Smt. Nirmala Yadav Vs Amit Kumar Verma

Amit Kumar Verma S/o Shri Pyarelal Verma Aged About 2 Years Ward No. 11, Gudipar Mohra, Po Hirmi, Simga District Balodabazar Chhattisgarh. (Driver and Owner of the Offending Vehicle Motorcycle No. CG04 CN 2756)

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United India Insurance Company Limited through the Divisional Manager United Krishna Complex In Front of Kachery Raipur Tahsil and District Raipur Chhattisgarh.(Insurer of the Offending Vehicle Motorcycle No. CG04 CN 2756 )

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--- Respondents/ Non-applicants

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____________________________________________________________ For Appellants : Mr. Rakesh Kumar, Advocate on behalf of Mr. Pushpendra Kumar Patel, Advocate For Respondent No. 2 : Ms. Prerna Agrawal, Advocate on behalf of Mr. Sudhir Kumar Agrawal, Advocate

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Hon'ble Shri Justice Parth Prateem Sahu

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C.A.V. Judgment

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Appellants-claimants have filed this appeal under Section 173 of Motor Vehicles Act, 1988 (for short “Act of 1988”), challenging the award dated 03.01.2018 passed by Learned Chief Motor Accident Claims Tribunal, Raipur, Chhattisgarh (for short “Claims Tribunal”) in Claim Case No. 414/2017, whereby application filed under Section 166 of the Act, 1988 was dismissed.

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Facts relevant for disposal of this appeal are that on 17.12.2015 at about 06:00 pm, Santosh Kumar Yadav while travelling on a motorcycle bearing number CG04-DL-2078 was returning from his place of work to his house. On the way near Shiv Nagar at Ring Road No. 1, Raipur one another motorcycle bearing number CG04-CN-2756 (henceforth “offending motorcycle”) driven by non-applicant No. 1 rashly and negligently dashed the motorcycle of Santosh Yadav and caused accident. In the accident, Santosh Yadav fell down from the motorcycle and suffered grievous head injury over his chest and other parts of body and succumbed to injuries. Accident was reported to concerned police station on the same day ie., 17.12.2015.

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Claimants who are widow, children and parents of deceased, filed an application under Section 166 of the Act of 1988 seeking compensation of ₹ 77,00,000 in total pleading therein that on the date of accident, deceased was working as Peon in Social Welfare Department and earning ₹ 23,000 per month. They were dependent upon income of deceased. Due to untimely death of late Santosh Yadav, they are suffering financial hardship.

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Non-applicant No. 1- driver and owner of offending motorcycle did not appear and he was proceeded ex parte before the Claims Tribunal.

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Non-applicant No. 2-Insurance Company of the offending motorcycle submitted reply the claim application, manner of accident as pleaded in the claim application is specifically denied. It is further pleaded that accident was caused by unknown vehicle and after lapse of more than one and a half year, report was lodged against offending motorcycle in connivance with the police officials and false case was set up of accident involving offending motorcycle.

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They have also taken plea of motorcycle being driven in breach of policy conditions pleading therein that driver of offending motorcycle was not possessed with valid and effective driving licence.

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Claims Tribunal upon appreciation of evidence, oral and documentary, brought on record by the respective parties held that claimants failed to prove accident with the offending motorcycle ie., CG04-CN-2756 driven by nonapplicant No. 1. Tribunal though computed amount of compensation of ₹ 35,30,731.30 but dismissed the claim application.

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Learned counsel for appellants-claimants would submit that learned Claims Tribunal has not appreciated evidence brought on record by claimants in appropriate manner. It is contention that claimants have examined eyewitness namely Chandrapal Singh as AW-2 who in clear terms has stated that, at the time of accident he was present on spot. Claims Tribunal taking note of extraneous consideration has dismissed the claim application. It is further contended that merely registration of F.I.R. with delay would not be the only factor for arriving at a conclusion that the case is set up on false and fabricated grounds.

