Chattisgarh High Court
Smt. Jhariyarin vs Ramesh Sahu on 22 April, 2025
1
Digitally signed
by BHOLA
NATH KHATAI
Date:
2025.04.22
18:30:28 +0530
2025:CGHC:18176
AFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
MAC No. 502 of 2017
Reserved on 03.04.2025
Delivered on 22.04.2025
1. Smt. Jhariyarin Wd/o Late Jeevrakhan Nishad, Aged About 35
Years R/o Village Bhathapara Banjari, Post Bhathagaon, Tahsil
Kurud, District Dhamtari, Chhattisgarh
2. Kumari Neelam Nishad D/o Late Jeevrakhan, Aged About 13
Years Minor Through Natural Guardian Mother Smt. Jhariyarin
Wd/o Late Jeevrakhan Nishad, R/o Village Bhathapara Banjari,
Post Bhathagaon, Tahsil Kurud, District Dhamtari, Chhattisgarh
3. Kumari Uma Nishad D/o Late Jeevrakhan, Aged About 14 Years
Minor Through Natural Guardian Mother Smt. Jhariyarin Wd/o
Late Jeevrakhan Nishad, R/o Village Bhathapara Banjari, Post
Bhathagaon, Tahsil Kurud, District Dhamtari, Chhattisgarh
4. Tikesh Kumar Nishad S/o Late Jeevrakhan, Aged About 12 Years
Minor Through Natural Guardian Mother Smt. Jhariyarin Wd/o
Late Jeevrakhan Nishad, R/o Village Bhathapara Banjari, Post
Bhathagaon, Tahsil Kurud, District Dhamtari, Chhattisgarh
5. Barsan Nishad S/o Late Bhagirathi, Aged About 70 Years R/o
Village Bhathapara Banjari, Post Bhathagaon, Tahsil Kurud,
District Dhamtari, Chhattisgarh ...............Claimants
... Appellants
versus
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1. Ramesh Sahu S/o Bisnath Sahu, Aged About 25 Years R/o Village
Bagoud Bhathapara, Post Bagoud, Tahsil Kurud, District
Dhamtari, Chhattisgarh ............... Driver Of The Tata Magic
Bearing Registration No. C.G.04 H.M. 4588
2. Smt. Sohahdra Bai Sahu W/o Bhokluram, Aged About 50 Years
R/o Village Sundar Nagar Ghot, Post Nawapara, Police Station,
Tahsil Gobra Nawapara, District Raipur, Chhattisgarh ...............
Owner Of The Tata Magic Bearing Registration No. C.G.04 H.M.
4588
3. Branch Manager, Bajaj Alliance General Insurance Company
Limited, Shivmohan Bhawan, Vidhansabha Road, Pandri, Raipur,
Post Pandri, Tahsil And District Raipur, Chhattisgarh ..........
Insurer Of The Tata Magic Bearing Registration No. C.G.04 H.M.
4588
... Respondent(s)
For Appellants : Mr. Anil Gulati, Advocate
For Respondent No.3 : Mr. Raj Awasthi, Advocate
Hon'ble Shri Justice Sanjay Kumar Jaiswal
CAV JUDGMENT
1. This appeal, under section 173 of the Motor Vehicles Act, 1988, has
arisen out of the order dated 24.12.2016 passed by the Additional
Motor Accident Claims Tribunal, Dhamtari (C.G.) in Claim Case
No.52/2015 whereby the claim application preferred by the
claimants has been rejected.
2. The claim of the appellant/claimants, in brief, is that on 29/04/2015,
40-year-old Jeevrakhan Nishad was travelling from village Kurud to
village Bhatapara Banjari in a Tata Magic bearing registration No.
CG 04 HM 4588 (hereinafter referred to as ” the offending vehicle”),
which was being driven by respondent No.1 Ramesh Sahu. At
around 8:20 pm, Ramesh Sahu drove the said vehicle in a rash and
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negligent manner, as a result of which it collided with the rear part
of an unknown truck and got damaged. Jeevrakhan and driver
Ramesh Sahu also got stuck in it. On receiving information, the
Police reached the spot. Both of them were taken out of the vehicle
and with the help of 108 ambulance, they were taken to the
Community Health Centre, Kurud, where after first aid, Jeevrakhan
was referred to Raipur. But while being taken to Raipur, he died on
the way. Merg was recorded on the information of Manohar Lal
Dewangan. Crime No. 224/2014 was registered at Police Station,
Kurud and the offending vehicle along with documents were seized.
