^" IN THE HIGH COURT OF JUDICATURE AT BILASPUR rCHHATTISGARHl Misc.Apoeal NoT/<? lf OF 2004 APPELLANT INSURANCE /^The Oriental Insurance Co. Ltd. ' through its Divisional Manager, Division Office, Opposite High Court, Bilaspur [CG) VERSUS RESPONDENTS CLAIMANTS ^.Mst. Sita Bi alias Harni Nirala, aged 32 years, widow of late Ramkrishan Nirala. ^.^.Mukesh Kumar s/o late Ramkrishan Nirala, aged 14 years. F. Neelkamal s/o late Ramkrishan Nirala, aged 12 years. \^^ Ku. Deeksha d/o late Ramkrishan Nirala, aged 10 years. (Respondents no.2 to 4 minor through their natural guardian mother Mst. Sita Bi alias Harni Nirala, aged 32 years) ^IAII r/o Police Colony, Tifra, Q.No.B-30, BUaspur (C.G.) OWNER ^ ^ ^\>^ c^/rtc os<^/^ (,.^.Zcl( DRIVER ^ /:..^' ?BS?~ SangaHriaJ—-G;o-pta,—aged—36- -years, .s/o-latc Gopma^ r/o Main- "Road-Torba^aaspur-^eG^— n >. Omprakash Goswami, aged 34 years, s/o Shri Roopgiri, r/o Chingrajpara, Police Station- Sarkanda, Bilaspur (CG). ^Smt. Kanta Devi alleged to be the second wife of late Ramkrishan Nirala, r/o Rambhata, Police Station and District Raiearh (CG). APPEAL U/S 173 OF MOTOR VEHICLEg ACT AGAINST THE AWARD/ORDER DATED 6-8-2004^ PASSED BY THE ADDITIONAL MQTQR ACCIEDENT CLAIMS TRIBUNAL, ^BILASPVR (PRESIDED OM&R BY SMT. MADHURI KATULKARt IN C.T. N0^20/^2002 ^ Appeal valued at Rs. 7,22,296/-, Court Fee affixed Rs. glp^'^ms' '^??(.-—._ ...:..-.. 4-'" HIOH COURT OF CHHATTISGARH. BILASPUR CORAM: Hon'bleShri I.M. Quddusi, J. & Hon?bJe Shri Prashant Kumar Mishra, J. M.A.No.1069 of 2004 APPELLANT The Oriental Insurance Co. Ltd. Versus RESPONDENTS Mst. SJta Bi alias Harni Nirala and others. Shri Abhishek Slnha and Shri Ghanshyam Patel, counsel for the appellant. ORAL ORDER (03/03/2011) FolSowing oral order of I. IVI. Quddusi. J. the Court was passed by This appeal has been filed by the Oriental Insurance Co. Ltd. aoainst the impugned award dated 06/08/2004 passed by Additional Motor Acddent Claims Tribunal, Bilaspur (C.G.) in Claim Case No. 20/2002 questionjns the Jiabi!lty of the Insurance Company and offending fruck. 2. The brief facts of the case as narrated in the clajm petition are that on 26/03/2002 at about 10 a.m. deceased Ramkrishna Nirala atongwith feliow Constabje Ramgopal Tiwari went to Kota Firing Range (Chandmari) for participatjng in fire practlce. After compietion of firing deceased Ramkrishna Nirala along with Ramgopal Tiwari, Constable were returning back to Bilaspur in his Motorcycie Hero Honda bearing regjstration No. M.P. 026/J-0874. At about 8 p.m. jn the njght, when they reached near Uslapur Railway Crossing. a Metador 407 bearing registratjon No.C.G.10/J.B.-0425 bejng driven rashly and negligentiy dashed the motorcycle and they were thrown on the road and fell unconscious. Deceased Ramkrishna Nirala received grievous injuries on his head and leg and RamgopaJ Twari also received injuries. Both of them were taken - •2- \\ to Distrlct Hospjtal, Bliaspur for treatment. As Ramkrishna Nirala was unconscious on 27/03/2002 he was taken to Apollo Hospitaj, Bilaspur, where he died on 01/04/2002. Deceased was aged about 36 years. Deceased was a constabie and his monthly salary was Rs.6,549/-. Claimants have daimed compensation of Rs.28,54,584/-. 3 . We have perused the Lower Court Record. 4. Learned counsel for the appellanVinsurance company has submitted that the medical examination of the deceased, when he was alive after the accident, was done by the Medical OfRcer who had mentioned in his report about the presence of smell of aicohol. Further he has pointed out about the map prepared by the Investigating OfRcer (Annexure P/9), whjch shows that the deceased was driving motorcycie on hjs wrong sjde and the alleged offending truck was on his right side i.e. left side and as such it cannot be said that the offending vehicle was negiigent and its driver was driving rashly and negligentiy. 