Chattisgarh High Court
The New India Assurance Company Limited vs Smt. Sukhmati on 16 April, 2025
1
Digitally signed
by BHOLA
NATH KHATAI
Date:
2025.04.22
18:30:54 +0530
2025:CGHC:17525
AFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
MAC No. 2113 of 2019
The New India Assurance Company Limited Through Its Divisional
Manager, Divisional Office Aakashwani Road, Jagdalpur District
Bastar Chhattisgarh
... Appellant
versus
1. Smt. Sukhmati Wd/o Late Riko Aged About 27 Years Caste
Madiya, R/o Village Bade Bodenar, Police Station Kodenar,
District Bastar Chhattisgarh
2. Ku. Anita D/o Late Riko Aged About 6 Years Minor Through
Mother Smt. Sukhmati (Respondent No.01), Caste Madiya, R/o
Village Bade Bodenar, Police Station Kodenar, District Bastar
Chhattisgarh
3. Baman Gavde S/o Late Madda Gavde Aged About 35 Years
Caste Madiya, R/o Village Jamgaon, Police Station Kodenar,
District Bastar Chhattisgarh ............(Driver)
4. Rakesh Vetti S/o Dongaram Vetti Aged About 35 Years R/o
Village Bade Kilepal Pujaripara, Police Station Kodenar, District
Bastar Chhattisgarh ............(Owner)
... Respondent(s)
For Appellant : Mr. Dashrath Gupta, Advocate
For Respondents 1 & 2 : Mr. Kalpesh Ruparel, Advocate
For Respondents 3 & 4 : Mr. Punit Ruparel, Advocate
Hon'ble Shri Justice Sanjay Kumar Jaiswal
Order on Board
16/04/2025
1. It is an insurer's appeal under section 173 of the Motor Vehicles Act
challenging the award dated 31.08.2019 passed by 2 nd Additional
Motor Accident Claims Tribunal, Jagdalpur, District Bastar (CG) in
Claim Case No.225/2018 whereby the Tribunal has awarded total
compensation of Rs.10,22,000/- with interest @ 9% per annum,
from the date of application till its realization, in favour of the
claimants and against the appellant-Insurance Company.
2. The gist of claim before the Tribunal in short was that, on
07.07.2018 at about 3:00 p.m., deceased Riko Podiyami was going
to his home, after loading Mahua in Pickup Bolero No. CG 17 H
2377, sitting in the place of helper in the cabin of the said vehicle
for the safety of Mahua. Near village Irpa, the driver of the said
vehicle Baman Gavde (respondent No.3) while driving rashly and
negligently suddenly took a sharp turn due to which the cabin door
opened and Riko fell out of the cabin on the road and suffered
grievous injuries. He was immediately taken to Dimrapal Hospital
where he died during treatment. The claimants, who are the wife
and daughter of the deceased, preferred a claim application before
the Tribunal claiming total compensation of Rs.17,30,000/-.
Learned Tribunal, on a close scrutiny of the evidence brought on
record, awarded total compensation of Rs.10,22,000/- in favour of
the claimants with interest @ 9% per annum, from the date of
application till its realization. While passing the impugned award,
the Tribunal has fastened the liability of payment of compensation
upon the Insurance Company against which the present appeal
has been filed by the Insurance Company for exoneration from its
liability
3. The main contention of learned counsel for the appellant/Insurance
Company is that at the time of accident, the deceased was
travelling on top of the cabin of the vehicle from where he fell down
and died. He submits that this fact is proved from the statement of
witness Sahwaz Ahmad and also from Investigating report and
FIR. As such, there was a clear breach of policy condition,
therefore, the insurance company cannot be held liable for
payment of compensation. Thus, prayed for allowing the appeal
by exonerating the Insurance Company from its liability.
4. On the other hand, learned counsel appearing for the respondents
1 & 2 - claimants submits that the deceased was travelling sitting
inside the cabin of the vehicle and was protecting the goods
loaded in the vehicle. He submits that this fact is also proved from
the statements of Somdu Podiyami (AW-2) and Brijesh Kushwaha
(AW-3). Hence, in the facts and circumstances of the case, the
impugned award passed by the Tribunal is just and proper and
does not require any interference.
