HIGH COURT OF CHHATTISGARH, BILASPUR CORAM: Hon’ble Shri Raieev Gupta, C.J. & Hon’ble Shri Sunil Kumar Sinha, J. Misc. Appeal No. 884 of 2002 Nachiketa & Others Vs. Rupesh Kumar & Others ORDER For onsideration \ Sd/- ‘ “J Sunil Kumar Sinha Judge r HON’BLE SHRI JUSTICE RAJEEV GUPTA j &x%‘f~*@~ I Sdl- Chief Justice % IU4I£U1 U Postfor Order: /04/2010 ' g Sdl- w nil Kumar Sina Jude pi Su h g \ HIGH COURT OF CHHATTISGARH, BILASPUR CORAM: Hon’ble Shri Rajeev Gupta, C.J. & Hon’ble Shri Sunil Kumar Sinha, J. Misc. Appeal No. 884 of 2002 APPELLANTS 1 Nachiketa, daughter of Late Amarnath Claimants Tiwari, aged about 12 years 2 Amrendra Nath, son of Late Amarnath Tiwari, aged about 9 years Both are minor through their natural guardian mother Sitadevi 3 Sita Devi, widow of late Amarnath Tiwari, aged about 30 years 4 Sarman Bai wife of Bamdeo Tiwari, aged about 60 years Appellants no. 1 to 4 are residents of Raja Talab, Raipur, District— Raipur (CG), Presently residing at Gokulpur Ward, Dhamtari, District— Dhamtari (CG) Versus RESPONDENTS 1, Rupesh Kumar, (Truck Driver) Truck No. MPZ—60/0379 2. Rajesh Kumar Tapadiya, Both are residents of Sukma Tehsil Sukma, District— Dantewada, (CG) 3. Branch Manger, The Oriental insurance Co. Ltd. Branch Office Jagdalpur, Kutchehry Chowk, Mobin Mahal, G.E‘ Road, Raipur (CG) MISC. APPEAL UNDER SECTION 173 F THE MOTOR VEHICLES ACT, 1988 i Appearance: Mr. Sunil Sahu, Advocate for the appellants. Mr. Suryakant Mishra, Advocate for respondent No.3. None for respondents 1 & 2. O 2 Misc. Appeal No. 884 of 2002 @ ORDER ‘ ? .04.201 0) Following order of the Court was delivered by Sunil Kumar Sinha, J. (1) Being aggrieved with the award dated 26.10.2002 passed in Claim Case No. 134/2002 by the Additional Motor Accident Claims Tribunal, Dhamtari, District Dhamtari (C.G.), whereby, the Claim Petition filed by the appellants/claimants, under Section 166 of the Motor Vehicles Act, has been dismissed, the appellants/claimants have filed this appeal. (2) The appellants/claimants are widow, mother and minor children of deceased-Amarnath Tiwari who died in the motor accident on 19.2.2000. (3) The appellants/claimants filed a Claim Petition under Section 166 of the Motor Vehicles Act claiming compensation of Rs.47,25,000/— for the death of Amarnath Tiwari in’ the said accident. They pleaded that Truck No. MP 026 D-0379 was wrongly parked on the national highway by its driver, therefore, the Bullet motorcycle bearing registration No. MP 23 MA 7181, on which, the deceased and one Amit Gupta were traveling, dashed against the truck, due to which, the deceased died instantaneously and Amit Gupta also received serious injuries. (4) The owner and driver of the truck filed their written statement denying the contentions of the appellants. They pleaded that the accident occurred on account of rash and negligent driving of the motorcycle by the deceased, who dashed his motorcycle against the stationary truck which was parked at the extreme side of the road. \ \ 3 Misc. Appeal No. 8S4 of 2002 (5) The Insurance Company also denied the contents of the claim pe on. (6) The claimants examined Sita Tiwari (AW—1 — wife of the deceased) in support of their claim petition, whereas, no witness was examined by the respondents in rebuttal. (7) could not established that the accident occurred on account of rash and negligent act on the part of the driver of the truck and the claim petition was dismissed. While dismissing the claim petition, the Tribunal also directed that respondent No.3 would be entitled to refund of the amount of the interim compensation of Rs.50,000/- which was paid by them to the appellants/claimants. The learned Claims Tribunal held that the appellants/claimants Mr. Sunil Sahu, learned counsel appearing on behalf of the appellants/claimants, argued that the finding recorded by the Claims Tribunal is bad—in—law, therefore, the award be set-aside and suitable compensation be awarded to the appellants. (8) (9) On the other hand, Mr. Suryakant Mishra, learned counsel appearing on behalf of respondent No.3/lnsurance Company, opposed these arguments and supported the award passed by the Claims Tribunal. (10) We have heard the learned counsel for the parties at length and have also perused the records of the claim case. \ ~ \ \ 4 Misc. Appeal No. 884 of 2002 I (11) Admittedly, no witness was examined by the appellants/claimants to establish that the accident ocCurred on account of negligence of the driver of the truck. The case of the appellants/claimants was that the truck was in stationary condition and the builet motorcycie dashed against the stationary truck. The appetlants contended that the said truck was wrongly parked on the national highway, therefore, the accident took place. Even this contention of the appellants is not true as the spot-map drawn during the course of investigation'of the criminal case (Ex.—P/4) would show that the truck was not parked on the highway but it was parked by the side of the highway and the entire portion of the highway was open and unoccupied. The contents of the First lnformation Report (EX.—P/1) would further show that the motorcycle was dashed against the stationary truck. The appellants did not examine Amit Gupta who was the pillion‘ rider on the motorcycle of the deceased. No other oral or documentary evidence was adduced to prove the rash and negligent act of the driver of the truck. It is in these circumstances, the Tribunal held that the appellants/claimants could not establish that the accident occurred on account of rash and negligent act on the part of the driver of the truck. We do not find any infirmity in such finding recorded by the Claims Tribunal. Therefore, the arguments advanced in this regard cannot be accepted. (12) So far as the refund of the amount paid under no fault liability u/s 140 of the Act is concerned; that has to be set aside. No fault liability u/s 140 is distinguishable from the strict liability. in Section 140, the compensation amount is fixed and it is a statutory liability. lt is an amount, which Can be deducted from the final amount awarded by the Tribunal. \ \ \ \\ \ 5 Misc. Appeal No. 884 of 2002 @ M l I aniuri Bera —Vs~ Oriental Insurance Co. Ltd. (13) ln the present case, admittedly, the appellants are the legal representatives of the deceased, being the widow, mother and minor children, who were entitled to inherit the estate of the deceased. lt is not a case where either the accident is disputed or the death of the deceased resulting from the accident arising out of the use of motor vehicle is disputed. Therefore, the amount paid V to the appellants/legal representatives of the deceased, who have inherited the estate of the deceased, would not have been directed to be refunded by them and to this extent, the award deserves to be modified. (14) Accordingly, the appeal is partly allowed. (15) While confirming the dismissal of the claim petition on merits, we set-aside the directions of the Tribunal to refund of the amount of interim compensation by the appellants. (1 6) There shall be no orders as to the cost. Sd/— Sdl- Ji‘ Sunil Kumar Sinha Judge . . . Chief Justice (gr i i i i vatti i