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Learned counsel for Respondent No. 2-Insurance Company would oppose the submission of learned counsel for appellants-claimants and would submit that Claims Tribunal has minutely examined evidence available on record, facts narrated by claimants and has rightly came to conclusion that happening of accident as pleaded in claim application to be not proved. Said finding is upon appreciation of documentary and oral evidence, hence it does not call for any interference.

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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 impugned award would show that Claims Tribunal dismissed the claim application on the ground that involvement of motorcycle bearing number CG04-CN-2756 driven by non-applicant No. 1 could not be proved.

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In claim application filed under Section 166 of the Act of 1988 claimants have pleaded that on the date of accident on 17.12.2015 motorcycle of deceased was dashed by offending motorcycle driven by non-applicant No.1. It is also mentioned that the accident was reported to concerned police station on 17.12.2015 ie., on the date of accident. Copy of F.I.R. is available in record as Ext. P-2. It was lodged by Jitendra Kumar Yadav, son of deceased. Complainant was not present at the place of accident, he was informed by some other person when he was in his house. Final Report is filed as Ext. P- 1 in which it is mentioned that initially closure report was filed considering that report was lodged against unknown vehicle but after information given by witness Chandrapal Singh, investigation was again started and found that the motorcycle which was informed by eye-witness was of non-applicant No. 1. Accordingly non-applicant No. 1 was arrested and his motorcycle (offending motorcycle) was seized and after completion of investigation Final Report was filed against non-applicant No. 1.

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Eye-witness Chandrapal Singh is examined as AW-2. He stated that after purchasing articles for his Kirana Shop, he was returning to his shop at Math Purena at Santoshi Nagar square, he saw that one motorcyclist was standing to cross divider constructed near over bridge, at that time another motorcycle coming from Telibandha side dashed the motorcycle of deceased who was waiting to cross the road and caused accident. He also stated that in the accident, deceased motorcyclist fell down and died on spot. Many person gathered on the spot. Driver of other motorcycle (offending motorcycle) was also fell down and he was caught hold by the public. On next day, he came across that news was published that accident was with unknown vehicle, upon which he went to the house of claimants after making search but they were not present in the house and had went to their native place for funeral and last ritual. He also stated that after about 10-15 days he went to police station along with wife of deceased. His statement was recorded. In the

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record, there is an application by complainant No. 1, widow of deceased, sent to Superintendent of Police mentioning that driver of offending motorcycle dashed her husband and without investigating the crime properly, police submitted closure report. She was being called by the police after every 15 days. In cross-examination, she also stated that after 12-15 days from the date of accident, Chandpal Singh came to her house and intimated about involvement of offending motorcycle. She also stated that she came to know that Chandrapal Singh after 2 days of accident also came to her house searching. She made statement that after 12-15 days, she went to police station along with Chandrapal Singh and informed about causing of accident, by offending motorcycle. Nothing adverse has come in her cross-examination so as to disbelieve her statement in chief.

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Eye-witness Chandrapal Singh is examined as AW-2. He also supported the version of claimants and statement given by AW-1. In his cross-examination also nothing adverse is elicited.

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Jitendra Kumar Yadav son of deceased was also examined as AW-3 and made clear statement that at the time of lodging report, he was not aware about causing of accident by the offending motorcycle. He also made statement in cross-examination about coming of Chandrapal Singh to his home after about 12-15 days and informing about motorcycle which dashed the motorcycle of deceased.

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Nature of proof required in motor accident claim cases is not of beyond reasonable doubt but they are to be decided on touchstone of preponderance of probability. Hon’ble Supreme Court in the case of Geeta Dubey and others vs. United India Insurance Co. Ltd. and others reported in 2024 SCC OnLine SC 3779 while relying upon almost identical issue in Bimla Devi vs. Himachal Road Transport Corporation , (2009) 13 SCC 530 has observed thus:

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“ 20. Firstly, it is well settled that in claim cases, in case the accident is disputed or the involvement of the vehicle concerned is put in issue, the claimant is only expected to prove the same on a preponderance of probability and not beyond reasonable doubt. [See Sajeena Ikhbal v. Mini Babu George, 2024 SCC OnLine SC 2883]. We also deem it appropriate to extract the following paragraphs from the judgment of this Court in Bimla Devi v. Himachal Road Transport Corporation, (2009) 13 SCC 530. Repelling similar contentions raised challenging the accident and the involvement of the vehicle in question, this Court held as follows:

