^^ ni^.^ ^m u^>^l:!~'-<;'is ':''•' IN THE HIGH COURT OF JUDICATURE AT BILASPUR (C.G.) MISCELLANEOUS APPEAL N0. / OF 2004 MISCELLANEOUS APPEAL UNDER SECTION 173, MOTOR VEHICLES ACT. 1988 Appellant: /Non-AppIicant No.3 Respondents: ^) ^ 2) ^United India Insurance Co. Ltd. Branch Baarbon Road, Calcutta, Through Divisional Manager, United India Insurance Co.Ltd., Bhilai, District Durg. (Insurance Company ofvehicle 407 bearing NO.M.P.23DA/3891) Versus Sardul Singh S/o Tirath Singh, aged about 40 years^ R/o Village Baipui, Tahsil Bhairav Bag, Amritsar (Punjab). Present address Village Khundarsa, Thana Bhairav Bag, Amritsar, Punjab, (Driver) (Driver ofvehicle 407/ No.M.P.23 DA /3891) Darbaar Singh S/o Gopal Singh; Bombay Bengal Road Ways, Tatiband, Raipur (C.G.). (Owner ofvehicle 407, No.M.P.23 DA/ 3891) - Non-AppIicant Nos.l&2 3.) Smt.Vaijantimala Wd/Late Shri Shashikant ^ Tripathi, aged 27 years, 4) 0 Govindmani Tripathi S/o Late Shri Shashikant, '^ ^aged 8 years (Minor) 5) ^ Prafullamani Tripathi S/o Late Shashikant, aged 5 ^Vyears^ (Minor) Nos. 4 & 5 through Vali mother Smt.Vaijantimala Wd/o Late Shri Shashikant, Nos.3 to 5 R/o Lakshminarayan Mandir, B.M.Y., Charauda, Bhilai, Tahsil Paatan, District Durg (C.G.) Contd..2 1. 'T^1''"^::^ra .•^•^^R%;;^';>SS^%:^i.^S:-;^g«3E;!^S?s>Si5«'^^ •7* •^rf. s> © Claim in appeal for setting aside and/or, modify the award, valued at Rs.6^9,000/- Court Fee affixed Rs.lS^ (Receipt regarding deposition ofRs.25^00/- is annexed herewith) Being aggrieved by award, dated 21.9.2004, in Claim Case No.41/2002, passed by 7th Additional Motor Accident Claims Tribunal (F.T.C.), Durg, the appellant prefers this Miscellaneous Appeal on the following facts and grounds: FACTS ^ '^•^"•f^sm^^S 2E;;.^^1^iS^3Sa^"5?H3 y HI6H COURT OF CHHATTIS6ARH AT BILASPUR DIVISION BENCH HON'BLE MR. I.M.QU&DUSI & HON'BLE MR. 6ULAM MINH^JUDDIN. JJ. Appellant Resoondents M.A.No. 1229/2004 United India Insurance Co. Ltd, Vs Sardul Singh <& others (^-. Pre^nt: AAr. Sanjay S Agarwal, Advocate for the appellant. Mr. Amiyakant Tiwari, Advocate for the respondent Nos. 3 to 5. None for the other respondents ^ ORDER (Oral) (25th August. 2011) I.M. Quddusi. J; ' 1. By way of this appeal under Section 173 of the AAotor Vehicles Act, 1988 (for short 'tiie Act, 1988'), the appellant-Insurance Company has challenged the award dated 21.9.2004 passed by the learned 7t Additional AAotor Accident Claims Tribunal, (FTC), Durg (for- short *the Claims Tribunal') in Claim Case No.41/2002. 2. The respondent Nos.3 to 5/ claimants have also filed a cross objection / cross appeal for enhancement of the amount of compensation. 3. Facts of the case, in brief, are that on 22.1.2001 deceased Shashikant Tripathi was returning from Janjgir, Kumhari on his friend's Luna moj^d. When they reached near 6E ftoad, Kumhari, the said Luna Moped was dashed by Tata-407 bearing registration number AAP23-bA-3891. which was being driven in rash and negligent manner by its driver, as a result the deceased sustdned various grievous injuries on his body. He was admitted in the hospital where he died on 27.01.2001 while undergoing treatment. TTie claimants have filed the claim petition seeking compensation to the tune of Rs.10,90,000/- on the ground that they were dependent on the deceased, who was the sole eaming member in family, and due to his death, they have suffered loss of income. (^:^Q \ - i 4. The Claims Tribunal ailowed claim Gpplication of the claimants, awarded a compensation of Rs.649,000/- and fastened liability on the appellant herein to pay compensation. 5o Learned counsel for the appellant has submitted that the appellant Insurance Company has denied the fact of issuance of insurance policy in favour of the offending vehicle and in this regard adduced oral as well as documentary evidence also, but the Claims Tribunal disbelieving the said defence of the insurance company held that the insurance company is liable to pay compensation, whereas, in the facts and circumstances of the case, the appellaint is not liable to pay any compensation, 6. On the other hand, learned counsel for the respondent Nos, 3 to 5 has submitted that the amount awarded by the Claims Tribunal is too meager and it deserves to be enhanced suitably in the facts and circumstances of •rfie CGSe. 7. We have heard learned counsel for the parties and peru^d the records of the Claims Tribunal as a!so the findings given in the impugned award. 8. Perusal of the record reveals that the evidence was led by the insurance compcmy to the effect that Insurance Policy No.4426/2000 was not issued by the appellant and the policy produced by the owner of the offending vehicle is a fake policy and as such, the vehicle was not insured on the date •'• of accident. But, nothing contrary to the same has been brought on record and ©venthe owner and the driver of offending vehicle were proceeded ex-parte. Therefore, considering the facts and circumstances of the case, we are of the opinion that when there is positive evidence available to the effect that the vehicle was not insured on the date of accident and no evidence in rebuttal has been produced, the Claims Tribunal should have held that the offending vehicle was not insured on the date of accident but that has not been done and the liability has been fastened upon the appellant-Insurance Compciny, which is not proper. 9. So far as the cross-objection filed by the claimants for enhancement is concerned, we have perused the quantum part of the impugned order and ^' -X- we feel that the compensation awarded by the Ctaims Tribunal is just and proper and the same do not call for any interference. 10.In the result, the appeal succeeds. The impugned award, so far as it relates to fastening of liability upon the appellant Insurance Company, is set aside ond the appellant is exonerated from the liability of paying compensation to the ctaimants for the death of deceased Shashikant Tripathi, However, it will be open for the claimQnts to realize the amount of compensation from the owner of the vehicle i.e. respondent No,2- barbar Sin9h, son of Shri ^opal Singh. It is also directed that if the amount deposited by the appellant herein has not been disbursed so far to the claimants, the appellant shall be allowed to withdraw the same, However, if the same has been withdrawn by the claimants, it will be open for the appellant-company to recover the same from the owner of offending vehicle, 11. However, the cross-objection filed by the respondent Nos.3 to 5 is dismissed. 12. Certified copy as per rules. Sd/- I.M. Quddusi Roshan/- Judge Sd/- G. Minhajuddin Judge