Cholamandlam Ms General Insurance Company Ltd. Vs Rambharosha

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2026:CGHC:16182

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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MAC No. 1839 of 2018

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1 - Cholamandlam Ms General Insurance Company Ltd. Through Its Assistant Manager Legal, 2nd Floor Simran Tower Opposite Of L I C Building Pandri Raipur District Raipur Chhattisgarh., District : Raipur, Chhattisgarh

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... Petitioner(s)

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versus

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1 - Rambharosha S/o Dujram Aged About 30 Years Caste- Dhobi R/o Tarsinwa Police Station Arjuni , Tehsil And District Dhamtari Chhattisgarh., District : Dhamtari, Chhattisgarh

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2 - Dushyant S/o Rambharosha Aged About 14 Years Minor They Through Their Father Rambharosha, S/o Dujram, Caste- Dhobi R/o Tarsinwa Police Station Arjuni , Tehsil And District Dhamtari Chhattisgarh., District : Dhamtari, Chhattisgarh

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3 - Leela D/o Rambharosha Aged About 10 Years Minor They Through Their Father Rambharosha, S/o Dujram, Caste- Dhobi R/o Tarsinwa Police Station Arjuni , Tehsil And District Dhamtari Chhattisgarh., District : Dhamtari, Chhattisgarh

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4 - Payal D/o Rambharosha Aged About 7 Years Minor They Through Their Father Rambharosha, S/o Dujram, Caste- Dhobi R/o Tarsinwa

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Police Station Arjuni , Tehsil And District Dhamtari Chhattisgarh., District : Dhamtari, Chhattisgarh

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5 - Dayalu Ram S/o Sudharam Aged About 29 Years Caste Dhruw , R/o Village Bendranawagaon Police Station Rudri Tehsil And District Dhamtari Chhattisgarh.......................Driver, District : Dhamtari, Chhattisgarh

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6 - Purushottam S/o Chowaram Aged About 37 Years Caste Sen, R/o Village Bhatgaon Police Station Rudri Tehsil And District Dhamtari Chhattisgarh......................Owner, District : Dhamtari, Chhattisgarh

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--- Respondents

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For Appellant/Insurance	: Mr. Ghanshyam Patel, Advocate
Company
For Respondents	: None.

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(Hon’ble Shri Justice Amitendra Kishore Prasad)

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Judgment on Board

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08.04.2026

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1. This appeal under Section 173 of the Motor Vehicles Act, 1988 is directed against the award dated 28.07.2018 passed by the learned Additional Motor Accident Claims Tribunal, Dhamtari in Claim Case No.160/2016.

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2. As per the averments made in the claim petition, on 28.04.2015, deceased Seema Nirmalkar was going to Dhamtari along with her mother Kamla Bai, and while they were standing on the roadside, the driver of the offending vehicle bearing

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registration No. CG-05-D-1871 drove the vehicle in a rash and negligent manner, lost control over it, and the vehicle overturned and ran over the deceased, causing fatal injuries.

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3. Thereafter, an application under Section 166 of the Motor Vehicles Act, 1988 (for short, “the Act”) was filed by the claimants, who are the husband and children of the deceased, seeking compensation on account of her death. The claimants pleaded that the deceased was about 25 years of age and earning Rs.9,000/- per month by running a laundry business, and on that basis claimed compensation of Rs.26,25,000/under various heads.

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4. The present appellant / Insurance Company contested the claim by specifically pleading that the driver of the offending vehicle did not possess a valid and effective driving licence and that the vehicle was being plied without a valid permit, thereby constituting breach of policy conditions. It was further contended that at the time of accident about 40–50 persons, including the deceased, were travelling in the goods vehicle as gratuitous passengers, whose risk was neither covered under the insurance policy nor under the statutory coverage contemplated under Section 147 of the Motor Vehicles Act. Learned counsel for the appellant submits that the learned Claims Tribunal erred in fastening liability upon the insurer despite clear breach of policy conditions, inasmuch as the FIR,

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merg intimation and other police documents clearly indicate that the deceased was travelling in the offending goods vehicle as a passenger and not as a pedestrian. It is further submitted that use of the goods vehicle for carrying passengers amounted to fundamental breach of policy conditions. Learned counsel also argues that the offending vehicle, having gross weight of 4400 kilograms, was being operated without a valid permit, which amounts to statutory violation. According to him, despite these specific defences, the learned Tribunal closed the appellant’s opportunity to adduce evidence, failed to properly appreciate the criminal case records, and erroneously treated the deceased as a pedestrian, whereas in law the Insurance Company was either liable to be exonerated or, at least, entitled to recovery rights against the owner and driver of the offending vehicle.

