,
Sanjay S. Agrawal, J",
1. This Miscellaneous Appeal has been preferred by the Claimants under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the",
Act, 1988') questioning the legality and propriety of the award dated 31.07.2013 passed by the Additional Motor Accident Claims Tribunal (F.T.C.),",
Korba (C.G.) (hereinafter referred to as 'the Claims Tribunal') in Claim Case No.03/2013, whereby, the learned Claims Tribunal has dismissed the",
claim petition. The parties to this appeal shall be referred hereinafter as per their description in the Claims Tribunal.,
2. Briefly stated the facts of the case are that on 26.07.2006 at about 4.45 a.m., deceased Munna Singh and others were going by Pickup Van, i.e.,",
Mahindra Jeep from Balconagar, Korba to Raipur for the purpose of fetching vegetables, while carrying some materials as well. According to the",
claim petition, the vehicle in question having its Trade Certificate Jeep No. M.P. 26 T 0373, Engine No. GA51K64794- Chassis No.",
MA1ZG2GAA51K40045 was owned by Non-applicant No.2- Arvind Pal and was insured with Non-applicant No.3- The Oriental Insurance,
Company Limited, which was being driven rashly and negligently by its driver, namely, Kishore Kumar Namdev (Non-applicant No.1). As a result of",
which, he lost his control and owing to which, deceased Munna Singh fell down and died on the spot while one Kripa Shankar was injured.",
3. On account of the aforesaid accident, the Claimants, being legal representatives of the deceased, instituted a claim under Section 166 of the Act,",
1988 submitting inter alia that the deceased, 32 years old, was a vegetable vendor and used to earn Rs.6,000/- per month and thus claimed total",
amount of compensation to the tune of Rs.19,00,000/- under various heads.",
4. The aforesaid claim has been contested by the Non-applicants. Non-applicant No.1 Kishore Kumar Namdev, the driver of the offending vehicle,",
while denying the fact that the alleged accident occurred due to his rash and negligent driving, pleaded further that some unknown vehicle",
“Truckâ€, which was being driven rashly and negligently by its driver, came from opposite side in a high speed and dashed his vehicle, resulting into",
the sad demise of Munna Singh. It is pleaded further that the driver of that unknown vehicle alone was responsible for the alleged accident.,
5. Non-applicant No.2, the owner of the offending vehicle, while denying the fact that the alleged accident occurred due to rash and negligent driving",
of the driver of the offending vehicle pleaded that the Claimants have obtained a sum of Rs.30,000/- from him and assured him not to file any petition",
against him, and therefore, the claim is liable to be dismissed. While Non-applicant No.3, the insurer has contested the claim by saying that some",
unknown vehicle “Truck†was involved in the alleged accident and alternatively pleaded further that the drivers of both the vehicles are,
responsible for it. It is contested further on the ground that the driver of the offending vehicle was not holding the valid and effective driving licence,
and the same was being used in violation of the insurance policy by carrying passengers at the relevant time. As such, no liability could be fastened",
upon it.,
6. In support, the Claimants have examined as many as two witnesses including an eyewitness of the alleged accident, while the owner has examined",
himself and the insurer has produced one of its witnesses.,
7. After considering the evidence led by the parties, it has been held by the Claims Tribunal, while entertaining the issue No.1, that the alleged accident",
has not occurred due to rash and negligent driving by Kishore Kumar Namdev, the driver of the offending vehicle. It held further that the vehicle in",
question, insured as Goods vehicle, was being used in violation of its policy by carrying passengers by the driver, who was not authorised to drive the",
same as such and, as a consequence of it, dismissed the claim petition.",
8. Being aggrieved, the Claimants have preferred this appeal. Shri Amiyakant Tiwari, learned counsel appearing for the Appellants/Claimants submits",
that the award impugned, as passed by the Tribunal dismissing the claim by holding that the driver of the offending vehicle was not responsible for the",
alleged accident, is apparently contrary to the materials available on record. While inviting attention to the unrebutted statement of the eyewitness,",
namely, Rajesh Singh (AW2) and that of owner Arvind Pal (NAW2), it is contended that the driver of the alleged offending vehicle alone was",
responsible for the alleged accident. However, without considering the evidence led by the parties in its proper manner and that by applying the strict",
rules of evidence, the Claims Tribunal has committed an illegality in dismissing the claim petition.",
9. On the other hand, learned counsel appearing for the Respondents, while supporting the award impugned, submit that the Tribunal by placing its",
reliance upon the documentary evidence like Ex.P.1 to Ex.P.10 produced by the Claimants themselves has rightly arrived at a conclusion that the,
alleged accident has not taken place due to rash and negligent driving of the driver of the offending vehicle.,
10. I have heard learned Counsel for the parties and perused the entire record carefully.,
11. The question, which arises for determination based upon the aforesaid contentions of the parties, is as to whether finding of the Tribunal dismissing",
the claim petition by holding that the driver of the offending vehicle was not responsible for the alleged accident, is sustainable or not?",
12. Undisputedly, the alleged accident occurred on 26.07.2006 when deceased Munna Singh and Kripa Shankar (injured) along with others were going",
by alleged offending vehicle from Balconagar, Korba to Raipur for the purpose of fetching vegetables along with carrying some materials/vegetable. It",
is also not in dispute that owing to the alleged accident, deceased Munna Singh died on the spot, while Kripa Shankar sustained injuries. Perusal of the",
charge sheet, marked as Ex.P.1, would show that a case was registered against the driver of the unknown vehicle “Truck†on the basis of the",
report lodged by Kishore Kumar Namdev, the driver of the offending vehicle under Sections 279, 337 and 304-A of IPC in connection with Crime No.",
310/06.,
Mode of compensation,Amount Rs.
(i) Loss of consortium to wife,"- 40,000
(ii) Funeral expenses,"- 15,000/-
(iii) Loss of estate,"- 15,000/-
Total,"- Rs.70,000/-
19. Although as observed hereinabove that the Insurance Company has been exonerated from its liability but the policy (Ex.D.1) was admittedly found,
to be in existence. Therefore, by applying the principles laid down in the matters of National Insurance Co. Ltd. vs. Swaran Singh and Others and",
Manager, National Insurance Company Limited vs. Saju P. Paul and another reported in (2004) 3 SCC 297 and (2013) 2 SCC 41 respectively, I",
accordingly issue a direction to the said Company to first pay the awarded sum to the Claimants and then to recover the amount of compensation paid,
by it from the owner and driver of the offending vehicle in execution proceedings arising in this very case.,
20. The appeal is, accordingly, allowed in part to the extent indicated hereinabove with the aforesaid direction. No order as to costs.",
