HIGH COURT OF CHHATTISGARH AT BILASPUR SB: Hon'ble Shri Justice R. L. Jhanwar, M.A.(C)No.976of2008 APPELLANT NON-APPUCANT No.1 RESPONDENTS Anil Choudhary. Versus Raghuvar Singh and others. ORDER For Pronouncement of Order 0^.03.2011 R.L. Jhaiiwar li-st-',,;:' 9 f 1 ^'<.1-- •"•,. X ' '<.^.--i-ss \^sy ^Pi~t~v"r.S&''-''' HIGH COURT OF CHHATTISGARH AT BILASPUR SB: Hon'bie Shri Justice R. L. Jhanwar, M.A.(C)No.976of2008 APPELLANT NON-APPUCANT J RESPONDENT CLAIMANTS Anii choudhary, S/o Satyadev Choudhary, aged about 41 years, R/o Vijeta Complex, Block No.3, HIG-316, New Rajendra Nagar, Raipur, Distt. Raipur (C.G.) (Driver of Offending Vehicle Maruti Car No. CG-02/2522) Versus 1. Raghuvar Singh, S/o late Ghasi Singh Parihar, aged about 60 years 2. Krishna Singh S/o Raghuvar Singh Parihar, aged about 27 years. Both R/o Village Khatti, Post Office Khatti Thana, Tahsil and District Mahasamund (Chhattisgarh) 3. Registrar, Sahakari Sansthyen, Ring Road No.1 Telibandha.Raipur, District Raipur (Chhattisgarh) (Regd. Owner of the Offending Vehicle Maruti Car No. CG 02/2522) 4. State of Chhattisgarh, Through Collector, Raipur, District Raipur (C.G.) APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLES ACT, 1994 Appearance: Shri S.C.Verma, counsel for theappellant. Shri Abhishek Saraf, counsel for the respondents No.1 & 2. Shri R.R.Sinha, P.L. for respondent No.3 & 4. RESPONDENTS N.A.NO.Za^S \ ORDER (Passed on &\ .03.2011) This appeat is directed against the impugned order dated 10.03.2008 passed by Motor Accidents Claims Tribunal, Mahasamund in Ciaim Case No. 97/2007 awarding compensation of Rs.1,24,000/- and fastening iiability on the respondents jointly and severally. 2. Before proceeding, it is pertinent to mention here that arising out of same Claim Case No.97/2007, one appeal being MA.(C) No.532/2008 was preferred by the clgimaoisj.e^j'espondents No.1 & 2 herein, for li"s\ "I S •^y ,4:'-r ^^-;i,.,,:^?S-'' enhancement of compensation of Rs.1 ,24,000/- before this Court. In that appeal, the appellant herein, was also arrayed as respondent No.1 and M.A.(C) No. 532/2008 has finally been decided on 08.09.2010 holding that compensation of Rs.1,24,000/- awarded by the Tribunal was just and reasonable compensation in the facts and circumstances ofthe case. 3. Admittedly, Maruti Car bearing No.CG 02 2522 (in short 'the offending vehicle') caused accident to Sumitra Bai, by its driver Dev Kumar due to his rash and negligent mannerand in the offending vehicle the appellant was found to have been seated. Admittedly, due to accident Sumitra Bai sustained injuries and thereafter succumbed to injuries. 4. On a claim petition being filed by the legal representatives for the death of Sumitra Bai in the motor accident seeking compensation of Rs.14,70,OCX)/-, the Tribunal, on close scrutiny of the evidence, material placed and submissions made by respective parties, held that there was no clinching evidence regarding exact income of the deceased led by the claimants and thought it fit to fix the monthly income of the deceased as Rs.15000/- and Rs.18,000/- per annum. After deducting 1/3 therefrom towards personal expenses of the deceased, the dependency of the claimants was worked out to Rs.12,000/-; taking into account the age of appeflant No.1 as 60 years, applied multiplier of 10on the annual dependency of Rs.12,000/-; ultimately worked out total compensation of Rs.1,20,000. The Tribunal awarded Rs.4,000/- under other permissible heads. Thus, the total compensation was worked out to Rs.1 ,24,000/-. Further, the Tribunal awarded interest at 6% per annum from the date of filing ofclaim petition till its realization. Thereafter, the Tribunal directed the appellant and respondents 3 & 4 to pay the compensation amount jointly and severally. 5. Although the claimants preferred an appea! for enhancement of compensation amount, this Court upheld the part in so far as it relates to compensation. In that appeal also, the appellant was made as party- respondent and was represented. Now, aggrieved by the same impugned award passed in claim case No.97/2007, the appellant preferred the present appeal for exonerating him from liability to pay compensation. 6. Learned counsel for the appellant submitted that eariier appeal being M.A.(C) No.532/2008 for enhancement was dismissed. He further submitted that arising out of the same impugned award passed in Claim Case No. 97/2007, the present appellant has preferred this appeal. He I f \. also argued that the present appellant was neither the driver nor owner of the offending vehicle and the appellant being employee of the Co- operative Societies, was going for official work and on the date of accident one Dev Kumar was driving the offending vehicle. He also put forth that the said offending vehicle was in possession of State Government and was in use of the appellant, the appellant is not responsible personally to pay' compensation and if it is held by this Court that he is also responsible to pay compensation, then he may be given to liberty to file a Civil Suit for recovery of awarded amount. 