1 2025:CGHC:1979 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR MAC No. 344 of 2018 1 - Branch Manager The New India Insurance Company Limited, Branch Office, 2nd Floor Rama Trade Center, In Front Of Rajiv Plaza, Near Old Bus Stand, Tahsil And District Bilaspur, Chhattisgarh (Insurer) ... Appellant versus 1 - Kailash Bai W/o Late Bahadur Singh Rathore Aged About 55 Years R/o Village Gatoura, Tahsil Masturi, District Bilaspur, Chhattisgarh 2 - Krishna Kumar S/o Late Bahadur Singh Rathore Aged About 40 Years R/o Village Gatoura, Tahsil Masturi, District Bilaspur, Chhattisgarh (Claimants) 3 - Ajay Kumar Mehta S/o Mohan Prasad Mehta Aged About 38 Years R/o Pali Road Deepika, Police Station Deepika, District Korba, Chhattisgarh (Driver) 4 - Sanjay Kumar Prasad S/o Mohan Prasad R/o Shanti Nagar, Pali Road, Deepika, District Korba, Chhattisgarh (Owner) ... Respondents For appellant : Mr. B.N. Nande, Adv. with Mr. Abhishek Sharma, Adv. For Respondents No. 1 and 2 : Ms. Shalini Jangde, Adv. on behalf of Mr. A.L. Singrol, Adv. For Respondents No. 3 and 4 : Ms. Pooja Sinha, Adv. on behalf of Mr. Uttam Pandey, Adv. Digitally signed by AVANISH KUMAR PATHAK Date: 2025.01.15 11:16:32 +0530 2 (Hon’ble Shri Justice Naresh Kumar Chandravanshi) Order on Board 07/01/2025 1. This Miscellaneous Appeal has been preferred by the appellant/ New India Insurance Company Ltd. under Section 173 of the Motor Vehicles Act, 1988 (for short ‘the Act of 1988’) questioning the legality and propriety of award dated 05-10-2017 passed by Fourth Additional Motor Accident Claims Tribunal, Bilaspur (CG) (for short ‘the Claims Tribunal’) in Claim Case No. 416/2016, by which the learned Claims Tribunal while allowing the claim in part has fastened the liability upon the Insurance Company to satisfy the award. 2. Facts of the case, in brief are that, on 7-5-2016 at about 8.30 pm, when deceased Bahadur Singh along with his friend Bhushan Lal Rathor, was returning to his village Gataura on their TVS moped bearing registration No. CG 10 H 1189, and when they reached between Gataura and Bhilai, at that time, a truck bearing registration No. CG 12 C 3563 (henceforth, referred to as ‘offending truck’) came from opposite direction, being driven by its driver Ajay Kumar Mehta, (respondent No. 3) and owned by respondent no. 4, in a rash and negligent manner, dashed the TVS vehicle. The TVS vehicle stuck in front wheel of the offending truck. In the said accident, Bahadur Singh and Bhushanlal Rahor, both succumbed on the spot. 3. By filing application under Section 166 of the Act of 1988, the claimants/respondents 1 and 2 herein sought compensation from non- applicants. Vide impugned award dated 5-10-2017, the learned Claim Tribunal partly allowed the application filed by the claimants and directed the 3 Insurance Company to pay compensation to the tune of Rs.4,27,585/- along with interest @ 8.5% per annum from the date of filing of the claim case till date of payment of amount of compensation to the claimants. By filing this appeal, the Insurance Company has challenged the award. 4. Learned counsel for the appellant/Insurance Company submits that, in this appeal, challenge of the appellant is on two counts. Since son of deceased i.e. respondent No. 2 Krishna Kumar Rathor was an adult person aged about 40 years, therefore, he cannot be supposed to be dependent upon the deceased, as such, wife of deceased was the only dependent upon the deceased. Further, family member aged above 25 years particularly respondent No. 2, cannot be held to be dependent upon a pensioner, as in instant case, deceased was a pensioner. Therefore, he submits that learned Tribunal has wrongly deducted 1/4th income towards self-expenses of the deceased instead of 1/3rd. Therefore, amount of compensation ought to have been re-visited accordingly. 4.1 He would further submit that, the offending truck is a heavy goods vehicle as per RC Book (Ex. NA 6) and investigation report submitted by the Investigator of Insurance Company i.e. Ex. NA 2 to Ex. NA 5, but at the time of accident, the driver/respondent No. 3 Ajay Kumar Mehta was having driving licence to drive Light Motor Vehicle (non-transport) and Motorcycle, thus since, the driver of offending truck was not having valid and effective driving licence to drive heavy goods vehicle as the offending truck was, and as per terms of insurance policy (Ex. NA 1), liability can only be fastened upon insurance company when driver of the insured vehicle was having valid and effective driving licence and it has been proved by the 4 appellant/Insurance company that, the driver/respondent No. 3 herein was not having valid and effective driving licence. 