IN THE HON'BLE HIGH COURT OF^HHAtnSGARH AT BILASPUR :- ^BRANCH MANAGER, THE ORIENTAL INSU. CO. LTD. BALAK CHOWK, DHAMTARI, DISTRICT DHAMTARI (C.G.) Vrs. RESPONDENTS/CLAIMANTS:- ^y'y 1. GOMTI BAI W/0 PUNURAM AGE 40 ^^•-'^...-" YEARS, CASTE SAHU S M^<t 2. PUNURAM S/0 BALDU RAM AGE - 42 'v^*" ^ l,'t> 'l^ /^ YEARS, CASTE SAHU BOTH RESIDENT OF VILLAGE PARSULI, PO. - KHUNDANI, TEH. GURUR. DISTIRCT DURG (C.G.) 3. LAXMAN S/0 LATE SUKHRAM, CASTE SAHU, AGE 55 YEARS. RESIDENT, STATION PARA, DHAMTARI TEHSIL AND DISTRICT DHAMTARI (C.G.) SMT. AARTI W/0 ASHOK KUMAR, CASTE BHANSALI, RESIDENT- SIHAWA ROAD, UIIAMTARI, TEHSIL AND DISTIRCT- DHAMTARI (C.G.) 5. MOHAN SHARMA S/0 R. A. SHARMA, RESIDENT TATIBANDH, RAIPUR, TEH., DISTRICT RAIPUR (C.G.) THROUGH ASHOK BHANSALI, NAGRI ROAD, DHAMTARI, (C.G.) 4. /'" APPEAL UNDER SECTION 173 OF MOTOR VEmCLE ACT 1988 APPEALVALUED Rs. 7,09ftOW- (APPEALBYINSURANCE) COMPENSATION CLAIMED BEFORE TRIBUNALRs. 20,2S,000/- AWARDED AMOUNT BYTMBUNAL Rs. 7,09,000/- Being aggrieved by the Award Dated 26^10-2009 passed in Claim Case Number ..2.. ED^ 'F AT HON'BLE MR. G. JJ. M.A. (Cl —.—rt88.—K^4 MOOf?H??PI Manager, i ne unent-al fnsuranci C.o. Ltd., Dhamtari (CG) u'a'mants /^ s^-.a-^^.^ 0-— J --—."^--^1 --^^t^ --^=-- uomii Bai ana oiners Mr. Sudhir Agrawa!, Advocate for the appellant. Mr. Suni! Sahu, Advocate for respondents No. Mr, Kunal Das, Advocate for respondents No. 3 & 4. 1 % "7 ^lS ^B. [Qrall ,20th July, 2011) 1. This under Section 173 of the Motor Vehicies Act, 1988 has the award , of the. Additionai Motor Accident Claims Tribunal (FTC$, Balod, Distt. Durg (in short "the Tribunal"), 26.10.2009 in Claim No. 90/08, by the appeliant/insurance company, insofar as it has the liabiiity upon the companyto 2. Srlef facis of the case are that on 23'° December, 2007 at about 8 pm near Hanchalpur Paththar tendra at Hanchaipur road, respondent No.3 by uriving regi'stration No. CG 05 ZB-0302, which owned by respondent 'No.4, rashly and negiigentiy Dr. Tiieshwar Kumar Sahu, who.was going with his friend Narottam Sahu to Vitiage : Karela, as a I'esult of whic.h Tileshwgr sustained grievous injuries over his head, chest, and iegs. immediately, he v/as admitted in Ram Krishna Hospita!, Raipur, however, a'uring treatment he died on 30.12.2007. Report of the was lodged at police station, whereupon offence respondent No.3 and investigation^ charge filed before the concerned .COUrt. ' ^ •^Al"-. .-;?" ...,M^f.. ^ ^^1B^ '^ ^ •'^•ff'.r' ../•' At the tirne of accident, the was 23 and by he was a doctor and thereby earning Rs.7,000/- to 10,000/- per month. Therefore, the claimants being heirs of the fijed a ciaim petition under Section 166 ofthe Motor Vehictes Act, 1988 (in short "the Act") ciaiming a tota! compensation of Rs.20,25,000/- under different for the of Dr. Tiieshwar Sahu. However, learned Tribunal hearing counse! for the parties, on a scrutiny of fhe evidence Sed by them, by the impugned award a tota! compensation of Rs.7,09,000/- to the oiaimants, Tastening' the liability upon the appellant/insurance company, No.S/driver S^respondent No.o/owner jointly and ssveraliy. Hsard learned counsei for the parties, the LCR as the impugned Contention of tearned counsel Tor the appellanVinsurance company is thaf the appeiiant/fnsurance company is not to pay compensation the matador.in question, which insured with the appeiiant/insurance company, was not involved in the accident, which had occurred.on 23.12.2007. He Turther contends that the FIR registered afEer about four months ofthe accident and the said vehic!e was about a period of five months from the of accident, and on the vehicle seized, has not been disclosed by the police, aithoug'n a s'neet under Section 173(2) of Cr.P.C. was fiied the driver/responderst Mo.3 for the offence under Section 304AofthelPC. _7.'H,e further contends that Netram the solitary eyewitness, 'who, at the of accidgnt, was as a piilion rider on the motorcycle', 'which being driven by the Although this wttnsss has ciBlniQd in his statsnient th3t ifnnisdl^tsiv aftQf