HIGH COURT OF CHHATTISGARH AT BILASPUR SB: Hon'bleShri Justice R. L. Jhanwar, M. A. No.773 of 2003 APPELLANT (Insurer) RESPONDENTS Oriental Insurance Company. Versus Santu and others. ORDER ForPronouncement of Qrder ^ .01.2011 Sd/- •L. Jhanwar llilli'ii'"^- t"'nii'i"'n'<f^-^^^-^^p^^.;^' i'.:.',;:•«'"';•••"-r':^-Ets^^uBK^'^'•i^'^S^^i&i^ "ViSSas. 1 'v s HIGH COURTOF CHHATTISGARH AT BILASPUR SB: Hon'ble Shri Justice R. L. Jhanwar, M.A. No. 773 of 2003 APPELLANT (Insurer) RESPONDENTS Oriental Insurance Company through its Divisional Manager, Opposite High Court, Bilaspur Versus 1. Santu alias Satyanarayan, aged 38 years, s/o late Dayaram Chandrakar, (Driver/co-ownec) 2. Firangiram, aged\ 52 years, s/c late Dayaram Chandrakar (Co-owner) 3. Pooran Chandrakar, \aged years, s/o late Dayaram Chandrakar (Co-owner) 4. Smt. Sushila Bai widow of late Santosh Kumar, aged 23 years (ClaimanVwife) 5. Smt. Teejan Bai widowoflate Bh;khari Kurmi, aged 50 years. (Claimaiit/mQther) 6. Ku. Sarojini alias Kani, aged 10 years (minor, d/o late Bhikhari Kurmi, through her natural guardian/mother Smt. Tsejan Bai widow of late Bhikhari Ki.imari (Claimant/dependant sister). All r/o village - Lagra, teHsil-Pandhariya, district Kawardha); •' APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLES AC' Appearance: Shri Vinay Harit, Senior Advocate with Shri Surya' Kant Mislira, counsel for the appellant. Shri Pawan Kesharwani.-'counselforrespondents No.1 &2.! ' ' None for respondent No.3. ' Shri Aditya Sharma, Advocate appears on behalf If Shri Vimlesh Bajpai, counsel for respondents No.4, 5 & 6. ORDER ; (Passedon^.01.2011) ' This is an appeal by the Oriental Insurance Company Limifed against the order dated 03.05.2,003 passed by the 2nd Additional Motor Accidents Claims Tribunal (F.T.C.), Mungeli, Dist. Bilaspur in Claim Cases No.23/2002 and 40/2002 whereby the learned Claimsjribunal has li:'i !'!i"'1""l' "1, •S, ..;;..s>> !i r awarded Rs.2,11,000/- as total compensation to the respondents No.4 to 6/claimants in a death case. 2. As against the compensation of Rs.7,00,000/- and Rs.6,60,000/- respectively claimed by theclaimants byfiling two separate claim petitions under Section 166 ofthe-Motor Vehicles Act for the death of Santosh Kumar in the motor accident occurred on 22.1.1996, the Tribunal, on dose scrutiny of the evidence adduced by the parties and after hearing submissions made by them, held that on the date of accident, respondent No.1 was driving the tractor bearing No. M.P.26/5275 and trolley bearing No.M.P.26/5274 (for short 'the offending vehicle') in a rash and negliaent manner; due to rash and negligent manner of driving by its driver Santosh Kumar, who was found to have been sitting on the said offending vehicle for doing agricultural job, has died. The Tribunal directed.,the respondsnts to pay compensation amount awarded by it, jointly and severally, with interest at 9% p.a. from the date of filing of claim petition till its realization. 3. Being aggrieved by the impugned order dated 03105.2003, the insurance company is before this Court. 4. Shri Vinay Harit, learned Senior Advocate with Shri Surya Kant Mishrerfor the-appellant iVehemently argued' that in this cas^ the accident occurred on 22.1.1996 and the report thereof was lodged ot) 19.04.12396 i.e. after a lapse of 2 months which shows that no incident took place snd a false and fabricated has been filed against the owners and insurance company. He further argued that learned Claims Tribunal, has erred in hpldirig at pn th^ datg,,of;^cc]denjt,_the re.sponde.nt No.1;./.Driver was holding a valid and effective driving licence whereas the learned Clsims Tribunal ought to have held that at the time of accident, the driver was not holding a valid driving licence. The next argument is that the deceased Santosh Kumar died due to malaria and not in theaccident whereas the learned Claims Tribunal has committed an error in'recording finding that the deceased Santosh Kumar died in th6 motor accident on 22.1.1996 in I : the absence of medical evidence or post-mortem report. The sast argument is that on the date Qf accident the said offending vehicle was carried cruShed stones while it was insured for agricultural purpose. On l':li!'i1"1"1 f^i^ii •iiiaj^i^^^^^ s. •"^•i"' ••^s-y these premises, it was urged that the insurance company is not at all liable to pay compensation andthus, the impugned award be quashed. 