'••\ ^v HIGH CQURTOF CHHATTISGARH: BILASPUR SINGLEBENCH; HON'BLE SHRI RAJESHWAR LAL JHANWAR. J. M.A. (Q No. 91S of2009 'v ^....••: ^•^."' APPELLANT RESPONDENTS TheOriental Insurance Company Limited Versus Guniya Patel and others. 1.1: I'1. •••.: •" QRDER (;• ''1\" <" .:^;^ PronQUncement of order Q^ .09.2010 Sd/- R.L. Jhanwar Judge ^3 .09.2010 '•"",'•1: :,1 1) F^ h ^ HIGH COURT OF CHHATTISGARH : BILASPUR SINGLE BENCH: HON'BLE SHRI R.LJHANWAR. J. M.A. (0 No. 915 of 2009 APPELLANT tNon-aDDlicant No.3 RESPONDENTS (Appljicants) (Non-applicant No.1) (Non-apDlicant N0.2) The Oriental Insurance Company Limited, Kachahari Chowk, Jail Road, Raipur, Distt. Raipur(C.G.) VERSUS 1. Guniya Patel, S/o Bhoklo, aged about 43 years, Caste- Marar, Occupation - Mazdoori. 2. Smt. Kanhai Murthy, W/o Guniya Patel, aged about 40 years, Occupation Housewise, Caste - Marar; Both R/o village - Garhpatni, P.S. Basna, Distt. Mahasamund (C.G.) 3. Pardeshi Ram Yadav, S/o Naihar Das Yadav, aged about 26 years, Occupation ~ Driver, Through: Surjeet Sing Benipal, Super Roadlines, Road No.2, Tatibandh, Raipur(C.G.) 4. Surjeet Sing, Benipal, S/o Gurudev Sing, aged about 50 years, Occupation- Transporter, Super Roadtines, Road No.2, Tatibandh, Raipur (C.G.) APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLES ACT, 1988 »s> Appearance: Shri A.K.Athaley, counsel forthe appellant. Shri Shivendu Pandya, counsel for respondents No.1 & 2. None for other respondets. QRDER (Passedon^.09.2010) This is an appeal by the insurance company against the award dated 01.04.2009 passed by the Principal Motor Accidents Claims Tribunal, Mahasamund (for short 'the TribunaF) in ciaim case No. 175 of 2008 whereby the Tribynal awarded a sum of Rs.2,42,000/- as total compensation to the claimant in a death case. 2. Brief facts of the case are that on 11.09.2008 the driver of tractor bearing No. C.G.04ZA/3844and trolley bearing No.C.G.04ZQ/5625 stationed the said tractor - trolley at National Highway No.6 near village Barbaspur. At the same time, Truck bearing No. C.G.04 E/0308, which was being driverl rashly and negligently by its driver, dashed the stationary % ^•^"^ 1i Sji^:^ ^' ''^isik, -.1 tractor - trolley, due to which, labour Jaiprakash sustained serious injuries and succumbed to injuries during treatment. The incident was reported at P.S. Basna vide Crime No. 234/08 against its driver — Pardeshi Ram Yadav. 3. Claim petition seeking compensation of Rs.13,00,000/- was filed by the parents of the deceased pleading that the deceased was aged 22 years and was earning Rs.200/- per day by doing labour works. It was further pleaded that due to rash and negligent drivingof driver of Truck bearing No. C.G.04 E/0308 the accident took place, resulting into death of their son and a report to this effect was also lodged againstthe driver of Truck NO.C.G.04E/0308. 4. The appellant / insurance company has come with specific pleadings by filing its written statement before the Tribunal and denied the averments made in the claim petition. It was specifically pleaded in paragraph 2 thatTruck bearing No. C.G.04 E/0803 was insured with the insurance company i.e. appellant and not with Truck No.C.G 04 E/0308. 5. After affording opportunity of hearing to the parties, the Tribunal, on close scrutiny of the evidence led before it, inter alia held that accident took place due to rash and negligentdriving pf driverof Truck No. C.G 04 E/0308 and awarded a sum of Rs.2,42,000/- as tofSI compensation to the claimants with interest at 6% per annum. It is this impugned award, the appellant / insurance company is before this Court. Seeking enhancement in compensation awarded by the Tribunal, the Respondents/claimants No. 1 & 2 have also filed their cross-objection. 