Allahabad High Court
Ashish Gugral vs Sukhchain Singh And Anr. on 29 August, 2022
Bench: Vipin Chandra Dixit
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 59
Case :- FIRST APPEAL FROM ORDER No. - 607 of 2015
Appellant :- Ashish Gugral
Respondent :- Sukhchain Singh And Anr.
Counsel for Appellant :- Rajesh,Ashok Kumar Srivastava,Tarun Varma
Counsel for Respondent :- Saurabh Srivastava
Hon'ble Vipin Chandra Dixit,J.
Heard Sri Ashok Kumar Srivastava, learned counsel for the appellant and Sri Saurabh Srivastava, learned counsel appearing for respondent No.2-Insurance Company and perused the record. No one is present for respondent no.1.
This first appeal from order has been filed by the claimant-appellant against the judgment dated 17.11.2014 passed by Motor Accident Claims Tribunal/Additional District Judge, Court No.10, Kanpur Nagar in M.A.C.P. No.1251 of 2009 (Ashish Gujral vs. Sukhchain Singh and another) by which claim petition of claimant-appellant was rejected.
Brief facts of the case are that the claim petition was filed by the claimant/appellant under Section 166 of Motor Vehicle Act, 1988 for claiming compensation of Rs.16,20,000/- on account of death of Dharamveer Gujral aged 65 years, who died in a road accident occurred on 2.10.2009. It was pleaded in the claim petition that the deceased was coming from Lucknow to Kanpur by car on 2.10.2009 alongwith his wife Smt. Asha Rani Gujral and when they reached near Kanodiya Petrol Pump, P.S. Gangaghat, District Unnao, at about 10:40 P.M. the offending truck bearing No. HR 38E-8695 came from wrong side, which was being driven by its driver rashly and negligently, hit the car. Dharamveer Gujral and his wife had received grievous injuries and both were died on spot.
The Claim Tribunal while deciding issue nos. 1 and 5, has recorded the finding that the claimant has failed to prove involvement of the truck which was insured with respondent no.2 and rejected the claim petition.
It is submitted by learned counsel for the appellant that the evidence adduced by the claimant have not been properly considered by the Claim Tribunal. It is further submitted that the Investigating Officer, after due investigation, had submitted charge sheet against the driver of the insured truck and the claimant had also produced eye-witness Mahendra Kumar Pandey as P.W.2 who had also proved the involvement of the truck as well as rash and negligent driving of the truck driver. It is further submitted that two claim petitions being MACP Nos. 1247 of 2009(Ashish Gujral vs. Sukhchain and another) and 1322 of 2009(Smt. Uma Devi and others vs. Sukhchain and another) arising out of same accident were allowed accepting the involvement of the insured truck as well as rash and negligent driving of truck driver. MACP No.1322 of 2009 was allowed vide judgment and award dated 22.4.2014 and compensation of Rs.10,23,235/- alongwith 6% interest has been awarded to the claimants and the liability has been fixed upon the insurance company- respondent no.2 being insurer of offending truck. It is further submitted that the Insurance Company had not challenged the award dated 22.4.2014 and satisfied the award. The certified copy of the award dated 22.4.2014 has been filed as additional evidence in the present appeal. Lastly, it is submitted that the claimant had fully proved the involvement of insured truck in the accident and two claim petitions arising out of same accident were also allowed by the Claim Tribunal and as such, involvement as well as rash and negligent driving of the truck driver were fully established and thus, the Claim Tribunal has erred in rejecting the instant claim petition.
On the other hand, learned counsel for respondent no.2-Insurance Company has submitted that the claimant has failed to prove involvement of the truck and the Claim petition was rightly dismissed by the Claims Tribunal but he has not disputed the fact that the award passed by Claim Tribunal in Claim Petition No. 1322 of 2009 against the Insurance Company and the amount of compensation was paid by the Insurance company accepting its liability.
From the evidence adduced by the parties, the involvement of insured truck and rash and negligent driving of truck driver was established and moreover, since the award of M.A.C.P. No. 1322 of 2009 arising out of same accident was satisfied by the respondent no.2-Insurance Company, now it is not open to the Insurance Company to dispute the factum of accident and its liability.
In view of above, the First Appeal From Order is allowed and the judgment and order dated 17.11.2014 is hereby set aside. The matter is remanded back to the Claim Tribunal to decide quantum of compensation, after affording opportunity to both the parties to lead evidence, within six months from the date of production of certified copy of this order, without granting any undue adjournment to either of the parties, unless there is any legal impediment.
No order as to cost.
Order Date :- 29.8.2022
P.P.
