KM ‘ 1 v: yl J: W IN THE HIGH coum OF JUDICATURE AT BiLAsPUR: CHHAmseARH Divisian BancRg Misc. APPEAL No. $3‘j OF 2005 @ ; Appellant ,«Bajaj Allianz Insurance Co. OHginal Non-AppHcant No. 2 Ltd. through its Branch Manager, Present Address: Shiv Mohan Bhavan, Pandri, Raipur (Chhattisgarh) Versus w , Respondents 1. Smt. Kamla Bai Kurre riginal Claimants ’i aged about 28 years. W/o Late Madahlat Kurre av «Q 2. Mahendrakant Kurre,r .(1 \ / Aged about 8 years t \V S/o Late Madanlal Kurre Kurnari Manisha Kurre,. ‘ w D/o Late Madanlal Kurre Aged about 5years 4. , Manish Kumar Kurre X Aged about 3 years S/o Late Madanlal Kurre (SI. No. 2 to 4 Minor through their natural Guardian‘Mother Respondent No. 1 Smt. Kamia Bai Kurre, Wd/o Late Madanlal Kurre, aged about 28 years, R/o Viilage—Dhania, Seepat, Teh-Masturi, Distt. Bilaspur (CG) Respondent - g Shri Dhaniram Bachchan iginai Non—Appiicant No.1 S/o Late Ram Bachchan R/o Post: Pakaria, Janahin P.S. Pamgarh Distt. Janjgir—Champa (CG) w *° MEMORANDUM OF APPEAL UNDER SECTION 173 OF THE 6\‘*\°(p MOTOR. VEHICLES ACT, 1988 VALuMmN ac APPEAL RsA/GéiAeozcm <. The Appeliant, named above, most respectfully begs to submit as under: M " HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH: HON’BLE MR. I.M.QUDDUSI & HON’BLE MR.NAWAL KISHORE AGARWAL. JJ. M.A. No.83412005 Appeilant Bajaj Allianz Insurance Co. Ltd. Original Non-applicant No. 2 Smt. Kamla Bai Kurre and others Vs Respondents Original claimant$ Present: Mr.Sachin Singh Rajput, Advocate for the appellant. Jud ment Orai (1s september, 2010) LM. Quddusi. J;- 1. Heard. 2. The appellant-insurance company has filed this appeal against the award-dated 30,3.2005lpassed in Claim Case No.141/04 whereby the learned Motor Accident Claims Tribunal, (FTC), Bilsapur (CG) has held the appellant-insurance company primarily liable to pay a sum of Rs.4,64,160/- alongwith interest @ 8% from the date of filing of claim petition to the claimants as compensation. . Brief facts of the case are that the appellants, who are the wife, son and daughter of the deceased Madanlal re'S'pectiveiy, have filed a claim petition before the claims tribunal stating therein that on 27.2.2003 the deceased Madanlal was going on the Luna Moped bearing registration No.CG11-493O as piliion rider ‘towards Bhatapara from Ban'ahitl. When they reached near Banahil turn, a truck coming from the opposite side in speed dashed the moped as a result of which the deceased Madanlal came under the truck and died on the spot. Reportof the incident was lodged in the Police Station Pamgarh. Since at the relevant time the said moped, on which the deceased was going as pillion driver, was owned and insured by the non-applicant No.1 & 2 respectiveiy, therefore. the claimants have claimed an amount of Rs.17,25,000/‘— as compensation from them. 4. Respondent No.1 remained ex-parte in the matter. However, the appeilant-Insurance Company filed its written statement denying the claim of the claimants on the grounds that no such s k? accident has taken place; income of the deceased‘ as shown in the claim petition, was too excessive and the accident has taken piace due to negiigence on the pait of the truck‘driver and therefore, the truck driver, owner and insurer of the said truck are the necessary parties.- 5. The claims tribunai. after considering the issues framed by it, found that the deceased died due to the injuries sustained by him in an incident which has taken place on account: of rash and negligent driving by the non-applicant No.1 herein and accordingly, the tribunal, after calculating the income of the deceased at Rs.150/- per day and applying the multiplier of 18, as at the time of accident the deceased was 30 years of age, has awarded a total sum of Rs.7,73,600/-. However, since the owner‘and insurance company of the truck have not been arrayed as parties in the claim petition and the tribunal while deciding the issue No.1 has already fixed the liability of the appellant No.1 and respondent No.2 herein to the extent of 60%; therefore. vide impugned award held them liable to pay a sum of Rs.4,64,160/- to the claimants. 6. We have heard learned counsel for the parties and perused the impugned award as also the record of the claims tribunal. ' 7. The ground on which much stress has beenput by the appellant insurance company to assail the impugned award is that the driver of the vehicle did not possess a valid and effective driving licence on the date of incident. However, to prove this fact the burden is on the insurance company, but, the appellant- insurance company failed to adduce any evidence in this regard or examine any officials of the RTO concerned and therefore, in absence of any evidence regarding the plea that driver of the vehicle was not having valid driving licence, it cannot be said the claims tribunal has committed any illegality or impropriety in awarding the compensation against the appellant. w 8. ln view of above, We find no force in this appeal, the same deserves to be and is hereby dismissed. w 7 , ' sui- e i l i.M.Quodusi