IRIii mTHEHC»N^ ffiGHCOtHlTOFJUDICA3®&A1'BI^aroiB18iWSS' M.A. (C) NO.......ZO......../2011 MISCELLANEOUS APPEAL UNDERSECTION 1730F THEMOTORVEHICLE ACT.1988 !afS^..- ''^i APPELLANTS NON APPLICANT N0. 3 United India Insurance Gonipany Limited, through : Registered and Head Ofiice, Chennai-600014, through : Branch Manager, Branch OfGce, Anypama Ghowk, Jagdalpur, District Bastar, Tahsil and District Bastar (CG.) and the Diyisional Manager, Division Office, Mahendra House, Katchari Road, Raipur, Tahsil and District Raipur (CG.) VERSUS RESPONDENTS '^v^~^' .%^<^JL2- ^••y^.-<Y ^<^° ^w § 4. PremDasSahu, S/o Latkhor Sahu, Aged abpyt 35 years . R/o Village Khuteri, P.S. Arjunda, Tahsil Gunderdehi; District Durg (CG.) NON APPLICANTNO. 1 SKnManjeef Singb, . S/oSuraj Singh, R/oMain Road, Parrasgaon, TahsU and DistrictBastar(CG.),,: ' Through : Shri Ranjeet Singh, R/o Qrt. No. 3/A, Sector 10 BhUai,P.S,Sector 6, BhUai; Nagar, TahsU and District Durg;(CG.). }.•'/•- NON APPLICANT N0; 2 SiyaramSahu, . S/Q Sbri G. Ram Sahu;' R/o Nayapara Balod, P. S; aBd Talisil Balod, District Durg (CG.) - NON APPUCANT 0; 4 Lakhan Lad Yogi, S/p Khodunath Yogi, R/6 Mararpara Balod, Post Balod, P.S. and TahsU Balod, District Durg (CG.) NON APPLICANT N0. 5 5. TheNewIndiwhBatmB'rceCompauyLtd., Through ? Registeredaiid Head OfGce,87, Maliatma-GandhiMarg Fort, Mumbai 406001 And the Branch Manager, Branch Oftice , fiarakh Bhawan, Statiori Road, Durg, Tahsil and District Durg(C2G.) , •~~-"Aridfhe Divisional Manager, Davison QfEce,, . ^alAarChamber/PpwerHouse.Bhilai,^ Tahsil and Bisfrict Durg (CG.)-^ -:. e NON APPLICANT N0. 6 6. Purnima Bai Mandavi, Wd/o Late Sadaram Mandavi, Aged about 40 years, Caste Gond, y. ^ Ku. Gayatri Bai Mandavi, D/o Late Sadaram Mandavi, Aged about 18 years, 8. .Ku. Safri Mandavi, '.•<;'B/o Late Sadaram Mandavi, Aged about 16 years, •*•. Ku. Padma Mandavi, ^£L",' '.^.'".•""•;' s $ "Blo Late Sadaram Mandavi, Aged about 13 years, •,10. Shankar Lal Mandavi, S/o Late Sadaram Mandavi, Aged about 11 years, 11. Ku. Soniya Mandavi, D/o Late Sadaram Mandavi, Aged about 09 years, 12. u-Ku. Laxrai Mandavi, 'Sf/o Late Sadaram Mandavi, Aged about 07 years, 13. . Ku. Babli Mandavi, "®/oLate Sadaram Mandavi, Aged about 04 years, (No. S to 13 are minor, represented through their mother Smt. Pummia' Bai Mandavi, Wd/o Late Sadaram Mandavi) AU R/o Village Kundarupara Balod, P.S. and Tahsil Balod, District Durg (CG.) (NQ. 6 TO 13 ARE CLAIMANTS) S "!•..—-";»... 8 ssSi g :*>,. •fe^y ^^ HIGH COURT OF CHHATTISGARH AT BILASPUR Division Bench: Hmi'Me Sau4 LM. Oiriduri. & Hon'bleShri G. Mmhai^din. JJ M.A.rONo.700F2011 ABpeIlante/ Non-ADpKcant No3 Rescondents Vs United India Insurance Co. Ltd. Raipur Prem Das Sahu aiid others ORDER FOR CONSroERATION Sd/- G. Minhajuddin Judge HON'BLE SHRI LM. OUDDUSL J 3 ^ Sd/- I.M.Quddusi Judge JUDGE IQS.2011 POST FOR ORDER ON JtlCAUGUST. 2011 Sd/- G. Minhajuddin Judge cS^ HIGH COURT OF GHHATTISGARH AT BUJ^PUR Division Bench: Hon'bte Shri LM. QucWusi. & Hon'bte Shri G. MInhaiuddln. JJ Appellants/ Non-Applicant No.3 Respondents MA^CtNo.700F2011 United India Insurance Go. Ltel. (^rfpur (CG) Vs Prem Das Sahu and <rthers ^' Present: Mr. Sanjay Shyam Agrawal, counsel for ttre appellant/tnsurance company. Mr. Sudhir Agrawal, counsel for respondert No.5. ORDBl (Passedon \^ August,2011) Per G. Minhaiuddm. J 1. This appeal has been fited by the appellantflnsurance <»mpany under Section 173 of Uie Mdor Vehtotes Act, 1988 against the award dated 23.8.2010 passed by ^klitional MdorAcchlait Ctawms Tribunal (FTC), Balod, Distt. Durg (inshort "the Tribianal") In Clam Case No. 93/09, fastening liabilfty on the appellartflnsurance company to pay the amount of compensaUon to the clahnarts. 