HIGH COURT OF CHMATTISQARM AT BILASPU8 APPELLANT Misc.Appeal No. 31S ot 2003 The Orientai tnsurance Company Ltd., Ravl Shankar Market, Power House, Bhilaj, Tahsil & Distt. Ourg RESPONDENTS/ CLAIMANTS <.. Versus 1. Smt. Pushpabai, Widow of Kartikram Verma, Aged about 28 years, 2. Tameshwar, S/o Kartikram Verma, aged about 9 years. 3. Ku. Geeta, D/o Kartlkram Verma, aged about7 years, 4. Ku. Seeta, D/o Kartlkram Verma, aged about 3 years (Respondents No.2, 3 & 4 are minors) through natured guardian/mother Pushpa bai, widow of KartJRram Verma. All residing at Vjtlage - Phunda, Police Station - Patan, Distt. Durg (C.G.) 5. iswari Kumar, S/o DuRhitram Satnami, aged about 28 years, R/o Vili. Chicklj, P.S. Pulgaon, Tahsil & Distt. Durg (C.G.) 6. M/s Sudamalal Manak Lal through Partner Mahesh Kumar Kukreja, S/o Manaktal Kukreja, R/o Kailash Nagar, Titurdih, Durg, Tahsi! & DistS. Durg (C.G.) APPEAL U/S 173 OF THE MOTOR VEHJCLES ACT.1988 (Sinale Bench: Hon'ble Mr. N.K. Aaarwal. J.l Present : Shri H.S. Patei, oounsej for the appeliant. Shri Vishnu Koshta, counsel for respondente No.1 to4. Shri M.L. Saket, counsel for respondents No.5 & 6. —^ -: ^. ^^.fvlf':: " ' \. ^.- ORALORDER (Passed on 17th day of March, 201Q) This is insurer's appeal against the award dated 28-01- 2003 passed by Seventh Additjonal JVIotor Accldent Claims Tribunai (F.T.C.), Durg (for short 'the Tribunal') in Claim Case No.1/2002. 2. The facts briefly stated are as under: Kartjkram (since deceased) on 16-(y7-2001 was going by Luna with his brother-jn-law Gendlal Verma towards Patan, near Demar square, met with an accident with Matador 709 bearing registration No. M.P. 24-C/4Q32 and succutnbed to the Snjuries sustained in the said accident. Matter was reported to Pollce Station, Patan. After compieting investigatlon, challan was filed against respondent No.5 j.e. driver ofthe Matadw under Section 279, 337,304-A ofthe i.P.C. before the Judidal Maglstrate, First Class. 3. The claimants unfortunate widow and mlnor children of the deceased filed a claim petition under Section 166 of the Motor Vehicles Act (for short 'the Act') claiming Rs.12,48,000/- as compensation against the driver, owner and insurer I.e. the appellant. 4. Driver and Owner i.e. responderrts No. 5 & 6 have filed their written statements in whteh the factum of accident has been formally denied with a further pleadrng that jf at all it is held that accident had occurred then, the vehicle being insured with the appellanVlnsurance Company, the Insurance Company is responsible for payment of compensation to the claimants. 5. Learned Tribunal on a close scrutiny of »eevldenee led, materiaj piaced and submissions made, held that the deoeased died in the accjdent on 16-07-2001 which occurred due to rash and negligent driving of respondent No.5; assessed the compensation of Rs.1,99,500/- payable to respomlents No. 1 to ,^ ^. f 4 by respondents No.5 & 6 and appellant jofntly and severally along with interest @ 6% per annum. 6. Learned counsel for the appellant would submit that the vehicte in question i.e. Matador bearing registration No. M.P. 24-C/4932 was not invotved jn the said accidentand, therefore, the learned Tribunai has erred in assessing and awardhig compensatjon in favour of the claimants and as agajnst respondents No. 5 & 6 and the appetlant. 7. On the other hand, leamed counsel appearing for respondents No.1 to 4 would contend that the learned Tribunal has recorded a categoricat finding regarding involvement of the said vehtole on appreciatjon of evidence and the finding recorded by the learned Tribunal in this regard deserves to be upheld. 8. I have heard learned counsel for the parties, perused the award impugned and the record of the Tribunal. 9. In claim petitjon, para 2, it has been speciffoally pleaded that the accident occurred due to rash and negligent drivlng of the driver of Matador 709 beartng registration No. M.P. 24- C/4932 j.e. respondent No.5 and as a result of which the deceased sustained injuries and died on the spot. Thereafter, the police have fited challan against respondent No.5 under Sectlons 279, 337 & ^Q4-A ofthe IPC. The claimants have also proved the fact of involvement in the accictent by ieadlng evidence in this regard. 10. in the written statement filed by respondents No.5 & 6, they have casually denied the factum of accident and Snvolvement of the vehicle. The fact being within the personal knowledge of the respondents, it was incumbent upon them to plead speciflcally that the said vehtelewas not involved in the said accident. What they have pleaded that the fact has to be proved by the claimants would 90 to show that they want to suppress the fact of accident and involvement of the vehicle in "^. \ i ^^..^ l ~'w !^£^^^ Kvr the said accident. Poltoe authority after completion of investigation, have filed the challan against the driver. The owner and driver have not preferred any appeal chalienging the award on the ground of non-involvement of their vehide in the sajd accident. Ateo failed to iead cogent evidence in thts regard. The appellants also did not adduce any evidence. 11. (n view of above, jt cannot be said that the learned Tribunal has erred in recording the rinding regarding involvement of the vehicle. The appellants are utteriy failed to prove the contention raised. 12. In view of above, in the considered opinion of this Court, the appeal being devoid of merits is liable to be and is hereby dismissed. -—_— a^-— Sd/- 1 N. K. Agarwal judge 1