National Insurance Company Limited Vs Smt. Kavita Bai

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2025:CGHC:27159

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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MAC No. 858 of 2020

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National Insurance Company Limited Through Its Divisional Manager, Divisional Office-Near Rajbandha Ground, G.E. Road, Raipur, District Raipur, Chhattisgarh

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--- Appellant/Non-applicant

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versus

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Smt. Kavita Bai Wd/o Late Pannalal Sahu Aged About 42 Years

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Chandrahas Sahu S/o Late Pannalal Sahu Aged About 23 Years Both are R/o Village Dongardula, Tahsil Nagari, District Dhamtari, Chhattisgarh, Present Address Through Santram Sahu, Mahadevghat Raipura, Tahsil And District Raipur, Chhattisgarh

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--- Respondents/applicants

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____________________________________________________________ For Appellant : Mr. Dashrath Gupta, Advocate For Respondents : Mr. Utkarsh Patel, Advocate on behalf of Mr. Pushpendra Kumar Patel, Advocate

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Hon'ble Shri Justice Parth Prateem Sahu

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Order On Board

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24/06/2025

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Appellant-Insurance Company has filed this appeal under Section 173 of the Motor Vehicles Act, 1988 (for short “Act of 1988”) challenging the award dated 30.01.2020 passed by Learned Fourth Additional Motor Accident Claims Tribunal, Raipur, Chhattisgarh (for short “Claims Tribunal”) in Claim

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PAWAN Case No. 726/2014, whereby learned Claims Tribunal allowed the application KUMAR JHA

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Digitally filed by applicants therein/ claimants under Section 166 of the Act of 1988 in signed by PAWAN KUMAR JHA

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part and awarded total sum of ₹ 19,97,860/- as compensation in a motor accidental death case.

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Facts of the case relevant for disposal of this appeal are that on 07.08.2014 Pannalal Sahu left his village Dongardula to go to village Chanagaon on his motorcycle CG05 H 5983, when he reached near Koregaon Dhamtari at Amlipara puliya at about 01:20 pm, another motorcycle No. CG05 U 7079 (henceforth “offending vehicle”) coming from opposite side driven by one Rohit Kumar Mandavi rashly and negligently, dashed with the motorcycle of Pannalal Sahu and caused accident. In the said accident, Pannalal Sahu suffered grievous injuries over his person and succumbed to the injuries.

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Respondents No. 1 & 2/ claimants who are widow and child of deceased Pannalal filed an application under Section 166 of the Act of 1988 seeking compensation of ₹ 45,50,000/- pleading therein that on the date of accident deceased was 52 years able bodied person. He was the sole breadwinner of the family. He was working as Beat Guard under Range Forest Officer, Koregaon and earning ₹ 20,000 per month to support himself and his family.

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Appellant- Non-applicant/ Insurance Company filed its reply, denying all the adverse pleadings made in the application, it was further pleaded that on the date of accident driver of offending vehicle Rohit Kumar Mandavi was not possessed with valid and effective driving licence. There was head on collusion between both the motorcycles, therefore, there is contributory negligence of both drivers.

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Learned Claims Tribunal, upon appreciation of pleadings and evidence placed on record by respective parties, held that deceased Pannalal Sahu died because of grievous injuries suffered in an accident arising out of rash and negligent driving of offending vehicle (motorcycle) by its driver Rohit Kumar Mandavi. Breach of conditions of insurance policy was not found to be proved, calculated the amount of compensation and awarded ₹ 19,97,860/-

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as total compensation with interest @ 9% p.a. from the date of filing of claim application.

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Learned counsel for appellant-Insurance Company would submit that learned Claims Tribunal erred in passing the impugned award without considering the plea of contributory negligence as pleaded by the appellant-insurance company in its reply. He next contended that the Tribunal fell into error in not considering that the claimants have not produced copy of licence of the driver of offending vehicle. In absence of proof of valid and effective driving licence with the driver of offending vehicle, liability to satisfy the amount of compensation under the insurance policy of the offending vehicle cannot be fastened upon the insurance company/ insurer of the offending vehicle.

