Oriental Insurance Co.Ltd. ... vs Kalawati Manjhi And 4 Others
2023 Latest Caselaw 21069 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


Neutral Citation No. - 2023:AHC-LKO:52661
 
Court No. - 19
 
Case :- FIRST APPEAL FROM ORDER No. - 858 of 2017
 

 
Appellant :- Oriental Insurance Co.Ltd. Thru.Dy.Manager/Manager
 
Respondent :- Kalawati Manjhi And 4 Others
 
Counsel for Appellant :- Subhash Chandra Gulati
 
Counsel for Respondent :- Mukesh Singh,Brijendra Chaudhary,Mukesh Singh
 

 
Hon'ble Jaspreet Singh,J.

1. Heard Mrs. Pooja Arora holding brief of Shri S.C. Gulati, learned counsel for the appellant, Shri Mukesh Singh, learned counsel for the claimants-respondents No.1 to 4 and Shri Brijendra Chauhdary, learned counsel for the respondent No.5.

2. The instant appeal has been preferred by the appellant Insurance Company under Section 173 of the Motor Vehicle Act, 1988 against the judgment and award dated 23.08.2017 passed by the Motor Accident Claims Tribunal/ADJ/FTC First, Faizabad in Claim Petition No.121/2016, whereby the Tribunal has awarded a sum of Rs.25,85,644/- along with 7% interest in favour of the claimants-respondents.

3. The submission of the learned counsel for the appellant is primarily focused on the ground that the accident with the vehicle in question which was insured by the appellant has not been proved appropriately.

4. It is stated that the date of accident is 29.11.2015 and the FIR was lodged only after the intervention of the Court in pursuance of an order passed under Section 156(3) Cr.P.C., on 06.04.2016. The emphasis is that in the entire proceedings for lodging the FIR, the vehicle number has been mentioned as UP-42-T-8525, whereas the claim petition came to be filed by describing the vehicle as UP-42-T-8526. It is thus, submitted that the claimants were unsure about the vehicle itself and later they attempted to improve their case and falsely implicated the vehicle bearing UP-42-T-8526, a vehicle which was not involved in the accident and thus, the findings recorded by the Tribunal in this regard is erroneous and contrary to the evidence on record. It is thus, submitted that the award is liable to be set aside insofar as the appellant is concerned as no liability could be fastened on the insurer.

5. Learned counsel for the respondents while refuting the aforesaid submissions stated that mere the minor discrepancy in the number of the vehicle is not going to have a major impact on the right of the appellant and to file the claim petition and entitlement towards the award.

6. It is further submitted that the claimants had substantiated their contentions and even examined an eye witness as CW-2, who had clearly seen the accident and had identified the vehicle and the said vehicle was insured with the appellant. The owner and the driver were never examined before the Tribunal to contradict the involvement. Apart from the fact that the driver stood charge-sheeted, hence, the plea raised by the appellant is hyper-technical and in this manner the matter where the Tribunal on the basis of the evidence has returned a finding of fact, the same is not liable to be disturbed and the appeal deserves to be dismissed.

7. The Court has heard learned counsel for the parties and also perused the material on record.

8. The record indicates that the claimants-respondents No.1 to 4 had initiated claim petition bearing No.121/2016 seeking compensation on account of death of Shreeram Manjhi, who fatefully dead on 29.11.2015 while riding his motorcycle bearing No.UP-42-S-4177 and was returning from Tanda to Pura Bazar at around 05:30 PM. As soon as he reached on the Akbarpur-Faizabad Highway, it is at that time that a Mahendra Vehicle bearing No.UP-42-T-8526 which came from Akbarpur side and was being driven rashly and negligently hit the motorcyclist Shreeram Manjhi from behind, as a result, he fell down and sustained grievous injuries. The people of vicinity had taken Shreeram Manjhi in an Ambulance to the District Hospital, Faizabad where during his treatment he succumbed to his injuries.

9. It is in light of the aforesaid facts that the claim petition was filed and the same was contested by the owner of the vehicle namely Raj Kumar Sharma, who denied the allegations and stated in the additional pleas that on 29.11.2015 Raj Kumar Sharma had gone on his vehicle to Faizabad. He also stated that he had valid and subsisting driving licence and that there was no accident with his vehicle. He also pleaded that the vehicle had a fitness certificate and it was also duly insured and thus, even though no accident had taken place with the vehicle of Raj Kumar Sharma, but if at all the accident is proved, then the liability would be of the Insurance Company.

10. The appellant Insurance Company also filed its separate written statement and had taken the plea that unless and until the accident is proved and it is found that the vehicle in question was duly insured and was driven in accordance with the policy conditions only then they shall be liable, but since the accident has been denied by the owner, accordingly, the insurance company also disputed the liability.

11. Upon exchange of the pleadings, the Tribunal framed six issues. Considering the evidence both oral and documentary, it came to the conclusion that the accident occurred on account of rash and negligent driving by the Mahendra Maxi Jeep bearing UP-42-T-8526 and as a result of the said accident, the deceased Shreeram Manjhi lost his life. The Tribunal also recorded that the driver had a valid licence and the vehicle was also insured, accordingly, it went on to compute the compensation and awarded a sum of Rs.25,85,644/- along with 7% interest in favour of the claimants-respondents by means of the award dated 23.08.2017, which is under challenge.