It was claimed that due to the death of 40-year-old Jeevrakhan in
the accident, the appellants, who are the wife, children and father
of the deceased, have become destitute. Jeevrakhan used to earn
Rs.200/- per day by farming and labour work, of which the
appellants have been deprived. Therefore, they filed an application
under section 166 of the Motor Vehicles Act claiming compensation
of Rs 10,30,000/- under various heads.
3. Respondents No. 1 and 2, who are said to be the driver and
registered owner of the offending vehicle respectively, submitted
their reply denying the allegations made in the claim application
and stating that at the time of accident, the driver of the offending
vehicle was not respondent No.1 Ramesh but Rajesh Kumar son of
Khedu Lal. In relation to the said accident, a crime was registered
by the Police against an unknown truck driver but the truck could
not be traced. Hence, the Police closed case No.29/2014.
Respondent No.1 Ramesh Sahu himself is the aggrieved party.
According to the seizure made by the Police, the driving license of
driver Rajesh Kumar has been seized. The accident occurred due
to the rash and negligence of the unknown truck driver against
whom no claim has been filed. The driver of the offending vehicle
was Rajesh who was a valid license holder and the offending
vehicle was insured by respondent No.3. Therefore, respondent
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No.3 insurance company is responsible for it and the claim
application filed against them should be rejected.
4. Respondent No.3 insurance company submitted its reply denying
the allegations made in the claim application and stating that no
accident was caused by the alleged offending vehicle. There was
no negligence on the part of its driver. Despite repeated demands,
the owner of the offending vehicle has not presented any valid
documents. The offending vehicle was being driven in the absence
of valid registration, permit and fitness. Therefore, the Insurance
Company is not liable for any compensation. Hence, the claim
application against the Insurance Company should be rejected.
5. In the case, Smt. Jhariyarin (AW-1) W/o deceased Jeevrakhan and
spot/eye witness Chaituram Nishad (AW-2) were examined from
the claimants side. Ramesh Sahu (R-1) was examined from the
driver and owner side whereas, no witness was examined on
behalf of the respondent No.3 insurance company.
6. Learned Tribunal, after hearing both the parties, on the basis of their
pleadings and evidence, reached to the conclusion that the
claimants party has failed to prove that the said accident occurred
due to rash and negligent driving of the driver of the offending
vehicle, Ramesh Sahu. The Tribunal also found that the insurance
company has failed to prove in the absence of any evidence that
any of the terms of insurance were violated in driving the offending
vehicle. On the above basis, the Tribunal vide impugned order
dated 24.12.2016 rejected the claim application without calculating
the compensation in respect of the death of deceased Jeevrakhan.
Hence, the impugned order has been challenged in this appeal.
7. Learned counsel for the appellants argues that the Tribunal, without
relying on the statement of spot/eye witness Chaturam (AW-2), on
the basis of the First Information Report and the closure report of
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the Police, has accepted that the accident did not occur due to the
negligence and rashness of driver Ramesh Sahu, which is not
sustainable as it is against the law. He argues that from the
evidence presented it is clear that the accident took place between
the unknown truck and the offending vehicle as a result of which
Jeevrakhan suffered grievous injuries and died. It has also been
proved that the offending vehicle was being driven by respondent
No.1 Ramesh Sahu at that time. The accident took place on
account of rash and negligent driving by Ramesh Sahu. The case
is not of contributory negligence but of composite negligence.
Deceased Jeevrakhan himself was a passenger of the offending
vehicle. He has no involvement in the negligence. Since the
unknown truck could not be traced, its driver, owner and insurance
company could not be made parties. Since the case is of composite
negligence, the claimant had both the options that he could file a
claim against only one vehicle and get the compensation amount
and by not accepting it, the Tribunal has committed an error while
rejecting their claim application. Hence, learned counsel for the
appellants prayed for allowing the appeal by awarding suitable
compensation in favour of the appellants. In support of his
argument, he relied on the judgments of the Hon’ble Supreme
Court in the case of National Insurance Company Ltd. v.
Chamundeswari & Ors. (2021) 18 SCC 596 & Pawan Kumar &
another v. M/s Harkishan Dass Mohan Lal & Others, 2014 (2)
CGLJ 29 (SC).
