HIGH^QURT QF CHHATTISGARH AT BILASPUR Misc. Appeal (Q No. 501 of 2008 APPELLANTS Claimants RESPONDENTS Smt. Sanyogi Devi and others. Versus Kaushal Pandey and others. AWARD For consideration ) ^ -9-20 11 ^»mwv» Hon'ble Shri Justice Rajeev Gupta 3 ^uyr^^ Sd/- Chief Justice Sd/- N. K. Agarwal Judge Post for pronouncement of Award: ] ^ -9-2011 Sd/- N. K. Agarwal Judge ^ HIGH COURT OF CHHATTISGARH AT BILASPUR MISC.APPEAL (Q No. 501 of 2008 APPELLANTS/ Clainiants RESPONDENTS 1. Smt. Sanyogi Devi, w/o Late Chhumman Sahni, aged about 27 years, 2. Ku. Aasha, D/o Late Chhumman Sahni, aged about 11 years, 3. Ku. Reema, D/o Late Chhumman Sahni, aged about 09 years, 4. Ku. Sona, D/o Late Chhumman Sahni, aged about 03 years. 5. Ku. Mona, D/o Late Chhumman Sahni, aged about 01 years. No.2 to 5 are minors through their natural guardian Smt. Sanyogi Devi, All are R/o Sharma Colony, Vivekanand Nagar, Nandani Road, Bhilai, Distt. Durg, P.S. Chhavni, Tahsil & Distt. Durg (C.G.) Versus 1. Kaushal Pandey, S/o Shri Ram Ayodhya Pandey, C/o M.S. Petrol Pump, Chhokra Nala, Tatibandh, Raipur, Distt. Raipur (C.G.) 2. Divisional Manager, The New India Insurance Company Limited, Thakker Chamber, Opp. Project Auto Mobile, Power House, Bhilai, Tahsil & Distt. Durg (C.G.) 3. Managr, M/s Minkul Rock Fa.brics Limited, Vardhman 31 Nagar, Rajnandgaon, Distt. Rajnandgaon (C.G.) 4. Divisional Manager, National Insurance Company Limited, Akashganga Complex, G.E. Road, Supela, Bhilai Nagar, Tahsil & Distt. Durg (C.G.) 5. Jagjit Singh, S/o Balihar Singh, aged not known, C/o Dashmesh Road Lines, Transport Nagar, Bhilai Nagar, Distt. Durg. 6. Divisional Manager,National Insurance Company Limited, Akashganga Complex, G.E. Road, Supela, Bhilai Nagar, Tahsil & Distt. Durg (C.G.) APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLES ACT DB: Hon. Shri Rajeev Gupta, C.J. & Hon. Shri N.K. Agarwal, J PRESENT:- Shri D.N. Prajapati and Shri Md. Tarek Haider, counsel for the appellants. Shri Sudhir Agrawal and Shri P. Dutta,, counsel for respondent No.2. AWARD (Passedon (^-9-2011) Per N.K. Aearwal, J. Being aggrieved and dissatisfied with the amount of compensation awarded by the 9th Additional Motor Accidents Claims Tribunal (Fast Track Court), Durg (for short 'the Tribunal') in motor accidents claim case No.35/2007 vide award dated 10.08.2007, the instant appeal has been preferred by the appellants/claimants for enhancement. 1?%IJ ^. i... ..,F..^' 'f^^^ v^ 2. As against compensation of Rs.25,50,000/- claimed by the claimants i.e. unfortunate widow and minor children of late Chhumman Sahni by filing claim application 166 of the Motor Vehicles Act, 1988 (for short 'the Act') for his death in the motor accident on 23.02.2004, the Tribunal has awarded a total sum of Rs.3,19,375/- along with interest @ 6% per annum from the date of application till its actual payment. 3. The Tribunal, on a close scrutiny of the evidence led, held: the accident had occurred due to head on collision between Truck bearing registration No. C.G.08-B/0177 being driven by deceased - Chhumman Sahni and Truck bearing registration No.C.G.04 ZC/9342 being driven by its driver and owned by respondent No.l; both the drivers (since deceased) of the vehicles responsible for accident to the extent of 50% each: the driver of Truck No. C.G. 05/9877 not responsible for the accident; respondent No.2 - The New India Insurance Company Limited liable for payment of compensation as Truck bearing registration No. C.G.04 ZC/9342 was insured with respondent No.2 on the date of accident as the New India Insurance Company Limited could not establish violation of policy conditions; assessed compensation of Rs.6,38,750/- and after deducting 50% towards contributory negligence of deceased i.e. driver of Truck bearing registration No. C.G.08- B/0177, awarded a sum of Rs.3,19,375/- as compensa.tion to the appellants/claimants along with interest at 6% per ^;,^.:^^^'\ Jl^ll^lj ^ annum froni the date of claim application till its actual payment holding respondents No.l 8& 2 jointly and severally liable for its payment. 4. Shri D.N.Prajapati, learned counsel appearing for the appellants would submit: the Tribunal has fallen in error in holding deceased i.e. i.e. driver of Truck bearing registration No. C.G.08-B/0177 responsible for accident to the extent of 50% and in reducing the amount of compensation accordingly; in fixing the monthly income of the deceased as Rs.3,750/- in place of Rs.5000/-; and in awarding low amount of compensation. 