Allahabad High Court
National Insurance Company Ltd. ... vs Smt Savitri And 7 Others on 27 July, 2023
Bench: Jaspreet Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Neutral Citation No. - 2023:AHC-LKO:49293
Court No. - 19
Case :- FIRST APPEAL FROM ORDER No. - 223 of 2023
Appellant :- National Insurance Company Ltd. Lucknow Thru. Manager Legal Deptt.
Respondent :- Smt Savitri And 7 Others
Counsel for Appellant :- Pradeep Kumar Rai
Hon'ble Jaspreet Singh,J.
1. Heard Shri Pradeep Kumar Rai, learned counsel for the appellant.
2. The instant appeal has been preferred under Section 173 of the Motor Vehicle Act, 1988 against the judgment and award dated 19.04.2023 passed by the Motor Accident Claims Tribunal (North), Lucknow in Claim Petition No.413/2011, whereby in a death case a sum of Rs.6,37,000/- along with 7% interest has been awarded in favour of the claimants-respondents.
3. Learned counsel for the appellant has attacked the impugned award and has been vehemently urged that the application for compensation was filed under Section 166 of the Motor Vehicles Act, 1988 wherein it was sina-qua-non for the claimants to have proved the factum of the negligence and without proving the same, no award could be made. In the given circumstances, where the deceased is said to have been a pillion rider of a motorcycle and admittedly the motorcycle had slipped wherein the deceased received injuries and died at the spot, accordingly, it cannot be said there was any negligence. There is no intervention of any second vehicle and thus it is not a case under Section 166 of the Motor Vehicles Act, 1988.
4. Learned counsel for the appellant has further submitted that there is no person who has seen the occurrence. PW-1, the wife of the deceased, admittedly had not seen the accident whereas the PW-2, who is said to be an eye witness is a relative and apparently interested witness and whose testimony could not have been relied.
5. It is also urged that the rider of the motorcycle did not possess any licence and for the said reason no liability could have been awarded against the Insurance Company and for all the aforesaid reasons the award is bad and liable to be set aside.
6. The Court has considered the submissions of the learned counsel for the appellant and also perused the material on record.
7. Apparently, it transpires that on 22.06.2010, Munni Lal was riding along with Awadhesh alias Yogesh on his motorcycle bearing UP-32-CD-1082. At around 09:00 PM while they were returning home near Village Kushmaura turn, the rider of the motorcycle namely Awadhesh alias Yogesh on account of rashness and negligence could not control the motorcycle which slipped, as a result, the pillion rider namely Munni Lal sustained grievous injuries from where he was referred to the Trauma Centre at Lucknow and during his treatment he succumbed to his injuries.
8. It is on account of the aforesaid that claim petition bearing No.413/2011 came to be filed before the Tribunal. The matter was contested and upon exchange of the pleadings, the Tribunal framed 11 issues.
9. While dealing with the issue of negligence, it was found that there is a clear statement that the rider of the motorcycle at the turn could not control the vehicle on account of rashness which led to slipping of the motorcycle and the pillion rider sustained injuries which ultimately led to his death.
10. It will also relevant to point out that though PW-1 who is the wife of the deceased, apparently was not an eye witness as she narrated the facts in the manner in which the accident occurred. What is significant to note is PW-2 namely Ram Vilas was an eye witness. Even though he admitted that he was distantly related to the deceased but that in itself is neither sufficient to efface the effectiveness of the testimony of the witness.
11. It is also not disputed by the learned counsel for the appellant that PW-2 was cross-examined and even in his cross-examination insofar as the foundational fact regarding the occurrence of the accident, no adverse testimony could be elicited which could cast a cloud or could give rise to a doubt over the veracity of the statement regarding the accident. Merely being a relative cannot be a ground to distrust or wash out the testimony of any witness.
12. Considering the aforesaid, the Tribunal recorded that the accident occurred on account of negligence and it also found that the motorcycle in question was duly insured, but the rider of the motorcycle Awadhesh alias Yogesh did not possess any licence. Consequently, it awarded a sum in favour of the claimants-respondents giving liberty to the appellant Company to recover the same. It is in this view of the matter that a sum of Rs.6,37,000/- has been awarded to the claimants-respondents.
13. Having taken note of the manner in which the claim petition has been allowed by the Tribunal including noticing the evidence of the eye witness namely Ram Vilas, this Court finds that apparently there is no error which can be said to be apparent on the face of the record to enable this Court to interfere with the award merely because Ram Vilas was a distant relative so his testimony may not be considered.
14. It is also not disputed that there was no evidence from either of the respondents to disprove the fact as Awadhesh alias Yogesh was also not examined to contradict this fact nor the Insurance Company who is before this Court made any effort to summon the said rider of the motorcycle to prove or disprove the case of the claimants, hence, the submission that the PW-2 was related and therefore, his testimony was not valid, apparently pales into insignificance.
15. Insofar as the argument that no FIR was lodged and there was no one who had seen the accident is also belied that the PW-1 was an eye witness, who had witnessed the same. Insofar as lodging of the FIR is concerned that is not vital for the claim petition. [See : (2011) 4 SCC 693 and (2021) 1 SCC 171].
16. Reverting to the submissions made by the learned counsel for the appellant regarding the negligence being not proved does not reflect from the record for the reasons that it is a clear case that Awadhesh alias Yogesh, who was riding the motorcycle on a turn did not control the motorcycle and because of his rashness and negligence the accident occurred which led the injuries to the pillion rider, Munni Lal, who later succumbed to his injuries. The negligence is per-se evident from the manner in which the accident has occurred and, therefore, the aforesaid submission made by the learned counsel for the appellant also does not impress this Court.
17. So far as the argument that the rider of the motorcycle did not have the requisite licence has already been considered by the Tribunal while dealing with the Issues No.2 and 3 and protecting the rights of the Insurance Company, the right of recovery has already been granted.
18. No challenge to the quantum has been made, for all the aforesaid reasons, this Court finds that there is no merit in this appeal which is consequently dismissed. Any amount deposited by the appellant Insurance Company before this Court shall be remitted to the Tribunal concerned to be released in favour of the claimants-respondents in terms of the award. The appellant Company shall also deposit any shortfall in the award before the Tribunal within a period of 60 days from the date, a certified copy of this order is placed before the authority concerned, to be released in favour of the claimants-respondents permitting the Insurance Company to recover the same from the owner in terms of the award.
19. With the aforesaid, the appeal is dismissed at the admission stage. No order as to cost.
Order Date :- 27.07.2023
Rakesh/-