2. Brief facts of the case are that on 22.10.2008 at about 7.15 in the evening, deceased Sadaram Mandavi ahmg WWh rther laboure was traveting in the tractor bearing registration No. CG 04 ZQ 1026 aid trdley No. CG 04 ZQ 1027. At that time, a truck tanker bewmg registration No. CG 07/C/28 (hereinafter referred to as "the offending vehicle") was coming from op(»site(Urectton, the same was being rashty and negllgertly driven by the driver, whtoh dashed the tractor and trdley, on accaint of whtoh, the trador was broken into three pieces and the labwre sitting In the saM tractor trdtey sustalned grievous kquries. Howeva", Sadaram Mandavl succumbed to the injuries on the spd. At the tlme of aKxadent, Uie offending vehtete was driven by respondent No.1, <awned by respondent No.2 and insured with tte appeUanMnsurance company. Repwt of the acddent vras loc^ed against the driver of the offending vehfcte Premdas Sahu, on whteh (rffence under Secttons 279 and 304A <rf the IPC was registered against Nm. After ^ .^- /•' 1 'v^''..S- <~~ '...Y 2- investlgation, charge sh^ under SecUon 173(2) of Cr.P.C. was flted against the driver of the offendu^i vehtole b^ore the concemed Court. 3. Deceased Sadaram Mandavi was the only brealwinner of his family, consisting of 8 dependents. The dependents/l^al heire of the deceased filed an applteation under Section 166 of the Motor Vehtoles Act, 1988 (in short °the Act, 1&88") before the Tribunal, wriio after affording opportunity of hearmg and of aAlucing evidence to the parties, passed the impugned award holeling the driva- of the offending vehicle Premdas to be wholly responslbte ftw the accktert and consequently, fa^enlr^i the liability upon the appeltant/lnsurance company for payment <rf compensation to the claimants. Jointly and severally, along wtth the owner and driver ef the vehtete. 4. Heard leamed counsel for the respective parties, perused the LCR as also the impugned award. 5. The main contention of teamed counsel for the qapellanMnsiffance company has been that at Uie time of accktent, the drlver of Vhe tractor was drivlng the tractor in Uie center of the road rashly and negligently without head Ight and without blowing hom and as such, ai fact, the tractor had collided with the offending vehtole, which was going by Its side. He has further contended that in any case, there has been contributory negligence on the part <rf drivere of both the vehicles, but the Tribunal has committed a manlfest error in hokBr^ only the driver of the truck tanker responsibte for the accident. U Is apparent even from the award passed by Uie Lok Adalat on 18.7.2010 In Claim Case No.13/10, Premdas Vs. Manjit Singh and 4 others, in wdtich the insurance company of the tractor troltey admittlng its liabitity has compromised the case vwth the driver Premdas of the offending vehicle, on the basis of whtoh an award of Rs.1,15.000/- has been passed in favour of Premdas and against the New India Insurance Company Ltd. whteh was nm-applteart No.5 in Claim Case No.13/10. s S) 6. On the other hand, leamed counsel for r^pondent No.5 has supported the impugned award airi contended that the same is quite legal and proper and <alls for no interference by thls Court. 7. From perusal of the material avaBable on record, tt is ctear that a specific issue in the form of Issue No.2 has been framed in respect of contributory n^ligence by the Tribunal and the same has been answered in the negative and again^ the present appetlantflnsurance company. Before the Tribunal, the clarfmants have examined Ku. Gayatri Bai as AW-1 - cteughter of cteceased Sadaram, and Rohit Kumar as AW-2. Whereas the present appellant/insurance company has neither examjned any wftness on its behalf nor has adduced any document to substantlate its contention. After minutely scrutinizlng the evidence, bdh oral and documentary, on record, the Tribunal has recorded a categwical finding that there has been no contributory negligence and the drtver of the offending vehtele Premdas Sahu was drMng Uie vehicte rashly and negligently and as such, was whotly responsible fbr the accident. The sakl flnding based on proper appreciation of the evidence on record cann<A be faulted vwth and thus, no Interference is cafl for in the impugned award. 8. Leamed counsel for the appetlant has contended that an appltoatlon under Sectfon 170 of the Act. 1988 to contest the claim on all grounds avaBable to the person syainst whom the claim is made, was flled by the appellant/insurance company, but ttie same was kept pending till passing of the impi^ned award and as such, the appellant/insurance company has been prejudteed in its defence. 