^^ IN THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR ^ ^. M.A.(C)No.- \{^ h 2-^)0 TSh^y—^^-....-3-, APPELLANT 1, , :- THE ORIENTAL INSURANCE COMPANY Lrf" L;'M»;Or'"OIVIs7oNl:I: •.^•'"LA V4 'n^^' ^a^' ^Ti^- ^-^^^ .-•':^ -t^' \^^ LIMITED, DIVISIONAL, BILASPUR, C.G. OFFICE, l^ ^*AM."-( ^••••"<" ^^ ^^9' ^..-^^ Vrs. s^" RESPONDENTS/CLAIMANTS ^" :-1. SMT. RAMADEVI W/0 SUNIL ALiAS BALLU MISHRA , AGE 26 yrs. (^ 2. KU. AARUSHI D/0 SUNIL ALIAS BALLU MISHRA,AGE6MONTHS, _ ...^^^L-.^ '^ sufiffsHCifffV^ ns^fff- 3. SMT. VIMLA DEVI B^O ISHWAR SHAHANI, -PRASADy AGE ABOUT-l^ YRS, CASTE- <6!»^<,^^...,_,.,...»._—.^^,N «»,.^^-."^^-^.^-'»«--'-^^^.^~=«.^msJ, <^ RESPONDENT N0.- 2, MINOR THROUGH NATURAL GUARDIAN SMT. RAMA DEVI W/0 SUNIL KUMAR ALIAS BALLU MISHRA, ALL RESIDENT, VILLAGE KARHI, THANA AND TEHSIL MUNGELI, DISTRICT BILASPUR (C.G.), RESPONDENTS/NON-APPLICANTS : - 4. DHANUSH PRASAD S/0 BANSHI LAL DUBEY, AGE 48 YRS., VEHICLE DRIVER, SARVMANGALA BUS NUMBER C.G. 10- G- 0170 RESIDENT MAGARPARA, SAMTA COLONY , BILASPUR, C.G. 5. PREMPRAKASH LATH S/0 H.S.LATH, AGE 54 YRS., VEHICLE OWNER, SARVMANGALA BUS NUMBER C.G. 10- G- 0170, RESIDENT NIRALA NAGAR, BUS STAND, BILASPUR C.G. APPEAL UNDER SECTION 173 OF MOTOR VEHICLE ACT 1988 r HIGH COURT OF CHHATTISGARH AT BILASPUR DB: Hon'ble Shri Justice I.M Qucklusi. & Hon'ble Shri Justice Prashant Kumar Mishra. JJ. M.A. (Cl No. 1197 of 2010 The Oriental Insurance Company Limited. Versus Smt. Ramadevi and others. ORDER FOR CONSIDERATION JUDGE & -05-2011 Hon'ble Shri I.M. Quddusi. J. ^ o^v^ \) Sd/- I.M.Quddusi Judge ]o -05-2011 Postforf?-. 05-2011 Sd//- Prashant Kumar Mishra Judge ^ ^^'% ^K^ "^.^^ ^ HIGH COURT OF CHHATTISGARH. BILASPUR CORAM: Hon'bleShri I.M. Quddusi, J. & Hon'ble Shri Prashant Kumar Mjshm^J. M.A.(ClNo. 1197 of 2010 APPELLANT Versus RESPONDENTS The Oriental Insurance Company Limited. Smt. Ramadevi and others. Shri Sudhir Agrawal, counsel for the appeltant. Shri Goutam Khetrapal, counsel for respondents No. 1 to 3. ORDER ( / 7^05/2011) PERPRASHANTKUMARMISHRA. J. This appeal under Section 173 of the Motor Accident Claims Tribunal, 1988 has been preferred by the jnsurer. the Oriental Insurance Company Limited challenging the award passed by the II Additional Motor Accident Claims Tribunal (F.T.C.), Mungeti, district ~ Bilaspur awarding compensation of Rs. 17,31,000/- in favour of claimante who are the widow, minor daughter and mother of deceased Sunil @ Ballu Mishra. (2) Brief fects of the case, as stated in the claim petition, are that at about 10.00 a.m. on 11/05/2009 deceased Sunil Kumar was going from Karhi to Takhatpur on the leftside ofthe road by driving his motorcycle in a careful manner to look after underground wjre cabling work of Bharat Sanchar Nigam Umited (for short 'BSNL'). When he reached near Shiv Shakti Rice Mill, the non-claimant No.1 Dhanush Prasad dashed against the motorcycle by driving his bus in a rash and negfigent manner. as a result of which the motorcyde got completely damaged and the deceased suffered grievous injuries and was immediately taken to Primary Health '\ Centre, Takhatpur from where he was referred to Chhattisgarh Institute of Medical Sdence, Bilaspur and thereafter he was taken to Apollo Hospital, '/'T;-:^^:. <"^•^ i^i B .y ^ "^' Bilaspur where he died at about 2.00 p.m. According to the claimants, the deceased was aged about 33 years and was engaged in obtaining liquor contract from the Excise Department as well as obtaininfl other contract was from BSNL and Rural Engineering Servtce Department. He was an income tax payee and used to earn Rs.3,50.000/- per year. Theclajmants claimed compensation of Rs.54,25,000/- on the ground that because of death of the deceased they have suffered loss ofdependency income. (3) The non-claimants No. 1 & 2, the driver and owner ofthebus filed their written statement and stated that the bus was parked for de-boarding of passengers and the deceased got dashed against the bus and thus he himselfwas responsibte for causing death. The Insurgince Company, m its reply, stated that the insurer of the motorcycle is a necessary par^ and that the deceased himself was responsibte for accictent as he had