station And Tahsil Baikunthpur, District Korea Chhattisgarh.( Driver )

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Branch Manager Ifco Tokyo General Insurance Company Limited, Shop No. 205, Second Floor, M.M. Selver Plaza, Near Mining Office, Mahavir Nagar, Ring Road No. 01, Raipur Chhattisgarh., District : Raipur, Chhattisgarh

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--- Respondents

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____________________________________________________________ For Appellants : Mr. Praveen Dhurandhar, Advocate For Respondent No. 1 & 2 : Mr. Siddhant Das, Adv. on behalf of Mr. Syed Majid Ali, Advocate For Respondent No. 3 : Mr. Pravesh Sahu, Advocate

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Hon'ble Shri Justice Parth Prateem Sahu

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Order On Board

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20/06/2025

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Appellants have filed this appeal under Section 173 of the Motor Vehicles Act, 1988 (for short “Act of 1988”), challenging the award dated 10.04.2019 PAWAN passed by Learned Additional Motor Accident Claims Tribunal, Baikunthpur, KUMAR JHA Digitally signed by PAWAN KUMAR JHA

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District Koriya, Chhattisgarh (for short “Claims Tribunal”) in Claim Case No. 43/2018, whereby learned Claims Tribunal rejected the application filed under Section 166 of the Act, 1988.

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Facts of the case relevant for disposal of this appeal are that on 13.12.2017 at 2.00 pm Hardihin Bai alias Maheshia was going to Chirmi Society walking, to purchase rice, when she reached on the main road, nonapplicant No.2- driver of tractor CG 16 CG-8109 (henceforth “offending tractor”) while driving the offending tractor rashly and negligently hit her from behind. In the accident, she suffered serious injuries over her person. She was immediately brought to the district hospital Baikunthpur, where during the course of treatment she died.

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Appellants filed an application under Section 166 of the Act of 1988 seeking compensation of ₹ 70,00,000/- pleading therein that on the date of accident deceased was about 35 years of age, was an able bodied person. At the time of accident deceased was doing the work of vegetable selling and from which she was earning ₹ 15,000/- per month.

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Respondent No. 1 & 2 / Non-applicant No. 1 & 2 -owner and driver of the offending tractor filed their reply to the claim application and while denying the adverse pleadings made therein it was further pleaded that nonapplicant no.1 is the registered owner of the offending tractor which was insured with non-applicant No.3 on the date of the alleged accident. Nonapplicant No. 2 was possessed with a valid and effective driving license to drive the offending tractor. Thus, the liability, if any, to pay the amount of compensation would be upon non-applicant No. 3/ insurance company.

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Respondent No. 3/ Non-applicant No. 3/ Insurance Company filed its reply to the claim application, denying all the adverse pleadings made in the application. It was further pleaded that on the date of the accident non-

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applicant No. 1/ driver did not have a valid and effective license to drive the offending tractor. Tractor was being driven in violation of the terms of insurance policy as it was carrying passengers. Besides the driver, two women, one of whom was the deceased, were also sitting on the engine of the tractor. Premium covering risk of driver was paid. Risk of other person was not covered. The tractor was being used for non-agricultural purposes.

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Learned Claims Tribunal, upon appreciation of pleadings and evidence placed on record by respective parties, held that deceased Hardihin did not die in the accident arising out of rash and negligent driving of offending tractor owned by non-applicant No. 1 and driven by non-applicant No. 2, she died due to injuries sustained after being jolted and fallen from tractor. Breach of conditions of insurance policy was found to be proved, and rejected the claim application of applicants recording that the applicants failed to prove their relationship with the deceased and dependency on her.

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Learned counsel for appellants-claimants would submit that Claims Tribunal erred in rejecting the entire claim filed by the appellants-claimants seeking compensation on account of death of late Hardihin Bai alias Maheshiya. He submits that even if the appellant No. 2/claimant No. 2 might not be one of the dependents upon the deceased, however, appellant No. 1/ Claimant No. 1, minor son of Maheshiya, from the relationship of late Ghuran is entitled for the compensation against the death of his late mother. He next contended that the Claims Tribunal fell into error in recording a finding that the motor accidental death of Hardihin @ Maheshiya is not due to rash and negligent driving of non-applicant No. 1/ driver of the offending tractor. He submits that AW-2, Sahodiya Bai who was also accompanied with deceased and walking along with her at the time of accident, has clearly stated the fact of accident. The finding of the Claims Tribunal that the

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deceased was travelling on tractor at the time of accident is erroneous. Claimants have pleaded the income of deceased as Rs. 15,000/- per month and therefore the appellant-claimants are entitled for the amount of compensation accordingly by applying multiplier system, as held by Hon’ble Supreme Court in the case of National Insurance Company Ltd. v. Pranay Sethi reported i n (2017) 16 SCC 680 and Sarla Verma & others

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v. Delhi Transport Corp. & anr. reported in (2009) 6 SCC 121.