8. There is no representation on behalf of respondents No. 1 and 2.
9. Learned counsel appearing for respondent No.3/Insurance
Company would submit that in the facts and circumstances of the
case, the impugned order of dismissal is just and proper and does
not require any interference. He submits that the claimants have
failed to prove that the driver of the vehicle in question was
Ramesh Sahu. They have also failed to prove that the accident
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occurred due to rash and negligent driving by the driver of the
offending vehicle. If Ramesh is found to be the driver of the vehicle
in question, it has been argued that Ramesh was not holding a
valid and effective driving license, therefore the insurance
conditions have been violated and the insurance company is not
liable for any compensation. He also submits that the arguments
raised in this appeal are not acceptable. Therefore, the appeal
should be dismissed.
10. Heard learned counsel for both the parties and perused the record
minutely.
11. The first question for consideration is whether the driver of the
offending vehicle was Respondent No.1 Ramesh Sahu?
12. Confirming the pleadings of the claim application, Smt. Jhariyarin
(AW-1) W/o deceased Jeevrakhan has stated that the driver of the
offending vehicle Ramesh Sahu was her neighbour. Though Smt.
Jhariyarin is not a spot witness, she has remained consistent in her
statement that at the time of accident, the driver of the offending
vehicle was Ramesh Sahu. As a spot witness Chaituram Nishad
(AW-2) R/o Bhatapara, Banjari, has stated that he saw the
accident. According to Chaturam Nishad, he used to work as a
porter in Siddhi Ganesh Rice Mill of Kurud. On the date of incident,
he was going from Kurud to his village Bhatapara on his bicycle
after getting off from work in the evening when an accident took
place between the offending vehicle and a truck near Chhattisgarh
Dhaba at around 08.20 pm. The truck was parked on its side in the
direction of Raipur while the offending vehicle was being driven by
Ramesh Sahu. A Mahindra Travels bus was coming from Raipur
towards Dhamtari. In an attempt to overtake the truck, when
Ramesh Sahu saw the bus coming from the front at a high speed,
he moved the offending vehicle to the side due to which it collided
with the rear of the parked truck and the front part of the offending
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vehicle got completely damaged and it got stuck in the truck.
Jeevrakhan Nishad and driver Ramesh Sahu, who were trapped in
the offending vehicle, were rescued after much effort with the help
of the Police and sent to the Community Health Centre, Kurud
where Jeevrakhan died during treatment. In cross-examination, this
witness has not been able to tell the number of the parked truck.
But, he remained consistent and unrebutted in his statement. He
has denied the suggestion of the respondent that at the time of
accident the offending vehicle was being driven by a person named
Rajesh.
13. In rebuttal of the evidence presented by the claimants side, only
Ramesh Sahu (respondent No.1) has been examined from the
respondents side. According to him, he got injured in the accident
but at the time of accident, he was not driving the offending vehicle
but a person named Rajesh was driving it. However, he has
accepted the fact that the collision took place between a truck and
the offending vehicle in which he became unconscious due to head
injury.
14. From the documentary evidence presented by the claimants side,
which includes the Merg intimation (Ex.P-6) registered on the
death of Jeevrakhan, Inquest report of the dead body Ex.P-7,
application for post-mortem Ex. P-8, First Information Report Ex. P-
2, Spot Map Ex. P-3, seizure of Tata Magic from the spot Ex. P-4
and seizure from Ramesh Sahu Ex. P-5 along with the closure
diary of police Station, Kurud Ex. P-1, it becomes clear that on the
information of Ramesh Sahu’s brother Sanjay Kumar Sahu, the
First Information Report (Ex.P-2) was registered against an
unknown truck driver at about 9:35 pm on the same day. Since the
truck could not be traced, the closure report Ex. P-1 was issued by
the Police. From perusal of the First Information Report Ex. P-2, it
becomes clear that the offending vehicle was being driven by
respondent No.1 Ramesh Sahu. It is also clear that Sanjay Kumar
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Sahu reached there on getting information of the accident and saw
the offending vehicle of his brother Ramesh Sahu (respondent
No.1) standing in an accident condition, the front portion of which
was completely damaged. Jeevrakhan and his brother Ramesh
Sahu were trapped in the offending vehicle, who were taken out
with the help of others and taken to Kurud Hospital by ambulance.
He had received information that the driver of an unknown truck
going towards Raipur was driving in a rash and negligent manner.
When the driver of the said truck suddenly applied brakes, the
offending vehicle coming from behind collided with the rear of the
truck and met with an accident. Seizure Ex. P-4 shows that the
offending vehicle was seized in a damaged condition from the spot.
