1 2025:CGHC:2189 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR MAC No. 743 of 2018 The Oriental Insurance Company Limited Through Branch Manager, The O.I.C. Ltd. Near Ambedkar Chowk, Manendragarh Road, Ambikapur, District Sarguja, Chhattisgarh. ... Appellant versus 1 - Sangeeta Yadav W/o Late Vishnu Yadav Aged About 24 Years Occupation House Wife, Caste Yadav, R/o Village Pahadgaon Thana Jaynagar, Tehsil Surajpur, District Surguja, Chhattisgarh. 2 - Anil Yadav S/o Late Vishnu Yadav Aged About 5 Years Minor Through Natural Guardian Mother Sangeeta Yadav W/o Late Vishnu Yadav (Respondent No.1) Caste Yadav, R/o Village Pahadgaon Thana Jaynagar, Tehsil Surajpur, District Surguja, Chhattisgarh. 3 - Vikas Yadav S/o Late Vishnu Yadav Aged About 1 Year Minor Through Natural Guardian Mother Sangeeta Yadav W/o Late Vishnu Yadav (Respondent No.1) Caste Yadav, R/o Village Pahadgaon Thana Jaynagar, Tehsil Surajpur, District Surguja, Chhattisgarh. 4 - Budhram S/o Dukhi Ram Aged About 55 Years Occupation Labour, Caste Yadav, R/o Village Pahadgaon Thana Jaynagar, Tehsil Surajpur, District Surguja, Chhattisgarh. 5 - Sonkunwar W/o Budhram Aged About 51 Years Caste Yadav, R/o Village Pahadgaon Thana Jaynagar, Tehsil Surajpur, District Surguja, Chhattisgarh (Claimants). 6 - Tapan Kumar Lashkar S/o Shri Shanti Ranjan Lashkar Aged About 36 Years Occupation Vehicle Owner, R/o Village And Post Ajabnagar, Thana Jaynagar District Surguja, Chhattisgarh (Owner). 7 - Future General India Insurance Company Ltd. Registered Office 001, Dejy Plaza, 414 Veer Sawarkar Marg Prabhadevi Mumbai 400025 (Insurance Company). ... Respondents 2 (Cause title, as taken from CIS) For Appellant : Mr. Sudhir Agrawal, Advocate For Respondents No.1 to 5 For Respondent No.6 : : Mr. Ayush Lall, Advocate appears on behalf of Mr. Surfaraj Khan, Advocate Mr. Gyan Prakash Shukla, Advocate (Hon’ble Shri Justice Naresh Kumar Chandravanshi) Order on Board 14/01/2025 1. The appellant/Insurance Company has preferred this appeal under Section 173 of the Motor Vehicle Act, 1988 (for short ‘MV Act’) challenging the impugned award dated 08.1.2018 passed by the 3rd Additional Motor Accident Claims Tribunal (henceforth referred as “Claims Tribunal”), Surajpur, District Surajpur (CG) in CNR No. CGSJ010000852011 (Sangeeta Yadav and Ors. vs. The Oriental Insurance Company and Ors.), whereby the appellant/Insurance Company has been directed to indemnify the amount of award granted in favour of the respondents No.1 to 5/claimants. 2. Facts of the case, in nutshell are that, on 27.7.2010, when Vishnu Yadav was going from Ajabnagar to Pahadgaon while driving Hero Honda CBZ motor cycle bearing Registration No. CG-15-CC-5834 (henceforth referred as “offending vehicle”), it was collided with tree, therefore, Vishnu Yadav sustained injuries and succumbed to those injuries. Wife, children and parents of the deceased -Vishnu Yadav filed claim petition under Section 163A of the MV Act claiming Rs. 16,05,000/- as compensation against the appellant/Oriental Insurance Company and respondent No.6 (owner of the offending vehicle) & respondent no. 7 (alleged second insurer of the offending vehicle). 3. The appellant and respondents No.6 & 7 filed their written statement, in 3 which, they denied the liability upon them. Respondent No.6/owner/Tapan Kumar Lashkar pleaded in his written statement that, since offending vehicle was insured with the appellant/ Oriental Insurance Company and deceased was having valid and effective driving license, therefore, appellant /Insurance Company is liable to indemnify the award. 4. Respondent No.7 /Future Generali India Insurance Company denied that offending vehicle was insured with them for the date of accident. Appellant /Insurance Company also denied that the offending vehicle was insured with them for the date of accident, rather, it is stated that offending vehicle was insured with them after the accident. They have further pleaded that deceased died due to his own negligence, therefore, claimants are not entitled to get any compensation. 5. Learned trial Court, after recording evidence adduced by both the parties, held that, though offending vehicle was insured with the appellant/ Insurance Company as well as respondent No.7, but allowing the prayer made by the counsel for the claimants/respondents No.1 to 5, liability was fastened upon appellant / Insurance Company to indemnify the award. Hence, this appeal. 