consumed liquor and in any case the present is a case of contributory negligence. (4) On conclusion of inquiry, the claims Tribunal recorded a finding that the driver of the bus was responsjble for causing the acddent and that the plea of confributory negtigence has not been proved. After finding that the income of the deceased was 1,98,020/- as mentioned in the income tax return, the Tribunal awarded sum of Rs.17,31,000/- as compensatton. (5) Leamed counsel for the appellant-lnsurance Company hs®argued that the Tribunal wrongly rejected the Insurance Company's application under Section 170 of the Motor Vehteles Act and that from the evidence on record it is fully proved that the present is a case of negligence of the deceased and in any case it is a case of contributory negligence. Learned counsel for respondents/claimants has supported the impugned award. a -3 (6) This Court has heard teamed counsel for the parties at tength and has perused the record of the claims Tribunal. (7) From the order-sheet recorded by the Tribunal it would appear that the application under Sectjon 170 of the Motor Vehictes Act was fited wi 16/02/2010. The claimants filed their reply to this appljcation on the same day. The Insurance Company did not press the applicatjon when the matter was posted for hearing on 08/03/2010, 30/03/2010, 06/04/2010, 04/05/2010, 07/05/2010 and 07/07/2010. The applteation was pressed on 19/07/2010 and before this date some of the witnesses were already examined. From the deposition of AW-1 Ramadevi tt would appear that the counsel appearing for the driver and owner has extensivety cross- examined the said witness who is the widow of the deceased and the cross-examination is on the point of negHgence of the ctece^sed as well as his income. Similarly the insurance Company's Lawyer has also cross- examined this witness. AW-2 Safyakant Mishra has also been cross- examined at length by the counsel for owner and driver. Thus, Uie present is not a case where the owner and driver have not partteipated in the proceeding or were colluding with the claimants and therefore rejection of the appljcation under Section 170 of the Motor Vehictes Acl, 1988 by the leamed Tribunal is in accordance with law and the submission to the contrary urged by the learned counsel for the appellant has no substance. The said argument deserves to be and is hereby rejected. (8) In the matter of Sadhana Lodh vs. Nattonal Insurance Co. Ltd. and another reported in (2003) 3 SCC 524, National Insurance Co. Ltd. vs. Mastan and another, 2006 (2) SCC 641, Bijoy Kumar Dugar vs. Bidya Dhar Dutta and others (2006) 3 SCC 242 the Hon'bte Sypreme Court has held that in the absence of permission granted to the Insurance 'Company under Sectfon 170 of the Motor Vehictes Act, the Insurance ^'^y @ -^- Company cannot challenge the quantum of compensation awarded by the Tribunal in favour of the claimants. This Court has already found that rejection of the appellant's application under Section 170 of the Motor Vehicles Act, 1988 does not suffer for any inftrmity, therefore, the Insurance Company cannot challenge the quantum of compensation awarded to the claimants. (9) Leamed counsel for the appellant has also argued that the deceased himself was responsible for causing the accident, therefore the claim petition has wrongly beenallowed and in any case, it is a case of contributory negligence. This Court has already found that rejection ofthe application under Section 170 of the Motor Vehictes Act, 1988 filed by the appellant is proper, therefore ptea of negligence cannot be raised, however this Court has independently examined the evidence and we are convinced that from the contents of Dehati Nalishi (Ex.P/3). F.I.R. (Ex.P/2) and the Spot Map (Ex.P/8) it is ctearty established that the deceased was drivino on the left side of the road and was thus not negtigent or responsible for causing the accident. ^ (10) In view of the above, this Court does not find any ground fbr interfering wifli the impugned award passed bythe tearned claims Tribunal. (11) The present appeal fails and is hereby dismissed. Sd/- LM.Quddusi Judge Sd//- Prashant Kumar Mishra Judge ^