Seizure Ex. P-5 shows that the RC book of the offending vehicle
along with other documents and the driving license of Rajesh were
seized from respondent No.1 Ramesh Sahu. But there is no
mention as to why the driving license of some other person was
seized from Ramesh Sahu. Merely on the basis of seizure of the
driving licence it cannot be said that Rajes was driving the
offending vehicle at the time of the accident.
15. From the statement of spot witness Chaituram Nishad and the FIR
(Ex. P-2) lodged immediately after the accident, it is evident that at
the time of accident, respondent No.1 Ramesh Sahu was driving
the offending vehicle. If the said Rajesh had driven the offending
vehicle, he would have definitely been injured but no such person
named Rajesh has been reported to be injured nor has any other
evidence been presented in this regard. Therefore, this statement
and pleading of Ramesh Sahu that Rajesh was driving the
offending vehicle at the time of accident is not found to be reliable.
The uncontroversial statement of witness Chaituram Nishad and
the FIR (Ex.P-2) lodged immediately after the accident by
Ramesh’s brother Sanjay Kumar Sahu himself establish the fact
that Ramesh was driving the offending vehicle at the time of
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accident.
16. As far as the question of rash and negligent driving is concerned, in
this regard it is clear that eyewitness Chaituram Nishad (AW-2),
has been consistent and unrebutted in his statement. His statement
has been corroborated by the driver of the offending vehicle,
Ramesh Sahu himself, who has also accepted that the accident
occurred due to the collision between an unknown truck and his
vehicle. Chaituram Nishad has also been consistent in his
statement that while trying to overtake the truck, the driver of the
offending vehicle, Ramesh Sahu, took the vehicle to the side to
avoid the Mahindra Travels bus coming from the front at a high
speed, due to which it collided from behind with the truck going
ahead. Thus, according to eye witness Chaituram Nishad, the
accident took place on account of the rash and negligence of the
driver of the offending vehicle, Ramesh Sahu and this witness has
been unrebutted in his statement. This fact is also clear from First
Information Report (Ex. P-2) that the offending vehicle collided with
the truck from behind.
17. 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
10only 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.”
18. In the case at hand, it is clear from the entire evidence presented
that the accident occurred as a result of the collision of the
offending vehicle with the rear portion of an unknown truck. Eye
witness Chaituram Nishad has been consistent and unrebutted in
his statement that the accident occurred due to the negligence and
rashness of the driver of the offending vehicle, Ramesh Sahu. In
the above situation, when the statement of Ramesh Sahu is not
reliable, then the fact in the First Information Report (Exhibit P-2)
does not contradict/rebut the statement of Chaituram that the
accident occurred due to the sudden braking by the truck driver.
19. On the basis of the above discussion, it is found to be proved that
Jeevrakhan died due to grievous injuries suffered in the accident
which occurred as a result of the offending vehicle being driven
rashly negligently by respondent No.1 Ramesh Sahu. Therefore,
the conclusion of the Tribunal in this regard is not found to be
correct and the said conclusion is not worth sustaining.
20. In the second question, the Tribunal has concluded that in the
absence of any evidence by the insurance company, it has failed to
prove that any insurance condition has been violated in driving the
offending vehicle. In this context, on perusal of the evidence it is
clear that respondent no.3 insurance company is the insurer of the
offending vehicle. It has been proved that the driver of the said
vehicle was Ramesh Sahu (respondent no.1). There is no clear
evidence to show that any condition of registration has been
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violated in driving the offending vehicle. There is also lack of clear
evidence to show that the vehicle in question was driven without
permit and fitness because seizure Ex.P-5 shows seizure of the
fitness of the vehicle. The driving license of the said Rajesh is also
said to have been seized. But on the basis of close analysis of
evidence, it has been found that the driver of the offending vehicle
at the time of accident was not Rajesh but Ramesh Sahu (R-1).
Ramesh Sahu has also been examined before the court. He has
not presented his driving licence. In cross-examination, he has
admitted that he does not have a driving license. In this situation,
when the vehicle in question was insured and the driver of the said
vehicle was Ramesh Sahu who did not have a valid license, the
statement and argument of the insurance company is found to be
proved that the insurance conditions have been violated by driving
the vehicle in the absence of a valid and effective driving license.
Therefore, the conclusion given by the Tribunal on question No.2 is
not found to be correct.
21. On the basis of the above evidence analysis, the impugned order is
not found to be sustainable and the same is hereby set aside.