5. Shri Pawan Kesharwani, learned counsel for respondents No.1 & 2 argued in supportof the impugned award. -» 6. On the other hand, Shri Aditya Sharma, learned counsel for respondents No. 4 to 6 argued that no doubt F.I.R. was lodged after a delay of more than 2 months because the owner of the tractor trolleynad assured the family of the victim to pay compensation and also medical expenses, but when he refused to-pay even single penny, then only repart was lodged. It was also argued that due to norbeing-i-eceived even single penny from the owner, Bhikhari, father of the deceased al?o committed suicide and for that F.1.R. wasalso lodged and charge^sheet was filed before the concerned court. The factum oflodging F.1.R. belatedly has already'conne'iri'tlib"evi'derh'cre7ctliere:F6re, the delay in lodgingthe F.IR. belatedly of no use and the learned Claims Tribunal has rightly awarued compensation. 7. I have heard learned counsel for the parties at lengtH and perussd the record of the Tribunal as also impugned award. 8. Admittedly, respondent No.4 is the wife of the deceased Santosh Kumar, vyho was working as agricultural labour under respondentS[No.'i to 3, co-owners of the said offending vehicle. It has also come jn evidence of A.W.1 Sushila Bai that she came to know about the death of her husbsnd jdrtractor mi$hap. .f$he,t;ic|s, ^^pqigect-that herhysbahd :was, eaming Rs.5Q - 60 per day. She has categorically deposed that her father in lav\( did not lodge the report of incident since he was directed by the owner of the tractor trolley to conceal the case. She has specifically deposed that owner of the. tractor trolley had also infomned her not to repbrt the'matter to the police station and they will compensate them',but they did not pay even single penny and due f.6 that her father in law committed suicide. Teejan Bai, mother of the deceased - Sanfosh Kumar has inter alia stated that her son was travelling in the tractor -'trolley owned by respondents No.1 to 3 aod died as a .result of tractor mishap. She has also stated that '! , ~'^:~''^ : ^^ ~ ^~^ ~^~^^ i T^ .•"i-'1': • - herhusband-Bhikhari was assured by the owner of thetrac^or-trolleyto -get adequate compensation if he would not report thejnatter of incident t^3^tS"Kt&.^^•••^^ES'^-^. but the owner of the tractor trolley did not pay compensation amount and due to that her husband Bhikhari committed suicide. As against tiiis, owner of the tractor trolley hasstated nothing. In this manner, it is clear that because of the assurance of owner of tractor trolley that he will compensate them adequately, matter of incident wasnot reported immediately and thereafter since the owner of the tractor trolley turned down father in lawofA.W.1 Sushila Bai committed suicide, as such the report of incident was lodged belatedly. The learned Claims Tribunal has rightly held on this point. 9. So far as the argumentthat on the dat&of incident thedriver vi/as not holding valid driving licence is concerned, N.A.W.3\Anil Sao, Assistant Administrator of the insurance company, has deposed that the driv;ng licence of respondent No.1 was issued on 28.11.1996 as shown in Ex.D.2 whereas the accident took place on 22.1.1996 i.e. for a'period 6f 10 mbnths'after accident'the"dfi\/ing"li'cencetwas'issued and therefore, thte driver / respondent, on the daite of accident, was not having valid and effective driving licence to drive the offending vehicle. In cross- examination, he has stated that neither any employee nor any officer nad come to enter witness box to adduce evidence about the driving licence. He has_admitted that concerned Regional Transport Officer has submitied a report regarding driving licence of respondent No.1. In further cross- examination, he has fairly admitted that investigating report regarding driving licence of respondent was submitted before the insurance companyon 5.4.1997. However, on perusalof record nosuch document toshow thereof has been found on record. The insurance company has not been able to prove that driver was not holding any valid and effective driving licence at the time of accident. It was the duty of the insures' to adduce evidence by any officer or employee