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“ 14. Some discrepancies in the evidence of the claimant's witnesses might have occurred but the core question before the Tribunal and consequently before the High Court was as to whether the bus in question was involved in the accident or not. For the purpose of determining the said issue, the Court was required to apply the principle underlying the burden of proof in terms of the provisions of Section 106 of the Evidence Act, 1872 as to whether a dead body wrapped in a blanket had been found at the spot at such an early hour, which was required to be proved by Respondents 2 and 3.

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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 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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16. The judgment of the High Court to a great extent is based on conjectures and surmises. While holding that the police might have implicated the respondents, no reason has been assigned in support thereof. No

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material brought on record has been referred to for the said purpose.”

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Hon’ble Supreme Court in the case of Sajeena Ikhbal and others vs. Mini

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Banu George and others reported in 2024 SCC OnLine SC 2883 has observed thus:

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“ 16. … There is abundance of evidence pointing to the fact that the car was involved in the accident and the courts below have not considered the evidence in true perspective and have misguided themselves to record perverse finding regarding non-involvement of the car in the accident. In claim cases, arising out of motor accident, the court has to apply the principles of preponderance of probability and cannot apply the test of proof beyond reasonable doubt.”

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If the facts of present case are to be considered in light of above decisions of Hon’ble Supreme Court, it is to be seen that witnesses have made statement before the Claims Tribunal that after about 15 days of accident, completing last rites of deceased, they went to police station intimated the registration number of vehicle involved in accident. If for any reason, police had not taken any initiative for registration of crime against non-applicant No. 1, driver of offending motorcycle, informed by the witnesses, claimants could not be held responsible for the same. It appears that police of concerned police station came in action only when an application was submitted before the Superintendent of Police on 10.03.2017 and thereafter seizure, arrest and filing of charge-sheet was done.

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Considering entirety of the facts of the case, evidence brought on record by the claimants as also aforementioned decisions of Hon’ble Supreme Court, in the opinion of this Court, Claims Tribunal erred in dismissing the claim case on the ground that the claimants failed to prove accident caused by offending motorcycle. The said finding of the Claims Tribunal is not sustainable, it is accordingly set aside.

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As learned Claims Tribunal has already computed amount of compensation and the quantum of compensation computed was not put to challenge by claimants in this appeal, therefore, compensation computed by the Tribunal of ₹ 35,30,731.30 rounded off to ₹ 35,30,731 is affirmed and it is to be awarded to claimants. The amount of compensation shall carry interest @ 7% p.a. from the date of filing of claim application till its realization.

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In view of the above, following directions are issued with regard to the disbursement of the award amount:

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a) Non-applicant No. 02 shall deposit the entire award amount before the Claims Tribunal within a period of 30 days from the date of this judgment. On deposit of the award amount, 50% of the awarded amount shall be deposited in the name of the appellant No. 1 in any nationalized bank under the Fixed Deposit Scheme for a period of 05 years .

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b) Appellants shall be entitled to receive the interest accrued on the aforesaid Fixed Deposit periodically, in accordance with the rules of the concerned bank.

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c) The said Fixed Deposit shall not be subject to any loan, advance, premature withdrawal, or encumbrance of any nature, except with the prior permission of the Tribunal.

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d) From the balance amount of 50% compensation, 10% of compensation be paid to appellants/ claimants No. 2 to 5 and 60% of the balance 50% shall be paid through account payee cheque or credited directly in the bank account of appellant/ claimant.

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Consequently, the appeal is allowed in part and the impugned award is modified to the extent as indicated herein-above.

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Sd/-

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(Parth Prateem Sahu) Judge

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pwn

Smt. Nirmala Yadav v. Amit Kumar Verma

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Smt. Nirmala Yadav v. Amit Kumar Verma

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