w} ^->" %,y% .^"^^ '- y^ <^- ^ ^ -^ % ^ '^ §& s w ^ ?? § g ^s©fe i @ f ^ II S.I •£t ^t ^' s g 0-S (iAA/ w. -:^ c ^ IN THE HIGH COURT OF CHHATTCSGARH AT BILASPUR . M. A. (C) No. ^ \ /ZOO^ APPELLANT /• -: J. The Oriental Insurance Company Ltd. Kacahri Chowk, ...••°* ^'•^"^^ b'"'''~ Madina Manjil, Raipur, Through its /•'^•l\ ^" ^ cy^\\^ Divisional Manager, Oivisional ^*'\^ ^lloov ^^y..^' ^!,o<. '^••" a^ ^ RESPONOENT Claimant No.l RESPONDENT Claimant No.2 RESPONDENT Claimant No.3 RESPONDENT Defendant No.l RESPONDENT befendant No.2 -Versus- ^ 2. ^ 3. ^ 1 L 4. 5. ^ Office, Durg (C.G.). Smt. Roshanara, 35 years, Wd/o Late Shri Iqbal Khan. Ku. Bpbi Hina Iqbal, 13 years, b/o Late Shri Iqbal Kahan. Nafish Khan, 11 years, S/o Late Shri Iqbal Khan. Respondents No. 2 and 3 are minor Through their mother Smt. Roshanara, Wd/o Late Shri Iqbal Khan. R/o Not described in the order. Shri Ghanshyam Nishad, S/o Shri Bisruram Nishad, R/o Village- Semaria, Police Station- Ahiwara, bistrict- Durg. M. S. Kisan Traders, Through Shri Goun' Shankar Shukla, S/o Shri Uma Shankar Shukla, R/o Bazar Chowk, Kurud, t)istrict- Dhamtari. '^ MISC. APPEAL UNDER SECTCON 173 OF THE MOTOR VEHICLES ACT, 1988. 'i 1 .,^ te£^i^ ^m^ Y ^y ^^3^ '%, ^ HIGH COURT OF CHHATTISGARH AT BILASPUR DB: Hon'bte Shri Justice I.M Quddusi, & Hon'ble Shri Justice Prashant Kumar Mishra. JJ. M.A.(ClNo.4of 2007 The Oriental Insurance Company Ltd. Versus Smt. Roshanara and others. ORDER FOR CONSIDERATION Sd/- JUOGE ! 9-07-2011 Hon'ble Shri I.M. Quddusi. J. •&-. ' 3 Sd/- l.M.Q"ddusl Judge Postfor^\- 07-2011 Sd/- prashantKumarMishra Judge _ ^"•^^ j M.:''>" ? i <" (^) HIGH COURT OF CHHATTISGARH. BtLASPUR CORAM: Hon'ble Shri I.M. Quddusi, J. & Hon'ble Shri Prashant Kumar Mishra. *J. APPELLANT RESPONDENTS M.A.fClNo.4of2007 The Orientel Insurance Company Ltd. Versus Smt. Roshanara and others. Shri Ajay Mishra. counsel for the appellant. Shri Sudhir Verma, counsel for respondents No. 1 & 2. None for respondents No. 3 to 5, though served. ORDER {>\ /07/2011) PERPRASHANTKUMARM1SHRA. J. This appeal under Section 173 of the Motor Accident Claims Tribunal has been preferred by the Insurance Company chaltenging the award dated 26/07/2006 passed by the XI Additional Motor Accident Claims Tribunal (F.T.C.) Durg, fastening the liability on the appellant Insurance Company to pay the compensation. (2) Brief facts of the case, as projected by the daimante in the claim petition, are that at about 7-7.15 p.m. on 04/11/20Q1 deceased Iqbal who was driver of bus was changing the tyre of the bus at RaRhi triangle near Kerud Railway Crossing by parking the bus on the extreme teft hand side of the road and at that time truck No. M.B.O. 1674, driven rashly and negligently by its driver non-claimant No.1 Ghanshyam Nishad dashed against the bus as well as deceased and as a result ofthe acddent the bus fell into the Nalah and the truck ran over the deceased as a result of which the deceased died instantly. The matter was reported to the Kurud Poljce Station and after comptetjon of investigation charge-sheet was filed against 1 the driver of the truck. w '.^ s // -2s •- (3) On the basis of statement of (AW-3) Ashraf Khan who is an eye witness and on account of non-examination of the driver of the bus and further on placing reliance on the document available in the charge-sheet filed against the driver ofthe truck, leamed Claims Tribunalconcluded that the truck was driven rashly and negligently by jts driver. The Tribunal allowed compensation of Rs.5,44,000/- and also directed the tnsurance Company to satisfy the award. (4) Shri Ajay Mishra, learned counsel for the appellant has argued that on the date of accident there was no insurance policy covering the risk, therefore the appellant is not liabte to inctemnify the insured and the award fastening the liability on the Insurance Company deserves to be set-aside. On the other hand Shri Sudhir Verma. learned counsel appearing for respondents No. 1 & 