Chattisgarh High Court
Rajesh @ Abhishek Guru vs Kartik Sethiya on 15 February, 2023
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Judgment Reserved on : 24/11/2022
Judgment Delivered on : 15/02/2023
MAC No. 919 of 2019
Rajesh @ Abhishek Guru, S/o Narayan Guru, Aged About 25 Years,
R/o Maa Durga Chowk, Subhash Ward 61/K, Jyoti Talkies Road,
Jagdalpur, District- Bastar, Chhattisgarh...............(Driver Cum Owner),
District : Bastar(Jagdalpur).
---- Appellant
Versus
1. Kartik Sethiya, S/o Late Sondhar Sethiya, Aged About 35 Years, R/o
Village Kalcha, P.S. Nagarnar, District- Bastar, Chhattisgarh...........
(Claimant)
2. The Branch Manager, New India Assurance Co. Ltd., Akaswani Road,
Gandhi Nagar Ward M.M. Tower, Jagdalpur, District- Bastar,
Chhattisgarh..................(Insurance Co.)
3. Manager, Mahaveer Bajaj Automobiles Rajwada Parisar Jagdalpur
District- Bastar, Chhattisgarh............(Dealer Of The Offending
Vehicle).
4. Director, Bastar Nivesh Finance Co. Through Mahaveer Bajaj
Automobiles, Rajwada Parisar, Jagdalpur, District- Bastar,
Chhattisgarh...............(Finance Co. Of Offending Vehicle)
---- Respondents
For Appellant : Mr. Pravin Kumar Tulsyan, Advocate.
For Respondent No.1 : Mr. Navin Shukla, Advocate.
For Respondent No.2 : Mr. Dashrath Gupta, Advocate.
For Respondent No.3. : Mr. Vikash Shrivastava, Advocate.
For Respondent No.4. : Mr. Praveen Dhurandhar, Advocate.
Hon'ble Smt. Justice Rajani Dubey
C A V Judgment
1. This appeal filed by the driver/owner/appellant herein arises out
of the award dated 13.12.2018 passed by 2 nd Motor Accident
Claims Tribunal (for short the "Tribunal"), Jagdalpur, District
Bastar, in Claim Case No.25/2017, whereby in an injury case
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compensation of Rs.1,41,522/- has been awarded to the
claimant/respondent No.1 herein.
2. Facts
of the case, in brief, are that on 16.04.2016 at around
07.00 PM, when the claimant reached near Lalbagh,
Commissioner Bungalow, at the relevant time, the offending
vehicle i.e. Avenger having no registration number being driven
by appellant/driver herein rashly and negligently, dashed the
motorcycle of the claimant, as a result of which, he suffered
number of injuries including fracture of right leg. The
claimant/respondent No.1 herein was hospitalized in Maharani
Hospital, Jagdalpur from 17.04.2016 to 26.04.2016 i.e. 10 days
and as per certificate Ex.P/1, he suffered 42% permanent
disability. A claim case was filed by the claimant/respondent
No.1 herein claiming compensation to the tune of Rs.28,35,000/-
under various heads, inter alia, pleading that after the accident,
he was taken to Maharani Hospital, Jagdalpur, where looking to
the leg injury of claimant which was serious in nature, plaster
was applied. It has been further pleaded that due to the said
accident, the claimant is unable to perform his day to day work
and there is gross downfall in his income.
3. Pleadings of the claimant has, however, been denied by the
respondent/insurance company.
4. The Claims Tribunal by the impugned award has awarded a
compensation of Rs.1,41,522/- to the claimant/respondent No.1
herein under various head such as pain & suffering, loss of
income and expenses incurred in the treatment. It is this award
which has been challenged by the appellant/driver/owner herein
in this appeal.
5. Counsel for the appellant submits that:-
(i) The Claims Tribunal has wrongly read the FIR
though it was not proved by the claimant and ignored
that the Claimant has not produced/examined his
witnessed for proving the FIR.
The learned Claims Tribunal has not taken note of the
fact that at the time of accident, the offending vehicle
was not registered in the name of appellant herein, as
such, the impugned award is bad in law.
(ii) The dealer of the offending vehicle has admitted the
fact that after receiving the amount and after issuance
of insurance certificate and registration, he has
delivered the vehicle, as such, it was the responsibility
of the dealer to get all formalities done like insurance
and registration and for that the applicant cannot be
held responsible.
(iii) That, according to the claim, there was head
on collusion between two motorcycles, therefore, the
instant is squarely covered within the meaning of
contributory negligence.
(iv) Reliance is placed on the judgment of co-
ordinate Bench of this Court in the matter of
Ghanshyam Das Manwani Vs. Vijay Kumar
Dewangan & Ors. [Judgment dated 22.09.2022
passed in MAC No.727/2015]
6. On the other hand, counsel for the respondents supported the
award impugned.
7. Heard counsel for the parties and perused the material available
on record.
8. In the case in hand, according to the appellant herein, the dealer
had admitted that after receiving the amount towards vehicle
from finance company, vehicle was insured from 25.04.2016 to
24.04.2017 and delivered it to the appellant on 25.04.2016 &
vehicle was registered on 30.04.2016, whereas the accident
took place on 16.04.2016, meaning thereby that on the date of
incident, the dealer of the motor cycle was the owner and holder
of the vehicle.
9. This Court in the matter of Ghanshyam Das (supra), held in
para 11 and 12, which reads thus :-
"11. In the absence of any evidence on the
part of the appellant before the Tribunal and also in
the absence fo any strong proof of sale having
been concluded prior to the date of accident, i.e.
23.01.2007 between the appellant and respondent
No.3 the finding arrived at by the Tribunal applying
the principle of preponderance of probability cannot
be found fault with, nor can it be held contrary to
the evidence on record.
12. Moreover, from the submissions made by
the counsel appearing for the parties, it further
reflects that vehicle involved in the accident has got
registered subsequently with the concerned Road
Transport Authority only on 25.06.2007 till that time
for all practical purpose it was the appellant who
were the owner of the said vehicle."
10. Reverting to the fact of the case in hand, prior to 25.04.2016 the
date on which insurance and registration of vehicle was done,
for all practical purpose, it was the dealer/respondent No.3, who
was the owner of the vehicle. Admittedly, the accident took
place on 16.04.2016 and the vehicle was insured on 25.04.2016
and the vehicle got registered on 30.04.2016 on appellant's
name, as such, considering the facts and circumstances of the
case, and in view of para 11 and 12 of judgment of Ghanshyam
Das (supra), this Court held that on the date of accident, it was
the dealer, who was owner of the said vehicle.
11. For all the aforesaid reasons, the appeal is allowed. The
claimant shall be entitled to receive amount of compensation of
Rs.1,41,522/- with interest @ 9% per annum from non-applicant/
respondent Nos. 3 & 4 herein from the date of filing of the claim
petition till the date of actual payment.
Sd/-
(Rajani Dubey)
Judge
pkd
