^? lit ;^-. 1II II* I? N) -Q- 5* M % p- 1f. 1 g 1i •^ 1:;i- 3 2!' 1 ^l—t'.' :1 1i§ § 1 M^. r »• :9K ^^^^•••^^!M WSU 7 HIGH COURT OF CHHATTISGARH. BILASPUR M.A.fCI No. 934 of 2007 i APPBLLANT RESPONDENT THE NEW INDIA ASSURANCB CO. LTD., MADINA BUILDING, KUTCHERY CHOWK, RAIPUR (C.G.) Versus 1 GEETABAI D/0 MANIKRAM SAHU AGE ABOUT39YRS., 2 MANIK RAM SAHU S/0 LATE SHOBHA RAM SAHU AGE ABOUT 55 YRS., RESPONDENTS N0.- 1 8s 2, RESIDENT FOR VILLAGE BANCHARODA, POST- CHHATERA, THANA ARANG, DISTT. RAIPUR (C.G.) 3 TEJRAM ALIAS MANTRAM S/0 GOKUL SAHU AGE ABOUT 30 YEARS, RESIDENT FOR BARBASPUR (BIRKONI), THANA - MAHASAMUND, DISTT.- MAHASAMUND (C.G.) 4 DEMAN KUMAR S/0 PREMLAL CHANDRAKAR, RESIDENT OF VILLAGE CHHATONA (PARFOD), THANA ARANG, DISTT. RAIPUR (C.G.) fAPPEAL IWDBR SECnOIi 173 OF THB MOTOR VEStClXS ACT. 1988t Appearaaace: Shri Sudhir Agrawal, couusel for fhe appeUant, DIVSSION BBNCH: HON'BLB SHRI JA6DI8H BHALLA. Aff. C.J & HON'BLB SHRI SUNIL KUMAR SINHA. J, ORDER ( .08.2007) Following Order of fhe Court was deUvered by Sussil Kiitnar Sitiha. J» (1) Beiag aggrieved with flie award dated 30.4.2007 passed by flie 3rd Additional Motor Accident Claiiiis Tribunal, Raipur in Claim Case No^ 22/2006, fhe Insm^nce Company has prefeiTed this appeal. myv M.A.(CTNo. 954 of2007 (2) The brief facts are fhat on 26.4.2006, fhe deccased- Pamiaiiand Sahu, aged about 20 years, was workiag as a conductor in Mini Bus No. C.G. 04 ZA/0322. Respondent No. 3 was fhe driver and respondent No.4 was fhe rcgistercd owner of fhe said vehicle. As usual, wheu the Bus was goiag towards Raipur, on the way, with an mtention to stop the Bus, the diiver all of sudden applied heavy break, due to which, fhe deceased, who was standing near the door, feU down from the Bus and rcceived maay injiiries. He was taken to Ambedkar Hospital, Raipur, x^herc he died on 2.5.2006 during tiie coiirse of his treatmeiit. (3) Iu claim petition, the claimant- respondent No,l, who is mofher of tlie deceased, pleaded fhat when fhe deceased was aged about 6 months, she had taken divorce from her husbaad namety- Gopal Sahu and was residmg wifh her fafher, respondent No.2 aad they were the only dependents of the deceased, They pleaded the mcome of the deceased to be Rs.200/- per day and in addition to the ground ?xtfthe loss of earoing, on maay ofher grounds, they claimed a total sum of Rs.12,50,000/-. (4) The aforesaid claim was resisted by fhe owner and ftie driver as also fhe Insuraiice Compaay. The owner took a plea that, iii fact, tlie deceased himself was negligent aiid was i^sponsible for fhe said accident, As fai' as iacome is concemed, fhe owner contended tliat the deceased was gettiag Rs.70/- per \^-- m M.A.fONo. 954 of2007 day as salaiy and Rs.50/- was also given to him as aUowances and in this maiiner, he was eamuig Rs.120/- per day. The Insuraace Compaiiy, after obtaiaiag permission under Section 170 ofthe Motor Vehicles Act, completely denied tlie claim filed by rc-spoudeats No, 1 & 2. It also took fhe stafutoiy defence of brcach of policy 011 account of validity of permit and driving license offhe dxiver. (5} Learned Claims Tribunal framed variozis issues in this case and after takmg evidence of fhe partles, rccorded a fiiidmg that the deceased feU down froni the Bus on account.ofrash and negUgeut drivmg of the driver. It held fhat the deceased was eammg Rs. 120/- per day and he must be workmg for 24 days in a m.oufh, on account ofwhich, his monfhly uicome was assessed to be Rs.2,880/-. After deductuig l/3rd towards fhe personal expenses ofthe deceased, the Tribunal assessed fhe dependency to fhe tmie of Rs.1,920/- per monfh and after applyiag fhe niultiplier of 13, it assessed the araount of compensation towards the loss ofearaing in suni ofRs.2,99,520/-. Apart froni fhis, on accouiit of mental agony Rs.5,000/- and funeial expenses Rs.2,000/- was awai-ded and ultmiatety an awaid of Rs.3,06,520/- along with iatercst @ 6% per annziin from fhe date of application was passed in favour of the claiiiiaiits/rcspondente No. 1 & 2. 1^< (6) Leaiiied couusel for the appellaiit argued that it has not been estabUshed that fhe deafli was caused due to insli and I.A.rONo. 954 of2007 negligent driviag offhe oflfending vehicle, He subimtted fhat on appreciation of evidence, it would appear that in fact, fhe deceased himselfwas negUgent. (7) We have cai^fully considered this poiat, The Tribunal has recorded fhe fmding ofrash and negUgent driving on the basis of evideuce of an eye witness namely- Vij'ay Kumar Nishad, who was examiaed as AW-2. He has stated that on the fateful da}^, he was a passenger in fhe offending Bus. The deceased, who was the condzictor, was standuig uear the gate of the Bus and as some animals came in front of the Bus 011 the road, the driver applied brcak to fhe vehicle, which was ruiiniug on the speed of 60-70 k.m. per hozirs, due to which the conductor feU down from the Bus. He along wifli the driver, brought tlie coiiductor to Medical College, Raipur. The Tribunal has duly apprcciated fhis evidence and after such appreciation, it has recorded a findiag that m fact, the accideut cx;curred due to rash aad negligent driving of fhe oflTendmg vehicle by tfae driver. We firid that fhe finduig rccorded by fhe Tribuiial is based on positive evidence and the same cannot be held to be en'oneous aiid luisustaiaable. (8} It is a setded prmciple that in such cases, fhe Tribtinal is required io. law to give its finding 011 probabilities and not on provuig fhe offence beyond reasonable doiibt as is doiie by a cnmmal court, r M.A.fQNo. 954 of2007 ^NK- (9} Having heard learned counsel for the appeUaiit, haviag perused fhe rccords of the Misc. Appeal, particiilarly the copy of evidence of eye witaess, we find fhat there is 110 force in tibie argumeHts advanced by fhe leamed counsel for the appeUant. The Tribunal has rightly recorded fhe fmding on rash aad negUgent driving ofthe offendiag vehicle. (10) No other point was raised beforc us. (11) There is no substaace in the appeal, fhe same is Uable to be dismissed and is acx(onlmgly dismissed,_ Sd/- Ag. Chief Justice Sd/- Sunil Kumar Sinha Judge ^ vatti