12. Having regard to the submissions made by the learned counsel for the respective parties, this Court finds that even in the proceedings initiated under Section 156(3) Cr.P.C., before the Judicial Magistrate, Faizabad, it was clearly pleaded that the accident of Shreeram Manjhi took place on 29.11.2015 with a Mahendra Maxi Jeep bearing UP-42-T-8525. It is later while filing the claim petition that this number was rectified as UP-42-T-8526. It would indicate that neither there is any dispute regarding the category of the vehicle inasmuch as right from the very beginning it has been described as a Mahendra Jeep and there is no change in the registration number uptill UP-42-T, with the only difference that earlier it was indicated as UP-42-T-8525 which later was corrected as UP-42-T-8526. This change has been highlighted by the appellant to indicate that the claimants were unable to establish the identity of the offending vehicle coupled with the fact that the claimants were unsure of the vehicle involved and later by way of improvements, the vehicle No.UP-42-T-8526 has been incorporated.

13. In this regard, it will be relevant to notice that Ram Sewak Verma, who was examined as CW-2, who is an eye witness. He deposed before the Tribunal that on 29.11.2015 in the evening he was going to met his friend Narsing Narain Tiwari and while he reached his friend's residence at that point of time, he had seen Mahendra Maxi Jeep vehicle bearing UP-42-T-8526 coming from Akbarpur side and it had dashed against the motorcycle being driven by the deceased. He further deposed that since Shreeram Manjhi sustained grievous injuries and his motorcycle had also been severally damaged. The said witness Ram Sewak Verma along with other persons of the vicinity had taken the insured Shreeram Manjhi in an Ambulance to the District Hospital. His statement is quite categoric on two points (i) he established his presence at the time of accident, (ii) he is also an eye witness, who had seen the accident and identified the offending vehicle. He along with other persons of the vicinity had taken the injured Shreeram Manjhi in an Ambulance to the District Hospital, Faizabad for treatment. The said witness was also cross-examined and there is no contradiction in his testimony nor his veracity could be doubted.

14. Another issue that needs to be seen is that the vehicle involved i.e. UP-42-T-8526 which was owned by Shri Raj Kumar Sharma though denied the accident but he did not enter into the witness-box to support his plea in his written statement. In absence of any contrary evidence, the testimony of the eye witness remained uncontroverted. In this view of the matter, once the foundational facts have already been established by the credible evidence of the eye witness which has been noticed by the Tribunal and also considering the fact that the driver was charge-sheeted, there is nothing on record to suggest that the investigation done by the police was in any way impaired.

15. In the aforesaid backdrop, the findings recorded by the Tribunal regarding the involvement and identity of the offending vehicle Mahendra Maxi Jeep No.UP-42-T-8526 in the accident cannot be doubted. Moreover, what needs to be seen is that facts are not to be proved beyond reasonable doubt and the claim petition is to be decided on preponderance of probabilities.

16. Learned counsel for the appellant has relied upon a decision of the Apex Court in Usha Devi and others v. New India Insurance Company Limited and others, 2020 (1) TAC 41 (SC) to contend that the change in the vehicle number was such that it effected the involvement of the vehicle which was not proved, hence, the findings of the Tribunal are incorrect. However, on the examination of the aforesaid report in Usha Devi (supra), it reveals that the fact of the said case are quite different inasmuch as in the said case before the Apex Court, it could not be explained as to how the vehicle bearing No.RJ-01-C-0214 came to be involved instead of RJ-25-C-1052 and moreover no one was examined to prove it. However, in the instant case, it would be found that there is no major change in the number of the vehicle as already noticed above and significantly an eye witness was produced by the claimants who clearly identified and clearly deposed that the offending vehicle was a Mahendra Maxi Jeep bearing No.UP-42-T-8526. This testimony remained unrebutted and there is no evidence from the side of the owner/driver to contradict, hence, the said case of Usha Devi (supra) has no applicability in the instant case.

17. The other case cited by the appellant of a Division Bench of Chhattisgarh High Court in Sukhdev Kurre v. Paretan Bai and others, 2012 (1) TAC 859 (Chhattis.) also has no applicability as the facts of the said case are hugely at variance with the facts of the present case.

18. In light of the above, this Court is of the clear view that the findings recorded by the Tribunal do not suffer from any error. Accordingly, the judgment and award dated 23.08.2017 passed by the Motor Accident Claims Tribunal/ADJ/FTC First, Faizabad in Claim Petition No.121/2016 is affirmed and the appeal is dismissed. In facts and circumstances, there shall be no order as to cost.

19. It is further provided that in case if any amount has been deposited by the appellant before this Court, the same shall be remitted to the Tribunal concerned to be released in favour of the claimants-respondents and any shortfall from the awarded sum shall be made good within 60 days from today as per the award in favour of the claimants-respondents.

Order Date :- 08.08.2023

Rakesh/-