9. The impugned awardhas been passed on 23.8.2010. Fromperusal of the LCR, it is ctear that the evklence of the daimants commenwd on 13.8.2010 and after examining two witnesses namely Ku. Gayatri Bai (AW-1) and Rohft Kumar (AW-2), the evidence was closed and the case was fixed on 20.8.2010 for recording evidence ofthe non- applicants. On 20.8.2010, the present appellant/insu-ance company and the other non-appl'icants without examlning any witness chased ttieir evhjence. The award in Claim Case No.13/10 was passed by ^ ^" ^ g ^sg? %. "'---.^.^ 'l5S2s«<y^ af—ssf^ Lok Adalat on 18.7.2010, in which on the basis of compromise, a sum of Rs.1,15,000/- has been granted as cwnpensatton in favour of the claimart Premdas and again^ the non-applteant No.5 New India Insurance Company Ltd., who was insurer of ttw tractor troltey in whtoh deceased Sadaram Mandavi and <rther persons were sitting, whereas the evidence in Claim Case No.93/09 had commenced on 13.8.2010 before the Tribunal. lO.Thus. in view of ttw above, the present appellant had ample opportunity of fiting certffied copy of the award passed in Claim Case No.1WO by the Lok Adalat before the Tribunal in Claim Case No.93/10 before the staif of evklence in that case, but the appellant/insurance company made no efforts to ffle the same. Issue No.2 has been framed by the Tribunal In Ctaim Case No.93/10 on the point of contributory negfigence and the same has been answered in the negative. When despite opportunity, the appeHantflnsurance company had not fited copy of the award passed by Lok Adalat before the Tribural at appropriate Ume, then only by filing mpy of that award at the appellate sts®e,it cannot be said ttiat there has been contribidwy negUgence on the part of dmer of the tractor trolley. The award dated 18.7.2010 of Rs.1,15,0(X)/- has been passed on the basis <rf compromise in favour of the driver Premdas of the offending vehtole and against the New India Insurance Co. Ltd., whteh was insurer of the tractor trolley and therefore, only on that basis, the finding reeorded by the Tribunal holding the driver Premdas as wholly responsibte for the accident cannot be faulted with. 11. So far as non-deciding of appltoirtion under Section 170 of the Act, 1988 of the present appetlant is concerned, from perusal of Uie LCR, it is found that the said applteatton was moved on 13.8.2010 i.e. on the date evidence of the clahnants had commenced. AN the non-applicants had fited their reply and contested the claun. As such, it cannot be said that there has been collusfon between the claimants and the owner of the vehicle. After recordlng ^atements of two witnesses of the claimants on 13.8.2010, the case was fixed for 20.8.2010 for recording evktence of the non-appltoants. On 20.8.^)10, the non-applicants wtthqyt ^lducuig any evidence had r ctosed their ev'idence and the appellant/insurance company neither drew the attention of ttie Tribunal towards the applteation u/s 170 of the Act, 1988 nor did insist for Its disposal. On that date, teamed counsels for the respective parties alvanced their final argumente and the case was po^ed for passing the award <m 23.8.2010 and on that date, the award was passed. Therefore, from the conduct of the counsel for the appellant/insurance cwnpany, it is clrar thsrt he did not prosecute the said appllcatlon u/s170. Even (rthervwse, as there was no colluston between the claimants and the owier, the application was liabte to be dismissed. Hence, it cannot be said that the appeltant/insurance company had been (M'ejittliced tn its defence. It is settted law that in the absence of permfeawi ufe 170 of the Act, 1988, the appeal of the appellant, in so far as qiarrtum is concemed, is not maintainable u/s 173 of the Act, 1^8 and the appellant cannot be permitted to argue the appeal on quantum. 12. In the result, the appeal being without any substance deserves to be and is, accordingly, dismissed. No <xder as to coste.—- Sd/- Sd/- I.M.Quddusi i G.^lillb^ud^ Judge i ~ Judge