HIGH COURT OF CHHATTISGARH AT BILASPUR Coram:- Hon'ble Shri N.K. Aaarwal & Hon'ble Shri R.N. Chandrakar. JJ M.A.(C)No.539 of 2007 Appellant/ Non Applicant No.2 Respondents/ Claimants Appellants/ } Claimants ^ Virendra Kumar Pandey, S/o Shyam Kumar Pandey, aged about 40 years, Cast- Brahman, R/o Dharampura, behind Degree College, Agriculture Colony, Jagdalpur, District - Bastar (Chhattisgarh) Versus 1. Pawan Nag S/o Late. Mohan Singh Nag, aged about 26 years. 2. Mithila Nag D/o Late. Mohan Singh, aged about 24 years. 3. Parwati Wd/ Late. Ram Singh All above R/o Dharampura No.2, Jagdalpur District-Bastar (Chhattisgarh) 4. Arjun Lal Baghel S/o Saradulal Baghet R/o Hlkmipara, near Taxi Stand, Jagdalpur, District- Bastar (CG) Non Applicant No 1 5. The Oriental Insurance Company Ltd., Through - Branch Manager, Main Road, Jagdalpur, District - Bastar (Chhattisgarh) AND M.A. (Cl No. 697 of 2007 1. Pavan Naag son of Late Mohan Singh Naag, aged about 26 years (now 28 years) ^ 2. Ku. Mithila Naag D/o Late Mohan Singh Naag, aged about 24 years; (now 26 years) mw '-^. 3. Respondents/ Non-applicants Parvati Singh wife of Late Ram All resident of Dharampura, Jagdalpur, Bastar(C.G.) Versus 1. ArjunlalBaghel Son of Saradu Lal Baghel; Resident of Hikmipara "Near Taxi Stand" Jagdalpur, District Bastar (Driver) 2. Virendra Kumar Pandey son of Shyam Kumar Pandey, Caste "Brahmin", resident of Dharampura "Behind College", AgriculturalColony Jagdalpur, District Bastar (C.G.) (Owner of Vehicle) 3. The Oriental Insurance Company Limited, Through: Branch Manager, Main Road Jagdalpur, District Bastar MISCELLANEOUS APPEALs UNDER SECTION 173 OF THE MOTOR VEHICLES ACT Appearance: (In M.A.(C)No.539/2007) Shri Manoj Paranjape, counsel for the appellant. Shri R.N. Jha, counselforrespondent No.1 to4. Shri SudhirAgrawal,counsel for respondent No.5. (In M.A.(C)No.697/2007) Shri R.N. Jha, counsel for the appellants. Shri Manoj Paranjape, counsel for respondent No.2. Shri SudhirAgrawal, counsel for respondent No.3. m^^ ^•^^ 1 . C' Order (24.11.2011) Following order of the Court was passed by N.K. Aaarwal. J. Heard. 1) M.A.(C)No.539/2007 filed by the owner of the vehicle and M.A.(C)No.697/2007 filed by the claimants are being disposedof by this common order since common question of law and fact arises in both the appeals. 2) As against the compensation ofRs. 10,65,00007- claimed by the major son, daughter and sister of deceased Mohan Singh by filing an application under Section 166 of the Motor Vehicles Act, for his death, the learned Tribunal has awarded a total sum of Rs.1,45,680/- as compensation to the claimants along with interest @ 6% per annum from the date of filing of the gpplication till the date of actual payment. 3) The learned Tribunal on a close scrutiny of the evidence led before it held that the accident had occurred due to rash and negligent driving ofjeep bearing registration No. CG-17/ZT-0117 by itsdriver Arjunlal Baghel; Mohan Singh died on account of injury sustained by him in the said accident; respondent No.5-the Onental Insurance Company Limited was not held liable for payment of compensation as claimants failed to prove .that the vehicle was insured at the time of accident; assessed and awarded the aforesaid sum as compensation along with interest @ 6% per annum from the dateof filing of the application till the date of actual payment holding liable appellanVowner and respondent No.4, driver of the vehicle for payment of compensation. 4) The cross objection preferred by respondent No.5-the Oriental Insurance Company Limited is dismissed as not pressed. \ t- 4 mniudii 5) Appellant in M.A.(C)No.539/2007 has also filed an application under order 41 Rule 27 of the Civil Procedure Code (for short the 'Code) for admission of documentary evidence i.e. insurance policy Annexure A-2, A-3 and A-4 issued by respondent No.S-the Oriental Insurance Company Limited for the period 23.03.2004 upto 22.03.2005, 25.03.2005 upto 24.03.2006 and 25.03.2006 upto 24.03.2007. However, in view of the fact that respondent No.5-the Oriental Insurance Company Limited has categorically admitted that the offending vehicle bearing registration No.CG- 17/ZT-0117 was insured by it for the relevant period i.e. the date of accident, therefore, there is no need to admit the documents filed by the appellant/owner of the vehicle. 