6. Learned counsel for the appellant / insurance company argued that the learned Tribunal has erred in holding that Truck No. C.G 04 E/0308 was involved in the accident whereas the said Truck was not insured with the appellant / insurance company and as per documents produced by the claimants, itreveals that Truck No. C.G. 04 E/0803 was involved in the sajd accident and the said Truck was insured with the appellant/insurance company, therefore, the appellant/insurance companyprayed that appeal of the appellant may be allowed by setting aside the impugned order. 7. On the other hand, learned counsel for the respondents/claimants argued that the Tribunal was justified in holding that on the date of (^ accident Truck No. C.G 04 E/0308 was involved and the insurance company also admitted this fact in its written statement. He further argued that compensation awarded by the Tribunal is on lower side and hence it may suitably be enhanced ormodjfied. 8. I have heardlearned counsel for the parties at length and have perused the record ofthe Tribunal and impugned order. 9. In this case, the onlyquestion remains to be considered whetheror not on the date of accident, Truck No. C.G. 04/E/0308 was involved. Guniya A.W.1 filed documents Ex.P.1 (final report) and F.I.R. Ex.P.2, charge Ex.P.3 and seizure Ex.P.4 and P.5 and post-mortem report Ex.P.6 along with claim pefition. 10. Suresh Bhoi A.W.2 in hisstatement has mentioned the offending Truck No.C.G.04 E/0308. The learned Tribunal heayily relying upon the evidence led by the respondenVclaimant No.1 & 2 awarded a sum of Rs.2,42,000/- as total compensation. 11. The documents i.e. final report Ex.P.1, F.I.R. Ex.P.2 and seizure Ex.P.4 filed before the Tribunal reveal that the TruckNo.C.G.04/E/0803 wasthe Truck which caused the accident whereas in claim petition the claimants have pleaded that offending vehicle o.C.G.04/E/0308 was involved in the said accident, led evidence thereof and proved that only the said offending vehicle i.e. C.G.04/E/0308 was involved, which is against their own documents. Therefbre, the oral evidence adduced by the claimants is not reliable. Thus, it is clear that the offending vehicle was C.G.04/E/0803 which caused the accident and not the offending vehicle C.G.04/E/0308. Thelearned Claims Tribunals has erred in holding that vehicle C.G.04/E/0308 itself was involved and not C.G.04/E/0803, despite the number of Truck was clearly mentioned as C.G.04/E/0803 in the said documents, which were produced by the claimants. 12. The Claims Tribunal has ignored the documentaryevidence and heavily relied upon the oral evidence led by the claimants. 13. On close scrutiny of the evidence and documents adduced by the claimants, it is apparent that the Truck involved in the accident was C.G.04/E/0803 and notC.G.04/E/0308. Despite the number of offending Truck was mentioned in the said documents i.e. final report Ex.P.1, F.I.R. ^y^ 1' Ex.P.2 and seizure Ex.P.4, the claimants pleaded in their claim petition that the offending Truck which caused the accident is C.G.04/E/0308. Thus, the claimants have failed to prove as to which Truck was involvedat the time of accident. The learned Tribunal has also erred in holding that the Truck No. C.G.04/E/0308 Was involved in the said accident and awarded a sumof Rs.2,42,000/-. Therefore, theimpugnedaward dated 01.04.2009 is liable to be set aside. 14. In the result, the appeal is allowed. The impugned award dated 01.04.2009 awardinga sum of Rs.2,42,000/- to the claimants is liable to be and is hereby set aside to the extent indicated above. 15. Consequent to the appeal being allowed, cross-objection filed on behalf of claimants for enhancement of award is of no use because the jmpugned award dated 01.04.2009 is set aside. Thus, cross-objection filed on behalf of the claimants for enhancement ofaward is liableto be and is hereby dismissed. 16. No order as to costs. Sd/- R.L. Jhanwar Judge