Allahabad High Court
National Insurance Co Ltd vs Sushila Devi And Others on 31 July, 2023
Author: Saral Srivastava
Bench: Saral Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2023:AHC:153480 Court No. - 2 Case :- FIRST APPEAL FROM ORDER No. - 162 of 2004 Appellant :- National Insurance Co Ltd Respondent :- Sushila Devi And Others Counsel for Appellant :- Anand Kumar Sinha Counsel for Respondent :- Vashishtha Tiwari,Kedar Nath Mishra with Case :- FIRST APPEAL FROM ORDER No. - 158 of 2004 Appellant :- National Insurance Co Ltd Respondent :- Nand Kumar And Others Counsel for Appellant :- Anand Kumar Sinha Counsel for Respondent :- Vashishtha Tiwari,Kedar Nath Mishra Hon'ble Saral Srivastava,J.
1. Heard learned counsel for the appellant, Sri Vashishtha Tiwari, learned counsel for respondent nos.1 to 7 and Sri Kedar Nath Mishra, learned counsel for respondent no.8.
2. Since both the appeal arise out of the common judgement, therefore, both the appeal are being decided by this common judgement.
3. The FAFO No.162 of 2004 has been filed challenging the award passed by Motor Accident Claims Tribunal/Additional District Judge, Court No.4, Deoria in M.A.C. No.103 of 2002 and FAFO No.158 of 2004 has been preferred challenging the award passed in M.A.C. No.104 of 2002.
4. For the sake of convenience, the facts are being delineated from FAFO No.162 of 2004.
5. Challenging the award, learned counsel for the appellant has raised two folds submissions; that the deceased was travelling as gratuitous passenger in the trolly attached with the tractor and as at the relevant time, the tractor was not being used for agricultural purpose and was being used to carry passenger, therefore, there was breach of insurance policy by the owner of the tractor and the appellant is not liable to pay compensation. It is further submitted that the evidence with regard to the fact that the deceased was travelling on trolly of the tractor has come on record in the form of Investigator report submitted by the appellant Insurance Company and the Tribunal has erred in law in not believing the said Investigator report while recording the finding that the deceased was riding on bicycle and was not a gratuitous passenger on the trolly. The second contention is that the accident had taken place by the trolly attached with the tractor and the trolly was not insured, and in absence of any contract between the appellant and the owner of the tractor in respect of trolly, the appellant cannot be fastened with any liability to pay compensation.
6. Per contra, learned counsel for the respondents would contend that the deceased was riding on a bicycle and the same was proved by the claimants/respondents by producing eye witness, namely PW2-Moti Chauhan. It is submitted that the Constable Kamta Prasad who conducted the investigation also appeared as PW3 and proved the accident. It is further submitted that though the appellant Insurance Company had filed report of the Investigator but the same was not proved by the appellant Insurance Company. Therefore, the Tribunal has rightly disbelieved the Investigator report in concluding that the deceased was riding a bicycle and died as the trolly over-turned on him.
7. It is submitted that the finding of the Tribunal in respect to the fact that the deceased was riding on a bicycle is based upon the testimony of the eye witness of the accident, and thus, being a finding of fact, is not liable to be interfered with by this Court in its appellate jurisdiction.It is further submitted that so far as the contention of the appellant that the trolly was not insured is concerned, the said plea was not raised before the Tribunal nor the Insurance Company got any issue framed on the said point, and thus, the same cannot be raised for the first time in appeal.Thus, it is contended that the appeal lacks merit and is liable to be dismissed.
8. I have considered the rival submissions advanced by the learned counsel for the parties and perused the record.
9. The Tribunal in recording finding that the deceased was riding on bicycle, and as the trolly over-turned on him, he suffered injuries and died, considered the testimony of PW2 who was eye witness of the accident.The Tribunal also noted that the appellant Insurance Company filed Investigator report which reveals that the deceased was travelling as a gratuitous passenger on the trolly, but the Investigator report was not proved by the appellant Insurance Company and accordingly, the Tribunal disbelieved the report of the Investigator in concluding that the deceased was riding a bicycle and because of the fact that the trolly over-turned upon him, he suffered injuries and died. Thus, the finding of the Tribunal that the deceased was not travelling as gratuitous passenger and in fact was riding on a bicycle is based upon cogent evidence on record and is not liable to be interfered with by this Court in its appellate jurisdiction.
10. So far as the issue with regard to the insurance of the trolly is concerned, this Court may note that the appellant Insurance Company did not raise any such plea in its written statement nor got any issue framed on the said point before the Tribunal. In such view of the fact, it is not open to the appellant Insurance Company to raise such plea before this Court for the first time in appeal. In such view of the fact, the contention of the leaned counsel for the appellant is misconceived and is rejected.
11. Thus, for the reasons given above, both the appeal lack merit and are accordingly, dismissed with no order as to costs.
Order Date :- 31.7.2023 NS