6) In view of clear admission on behalf of respondent No.5, it is crystal clear that the Tribunal has wrongly exonerated respondent No.5-the Oriental Insurance Company Limited from its liability for payment of compensation on the premise that vehicle bearing registration No. CG-17/ZF-0117 is the insured vehicle and notthe vehicle NO.CG-17/ZT-0117, which is not sustainable in law and deserved to be and is, accordingty set aside. 7) Shri Manoj Paranjape, learned .counsel appearing for the appellant would submit; the offending jeep was not involved in the accident. The FIR Ex.P/1 filedby the claimant himself would reveal that vehicle involved in the accident is CG-17/C-0002. Dehati nalisi filed in the case by the appellant/claimant is of the same effect. The Tribunal ignoring all the above facts and without affording proper opportunity to lead evidence to the appellant/owner has held vehicle owned by him i.e. offending vehicle was involved in the accident and thereby has passed the award impugned. 8) Shri Sudhir Agrawal, learned counsel appearing for the respondent No^S-the Oriental Insurance Company Limited also supported the plea taken by the appellanVowner of the vehicle. \. ".. 9) On the other hand, Shri R.N. Jha, learned counsel appearing for the appellants/claimants would submit; the Tribunal has rightly held, the offending vehicle was involved in the accident. It was further contended, in any case theappellants/claimants are ready to adduce further evidence in Support of his plea regarding involvement of the offending vehicle. 10) We have perused the records of the Tribunal including award impugned. ' 11) As per FIR Ex.P/1 and dehatinaiisi Ex.D/3, eye witness Mukesh Kotle (AW/3) has lodged report showing jeep No.CG-17/C-0002 as the offending vehicle. 12) The FIR Ex.P/1 has been filed by the appellanVclaimant to prove the accident. Therefore, once a part of the contents of a document viz. the FIR, is admitted in evidence, the party bringing the same on record cannot bepermitted to turnround and contend that the other contents, contained in the rest part thereof, had not bee proved as held by Supreme Court in Oriental Insurance Companv Limited V. Preitilata Shukla and others (2007)13 SCC 476 13) The written statement filed by the appellanVowner also reveals that they have denied the fact that any accident had occurred by the offending vehicle. The learned Tribunal without taking into consideration the above fact and without making proper enquiry thereof with regard to the fact that which one of the vehicle is involved in the accident has held that the offending vehicle is involved 14) Be that as it may, it is crystal clear that the Tribunal has passed the award without affordingsufficient opportunity to lead evidence and to file ddcuments to the parties to prove which of the vehicle was involv^ in the accident. Therefore, the award impugned being not su^ainable in law, deserves to be and is, hereby set aside. Jri^~1l Vijay &J 15) For the reasons mentioned hereinabove, both the appeals are allowed. Award impugned is set aside. The matter is remitted back to the concerned Tribunal for deciding claim petition afresh in the light of observations made hereinabove that the offending vehicle is insured with respondent No.5. 16) Needless to mention here that the Tribunal shall provide proper and sufficient opportunity to both the parties to adduce evidence and to file additional documents, if any. 17) The amount deposited by the appellant/owner before the Tribunal need not be refunded by the claimants and same shall be adjustedat the time of passing of final award. 18) Records of the Tribunal be sent back forthwith. 19) Both the parties are directed to appear before the Tribunal on 09.01.2012. 20) No order as to costs. Sd/- | N.K. Agarwal Judge I Sd/- R.N. Chandrakar Judge