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Learned counsel for Respondents No. 1 & 2/ claimants vehemently opposed the submission of learned counsel for appellant-Insurance Company and would further submit that the Claims Tribunal upon appreciation of the evidence brought on record by the respective parties and considering the fact that the driver of the offending vehicle also died in the aforementioned accident and considering the statement recorded under Section 161 of the uncle of the deceased driver of the offending vehicle has recorded a finding that it is not proved that the deceased driver of the offending vehicle was not possessed with valid and effective driving licence which cannot be said to be erroneous in the facts of the case. The award passed by the Claims Tribunal is just and proper and 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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Learned counsel for appellant-insurance company has made two fold submission to challenge the impugned award; firstly, that the Claims Tribunal has not considered that there was contributory negligence on the part of deceased Pannalal Sahu, driver of motorcycle, overlooking the fact that there was head-on collusion between two motorcycles and both the drivers

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died. Secondly, that the copy of driving licence of the driver of offending vehicle namely Rohit Kumar Mandavi has not been submitted to prove that he was having valid licence authorising him to drive motorcycle and therefore there is breach of conditions of insurance policy. No other ground has been raised in this appeal except the above two.

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To appreciate the submission of learned counsel for appellant-insurance company with regard to contributory negligence of deceased Pannalal Sahu, driver of one vehicle is concerned, appellant/ non-applicant in para-16 of the reply to the claim application has raised the ground of contributory negligence. Claims Tribunal has not framed specific issue with regard to contributory negligence. The non-applicant/ appellant who contested the case by submitting its reply to the claim application has not raised any objection before the Claims Tribunal on non-framing of issue, however the appellant-insurance company has contested the case on the issues framed by the Claims Tribunal and had also examined the witnesses. While deciding the issue No. 1, Claims Tribunal has recorded a finding that Rohit Kumar Mandavi, deceased driver of the offending vehicle while driving the motorcycle at excessive speed, lost control and dashed with the motorcycle of Pannalal bearing registration No. CG05H5983 by driving it on the wrong side. In view of the aforementioned evidence available on record, Claims Tribunal concluded that the accident was a result of negligence on the part of deceased Rohit Kumar Mandavi, driver of the offending vehicle.

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The law to prove the plea of contributory negligence is well settled. It is the burden upon the party raising the ground of contributory negligence to prove the same by producing clinching and admissible piece of evidence. In the case at hand, as the Insurance Company has not brought on record any clinching evidence nor has examined any witness in support of said plea of contributory negligence, in the opinion of this Court the submission of learned counsel for appellant-insurance company that the Claims Tribunal erred in

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not considering that the deceased driver of one motorcycle was also contributory negligent in the accident is not acceptable. The issue of contributory negligence has been dealt with by the Hon'ble Supreme Court, particularly accepting the spot map placed before the learned Claims Tribunal, as evidence, for proving contributory negligence in the matter of Jiju Kuruvila and others v. Kunjujamma Mohan and others reported in

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(2013) 9 SCC 166 , where the Supreme Court has held thus:

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“ 20.5 The mere position of the vehicles after accident, as shown in a scene mahazar, cannot give a substantial proof as to the rash and negligent driving on the part of one or the other. When two vehicles coming from opposite directions collide, the position of the vehicles and its direction, etc. depends on a number of factors like the speed of vehicles, intensity of collision, reason for collision, place at which one vehicle hit the other, etc. From the scene of the accident, one may suggest or presume the manner in which the accident was caused, but in the absence of any direct or corroborative evidence, no conclusion can be drawn as to whether there was negligence on the part of the driver. In absence of such direct or corroborative evidence, the Court cannot give any specific finding about negligence on the part of any individual.”