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Mr. Siddhant Das, learned counsel for Respondents No. 1 and 2/ owner and the driver of the offending tractor submits that the finding of learend Claims Tribunal that the deceased at the time of accident was travelling on tractor and suffered injuries due to fall from it, is perverse to the evidence available on record. Tribunal rightly concluded that the accident was not on account of rash and negligent driving of offending tractor by non-applicant No. 2. He further contended that learned Claims Tribunal has rightly held that the deceased was not a married wife of late Ghuran, whereas the father of appellant No. 1/ claimant no. 1 is Ghuran and therefore he is not son of deceased. Appeal is devoid of substance, hence, it be dismissed.

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Learned counsel for Respondent No. 3-Insurance Company submits that the Claims Tribunal after considering entirety of the facts and material available on record came to conclusion that the offending tractor, insured by the insurance company was being driven in contravention of the policy conditions. The decease along with others were travelling on the tractor engine in which there is no sitting space for any other person except driver and therefore the finding recorded by the Claims Tribunal that there was breach of conditions of policy, is on appreciation of evidence which does not call for any interference. He also submits that the Claims Tribunal upon

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appreciation of the evidence available on record has rightly rejected the claim of applicants/ claimants.

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I have heard learned counsel for the parties and also perused the record of claim case.

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Perusal of record would show that the claimants in their claim application have pleaded that the deceased was husband of late Ghuran, caste Pathari. Applicant No. 1 is shown to be son of late Ghuran. In the claim application, it is also pleaded the manner in which the deceased Hardihin Bai suffered motor accidental injuries. In para-19, it is pleaded that on 13.12.2017 when she was going to Chirmiri Society walking for purchasing rice and reached on main road, the tractor coming from Baikunthpur side dashed the deceased from her back and caused injuries.

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To prove this fact, claimants have examined Smt. Sahodiya Bai as AW-2. In her evidence, she has stated that when she along with deceased was going to Society for purchase of rice, walking and reached on road, at that relevant time, offending tractor driven rashly and negligently by nonapplicant No. 2 dashed the deceased. She was cross-examined by the counsel for non-applicants, however, her evidence as stated in the examination-in-chief is not shaken. In para-3 of her cross-examination, she further stated that the deceased was dashed by the offending tractor from her back. She denied the suggestion given that the deceased fell down from the offending tractor after suffering jolt while travelling on it. AW-2 is the eye-witness to the accident and she has supported the pleadings made in the claim application.

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Learned Claims Tribunal while considering the evidence for proving the fact of motor accidental injuries suffered by the deceased has not recorded any finding that the evidence given in chief by the witnesses no. 2 is in any

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manner shaken in her cross-examination but taken note of the fact that in F.I.R. and other documents of the police case there is mention that the deceased at the time of accident was travelling on the tractor engine and she fell down after suffering jolt. In para-12 of the impugned award, Claims Tribunal further recorded that as the report was promptly lodged, therefore, the contents as mentioned in the documents of the police case cannot be disbelieved. The said finding of the Claims Tribunal in the opinion of this Court is erroneous. Merely filing of the documents will not in itself prove the contents mentioned therein which is otherwise disputed. The contents of documents in this case, part of charge-sheet, are required to be proved in accordance with law by examining the author of the document, or any person who wrote the document based on the information received by him or her.

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Division Bench of High Court of Madhya Pradesh in the case of Nanhu Singh vs. Jaheer reported in 2006 ACJ 803 while dealing with the issue whether the documents of criminal case merely by its production will be admissible in evidence and held thus:

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“ 1 2 . In view of the aforesaid, we arrive at the irresistible conclusion that the finding recorded by the Tribunal on the basis of F.I.R. is incorrect, unsound and in a way paves the path of vitiation. The Tribunal had erred by relying on the F.I.R. as if it was the gospel truth or to put it differently, as if it was comparable to Einsteinean theory. In view of the aforesaid, we are not disposed to concur with the aforesaid finding and accordingly dislodge the same”.

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Hon’ble Supreme Court in the case of National Insurance Co. Ltd. vs.

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Chamundeswari and others reported in (2021) 18 SCC 596 while considering the issue with regard to admissibility of contents of F.I.R. in evidence before the Tribunal has observed that the evidence which is

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recorded before the Tribunal has to be given weightage over the contents of F.I.R. and held as under:

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“8. It is clear from the evidence on record of PW 1 as well as PW 3 that the Eicher van which was going in front of the car, had taken a sudden right turn without giving any signal or indicator. The evidence of PW 1 & PW 3 is categorical and in absence of any rebuttal evidence by examining the driver of Eicher van, the High Court has rightly held that the accident occurred only due to the negligence of the driver of Eicher van. It is to be noted that PW 1 herself travelled in the very car and PW 3, who has given statement before the police, was examined as eyewitness. In view of such evidence on record, there is no reason to give weightage to the contents of the first information report. If any evidence before the Tribunal runs contrary to the contents in the first information report, the evidence which is recorded before the Tribunal has to be given weightage over the contents of the first information report.

