National Insurance Company Limited Vs Smt. Aasin Verma

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1

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Digitally signed
by BHOLA
NATH KHATAI
Date:
2025.02.20
10:32:23 +0530

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2025:CGHC:8213

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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MAC No. 1492 of 2016

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National Insurance Company Limited Through Branch No.2, Second Floor, Mobin Mahal G.E.Road Raipur District Raipur, Chhattisgarh, Through Authorised Signatory For National Insurance Company Limited Divisional Office B-1 Taha Complex Ring Road Priyadarshani Nagar Bilaspur, Chhattisgarh

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... Appellant

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versus

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Smt. Aasin Verma Wd/o Late Love Kumar Verma, Aged About 41 Years R/o House No.23, Forest Colony Pandri District Raipur, Chhattisgarh

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Ku. Yuchi Verma D/o Late Love Kumar Verma, Aged About 21 Years R/o House No.23, Forest Colony Pandri District Raipur, Chhattisgarh

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Ku. Nitu Verma D/o Late Love Kumar Verma, Aged About 18 Years R/o House No.23, Forest Colony Pandri District Raipur, Chhattisgarh

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Sanju Verma S/o Late Love Kumar Verma, Aged About 16 Years Minor Through Natural Guardian Mother Smt. Aasin Verma Wd/o Late Love Kumar Verma, R/o House No.23, Forest Colony Pandri District Raipur, Chhattisgarh ................. Claimants

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Rameshwar Nirmalkar S/o Ganpat Ram Nirmalkar, Aged About 42 Years R/o Village Raita P.S. Dharsiva District Raipur, Chhattisgarh .............… Driver Of Truck Haiwa No. C.G.04 J A 9808

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Santosh Sharma S/o Murari Lal Sharma, Aged About 36 Years R/o Sharma Medical Bazar Chowk Silyari P.S. Dharsiwa District Raipur, Chhattisgarh ............... Owner Of The Haiwa No. C.G.04 J A 9808

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... Respondent(s)

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2

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For Appellant : Mr. B. N. Nande, Advocate For Respondent(s) : None

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Hon'ble Shri Justice Sanjay Kumar Jaiswal

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O R D E R ON BOARD

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17.02.2025

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1 It is an insurer’s appeal under Section 173 of the Motor Vehicles Act, 1988 challenging the award dated 09.03.2016 passed by 2nd Motor Accident Claims Tribunal, Raipur (C.G.), in Claim Case No.115/2014.

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2 In this case, the accident occurred on 15.12.2013 at about 5:00 a.m., when deceased Love Kumar Verma while returning from his duty on motorcycle No. CG 04 DG 7458 collided from behind with truck No. CG 04 JA 9808, which was wrongly parked in the middle of the road without any indication, as a result of which, Love Kumar Verma suffered grievous injuries on his head and ultimately succumbed to the said injuries. The claimants, who are the wife and children of the deceased, preferred a claim application before the Tribunal claiming total compensation of Rs.39,43,984/-. Learned Tribunal, on a close scrutiny of the evidence brought on record, award total compensation of Rs.21,76,028/- in favour of the claimants with interest @ 9% per annum, from the date of application till its realization.

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3 While passing the impugned award, the Tribunal held the driver, owner and insurance company of the offending truck jointly or severally liable for payment of compensation and the primary liability for payment of compensation was fastened upon the Insurance Company. It is this fastening of liability of payment of compensation upon the Insurance Company against which the present appeal has been filed for exonerating the insurance company from its liability.

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4 Learned counsel for the appellant - insurance company argues that the

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3

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accident took place in the dark at around 4.00 am. Deceased Love Kumar, while driving the motorcycle himself, hit the truck parked outside the road from behind. In the above situation, the Tribunal has committed an error by not considering the contributory negligence on the part of deceased Love Kumar. Therefore, his contributory negligence should be determined.

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5 There is no representation on behalf of the respondents.

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6 Heard learned counsel for the appellant and perused the record.

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7 In this case, Smt. Aasin Verma (AW-1) herself has been examined on behalf of the claimant side who is not the eye witness. She has produced the documents of the charge sheet from Exhibit P-1 to Exhibit P-11 and in support of the case, Tularam (AW-2) has been examined who is said to be the witness of spot. Tularam is a listed witness as per the charge sheet. No evidence has been produced in rebuttal to this by the driver, owner or the appellant-insurance company of the offending truck.

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8 It is quite clear from the evidence presented on record that at the time of accident, the truck was stationary and Love Kumar while driving the motorcycle came from behind and collided with the stationary truck resulting in his death. As a witness of spot, Tularaam has clarified that the offending truck was parked in the middle of the road; neither its indicator was on nor any sign was given by placing stones etc. that the vehicle was parked there. The said statement of witness Tularam is confirmed by the First Information Report (Exhibit P-2) written immediately after the incident, which could not be rebutted. It is also clear that the accident took place on 15/12/2013 i.e. during the winter season. The time of the accident is said to be 04.00 am and it was dark at that time. In the cross-examination of Tularaam, it has also come to light that the headlight of the motorcycle driven by the deceased Love Kumar was on but it is said to be twilight. In the above

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situation, it can be assumed that the offending truck was parked in the middle of the road either due to breakdown or for some other reason, but no indicator or other signal was given. Hence, the driver of the offending vehicle was negligent. However, looking to the fact that the deceased Love Kumar had hit the parked offending vehicle from behind, this fact cannot be ignored that the person driving the motorcycle on the road should also have been cautious. It is said that the headlight of the deceased's motorcycle was on, yet he hit the parked truck from behind. This shows that he was definitely driving the motorcycle at such a speed that despite seeing some object in the light of the motorcycle, he could not control it and collided with the stationary truck. In such a situation, the contributory negligence on the part of the motorcycle driver is also found in the accident.

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9 Taking into consideration all the facts and evidence available on record, the ratio of the said contributory negligence is held to be 75:25 i.e. 75% on the part of the driver of the offending truck and 25% on the part of the driver of the motorcycle i.e. the deceased. Their liabilities are determined accordingly.

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10 Hence, the appellant-Insurance Company shall be liable to pay compensation to the claimants to the extent of 75% of the amount awarded by the Tribunal.

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11 Accordingly, this appeal of the insurance company is partly allowed to the extent indicated hereinabove.

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Sd/-

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Sd/-

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(Sanjay Kumar Jaiswal) Judge

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Khatai

National Insurance Company Limited v. Smt. Aasin Verma

Case brief

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National Insurance Company Limited v. Smt. Aasin Verma

Case brief

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