^AGE IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR MISC. APPEAL FC1 No... \M APPELLANTS: - [Claimants] / ^' ^^ y ^y' ^yy <? / ^' ^ / -<? ^' •'^ .' ^' ^' ^ CTf~ 72008 D.B. Twy^ B3 1. Smt. Jyoti Goswami, Age-28 Years Widow ofLate Somesh Giri Goswami, 2. Abhay Giri, Age- 06 Year [Minor] S/0 Late Somesh Giri Goswami, 3. Ku. Aaditi, Age- 03 Year [Minor] D/0 Late Somesh Giri Goswami, 4. Ganesh Giri, Age- 60 Year S/0 Late Ramhan Giri, Cultivator, 5. Smt. Ganga Bai, Age- 50 Years, W/0 Shri Ganesh Goswami, [Appellant no.02 & 03 are minor son & daughter of the deceased & is being represented by appellant no.Ol, Mother] All the above are R/0-Village- Khuteri, Post- Tusda, Tahsil 85 Distt:-Mahasamund (C.G.) : VER SU S: RESPONDENTS: - (Non-applicants) 1. Jagan @ Jageshwar Kanouje, ^ Age- 40 Years, Driver, S/0 Somnath Kanhouje, R/0 :-Ward No.18, Kumharpara, Mahasamund Distt. Mahasamund [C.G.] i [Driver ofMini-Bus No.C.G./04/ZA/0764] •^ 2. Smt. Rashmi Rathore, Age- 30 Years, W/0 Shri Bhupendra Rathore, R/0:- Ward No.02, Imli-Bhata, Mahasamund, Distt. Mahasamund [C.G.] [Owner ofTruck No.C.G./04/ZA/0764] ^.^'^l!»i-.AuH£ ^-3. The New India Insurance Com. Ltd. Through Divisional-Manager, B.O. at Madina Building Katchari-Chowk, Raipur, Distt. Raipur [C.G.] [Ins. Com. ofMiniBus No.C.G./04/ZA/0764] : MEMO OF MISC.APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLE ACT. :- ^ ^ HIGH COURT OF CHHATTISGARH AT BILASPUR MISC. APPEAimo. 162372008 APPELLANTS RESPONDENT Smt. Jyoti Goswami and others Versus Jagan @ Jageshwar Kanouje and others Order For consideration \^ -11-2009 Hon»bleShri Satish K. Aenihotri, J J Sd/- Satish K. Agnihotri Judge Sd/- N. K. Agarwal Judge Postfor2P-ll-2009 Sd/- N. K. Agarwal Judge HIGH COURT QF CHHATTISGARH AT BILASPUR MISC. APPEA^No. 1623/2008 APPEAL UNDER SECTION 1730F THE MOTOR VEHICLB ACT 1988 APPELLANTS Smt. Jyoti Goswami others Versus and RESPONDENT Jagan @ Jageshwar Kanouje and others DIVISION BENCH:- Hon. Shri Satish K. Agnihotri and Hon. Shri N.K. Agarwal, JJ PRESENT:- Shri J.A. Lohani, Advocate, for appellants. Shri Raj Awasthi, Advocate, for respondent No. 3. O R D E R ( ^o -11-2009) Per N.K. Agarwal, J. 1. The instant appeal has been directed by the appellants/claimants against the award dated 12-8- 2008 passed by the Chief Motor Accident Claims Tribunal, Mahasamund in Claim Case No. 37/2008, whereby and whereunder the claim petition of the claimants filed under Section 166 of the Motor Vehicles Act, 1988 (briefly (the Act') for the death of Somesh Giri Goswami, has been rejected. 2. Brief facts of the case are that appellants/claimants are widow, children and parents of the deceased. On 17-10-2007, deceased Somesh Giri Goswami was going from Mahasamund to Bagbahara in the bus bearing registration No. CG-04-AZ-0764 as conductor of the bus. At about 7.30 am, near Chhattisgarh School, the driver of the bus/respondent No. 1 driving the bus in a rash and .^^^^;^w^^ negligent manner, applied break all of a sudden, as a result of which, Somesh Giri Goswami fell down and succumbed to the injuries sustained in thesaid accident. The appellants/claimants preferred application under Section 166 of the Motor Vehicles Act, 1988 claiming Rs. 15,48,000/- as compensation on account of death ofSomesh Giri Goswami. Respondents No. 1 and 2 filed their reply and pleaded that at the time of accident, the deceased was not working as conductor of the minibus, but he was travelling in the minibus and on account of attack of Mirgi (Epilepsy), he fell down from the bus and pursuant thereto, he died, for which no one can be blamed but for himself. Learned Tribunal on a close scrutiny ofthe evidence led, the documents filed and the submissions made by the parties assessed monthly income of the deceased at Rs. 4,500/- i.e. Rs. 54,000/- per annum, by deducting l/3rd of it towards personal expenses, assessed loss of dependency at Rs. 36,000/- per annum, applied multiplierof 12, thus assessed Rs. 4,32,OOO/- on account of loss of dependency.By adding in it Rs. 4,000/- towards other heads, assessed a total sum of Rs. 4,36,OOO/- as compensation payable to the claimants, but dismissed the claim on account of their failure to prove negligent driving by the respondent No. 1 i.e. the driver of the bus. Hence this appeal. Shri J.A. Lohani, learned counsel appearing for the appellants, submitted that learned Tribunal has erred in recording a finding that the accident did not occur on account of rash and negligent driving by the driver of the bus in question and thus erred in dismissing the claim application ofthe claimants. /f-^ 'l ^Bfe 1 ^s^/t../' 7. Per contra, Shri Raj Awasthi, learned counsel appearing for the respondent No. 3 supported the award and submitted that the finding recorded by the Tribunal is based on cogent evidence and deserves to be upheld. 