HIGH COURT OF CHHATTISGARH, BILASPUR CORAM: Hon»bleShri Raieev Gupta, C.J. & Hon'ble Shri Sunil Kumar Sinha^J. Misc. Appeal (0 No. 714 of2009 Smt. Motim Bai Sahu and another Vs. Ramchand Rai and others (and corinected M.A(C). Np.716/2009). ORDER For consideration Sd/- Sunil Kumar Sinha Judge HON»BLESHRI JUSTICE RAJl^V GUPTA Jl ^ <1 s<v- Cbief Justice Post for Order :///03/2010_ I Sd/- Sunil Kumar Sinha Judge HIGH COURT OF CHHATTISGARH, BILASPUR CORAM: Hon'ble Shri Raieev Guota, C. J. & Hon'ble Shri Sunil Kumar Sinha, J. Misc. Appeal (Ct No. 714 of 2009 APPELLANTS RESPONDENTS <<. 1. Smt. Motim Bai Sahu, aged about 21 years, w/o Late Birendra Kumar Sahu, 2. Ku. Khushi Sahu, aged about one and half years, D/o late Birendra Kumar Sahu, Minor through her natural guardian Mother appellant no.l Smt. Motim Bai Sahu. Both are R/o village Nakti, Police Station Mana Canip, Raipur, Tahsil and District Raipur (C.G). 3. Smt. Amrit Sahu, aged about 60 years, wife of Late Sundarlal, r/o village Nakti, P.S. Mana Camp, Raipur, Tahsil and District Raipur (C.G) Versus 1. Ramchand Rai, son of Ramashish Rai, R/o Baghmod, Police Station Kachrapara, District Choubir (W.B). - Present address : Behind Mining Office, Vishal Traders, Mahaveer Nagar, F>uraina, Raipur, Tahsil and District Raipur (C.G). 2. Parsuram Das, s/o Jhaman Das, R/o Rajendra Park, Guru Teg Bahadur Nagar, New Puraina, Raipur, Police Station Telibandha, Raipur, Tahsil and District Raipur (C.G). 3. I.C.I.C.I. Lombard Motor Insurance Company Limited, through the Branch Manager, Branch Office, Third Floor, Lalganga shopping Maal, G.E. Road, Raipur, Tahsil and District Raipur (C.G). .!p^ M.A (C\ No. 714 of2009 &M. A (-C ) No. 716 of2009 And Misc. Appeal (Cl No.716 of 2009 APPELLANTS RESPONDENTS 1. Smt. Satyabhama Sahu, w/o Late Shobharam Sahu, aged about 28 years 2. Harish Kumar Sahu, s/o Late Shobharam Sahu, aged about 7 years, 3. Ku. Jyoti Sahu, D/o Late Shobharam Sahu, aged about 5 years, 4. Ku. Hema Sahu, D/o Late Shobharain Sahu, aged about 03 years 5. Chhotu Sahu, S/o Late Shobharam Sahu, aged about one and half years, Appellants no.2 to 5 are Minors through their natural guardian Mother appellant no.l Smt. Satyabhama Sahu, w/o Late Shobharam Sahu All residents of village Nakti, Police Station Mana Camp, Raipur, Tahsil and District Raipur (C.G). 6. Bodhiram, aged about 70 years, s/o Sudarshan Sahu; 7. Smt. Bisahin, aged about 70 years/w/o Bodhiram; Both are R/o village Nakti, Police Station Mana Canip, Raipur, Tahsil and District Raipur (C.G). Versus 1. Ramchand Rai, son of Ramashish Rai, R/o iBaghmod, Police Station Kachrapara, District Choubir (W.B). - Present address : Behind Mining Office, Vishal Traders, Mahaveer Nagar, Puraina, Raipur, Tahsil and District Raipur (C.G). ^ %r-^;^ ^ M.A (C\ No. 714 of 2009 &M. A (C )No. 716 of2009 ^ 2. Parsuram Das, s/o Jhaman Das, R/o Rajendra Park, Guru Teg Bahadur Nagar, New Puraina, Raipur, Police Station Telibandha, Raipur, Tahsil and District Raipur (C.G). 3. I.C.I.C.I. Lombard Motor Insurance Company Limited, through the Branch Manager, Branch Office, Third Floor, Lalganga shopping Maal, G.E. Road, Raipur, Tahsil and District Raipur (C.G). MISC. APPEALS UNDER SECTION 173(4,1 OF THE MOTOR VEHICLES ACT, 1988. Appearance: Mr. Malay Kumar Bhaduri, counsel for the appellants. Mr. Sushil Sahu, counsel for respondents 1 & 2. Mr. Saurabh Sharma, counsel for respondent no.3. ORDER (11.03.2010) Following order of the Court was delivered by Sunil Kumar Sinha, J. (1) The appellants/claimants have filed these appeals against a common award dated 27th of January, 2009 passed by the Second Addl. Motor Accident Claims Tribunal, Raipur (C.G) in Claim Case No.68/2008 and 71/2008. (2) M.A(C). No.714/2009 arises out of Claim Case No.68/2008 and M.A(C).No.716/2009 arises out of Claim Case No.71/2008. Both the claim petitions filed by the respective appellants/claimants have been dismissed by the Claims Tribunal. M.A (Q. No. 714 of 2009 &M. A CC )No. 716 of2009 (3) The facts, briefly stated, are as under:- '€. Two persons namely Virendra Kumar Sahu and Shobharam Sahu died in the motor accident which took place on 14.12.2007. Claim