5. Learned counsel appearing for the respondents 3 & 4 i.e. the driver
and registered owner also supports the impugned judgment and
prays for dismissal of the appeal.
6. Heard learned counsel for the parties and perused the record.
7. The moot question for consideration is whether at the time of
accident deceased Riko Podiyami was sitting inside the cabin or
outside the cabin of the offending vehicle?
8. The vehicle in question was a Pickup Bolero i.e. goods vehicle, in
which, according to the claimants, Mahua was loaded. Deceased
Riko Podiyami was travelling in the said vehicle. According to the
claimants, the deceased was sitting inside the cabin, whereas as
per the Insurance Company, he was sitting on top of the cabin from
where he fell down and died. The Tribunal, while passing the
impugned award, has not accepted the contention of the Insurance
Company.
9. Sukhamati (AW-1) W/o the deceased, Somdu Podiyami (AW-2) and
Brijesh Kushwaha (PW-3) have been examined on behalf of the
claimants side. Sukhamti is not the spot/eye witness. Somdu
Podiyami (AW-2) and Brijesh Kushwaha (PW-3) are the spot
witness who have stated that the deceased was sitting inside the
cabin. Somdu Podiyami (AW-2) is a listed witness. The statements
of both the spot witnesses have not been rebutted.
10. Sahwaz Ahmad (NAW-1) has been examined on behalf of the
Insurance Company who has stated that the deceased was sitting
on top of the cabin. But this witness is not a spot witness. The
investigation report has been exhibited but the Investigator who
had prepared/given the said report has not been examined.
Therefore, it is not admissible in evidence. It is mentioned in the
FIR and other Police documents like Shav Panchnama,
Postmortem report and Final report/charge sheet that the
deceased was sitting on top of the cabin. But these documents are
not substantive piece of evidence.
11. In this regard, the Hon'ble Supreme Court in the case of National
Insurance Company Limited v. Chamundeswari and Others
reported in (2021) 18 SCC 596 has held that if the statements of
the eye witnesses examined before the court are not
contradicted/rebutted by other witnesses present at the spot, the
same cannot be considered as contradicted/rebutted on the basis
of the First Information Report. In paragraph-8 of the said judgment
it has been observed as under:-
"8. It is clear from the evidence on record of PW-1 as
well as PW-3 that the Eicher van which was going in
front of the car, has taken a sudden right turn without
giving any signal or indicator. The evidence of PW-1
& PW-3 is categorical and in absence of any rebuttal
evidence by examining the driver of Eicher van, the
High Court has rightly held that the accident occurred
only due to the negligence of the driver of Eicher van.
It is to be noted that PW-1 herself travelled in the very
car and PW-3, who has given statement before the
police, was examined as eye-witness. In view of such
evidence on record, there is no reason to give
weightage to the contents of the First Information
Report. If any evidence before the Tribunal runs
contrary to the contents in the First Information
Report, the evidence which is recorded before the
Tribunal has to be given weightage over the contents
of the First Information Report."
12. Coming back to the facts of the present case, it is clear from the
evidence that Somdu Podiyami (AW-2) and Brijesh Kushwaha
(PW-3) are the spot/eye witness. Both of them have clearly stated
that at the time of accident the deceased was sitting inside the
cabin. Therefore, in the light of said decision of the Hon'ble
Supreme Court, the evidence recorded before the Tribunal has to
be given weightage over the contents of the FIR etc.
13. In that view of the matter, it is held that at the time of accident
deceased Riko Podiyami was travelling sitting inside the Cabin of
the vehicle in question. Therefore, the conclusion of the Tribunal
regarding liability is found to be proper and does not require any
interference.
14. Accordingly, the appeal preferred by the Insurance Company being
devoid of merit is hereby dismissed.
15. Records of the Tribunal along with a copy of this order be sent back
forthwith for compliance and necessary action, if any.
Sd/-
(Sanjay Kumar Jaiswal)
JUDGE
Khatai