th8 accident, tie the number of the vehicle, but from the latter part of his statement, it is clear he tiad not the number and baving to the number of the . vehicle, he did not it tathe police. As such, it that ^ -''•^. ^s^SgS there is co!!usion bete'een the owner, c'aimants and the police that the matador in question has been falsely impiicated in the said accident. Lastly, the counsei has contended thaf the accident ha( occurred at about 8 pm in fhe nlght and in fact, it was a case of hit ana run. 8. On the contrary, Searned counsel for respondents No. 1 & and learned counsel for respondents No. 3 & 4, have supported the impugned award and submitted that it has been stricfly in accordance with law and caiis for no interference. 9. From perusal of the LCR, it is clear that only two witnesses namely Punuram (AW-1), Vi/ho is father ofthe deceased, and Ne.tram Sahu (AW-2), who was traveling vi,'ith the deceased on his motorcycie as pillion rider on the of accident, have been examsned before the Tribunal. Undoubtediy, father of the deceased Punuram (AW-1) is not an eyewitness and the only eyewitness is Netram (AW-2). This witness has that on the fateful day i.e. 23.12.2007 at 8 pm he aiong with the deceased was going on motorcycle, v.'hich was being driven by the and he as a piiiion rider. After the accident, injurea' i.e. D'r. Tiieshv/ar, who tater on succumbed to the injuries, in Hospital, Dhamtari. This vvitness has admitfed in his examination that the police had come to Bathaina Hospita!, Dhamtari, but he did not isciose the number of the vehicte to the oolice nor di'd he disciose the number at the time of recording of his Ex.D/1, which is a recorded during investigation by the police under 161 of Cr.P.C. Netram has admitted in his statement in para-12 that having been an eyewitness, he did not any report in respect of the accident, w'hich, according to him, 'was loa'ged by father of the Punuram (AW-1). But from the documenfs in the Tribunai, it is that no report todged by Punuram (AW-1) ateo. From Hospita!, Dhamtari, the injured Dr. Tileshwar was shifted to Ramkrishna Hospital, Raipur where he succumbed to the injuries on 30.12.2007. 's... ^ T 10. From the of this soiitary eyewitness AW-2, it is that the accident had occurred at about 8 pm in the night, therefore, he couid not see even cotour ofths offending vehJc'e. Netram has also admitted that he could nof see or without using spectac!es. Father of the Punuram (AW-1) has that whsn about 1 % months after the accidsnt. h0 had oons to the DCliCQ Ststion. 8 m3t3dor W3S SiSnulHQ th©r63HCJ thQ DOJiCQ hso- toici him thst thjs !s ths->y©hlc!swhlch vvss involv6d in th6 scciuQHt. Both the sbove witnsssss have stated that th@v do not know how the DoHcQ arriv©uat the conclusiOQ th8t th©iTtatsdor No. CG 005 ZB- 0302 invoived in the accident. 11. The conduct of the soiitary eyewitness Netram (AW-2) had tota'iy unnatural because after claiming that he had the number uf the ofending vehicle, he did not it to the police opportunities to ori occasions after th& accjdent. As such, from the material availabte on record, it cannot be that the vehic!0 in i.e. No. CG-005-ZB- Q302 involved in the accident. From.the totality ofthe ane circumstances, it to be a of hit and run. Consequcntfy, the appcal deserves !o be allowed. 'n ths resuft, the appeai is aiiowsd. fmpugnsd award dated 26.10.2009, so fer as it to fastening of the appeliant/insurance company, is hereby set Th< appellant/insurance company is from the iiabilify to pay compensation. However, the claimants shal) be at iiberty to approach appropriate forum under Section 161 ofthe Act, 1988 for csmpensation in of hit and run or any other fbrum, which is to them under the 17 26 13 The amount, if any, deposited by the appeiiant/insurance company sha!! be refunded to it. 'if the amount has already disbursed to the ciaimants, then the appeilant/insurance company shall be to recover the from the c'aimarits. 14. Noorderastocosts. . f ~~~--~- Sd/-" . DR.I.M.Quddusi Judge Sd/- G. Minhajuddin Judge ^