4.2 Learned counsel for the appellant also submits that respondents No. 3 and 4 driver and owner of the offending truck have neither filed written statement before the Claims Tribunal nor produced any document to prove the fact that driver of the offending truck was having valid and effective driving licence. On the other hand, appellant/Insurance company has proved through oral and documentary evidence that, driver respondent No. 3 of the offending truck was not having valid and effective driving licence, rather they remained ex-parte before the Claims Tribunal. On the other hand, appellant/Insurance company has proved through oral and documentary evidence that driver Respondent No. 3 herein of the offending truck was not having valid and effective driving licence, but ignoring aforesaid evidence, the Claims Tribunal has fastened liability upon the appellant, which is perverse and illegal. In this regard, he relied on judgment of Hon’ble Supreme Court in the case of Pappu and others Vs. Vinod Kumar Lamba and another [(2018) 3 SCC 208]. 4.3 Learned counsel further submits that offending truck was also not having fitness and permit on the date of accident, thus, despite clear violation of policy conditions, the Claims Tribunal has fastened liability on the Insurance Company. Therefore, it is prayed that appeal may be allowed and Insurance company may be exonerated from the liability to indemnify the award. 5 5. Learned counsel for the respondents No. 1 and 2/claimants, would submit that though owner and driver remained ex-parte before Claims Tribunal and have not filed written statement or documents but Insurance company cannot be extended benefit of the same as in criminal case, police had seized all the documents of offending truck and the same has been filed by the claimants. He further submits that, Insurance company has filed various documents but the same have not been proved in accordance with law by examining author of those documents. Therefore, he submits that award passed by learned Claims Tribunal does not call for any interference of this Court. 6. Learned counsel for the respondents No. 3 and 4/driver and owner extended support to the submission made by learned counsel for the respondents No. 1 and 2. 7. I have heard learned counsel for the parties and perused the material available on record. 8. Perusal of the record of Claims Tribunal as well as impugned award shows that, respondents No. 3 and 4/driver and owner respectively remained ex-parte before the Claims Tribunal and they did not file their written statement or any other document. Whenever a claim petition is filed against driver and owner of a vehicle, then the driver and owner ought to have filed written statement along with all necessary documents like registration certificate of the vehicle, insurance policy, driving licence of the driver, permit and fitness, etc., so that, issue with regard to fastening liability can be ascertained in accordance with law. If driver and owner remained 6 absent, did not file written statement and necessary documents, then, fastening liability against Insurance company becomes difficult, particularly, when police also did not seize those documents in the criminal case arising from the accident. 9. In the case of Divisional Manager, National Insurance Company Vs. Ranjit Toppo and ors. (MAC No. 356/2015 order dated 28- 1-2028), driver and owner of offending vehicle were served with the notice through registered post, but they did not turn up, therefore, they were proceeded ex-parte. But, in that case, police had also not seized copy of driving licence of driver of offending vehicle, as such, learned Divisional Bench of this Court held has under :- “Initial burden to prove that on the date of accident, driver was possessed with a valid and effective driving license is upon the driver & registered owner of offending vehicle. In absence of copy of driving license in the record of claim case or criminal case, the only inference which could be drawn is that on the date of accident, non-applicant No.1 was not possessed with valid and effective driving license to drive offending vehicle.” 