6. Learned counsel appearing for the appellant/Insurance Company would submit that, learned Claims Tribunal has wrongly held that Cover Note for the offending vehicle was issued by appellant for a period from 18.10.2010 to 17.10.2011, whereas Anup Mehta, Administrative Officer (NAW-2) and Nirmal Kumar Jain, Senior Manager of the appellant/ Insurance Company (NAW-3) have clearly stated and proved ‘Investigation Report’ (Ex. NA-2), in which, it has been reported that Cover Note dated 17.10.2010 (original is attached with the record of 4 Claims Tribunal, but the same has not been exhibited), has not been issued by them, rather, Cover Note (Ex. NA1-5-C) was issued by appellant/ Insurance Company for the offending vehicle on 30.10.2010. This fact is also corroborated with the Insurance Policy (Ex. NA1-3-C) of the offending vehicle and as per that Insurance Policy, offending vehicle was insured with appellant/ Insurance Company for a period from 03.11.2010 to 02.11.2011 i.e. after the accident, whereas accident of the instant case had occurred on 27.10.2010. He would further submit that, though Amit Kumar (NAW-1) had admitted in para 6 of his cross-examination that Cover Note, covering the period from 18.10.2010 to 17.10.2011, is attached with the investigation report, but Senior Manager -Nirmal Kumar Jain (NAW-3) has proved, Cover Note Ex. NA1-5-C from its office record/ carbon copy of original and has deposed that aforesaid cover note has been issued by them on 30.10.2010. This witness has clearly denied in his cross-examination that on 17.10.2010, cover note (said original cover note was filed by respondent no.6/owner) for the offending vehicle was issued by them. Learned counsel further submitted that the Claims Tribunal, without considering aforesaid oral and documentary evidence, which clearly show that offending vehicle was not insured with appellant/ Insurance Company for the date of accident, has fastened liability upon appellant/ Insurance Company, hence, he prays that this appeal may be allowed and appellant/ Insurance Company may be exonerated from the payment of compensation. Learned counsel for the appellant/ Insurance Company further submitted that the Insurance Policy i.e. Ex. NA1-7 issued by respondent No.7/Future Generali India Insurance Co. Ltd., in the name 5 of respondent No.6/owner of the offending vehicle shows that the said Insurance Policy was covering the period from 03.11.2009 to 02.11.2010 and as per aforesaid period, date of accident was covered by Insurance Policy (Ex. NA1-7) issued by respondent No.7, therefore, liability of indemnifying the award ought to have been fastened upon the respondent No.7/ Future Generali India Insurance Company, which has wrongly been exonerated by the learned Claims Tribunal. 7. Learned counsel appearing for the respondent No.6/ Owner of the offending vehicle would submit that, Amit Kumar (NAW-1), who was Administrative Officer of appellant/ Insurance Company, himself has admitted in para 6 of his cross-examination that, cover note attached with the investigation report (Ex. NA-2) prepared by the investigator of appellant/ Insurance Company itself shows that offending vehicle was insured with the appellant for the period from 18.10.2010 to 17.10.2011. On the basis of his admission, liability has been fastened upon appellant/ Insurance Company. He would further submit that Insurance Policy (Ex.NA1-7) issued by respondent No.7 in the name of respondent No.6, is also a valid policy, though Ramesh Sinha (NAW-4)- Law Officer of respondent No.7, has stated in his deposition that, aforesaid insurance policy i.e. Ex.NA1-7 is a forged document, but it has not been proved by its original, particularly by submitting the original policy No.2009-1503620-TW, which is mentioned in Ex.NA1-7. He further submitted that, as per aforesaid insurance policy, offending vehicle was insured with respondent No.7 as well as appellant/ Insurance Company on the date of incident, therefore, fastening liability upon appellant/ Insurance Company by learned Claims Tribunal, is just and proper, hence, the appeal is liable to be dismissed. 6 8. Learned counsel appearing for the respondents No.1 to 5 would support the impugned award passed by learned Claims Tribunal. 9. I have heard learned counsel appearing for the parties and perused the material available on record as well as record of the Claims Tribunal. 10. In instant case, vide impugned award, learned Claims Tribunal has fastened liability upon appellant/ Insurance Company only on the basis of admission made by his witness Amit Kumar (NAW-1) in para 6 of his cross-examination that, "सही है कि अन्वेषण रिपो्቏ े साथ संल्ሿ व नो्቏ में किनां 18.10.2010 से 17.10.2011 त वाहन ा बीमा होना उ्ቤेखि"त है". Rather, appellant/ Insurance Company has filed cover note vide Ex.NA-5-C along with investigation report and based on that cover note, insurance policy (Ex. NA1-3-C) has been issued in the name of respondent No.6/owner of the offending vehicle for the period from 03.11.2010 to 02.11.2011. Aforesaid cover note (Ex.NA1-5-C) was issued on 30.10.2010 and the same has been proved by Nirmal Kumar Jain (NAW-3) by producing carbon copy of original cover note maintained by their office. Aforesaid cover note was issued on 30.10.2010, whereas accident of instant case had occurred prior to that i.e. on 27.10.2010. This fact clearly shows that cover note (Ex. NA1-5-C) was issued subsequent to the accident. Nirmal Kumar Jain (NAW-3) has clearly denied that they had issued cover note dated 17.10.2010 for the insurance of offending vehicle/respondent No.6 . 