5. On the other hand, Shri Sudhir Agrawal with Shri P. Dutta, learned counsel appearing for respondent No.2 supported the award and submitted that in the facts and circumstances of the case, the Tribunal has rightly held deceased driver equally responsible for the accident; liberally assessed the income ofthe deceased as Rs.3,750/- per month and awarded just and proper amount of compensation which does not call for any interference. 6. We have heard learned counsel for the parties and have perused the record of the Tribunal including the award impugned. ^ \^0 7. As per the case of the appellants: deceased Chhumman Sahni was driving the Truck bearing No. C.G.08-B/0177 and was going from Amarawati to Akola and the Truck bearing No. C.G.04-ZC/9342 was coming from Akola to Amarwati. The Truck bearing No.C.G.05/9877 was behind the Truck bearing No.C.G.08-B/0177 being driven by the deceased. Near village Jamtheephata, head on collision took place between the Truck being driven by the deceased and the Truck bearing No.C.G.04-ZC/9342 being driven by its driver. At the same time, the driver ofTruck bearing No.C.G.05/9877 also dashed from behind the Truck bearing No.C.G.08-B/0177 being driven by the deceased. Pursuant to the above accident, both the drivers have died. 8. As per F.I.R. Ex.P-l-C: the accident had occurred due to head on collision between the Truck bearing No.C.G.08- B/0177 being driven by the deceased driver and the Truck bearing No. C.G.04-ZC-9342. Police registered the case against the deceased as well as driver of Truck bearing No.C.G.04-ZC/9342 but as both have died the police filed the case. 9. Appellants have examined Smt. Sanyogi Devi (A.W.l), Ashish Suryawanish (A.W.2), who is an Advocate and ti-anslated criminal case papers from Marathi to Hindi, Somendra Singh (A.W.3), so-called Manager of Heavy ,^^^ ^'.^ii j j \wi^J/ \,,.,..^:y ^\ Transport Company, Bhilai. On the other hand, respondent No.4 has examined Awadhesh Kumar Rai (N.A.W.l) as his witness. None of the witnesses examined by either party was eye witness. 10. In a proceeding under Section 166 of the Act, unless it is established that due to rash and negligent act on the part of the owner or driver of a vehicle death occurred, no compensation should be payable to the claimants. 11. The Supreme Court, in the case of Oriental Insurance Coinpany Limited v. Prenilata Shukla and others, (2007) 13 SCC 476, has held: proof of rashness and negligence on the part of the driver of the vehicle is sine qua non for maintaining an application under Section 166 ofthe Act. 12. Now, reverting to the facts of the present case. Indisputably, the appellants did not examine any eye witness. As per F.I.R. Ex.P-l-C, accident took place due to head on collision between the Truck being driven by the deceased and the Truck No.C.G.04-ZC-9342 being driven by its driver and both the drivers were responsible for the above accident. As per para - 22 of the claim application, there was head on collision between the above two Trucks. 13. The finding of contributory negligence recorded by the Tribunal when examined in the light of above material and ^•^.-^^. y^&^h. :,^'' ^,.^, . l'<^,"- y ^m '^ // '" 'l I1' %:%gte, 1 "i~^i^K^^ i '""9 S/' ^^ evidence and the judgments of Supreme Court in the case of Premlata Shukla and others (supra), in our opinion, the Tribunal was quite liberal in awarding compensation to the appellants holding both the drivers responsible for the accident by applying the principle of res ipsa loquitor inasmuch as the Tribunal could have dismissed the case for want of proof of negligence on the part of driver of other vehicle and we do not find any infirmity in the above finding recorded by the Tribunal. 14. True, the appellants pleaded the income of the deceased as Rs.5000/- per month, but no cogent and clinching evidence was adduced to prove the same. The Tribunal has rightly declined to believe the certificate Ex.P.7 inasmuch as the sarae was not signed by the proprietor of the Heavy Transport Company and some other person has signed the same showing himself as proprietor of the above Company. Therefore, the income of the deceased assessed by the Tribunal as Rs.3,750/- per month cannot be found fault with. 15. For the foregoing, we do not find any merit in the appeal. The appeal being devoid of merit is dismissed. 16. No order as to costs. Sd/- ChiefJustice Sd/- N. K. Agarwal Judge