Case No.68/2008 was filed for death of Virendra Kumar Sahu whereas Claim Case No.71/2008 was filed for the death of Shobharam Sahu. Both the claim petitioners were filed u/s 166 of the Motor Vehicles Act. The appellants/respective claimants pleaded that on 14.12.2007, the deceased persons were traveling on Pulsor Motorcycle. Deceased Shobharam Sahu was driving the motorcycle whereas deceased Virendra Kumar Sahu was the pillion rider. At about 7 p.m., when they were on Raipur - Abhanpur road, their motorcycle was dashed by the offending Truck bearing Regn.No.C.0.04/J-7178. According to the appellants it was a head-on collusion and the accident occurred on account of rash and negligent driving of the offending Truck by its driver. Verendra Kumar Sahu died on 15.12.2007 and Shobharam Sahu died on 02.01.2008 in M.M.I. Hospital, Raipur. The appellants/claimants further pleaded that Virendra Kumar Sahu was aged about 24 years and was earning Rs.8000/- per month by doing some private work, whereas Shobharam Sahu was aged about 30 years and he was also earning Rs.7000/- per month. The appellants/claimants claimed Rs.20,25,000/- in Claim Case No.68/2008 and Rs.20,75,000/- in Claim Case No.71/2008 as compensation on account of death of deceased persons in the motor accident. The owner and driver filed their joint written statement and denied the contents of the claim petition. They pleaded that their vehicle was not M.A (C\ No. 714 of 2009 & M. A (C I No. 716 of 2009 involved in the accident and a belated false report was lodged mentioning the number ofvehicle. The insurer also filed the written statement* It also took specific plea that the accident occurred on 14.12.2007 whereas the first information report was lodged on 23.01.2008. In fact, it supported the plea taken by the driver and owner. In Claim Case No.68/2008, the claimants examined Motim Sahu (A.W.l), Shankarlal Sahu (A.W.2) 8& Arvind Kumar Sahu (A.W.3) in support of their claim petition, whereas Ramchand Rai, the driver of the truck was examined as N.A.W. 1. In Claim Case No.71/2008, the claimants examined Satyabhama Sahu (A.W.l), Shankarlal Sahu (A.W.2) whereas the respondents did not examine any witness. The Claims Tribunal, on scrutiny of the evidence led by fhe parties, dismissed the claim petitions holding that the claimants could not establish the involvement of Truck No.C.G.04/J- 7178. (4) Mr. Malay Kumar Bhaduri, learned counsel appearing on behalf of the appellants/claimants, argued that the Tribunal erred in law in holding that the claimants could not establish the involvement of Truck No.C.G.04/J-7178, therefore, the award, commonly passed in both the cases, vitiates. (5) On the other hand, Mr. Sushil Sahu, and Mr. Saurabh Sharma, leaned counsel appearing on behalf of respective respondents, opposed these arguments and supported the award passed by the Claims Tribunal. a^^^Sft4- 6 M.A (C\ No. 714 of2009 & M. A CC ) No. 716 of2009 (6) We have heard the learned counsel for the parties at length and have also perused the records of the claim cases. (7) Shankarlal Sahu (A.W.2) has been examined as an eye- witness in both the claim cases. He deposed that on the fateful day at about 7 p.m., he was also coming with the deceased persons on another motorcycle. He was riding the motorcycle alongwith Kalyan Sahu. Deceased Shobharam Sahu wasjointly driving the motorcycle. On the way, Truck No.C.G.04/J-7178 came from the opposite direction and dashed against the motorcycle of the deceased persons. The Tribunal obser^ed that in Claim Case No.68/2008, Shankarlal Sahu (A.W.2) deposed that when he heard the noise of collusion, he saw the accident, whereas in Claim Case No.71/2008 he very clearly deposed that he had not seen the accident and he alongwith Kalyan reached to the place of accident after the accident had occurred. He firstly admitted in para 8 that Virendra Kuinar and Shobharara Sahu were coming behind them on their motorcycle, but later on he deposed that he was coming on his motorcycle behind the raotorcycle of the deceased persons. Apart from the said clear admission in para 8 of his deposition in cross-examination in Claim Case