10. In instant case, although, owner/driver of the offending vehicle were served notice even through paper publication, but they did not remain present before the Claims Tribunal and did not file written statement/any document. But, the seizure memo (Ex. A-6) filed in concerned criminal case 7 registered against the driver of offending truck shows that, RC Book, permit, insurance policy of the offending truck in the name of Sanjay Kumar Prasad and driving lcence of Ajay Kumar Mehta were seized. Thereafter, in the instant case, not filing written statement or document by driver & owner and remaining ex-parte, did not extend any benefit to the Insurance company. 11. Offending truck was insured with the appellant/ Insurance company in the name of respondent No. 4 Sanjay Kumar Prasad, which also gets support so far as its ownership is concerned, from copy of RC Book (Ex. NA 6) filed by the appellant/Insurance company. Permit of the offending vehicle was also seized by the police, copy of the same has been attached with the record of the Claims Tribunal, which shows that it was effective from 23-2-2016 to 22-2-2021, date of accident is 7-5-2016, as such, it is evident that permit was alive on the date of accident. Though fitness expired on 12-3- 2016, but the Insurance Company has not proved any evidence to substantiate the contention that, offending vehicle was unfit or in such condition that running of the same itself was a cause of accident, therefore, lapse of fitness could not be termed as breach of condition. 12. Learned counsel for the appellant heavily stressed on the fact that driving licence of the driver of offending truck, number of which has been mentioned in seizure memo Ex. A-6 bearing No. DL-BR 2620140030596 has been got verified by the Insurance company from District Transport Officer, Orangabad (Bihar) vide Ex. NA 4, who has certified vide aforesaid document that, aforesaid driving licence has been issued in the name of Ajay Kumar Mehta, driver of offending truck for light motor vehicle (non-transport) and motorcycle only, whereas as per RC Book (Ex. NA 6), the offending vehicle 8 was a heavy goods vehicle (HGV) as its unladen weight was 10380 kg. and laden weight was 31,000 kg. thus, driver of offending vehicle was not having valid and effective driving licence to drive heavy goods vehicle. In this regard, learned counsel also drew attention of the Court to the deposition of Sanjeev Minj, who is employee of appellant/Insurance company. He has exhibited document Ex. NA 1 to NA 9 along with investigation report, which was carried out by C.B. Rathor, Advocate/ Investigator of appellant / Insurance company. But, neither investigator has been examined by the Insurance company nor verification report of driving licence Ex. NA 4 allegedly issued by the District Transport Officer, Orangabad, Bihar has been proved by examining issuing authority. 13. Witness Sanjeev Minj, a witness of Insurance company, has only marked number of exhibited documents. Only on this count, those documents particularly verification of driving licence Ex. NA 4 cannot be held proved. Since Ex. NA 4 is a verification report of driving licence of driver of offending truck, which has been issued by the District Transport Officer, Orangabad (Bihar), therefore, it has the status of a secondary evidence, as such, the insurance company ought to have proved that document by examining issuing authority of Ex. NA 4 by calling original record maintained by aforesaid authority, as per the provision of Section 63 of the Evidence Act (Section 58 of the Bhartiya Sakshya Adhiniyam, 2023). Though, Ex. NA 1 to NA 9 have been marked by witness Sanjeev Minj, but it is settled law that only marking document is not sufficient to hold it/its content proved, until and unless the same is not proved in accordance with law. 9 14. Hon’ble Supreme Court in the case of M. Chandra Vs. M. Thangmuthu and anr. [AIR 2011 SC 146] has held has under :- “It is true that a party who wishes to rely