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5. None has appeared on behalf of the respective respondents.

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6. I have heard learned counsel for the appellant and perused the material available on record.

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7. Upon careful perusal of the record, this Court finds that the principal contention raised by the appellant / Insurance Company is that the deceased was travelling in the offending goods vehicle as a gratuitous passenger and, therefore, her risk was not covered either under the policy or under Section 147 of the Motor Vehicles Act. However, the said contention

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does not merit acceptance in view of the evidence available on record.

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8. The evidence of AW-2 Jaiprakash Sahu, who is an eye-witness to the occurrence, assumes considerable significance. The said witness has categorically deposed before the learned Tribunal that at the time of accident the deceased Seema Nirmalkar was standing on the roadside and was hit by the offending vehicle after the driver lost control, as a result of which the vehicle overturned and ran over her. The testimony of this witness remains consistent on the material aspect of the manner of accident and nothing substantial has been elicited in crossexamination so as to discredit his version.

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9. Merely because in the FIR, merg intimation or other police papers there is reference suggesting that several persons were travelling in the vehicle, the same by itself cannot override the direct ocular testimony of an eye-witness who has appeared before the Court and subjected himself to cross-examination. It is well settled that entries in FIR or statements recorded during investigation are not substantive evidence and can only be used for limited purposes.

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10. In this regard, reliance may be placed upon Chamundeshwari Devi versus Jivrail Mian (2021) 18 SCC 596 , wherein the Supreme Court has categorically held that trustworthy eye-witness account

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adduced before the Tribunal carries greater evidentiary value than recitals contained in FIR or statements recorded under Section 161 CrPC, particularly when such witness withstands cross-examination and inspires confidence.

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11. Applying the aforesaid principle to the present case, the finding recorded by the learned Tribunal that the deceased was a pedestrian cannot be said to be erroneous or contrary to record. The appellant has not been able to demonstrate any material contradiction in the evidence of AW-2 so as to discard the ocular version and substitute it with contents of police papers alone.

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12. Once the evidence on record establishes that the deceased was a pedestrian and not an occupant of the goods vehicle, the plea of the Insurance Company that she was a gratuitous passenger and therefore not covered under the policy automatically loses its foundation. Consequently, the insurer cannot avoid statutory liability on that ground.

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13. So far as the second contention relating to absence of valid permit is concerned, this Court finds that except raising such plea in written statement and arguments, the appellant has not adduced sufficient and cogent evidence before the learned Tribunal to establish that on the date of accident the offending vehicle was being plied without a valid permit. No competent documentary proof from the transport authority has

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been produced to conclusively establish non-existence or invalidity of permit.

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14. Mere assertion regarding gross vehicle weight being 4400 kgs and requirement of permit is not sufficient unless supported by legal proof showing that the permit was absent or had expired on the relevant date. In motor accident claim proceedings, burden to establish breach of policy conditions squarely lies upon the insurer, and such burden cannot be said to have been discharged merely on the basis of pleadings.

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15. Even otherwise, no material is available to indicate that the alleged absence of permit had any causal nexus with occurrence of accident. The learned Tribunal, therefore, rightly held that breach of policy condition was not proved in accordance with law. This Court further finds that the learned Tribunal has appreciated both oral and documentary evidence in proper perspective and recorded findings based upon evidence available on record. The conclusions reached do not suffer from perversity, illegality or non-consideration of material evidence warranting interference in appeal.

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16. In view of the law laid down by the Supreme Court in Chamundeshwari Devi (Supra) and considering the consistent eye-witness account accepted by the learned Tribunal, no good ground is made out for interference with the award impugned herein.

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17. Consequently, the appeal being devoid of merit deserves

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to be and is accordingly dismissed . The award passed by the

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learned Claims Tribunal is affirmed.

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sd/-

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(Amitendra Kishore Prasad)