No.71/2008, the Tribunal obseryed many other material discrepancies in his evidence. The Tribunal has observed these discrepancies vide paras 7 to 14 of the impugned award. Apart from the a^ove evidence of the solitary eye-witness the Tribunal has also taken into account that for an accident, which took place on 14.12.2007, the first information ^ M.A (C\ No. 714 of 2009 & M. A fC) No. 716 of2009 report was lodged on 23.01.2008. Itwas argued before us +hat Virendra Kumar died on 15.12.2007 and Shobharam Sahu died on 02.01.2008, therefore, the family members or any other person could not lodge the report before 23.01.2008. The explanation given for the delay in lodging the First Information Report does not find place in the report. The F.I.R. was lodged in Police Station Tikarapara, Raipur and it was transferred to P.S. Abhanpur because the alleged accident took place in the area of police station Abhanpuir. The F.I.R. was lodged by Kalyan Sahu. He appears to be the relative of deceased. (8) The Tribunal has also relied on the evidence of Ramchand Rai (N.A.W.l) who was an employed driver of the truck. He deposed that his vehicle was never involved in such accident. He has very specifically deposed that on 14.12.2007 his vehicle was engaged in carrying the debris of a complex which was under construction at Pandri Clothe market, Raipur, which is at a distant place from the place of accident. (9) The Tribunal has obser^ed that Kalyan Sahu was the maternal uncle of Shobharam Sahu, who according to the claimants was also an eye-witness. The Tribunal has further observed the conduct of Shankar Lal Sahu (A.W.2) and has recorded a finding that he was not an eye-witness and the story set forth by the claimants was not proved on his evidence and thus, it was not established by the claimants that the accident occurred on account of rash and negligent driving of Truck ^^»^ "1:... M.A (Q. No. 714 of2009 &M. A (C ) No. 716 of2009 No.C.G.04/J-7178 or the said Truck was involved in the accident. (10) Merely, on account of not lodging a prompt F.I.R., the story set forth by the claimants would not have been rejected by the Claims Tribunal. We find from record of the Tribunal in Claim Case No.71/2008 that copy of requisition sent by the Police for conducting the postmortem of deceased Shobharam has been proved as Ex.P.84. It is a document dated 02.01.2008. It has been mentioned in Ex.P.84 that the deceased died on account of an accident in which Truck No.C.G.04/J-7178 was involved and the motorcycle of the deceased was involved. This shows that the FIR, which came to be lodged on 23.01.2008, cannot be said to be creature of an after-thought. Therefore, the Claims Tribunal erred in law in discarding the testimony of the eye-witnesses on this account alone. As we have stated earlier, the other eye witness Kalyan was not exarained by the claimants. The clainiants have also not exarained any other person from. the concerned police station from where a charge sheet u/s 304-A IPC was filed against the driver Ramchand Rai who has admitted that a criminal case was pending against him. (11) After going through the entire evidence on record *and after considering the facts and circumstances of the case, we are unable to confirm the finding recorded by the Claims Tribunal that the aforesaid Truck was not at all involved in the accident and we feel it necessary that some more enquiries are needed in M.A CC). No. 714 of2009 &M. A CC ) No. 716 of2009 this matter. Accordingly, we deem it necessary to set aside the finding and the award passed by the Claims Tribunal and remand both the claim cases to the Tribunal for deciding afresh. (12) Accordingly, the impugned common award is set aside and Claim Cases No.68/2008 85 71/2008 are remanded to the Claims Tribunal for deciding afresh. The Tribunal shall give fresh opportunity to the claimants to le^d their evidence, if they so desire, and thereafter it shall also give opportunities to all the respondents to lead their evidence also, and then shall pass the award in the said claim cases. (13) There shall be no order as to costs. Sd/- Chief Justice Sd/- Sunil Kumar Sinha Judge Rao f'/