c-f IN THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR (CHHATTISGARH) M.A.fC) No. {su' _oi2009 APPELLANT NON-APPLICANT ..^% ^.-••^ ^y^W ...-••^".^••^'.-.ff «.»""-} v.>t;^' s^." •^ ^ V-' . .,.?<• 'ly.'^^^ ^'-'' .'yoT RESPONDENTS :1) ;2) The New India ^i^surance Co.Ltd. Local Office Branch Manager, The New India Insurance Co.Ltd. Sattigudi Chowk, Raigarh District Raigarh (C.G.) Versys Sadanand S/o. Maniram Rathiya, aged about 45 years, Cate Kanvar, Smt. Jhimobai, Wife of Sadanand Rathiya, aged about 42 years, Caste Kanvar, Both resident of Village Bakaruma, Tahsil Dharamjaigarh, District Raigarh (C.G.) CLAIMANTS :3) Amrit S/o. Thiklaram Rathiya, Occupation Driver, resident of Village Kerakachhar, Post/ Police Station Patthalgaon, Tahsil Patthalgaon, District Jashpur Nagar (C.G.) :4) Sukhlal Rathiya, Son of Bhausaram Rathiya, resident of Village Sureshpur, Police Station/Tahsil Patthalgaon, District Jashpur Nagar (C.G.) NON-APPLICANTS 1 &2 HIGH COURT OF CHHATTISGARH AT BILASPUR M.A. (C) No. 682 OF 2009 Appellant Non-applicant No,3 Respondents The New India Assurance Co. Ltd. Versus Sadanand & Others APPEAL UNDER SECT!ON 173 OF THE MOTOR VEHICLES ACT. (SB: Hon'ble Mr. N.K. Aaarwal. J.l '^ Present : Shri Pankaj Agrawal, Advocate for appellant. ORAL ORDER (Passed on 27th day of January, 2010) Heard on admission. 1. This is insurer's appeal, directed against the award dated 29.01.09, passed by the 1 Additional Motor Accident Claims Tribunal Raigarh (for short 'Tribunal') in claim case No. 44/07 whereby and whereunder an amount of Rs. 1,02,000/- has been awarded in favour of the respondent No. 1 & 2/claimants as compensation aiongwith interest @ 6 percent per annum from the date of appiicatlon till its recovery, against the appellant and respondent No. 3 & 4 holding them jointly and severally liable. 2. The brief facts of the case are that, on 26.04.2006, Chaman Rathia, aged about 11 years i.e. son of respondent No. 1 & 2, while sitting near Bandha Talab, Village Bakaruma, was dashed by Tractor bearing registration No. CG-1 4/A/1862 resuiting in his spontaneous death. The matter was reported to Police Station Dharamjaigarh, where offence under Sections 379, 337 and 304-A w 6. of Indian Penal Code was registered against the Driver i.e. respondent No.3. The respondent No. 1 & 2/claimants, by filing a claim petition under Section 166 of the Motor Vehicles Act (for short 'MV Act') against the Driver/Owner and Insurer of the said Tractor, claimed Rs.31,70,000/- as compensation for the death of their son in the said accident. The owner and Driver of the vehicle denied the factum of accident and in the alternative they have pleaded that, in case, the compensation is awarded to the claimants, then the insurance company is liable to indemnify them as the vehicle was insured at the time of accident. The appellant/insurance company also filed their written statement and took a plea that the Tractor was being used for the purpose other than agriculture at the time of accident inasmuch as the same was used as a Taxi at the time of accident, also took a plea regarding driving license of the Driver. The Tribunal, on a close scrutiny of evidence led by the parties and the material available on record, held that the said accident occurred due to rash and negligent driving of the Tractor Driver resulting into death ofdeceased; the vehicle was not being used as a Taxi at the time of accident; appellant also faiied to prove the defence taken by him that the driver was not holding vatid and effective driving license at the time of accident; assessed the amount of compensation at Rs. 1,02,000/- and awarded the same against the appellant as well as the driver/owner ofthe vehicle. Shri Agrawal, learned counsel appearing for the appellant would submit that the deceased was gratuitous passenger, traveling in the Tractor; there is discrepancy in chassis number in the FIR and the insurance policy, therefore, the Tribunal has erred in awarding the compensation to the claimants and also holding the appellant liable for it. 7. I have heard the counsel appearing for the appellant and also perused the record and order impugned. 8. There is no mention of chassis number of the said Tractor in Merge intimation (Ex. A/4) lodged by Bhanu Pratap son of Manrakhan and also in FIR (Ex. A/5) which has been registered on the basis of diary of the case. As per certified copy of the final report, said Tractor was without number and as per its RC Book, its registration number was CG-14A/1862 which was owned by respondent No. 4 and was being driven by the respondent No. 3. The appellant did not ask any question to the witness Sant Ram Rathia (AW/2) examined by the claimants with regard to non involvement of the vehicle in the said accident, rather the cross examination was on the line that deceased was sitting in the Tractor at the time of accident which was denied by the witness. As per investigation report filed by the appellant (NA-2), the chassis number of said vehicle is not clear in the FIR. 9. In view of the above, by no streteh of imagination it can be said that the said Tractor was not involved in the accident. The Tractor (Swaraj make) was new and admittedly owned by respondent No. 4 and was being driven by respondent No. 3 at the time of accident. Merely because in the FIR (Ex. A/6) there is a discrepancy or mistake in the chassis number of the said vehicle, it cannot be said that the said vehicle is not involved in the accident. y ..--»^^ ^ i I £'S 1^'" '.<y 10. 11. More-so, when the person who lodged the FIR has not been examined in the case, therefore, merely there is a discrepancy with regard to chassis number in one of the FIR (Ex. A/6), it cannot be said that said vehicle was not involved in the accident where as per FIR the same vehicle owned by the same person and being driven by the same driver as in the instant case was invoived in the said accident. No other grounds have been raised by the appellant counsel. in view of above, the finding regarding involvement of vehicle cannot be faulted with. 12. Therefore, the appeal being devoid of substance is liable to be and is hereby dismissed at admission stage. Sd/- N.K. Agrawal Judge ri Sahu