upon the contents of a document must adduce primary evidence of the contents, and only in the exceptional cases will secondary evidence be admissible. However, if secondary evidence is admissible, it may be adduced in any form in which it may be available, whether by production of a copy, duplicate copy of a copy, by oral evidence of the contents or in another form. The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original. It should be emphasized that the exceptions to the rule requiring primary evidence are designed to provide relief in a case where party is genuinely unable to produce the original through no fault of that party.” 15. In instant case, appellant/ Insurance company has neither examined issuing authority of Ex. NA 4 i.e. District Transport Officer, Orangabad (Bihar) nor has examined its investigator. Therefore, only marking exhibit of those documents filed by insurance company is not sufficient to hold proved that said driving licence issued in favour of driver of offending vehicle was not valid and effective driving licence to drive heavy goods vehicle. As has been observed that, permit was effective on the date of incident, therefore, only because the driver/owner has not filed written statement or documents, it cannot be held that, there is breach of terms of insurance policy (Ex. NA 1), as all necessary documents have been seized by 10 the police in criminal case and have been filed before the Claims Tribunal by the appellant. In view of above fact, the judgment rendered by Hon’ble Apex Court in the case of Pappu and others (supra) is not helpful to the appellant in the instant case. The appellant has failed to adduce any legal evidence to prove the fact that, the offending truck was being used by the owner / insured / respondent No. 4 violating the terms of insurance policy Ex. NA 1. Therefore, I do not find any infirmity or illegality in the impugned award, fastening liability upon the appellant to satisfy the impugned award, as such, the same is affirmed. 16. So far as contention of learned counsel for the appellant regarding 1/4th deduction for self-expenses of the deceased is concerned, though respondent No. 2 Krishna Kumar was adult son of the deceased and deceased was pensioner, even then, both the claimants are held to be dependent upon income of the deceased. Having regard to the dictum of Hon’ble Supreme Court given in the case of National Insurance Company Ltd. vs. Prany Sethi & Ors. [(2017) 16 SCC 680], learned Claims Tribunal looking to the number of dependent member, ought to have deducted 1/3rd for self-expenses of the deceased, but it has deducted 1/4th for the same, which is not sustainable. Therefore, the impugned award is required to be re- visited on this count and the amount of compensation may be reduced accordingly. 17. Having considered aforesaid facts, the amount of compensation granted by the Claims Tribunal is hereby modified as under :- 11 Sl. No. (1) Head (2) Awarded by the Tribunal (3) Awarded by this Court (4) 1. Monthly income of the deceased 8613 8613 2. Deduction for self expenses 1/4 8613 x 1/4 = 2153.25 1/3 8613 x 1/3 = 2871 ₹ 3. Income after deduction 8613 – 2153.25 = 6459.75 8613 – 2871 = 5742 4. Multiplier applied 05 & total loss of dependency 6459.75 x 12 x 5 = 3,87,585 5742 x 12 x 5 = 3,44,520 5. Loss of dependency 3,87,585 ₹ /- 3,44,520 ₹ /- 6. Amount towards conventional heads ₹ 30,000/- (towards mental agony). ₹ 10,000/- (towards funeral expenses) ₹ 30,000/- (towards mental agony). ₹ 10,000/- (towards funeral expenses) 7. Total Compensation 4,27,585/- ₹ 3,84,520/- ₹ 18. Accordingly, the claimants are entitled to receive compensation to the tune of Rs.3,84,520/- instead of Rs 4,27,585/-. 19. In view of the foregoing discussion, the appeal filed on behalf of the Insurance Company is allowed in part and impugned award is modified to the extent that the amount of compensation of Rs. 4,27,585/- awarded to the claimants by the Claim Tribunal is reduced to Rs. 3,84,520/- and this amount shall carry interest at rate of 8.5% per annum from the date of application till 12 its actual payment. Rest of the conditions mentioned in the award shall remain intact. 20. The award stands modified to the above extent. Sd/- (Naresh Kumar Chandravanshi) Judge Pathak