2 has argued that the Claims Tribunal has not committed any iltegality by fastening the liabjlity on the Insurance Company because from the documents available on record jt is proved that renewal premium was paid to the Insurance Compapy. (5) We have heard learned counsel appearing for the parties at length and perused the record. (6) Admittedly the accident took place on 04/11/2001. The Insurance policy Ex.D/1 mentions the policy period as 05/11/2002 (12.30 hours) to midnight of 04/11/2002. The previous policy has also been fited and proved as Ex.D/2 inwhich the policy period has been mentioned as 15.00 hours on 04/11/2000 to mjdnight of 03/11/2001. Thus prima facie it appears that the previous policy expired in the midnight of 03/11/2001 and the cheque for renewal of the policy was paid on 05/11/2001 resulting in issuance of the renewed fresh policy (Ex.D/1) at 12.30 hours on 05/11/2001. Tendering of cheque on 05/11/2001 though the cheque bears /the date 03/11/2001 has been proved by filing the collection report of (S) f -5- various cheques maintained in th6 ofRce of the appeHant-Company as Ex.D/5. The appellants witness NAW-1 Anand Kumar Gupta has proved documents Ex.D/1 to D/7. DW-2 Nicolus Panna has also proved the document Ex.D/1 and has denied the suggestjbn tt»atany correetionwas made in the policy. (7) Leamed Claims Tribunat has recorded findjng in paragraph 17 crf the award that the cheque was paid to the (nsurance Company on 03/11/2001 , therefore, on the strength of law laid-down by Puryab & Haryana High Court in the case of United India Inswance Company Vs. Smt Nfrmla Devf reported m 2003 (1) ACJ 1734 it has held the Insurance Company is liable to satisfy the award. (8) We have seen the documents Ex.D/1 and Ex.D/5. In Ex.D/5 ft is mentioned that the cheque was tendered on 05/11/2001and just beside this entry another date 03/11/2001 is mentioned. It appears that the cheque dated 03/11/2001 was tendered to the Insurance Company on 05/11/2001. The owner of the vehide who is arrayed as NAW-2 has stated in his reply that the cheque was tendered on 03/11/2001 and it was handed over to Shri Nicolus Panna the Development Officer of the Insurance Company. In course of enquiry before the Tribunal the owner of the vehicle has not entered the witness box to substantiate the statement made in his reply, whereas the Development Officer Shri Nicolus Panna has been examined by the Insurance Company as NAW-2 who has categoricajly stated that the premium was paid on 05/11/2001 at 12.30 hours which is the time at which the policy was issued and has been filed as Ex.D/1. Nofhing has been asked to this witness by the counsel for the Insurance Company, in fact, the owner was proceeded ex-parte after filing of reply. Thus, this Court is of the opinion that the finding recorded by the Tribunal to the effect that the cheque was tendered on 03/11/2001 is -<^^ ®) -^- perverse. In the absence ofthe owner having entered the witness box and particulariy jn view of the documentary proof, as well as the statement of NAW-2 Nicolus Panna, it is proved that the cheque was tendered at 12.30 hours on 05/11/2001 and after this payment the policy was issued. (9) In view of the above, in our considered opinion, the appeal preferred by the Insurance Company deserves to be allowed. The impugned order in so far as the learned Tribunal has fasten the liability of payment of compensation on the tnsurance Company is set-aside, however the claimant shall be entitled to realize the award amount from Uie owner and driver of the vehicte. If the Insurance Company has deposited any amount before the claims Tribunal the same shall be refunded to the Insurance Company. If any amount has been disbursed to the claimants, the appellant-lnsurance Company is entitled to recover the same from the ownerofthevehicte. (10) The appeal is allowed to the above extent. (11) No order as to costs. Sd/- I.M.Quddusi Judge Sd/- Prashant Kumar Mishra Judge <