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Considering entirety of the facts of the case, evidence of AW-2, Smt. Sahodiya Bai, eye-witness of the accident and the aforementioned decisions, in the opinion of this Court, Claims Tribunal erred in recording a finding that the deceased suffered motor accidental injuries while travelling on the tractor only on the basis of contents of F.I.R. and the other documents in the police case is erroneous and is not sustainable in the eye of law, accordingly the said finding recorded by the Claims Tribunal with regard to issue No. 1 is not sustainable and it is set aside and it is held that the deceased suffered motor accidental injuries resulting in her death is due to rash and negligent driving of offending tractor by non-applicant No. 2. Hence, Issue No. 1 is decided in affirmative.

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Learned Claims Tribunal has framed issue No. 2, whether the offending tractor was being plied in breach of policy conditions. The Tribunal has

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decided this issue in affirmative only recording a finding that on the date of accident, deceased met with an accident while travelling on mudguard of the tractor engine. No other reason has been assigned for deciding the issue of breach of policy conditions, in affirmative. As this Court has decided the issue No. 1 in affirmative and held that the deceased met with an accident while walking on the road due to rash and negligent driving of offending tractor by its driver non-applicant No. 2, the said finding of the Tribunal on issue No. 2 is also not sustainable and it is accordingly set aside. It is held that the non-applicant No. 1 failed to prove plying of the offending tractor in breach of policy conditions.

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So far as the finding recorded by the Claims Tribunal with regard to issue No. 3 that whether the claimants are entitled to receive compensation, decided in negative is concerned, claimants in their claim application in para-23 have pleaded the relationship of claimants with the deceased. In the aforementioned paragraph, it is clearly mentioned that claimant No. 1 is son of deceased and claimant No. 2 is co-wife/ second wife of late Ghuran. It was also pleaded that the claimants No. 1 and 2 were residing jointly along with deceased. In support of that pleading, claimants have examined Smt. Sukhman, claimant No.2, as AW-1. In her cross-examination, she admitted that late Ghuran was having two wives, AW-1 is married wife, deceased Hardihin Bai was not previously married, she was not divorced by her husband late Ghuran and the applicant No. 1 is son of deceased Hardihin. In examination-in-chief, she has stated that applicant No. 1 is son of deceased. In cross-examination, no question is put to this witness suggesting that birth of applicant No. 1 was not from the relationship of deceased and Late Ghuran. AW-2 in her examination-in-chief also stated that late Ghuran was having two wives, first one is claimant no. 2-Smt. Sukhman and second wife is deceased Hardihin Bai.

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In the evidence of these witnesses, nothing has come to suggest that the deceased was having no relationship with late Ghuran and claimant No. 1 is not the son of deceased.

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Learned Claims Tribunal while appreciating the evidence of AW-1 has erroneously concluded that when once the claimant No. 2 is wife of late Ghuran and claimant No. 1 has been shown to be son of late Ghuran, no document has been produced to show that the birth of claimant No. 1 is from the relationship of late Ghuran and the deceased and disbelieved the relationship of claimant No. 1 pleaded and stated by witnesses. The Tribunal also failed to appreciate the evidence of AW-2, Sahodiya Bai, an independent witness, on the issue. She categorically stated that claimant no. 1 is son of deceased. Claims Tribunal has taken the hyper technical approach. It is not the proceedings of declaration of claimant No. 1 to be son from the relationship of deceased and late Ghuran. There is admission on the part of claimant No. 2 that late Ghuran was having two wives, birth of claimant no. 1 is from the relationship between the deceased and late Ghuran. Similar was the evidence of AW-2 who is an independent witness and not the relative of claimant and therefore in the considered opinion of this Court, Claims Tribunal erred in recording a finding that the claimants failed to prove the relationship with deceased and was dependent upon the deceased. The said finding is perverse to the evidence available on record. Claimant No. 1 was minor on the date of accident aged about 16 years only and therefore if not claimant No. 2, claimant no. 1 was dependent upon the deceased being her son and therefore also the finding recorded by the Claims Tribunal on issue No. 3 is also not sustainable and it is set aside. It is held that the claimant No. 1 being son of deceased was dependent upon her income.

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For the foregoing discussion, the impugned award is not sustainable, it is hereby set aside. As the Claims Tribunal has not recorded any finding assessing income of deceased on appreciation of evidence, computing the amount of compensation, therefore I find it appropriate to remit back the case to the Claims Tribunal to compute the amount of compensation based on the evidence available on record after providing opportunity of hearing to all parties and thereafter to pass an award afresh.

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Parties are directed to appear before the Claims Tribunal on 18 th August 2025.

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For the aforesaid discussion, the appeal is disposed of accordingly.

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Sd/(Parth Prateem Sahu) Judge

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pwn

Deepak v. Sushil Yadav

Case brief

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Deepak v. Sushil Yadav

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