8. The question arises for consideration in the instant appeal is :- Whether the learned Tribunal has rightly held that the respondent No7 1 was not responsible for the accident in question ? 9. The claimanfs have specifically pleaded in para 4A of the claim petition that the deceased fell down froni the bus due to sudden application of break by the driver of the bus. In their reply, the respondents No. 1 and 2 i.e. the driver and the owner of the bus, have pleaded that the deceased was not working as conductor of the vehicle but while travelling in the bus, he fell down from the bus due to attack of Mirgi, for that, the driver cannot be blamed. It was further pleaded in the additional pleadings by them that the deceased jumped from vehicle and due to that he died. Thus, the burden to prove the fact, deceased died on account of his own negligence or due to some natural cause i.e. due to attackof Mirgi is upon the respondents, but they utterly failed to discharge the same inasmuch as the respondents did not examine any witness nor produced any material to establish the plea taken by them nor the same was proved by cross-examining the claimants' witnesses. In the absence of proof of plea taken by the respondents, the plea taken by the claimants stands un-rebutted. It is also settled law that no amount of evidence can be looked into in absence of pleading. Learned Tribunal on assumptions and presumptions recorded a finding that the driver of the vehicle was not negligent in driving the vehicle which on the face appears to be contrary to the case pleaded by the parties. 10. Merely because the deceased was standing near gate of the bus, it cannot be said that he died on account of his own negligence. A bare reading of police papers filed and exhibited in the case and the statements deposed by the witnesses, it is crystal clear that the said accident occurred due to rash and negligent driving of the driver of the bus. 11. For the foregoing reasons, in our considered opinion, the above said finding has been recorded by learned Tribunal without scrutinizing the evidence led in the case by the parties ignoring the well settled principle of law that no amount of evidence can be looked into without pleading, by ignoring the fact that the respondents failed to prove that the said accident occurred on account of attack of Mirgi to the deceased, and therefore, the aforesaid finding recorded by the Tribunal is not sustainable in law and is liable to be and is hereby set aside. 12. Since the amount of compensation has already been assessed by learned Tribunal and the claimants feelsatisfied with the said assessment, therefore, we do not deem fit to interfere in the said finding and the same is upheld. 13. In the result, the appeal is allowed. Following award is passed in favour ofthe appellants/claimants:- (i) The appellants are entitled for Rs. 4,36,000/- as compensation, for this the respondent shall be jointly and severely liable for its payment; (ii) The respondents shall be further liable to pay interest at the rate of 6% per annum on the amount of compensation from the date of the application till its payment. (iii) Out of the amount of compensation, Rs. 90,400/- shall be payable to the appellant No. 1 and the remaining amount of compensation shall be equally apportioned between other claimants; (iv) The share of minor appellants be kept in the form of fbced deposit till their attaining majority and with a direction that the same shall not be allowed to be withdrawn without permission of the Tribunal; (v) Out of the amount payable to major appellants, 50% amount shall be kept in the form of fixed deposit for a period of 5 years and the remaining amount shall be disbursed to them. (vi) The cost of the claim petition as well as the appeal shall be born by the respondents. Sd/- Satish K. Agnihotri Judge Sd/- N. K. Agarwal Judge