of theconcerned R.T.O. for I • provingthattHe driver ofthe offending vehicle was not holding a valid and ' ' . ' - . ~ • . ' ' l' . effective driving licence on the date of accident. s 10. As regards the contentiori that the deceased died of malaria and not in the tractortrolley mishap,,it has come in the evidehceofA.W.1 Sushila Bai thaton the date of accidentthe deceased Santosh Kumat v/as engaged as labourer and was going on the said offendjng vehicle arid the sakJ offending vehicle was. being driven by respondent No.1 - Santu 'in a II-;!' "r: 'rar rash and negligent manner. A.W.1 Sushila Bai has specifically stated that her father in law informed about the death of her husband which took place as a result of said offending vehicle. She has specifically stated that her husband died in the motor accident. She has categorically stated that her husband - Santosh Kumar did not jump from the said offending vehicle. Supporting the evidence of Sushila Bai A.W.1, Teejan Bai, who is the mother of the deceased - Santosh Kumar, has deposed thst the deceased was working as labourer under the respondents No.1 to 3 and on the date of accident, he hgd been with respondent No.1, who was driving the said offending vehicle carrying crushing stones. It has also come in her evidence that the deceased was found to have been sittinci on the trolley along with other labourers and the said tractor was being driven 1 in a rash and negligent manner, due to which, the deceased Santosh I Kumar fell down from the tractor and received injuries and died 1 instantaneously. A.W.2 Phaneshwar Prasad fully corroborated the evidence of Teejan Bai. Thus, it is clear that the deceased was travelling as labour on the said offending vehicle and due to rash and negligent manner of driving by its driver, death of Santosh Kumar ttiok place in such mishap. The appellant insurance company did not adduce any evidence that Santosh died of malaria and not in the tractor trolley mishap. It was incumbent upon the insurer to prove the same by leading cogent i •• : evidence. 11. So far as the last argument that the tractor trolley was being used for commercial purpose on the date of accident is coricerned, i; is evidently clear from the insurance policy Ex.D.1 that it is comprehensive policy. It is nowhere mentioned in Ex.D.1 that the use of tractor troliey is for agnc(jlturaFpurpose."T^ore5ver,~'iearneci~counsel for the appellani has not been able to show that carrying crushing stones in tractor trolley was not for agricuftural purpose nor has been able file any document thereof. It has come in the evidence ofTeejan Bai and PhaneshwarPrasad A.W.2 that the said offending vehiclewas being used for agricultura) purpose and crushing stones were being carried out and the insurance company could not rebut the same by addueing cogent evidence on this point. Theretbre, the insurance company has failed to prove that tractor trolley was not used for agricultural purpose. ^ rrv -r-rrr-c;:'-"-^ "• !-r''r'<:-<'i !-..fffircir^vf-K- f^ 1: 'NN'1!-' 12. It is evidently clear in the insurance policy Ex.D.1 that premium of Rs.105/- was being charged by the insurerfor paid driver and workmen 7 in number shows that one paid driver plus 6 labourers (workmen) can travel in the tractor trolley. -Moreover, Anil Sao N.A.W.3 in his evidence has only deposed about the driving licence and has not deposed anything about the insurance policy meaning thereby that tractor trolley was ins-ired with the insurer and premiumwas being charged by it for 6 coolies. In this view of the matter, the appellant / insurance company has not been able to produce any documents in support of its oral evidence nbr was led any cogent evidence to rebut the evidence adduced by the claimants. More so, it has also nqt been able to point out anything about the insurance policy wherein premium of Rs.105/- was being charged for paid driver and for7workmen. \ '. : ' * • 13. For the foregoing reasons, l am of the considered view that tlie findings recorded by the Tribunal are purely based on clinching, cogent and reliable evidence--sustairi'ableunder law and 'do ^not ca;l for interferehce. ' 14. In the result, the appeal is dismissed being devoid of merit and substance. No order as to costs. Sd/- R.L. Jhasiwar Judge Hliffi-i-ilN'll-