7. On the other hand, tearned counsel for the State argued that since in M.A.,(C) No.532/2008 being filed for enhancement of compensation this Court upheld impugned award by the Tribunal, the present appeal falls under the purview of resjudicata and the appellant cannot challenge the impugned order again as also he cannot be exonerated from paying compensation. 8. ! have heard learned counsel for the parties at tength and perused the record of the Court below including impugned order. 9. On perusal of order passed by this Court on 08.09.2010 in M.A.(C) No.532 of 2008, which was filed by the Ciaimants for enhancement, it is clear that present appellant was arrayed as party/respondent No.1 and was represented also and the said appeal came to be heard, learned counsel appearing for the respondents did neither apprised this Court that one appeal filed by the present appellant is also pending before this Court nor did raise any objection. Leamed counsel for the respondents merety opposed the appeal of the claimants. It is also clear from the order dt. 5.09.2010 that this Court upheld the compensation of Rs.1,24,000/- awarded by the Tribunal. A perusal of impugned order dated 10.03.2008 has also ctearly revealed that the Tribunal by awarding compensation of Rs.1,24,000/- held the respondents (before the Tribunal) jointly and severally liable for payment of compensation. 10. Now, the question that remains for my consideration is whether the Tribunal was justified in fastening the liability on the respondents jointly and severally to pay compensation amount. It is clear from the evidence of appellant that he was working in the capacity of Under Secretary in the Co-operative Societies and was posted in the Secretariat and the said offendjng vehicle was allotted to him. It is also clear from his evidence that S criminal case was registered against him and the said criminat case ^-"^; is pending before the Criminal Court. It has come in his evidence that on the date of accident Dev Kumar N.A.W.2 was driving the offending vehicle and this fact was also admitted by Dev Kumar N.A.W.2. Although Dev Kumar N.A.W.2 has admitted that he was driving the offending vehicle, in his cross-examination he has stated that he is not a Government employee nor he is temporary or daily wage employee. It has also come in the evidence 6f the appellant that he did not produce any document relating to appointment of Dev Kumar and that Dev Kumar was appointed as his Driver by the Govemment. If the evidence of appellant Anil Choudhary that on the date of Dev Kumar was driving the offending vehicle is taken into consideration, then he should have disclosed before the Police about the manner in which Dev Kumar was driving offending vehicle and should have produced the driving licence and appointment order of driver Dev Kumar. Although Dev Kumar admitted in his evidence that on the date of accident he was drh/ing the offending vehicle, but his admission in this regards appears to be an endeavour in getting the appeliant acquitted from the criminal case. It is to be noticed that when the investigation by the police relating to accident occurred on 21.04.2007 was going on, thenat that time Dev Kumar did not inform them that he was responsible for such accident and in turn entered witness box and adduced his evidence relating to accident. It is also to be noticed that appellant himself admitted that police have obtained his signatures on Ex.P.10 by virtue of which, offending vehicle and driving licence have seen seized by the police. Upon considering the evidence of the appellant and Dev Kumar, it is clear that offending vehicle was in possession of the appellant and he has been rightly held by the Tribunal that he was also responsible for cause of accident. 11, So far as the question of responsibility to pay compensation by respondents No.3 & 4 is concerned, both the respondents did not adduce any evidence showing that without their permission the offending vehicle was being used by the appellant nor did produce any document thereto. It was for them to prove that the offending vehicle was being used by the appellant unauthorizedly. This apart, it has not come on record that on what terms and conditions the offending vehicle was allotted and on the date of accident the offending vehicle was used for which work. Since respondents No.3 & 4 are the employers of the appellant, 1 am of the \: 1 • sii if S ".f ^ SSSSiSI: opinion that they also cannot be exonerated from their liability to pay compensation.. 12. !n view of the above, it is held thatthe offending vehicle was in possession of the appellant and on the date of accident the appellant was going in the offending vehicle and that on the date of accident the respondents No.3 & 4 are the owners. Therefore, the appellant and respondents No. 3 &4 are wholly responsible jointly and severally for payment of compensation. 13. After appreciating the evidence available on record and material placed before it, the learned Tribunal has rightly held the appellant and respondents No.3 & 4 jointly and severally liable for payment of compensation. 1 do not find any scope to interfere in the impugned order. 13. Consequently, the appeat being devoid of merit is liable to be and is hereby dismissed. Sd/- R.L. Jhaiiwar 1 ss;a