22. As regards quantum, from the evidence presented by the claimants
side, it is clear that the age of deceased Jeevrakhan was 40 years.
There are total 5 claimants who are the wife, children and father of
the deceased. Deceased Jeevrakhan is said to be an agricultural
labourer and his daily income was Rs.200/- i.e. monthly income
was Rs. 6,000/-.
23. Though it is claimed that at the time of accident the deceased was
earning Rs.6,000 per month from labour and agriculture work, no
documentary evidence regarding his income has been brought on
record. The accident occurred on 29.04.2015 and the minimum
wages of even an unskilled labour at that point of time was
Rs.5787. Hence, the income of the deceased is assessed at
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Rs.5787 per month i.e. Rs.69,444 per annum, as minimum wages
at that time. As per National Insurance Company Ltd., Vs.
Pranay Sethi and Others, (2017) 16 SCC 680, the future
prospects would be 25% of the income. After adding 25% towards
future prospects i.e. Rs.17,361, the amount comes to Rs.86,805/-.
There are total five claimants, so after deducting 1/4th of the
income i.e. Rs.21701.25 in round figure Rs.21701 towards personal
expenses, the amount comes to Rs.65,104/-.
24. In the light of the judgments of the Hon’ble Supreme Court in Sarla
Verma (Smt.) and others vs. Delhi Transport Corporation and
another reported in (2009) 6 SCC 121, National Insurance
Company Ltd., Vs. Pranay Sethi and Others, (2017) 16 SCC 680
and Magma General Insurance Co. Ltd. v. Nanu Ram @ Chuhru
Ram & Ors; (2018) 18 SCC 130, the compensation is being
computed as below:-
Sl. Particulars Calculation
No.
1. Monthly income of the deceased 5787
2. Yearly income 69444
3. Future prospects (25% of the in- 17361
come)
4. Total 86805
5. Personal expenses (1/4th of the 21701.25
income) in round figure Rs. 21701
6. Loss of dependency 65104
7. Total loss of dependency (apply- 65104 x 15 = 976560
ing multiplier of 15)
8. Funeral Expenses 15000
9. Loss of estate 15000
10. Spousal consortium and love & 40000 x 5 = 200000
affection (Rs.40,000 to each
claimants)
Total compensation Rs.12,06,560
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25. So far as the question of liability for the above compensation is
concerned, from the analysis of evidence, it is found that the
accident occurred due to collision between two vehicles. One
vehicle was an unknown truck, hence no charge sheet has been
filed against it by the Police. The other vehicle was the offending
vehicle in which deceased Jeevrakhan himself was riding.
Respondents No. 1, 2 and 3 have been found to be the driver,
registered owner and insurer of the offending vehicle respectively. It
has been proved that the accident occurred due to rash and
negligent driving of the offending vehicle by respondent No.1
Ramesh Sahu and therefore violation of insurance conditions has
been found.
26. At this stage, learned counsel for the appellants requested for an
order of pay and recover which was opposed by the insurance
company.
27. Admittedly, the offending vehicle was duly insured with the
Insurance Company but due to breach of policy condition the
Insurance Company has been exonerated from its liability.
However, the Hon’ble Supreme Court in the case of Amrit Paul
Singh and Another Vs. Tata AIG General Insurance Company
Limited and others reported in (2018) 7 SCC 558 has laid down
the principle of ‘pay and recover’ by ordering the insurance
company to pay first and then recover.
28. Accordingly, it is directed that the Insurance Company of the
offending vehicle shall first pay the compensation awarded to the
claimants and then recover the same jointly or severally from the
driver and the registered owner of the vehicle in question.
29. Accordingly, the appeal is allowed. The impugned order dated
24.12.2016 is set aside. It is directed that the claimants shall be
entitled for compensation of Rs.12,06,560/- with interest @ 6% per
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annum from the date of filing of the claim application till its
realization. The Tribunal shall pass an order regarding
apportionment, investment and disbursement of the compensation
amount in accordance with the law/rules.
30. Records of the Tribunal along with a copy of this judgment be sent
back forthwith for compliance and necessary action.
31. The Registry is directed to communicate the claimants in writing
“the compensation amount” awarded in this appeal against the
order passed by the Claims Tribunal. The said communication be
made in Hindi (Deonagri) language and the help of paralegal
workers may be availed with a co-ordination of Secretary, Legal Aid
of the concerned area wherein the claimants reside.
Sd/-
(Sanjay Kumar Jaiswal)
Judge
Khatai