5. He has also submitted that in committjng accident there was contributory negjjgence on the part of the deceased who was driving motorcyc!e on the wrong slde. 6. We have perused the statement of eye witness who was pillion- rider namely Ram GopaS Tiwari who has stated that the offending truck was comjng from the opposite side and did not use the dipper and its speed was very high. Deceased who was driving motorcycle had glven upper-dipper so many times. but the driver of offending truck did not use dipper resulting which the !ight with force came into eyes of the deceased from the truck and truck committed accident which was coming with high speed. Therefore, from his evidence on this point no cross examination J ^^^- ~3- was made and there was no suggestion that the driver of the offending vehicte used dipper and no evjdence in that support was also led. Therefore, it cannot be said that the driver white not using dlpper jn the night did not disobey the rules. It is but natural for the deceased to go towards any side when he was not in a position to see the road due to non-using of dipper by the offending truck and giving direct light towards eyes of the driver of the motorcycle i.e. deceased. Therefore, though to some extent it can be said that the deceased was also at fault as he should have stopped jmmediately when he saw that the driver of the offending vehide was not using dlpper but he did not do so therefore there is contributory negligence on the part ofthe deceased also. 7. With regard to the medical examination report mentioning that the smeSI of aicohol js present, the Medical OfRcer was not summoned by the appellant to prove as to what was the percentage of the alcohol, jf consumed by the driver/decsased. Mereiy presence of smell of atcohoi in the absence of any evidence of the Medical Officer who conducted the medjcal examination would be of no use. In this regard, we have seen that the process fee for summoning the Medical Officer was fited and the Tribunal passed order tojssue process but he did not turn up, but later on evidence was not pressed due to reason mentioned in the order sheet dated 29W2004 that the claimants had already fiied the documsnts which were exhibited on record and the evidence on beha!f of the appellant was closed by the Tribunal. 8. In view of the above, in the absence of any evldence regarding consumption of alcohol and its degres of intoxication by the deceased no adverse inference can be drawn. -^- 9. !n view of the facts and cjrcumstances mentioned above, we are of the opinson that this is a case of contributory negligence on the part of both the vehlcles equally i.e. ratio of 50 : 50 and therefore the toss of dependency is to be reduced to the extent of 50%. 10. The Tribunal has assessed ioss of dependency as Rs.7.11.296 and after dlviding by 2 the total ioss of dependency comes to Rs. 3,55,648/-. 11. Therefore, the total loss of dependency would come to Rs.3,55,648/- and Rs.11,000/- which has been awarded towards other heads by the Tribunal shall be added therein and thus the claimants would be entstled to get tota! amount of compensation as Rs. 3,66,648/-. The rest of the conditions of the award shall remain intact, hpwever since ratio of award has been reduced to 50% the payment and keeping the amount in fixed deposit as directed by the Tribunal shall be reduced to 50%. The amount atready deposited shall be adjusted towards the amount of compensation. 12. The appea! is allowed in part to the above extent. Sd/- I.M. Quddusi Judge Sd/- Prashant Kumar Mishra Judge •^