11. Having considered aforesaid oral and documentary evidence available on record, learned Claims Tribunal ought not have fastened liability upon appellant/ Insurance Company only on the basis of admission made by Amit Kumar (NAW-1) that, "सही है कि अन्वेषण रिपो्቏ े साथ संल्ሿ 7 व नो्቏ में किनां 18.10.2010 से 17.10.2011 त वाहन ा बीमा होना उ्ቤेखि"त है", which has been filed along with investigation report prepared by their investigator. This admission itself is vague and further no such cover note has been proved in instant case, rather as per record, original cover note issued on 17.10.2010, has been filed by respondent No.6/owner of the offending vehicle through list of document on 28.1.2014 before the Claims Tribunal (which is attached with the record of Claims Tribunal), but the same is found to be fake as it has not been proved by respondents No.1 to 5/ claimants or respondent No.6 by calling its original from appellant/ Insurance Company. Rather, appellant/ Insurance Company has proved by examining Nirmal Kumar Jain (NAW-3), who had brought Carbon copy of original cover note (Ex. NA1-5-C), which was issued on 30.10.2010 and based on that cover note, offending vehicle was insured in the name of respondent No.6 for a period from 03.11.2010 to 02.11.2011. Thus, offending vehicle was neither insured for the date of accident by appellant/ Insurance Company nor it has issued cover note covering the date of accident. But, learned Claims Tribunal has misinterpreted the evidence and fastened liability upon appellant/ Insurance company. Therefore, the impugned award, to the extent fastening liability upon appellant/ Insurance company, is found perverse and illegal, hence, the same is liable to be set aside to the above extent. 12. The appellant/ Insurance Company has also filed and exhibited Insurance Policy (Ex.NA1-7) issued by respondent No.7/Future Generali India Insurance Company in the name of respondent No.6/owner of the offending vehicle for the vehicle mentioning engine number and chasis number. As per aforesaid insurance policy, vehicle of respondent No.6 8 was insured for the period from 03.11.2009 to 02.11.2010, which also covers the date of accident in instant case. On the basis of this document, learned Claims Tribunal has also observed that the offending vehicle was insured with the respondent No.7 also. Though, aforesaid insurance policy (Ex.NA1-7) has not been proved by calling its original or record maintained by respondent No.7 and its witness namely; Ramesh Sinha (NAW-4) has stated that, said insurance policy is forged, but only on this count, without proving it or disproving it in accordance with law, learned Claims Tribunal ought not have held that offending vehicle was insured with respondent no.7 and also ought not have exonerated it. Rather, it ought to have insisted respondent No.7 to disprove the same in accordance with law. 13. In view of above discussion, it is found that learned Claims Tribunal only on the basis of photocopy of insurance policy (Ex. NA-7) has not only held that offending vehicle was insured with respondent no.7/Future Generali India Insurance Co., but surprisingly, it has also exonerated it, whereas as per Ex.NA1-7, if that policy was issued by respondent no.7 for offending vehicle, then date of accident was covered by that policy. But evidence available on record shows that aforesaid aspects i.e. whether offending vehicle was insured by respondent no.7/ Future Generali India Insurance Company for the date of accident and if yes whether respondent no.7 is liable to satisfy the award, has not been considered by the Claims Tribunal in accordance with law. Whereas these aspects are required to be dealt with by learned Claims Tribunal as per evidence available on record and in accordance with law. 14. In view of above discussion, the instant appeal is allowed. The 9 impugned award dated 08.1.2018 passed by learned 3rd Additional Motor Accident Claims Tribunal, Surajpur, District Surajpur (CG) is set aside. Since offending vehicle was not insured by appellant/ Insurance Co. i.e. Oriental Insurance Co. Ltd. for the date of accident, therefore, it is not liable to indemnify the award, as such, claim petition u/S 163A of the MV Act filed by respondents no.1 to 5/ claimants against appellant/ Insurance Co. is dismissed. 15. Consequently, the matter is remitted back to the concerned Claims Tribunal with direction to examine the case afresh in respect of the issues as indicated hereinabove, after providing due opportunity of hearing to the parties i.e. claimants, Future Generali India Insurance Co. Ltd. and Tapan Kumar Lashkar, along with adducing evidence also, and thereafter, the concerned Claims Tribunal has directed to pass award afresh without being influenced by impugned award as well as any observation made by this Court in this order. 16. Accordingly, the instant appeal is allowed to the extent indicated hereinabove. 17. Record of the concerned Claims Tribunal be returned forthwith. Sd/- (Naresh Kumar Chandravanshi) JUDGE Rukhsar RUKHSAR BANO Digitally signed by RUKHSAR BANO Date: 2025.01.22 16:11:55 +0530