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12. Another judgment of the Supreme Court in case of Minu Rout and another

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v. Satya Pradyumna Mohapatra and others reported in (2013) 10 SCC 695

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while dealing with the issue of contributory negligence held thus:

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“ 17 . The Tribunal, on appreciation of the oral and documentary evidence, has recorded the erroneous finding by placing strong reliance upon the charge-sheet, Ext. 1 without considering the fact that the criminal case was abated against the deceased and further has made observation in the judgment that the appellants had not produced the FIR. Therefore, it has held that there was 50% contributory negligence on the part of the deceased driver in causing accident. The Tribunal ought to have seen that non-production of FIR has no consequence for the reason that charge-sheet was filed against the truck driver for the offences punishable under section 179 read with Section 302 IPC read with the

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provisions of the MV Act. The Insurance Company, though claimed permission under Section 170(b) of the Motor Vehicles Act, 1988 from the Tribunal to contest the proceedings by availing the defence of the owner of the offending vehicle, it did not choose to examine either the driver of the truck or any other independent eyewitness to prove the allegation of contributory negligence on the part of the deceased Susil Rout on account of which the accident took place as he was driving the car in a rash and negligent manner. In the absence of rebuttal evidence adduced on record by the Tribunal, the Tribunal should not have placed reliance on the charge-shhet, Ext. 1 which the deceased driver was mentioned as an accused and on his death his name was deleted from the charge-sheet. The Tribunal has referred to certain stray answers elicited from the evidence of PW 2 and PW 3 in their cross-examination and placed reliance on them to record the finding on Issue 1.”

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In the aforementioned evidence available on record and the finding of the Claims Tribunal on issue No. 1, in the opinion of this Court, Claims Tribunal has dealt with issue of contributory negligence also in holding that the negligence is on account of sole negligence of Rohit Kumar Mandavi, driver of offending vehicle insured by the appellant-insurance company and, therefore, I do not find any substance in the ground raised by the counsel for appellant and it is repelled.

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So far as the second ground raised by learned counsel for appellantInsurance Company with regard to non-production of copy of licence of driver of offending vehicle, Rohit Kumar Mandavi, is concerned, perusal of record would show that the insurance company in the proceedings before the Claims Tribunal has filed an application under Order 11 Rule 12 CPC for production of copy of licence of Rohit Kumar Mandavi. Claims Tribunal considering the statement recorded under Section 161 in criminal case of one Krishna Kumar, uncle of deceased Rohit Kumar Mandavi, that at the time of driving the deceased was possessing the licence, however, it fell down into the water somewhere. The said application was rejected vide order dated 02.11.2018. The order rejecting the application under Order 11 Rule 12 of CPC has not been challenged by the appellant-Insurance Company before

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the higher court. After rejection of the application under O.11 R.12 CPC the appellant-Insurance Company has filed an application under Order 16 Rule 1 CPC for a direction to call the licence from the RTO, Dhamtari, which was allowed. One Jai Prakash Sahu, posted as Assistant Grade-II at District Transport Office, Dhamtari is examined as NAW-1. In his evidence nothing elicited to say that on the date of accident, deceased was not possessed with valid driving licence. One Arvind Netam, Asst. Sub-Inspector was examined as NAW-3 by the insurance company. In his evidence he stated the seizure of RC book and copy of insurance policy of National Insurance Company of the offending vehicle bearing No. CG05 U 7079 driven by Rohit Kumar Mandavi. He also proved the statement recorded under Section 161 of Krishna Kumar, uncle of deceased driver-Rohit Kumar Mandavi, and marked as Ext. P8.

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In the aforementioned facts of the case and evidence available on record that the deceased Rohit Kumar Mandavi, driver of offending vehicle, on the date of accident was having the valid and effective driving licence, however it lost after the accident due to drowning into the water. Non-production of licence of Rohit Mandavi (since deceased) in view of statement of his uncle that it lost in accident is plausible explanation. Claims Tribunal has taken into note of the aforementioned evidence and facts and arrived at a conclusion that insurance company failed to prove that Rohit Kumar Mandavi was not possessed with valid and effective driving licence at the time of accident, which in the facts and evidence available on record cannot be said to be erroneous.

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No other grounds are raised except the above two grounds by the learned counsel for appellant-insurance company.

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For the foregoing discussion, I do not find any merit in this appeal, it is liable to be and is hereby dismissed accordingly.

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Sd/-

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(Parth Prateem Sahu) Judge

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pwn

National Insurance Company Limited v. Smt. Kavita Bai

Case brief

What is this about?

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National Insurance Company Limited v. Smt. Kavita Bai

Case brief

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What the court decided

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