ORIENTAL INSURANCE CO LTD. Vs. SANU BALA

JUDGEMENT

(1.) In this appeal the insurer impugns the award of compensation dated 23.04.2019 passed by the learned MACT in MACP No. 130/2014 on the ground that because it was the case of the claimants that the fatality of their kin was on account of a head-on collision between the two motor vehicles, therefore, negligence ought to have been apportioned equally on both the parties.

(2.) In the earlier round of litigation, the Award of compensation was set aside by this Court in the insurer's appeal and the case was remanded to the learned MACT for reconsideration by permitting the claimants to lead evidence of an eye-witness-Mr. Ashok Kumar Yadav, who has erroneously, not been examined. Subsequently, on considering the testimony of the said eye-witness, the learned MACT came to the conclusion that his testimony could not be relied on because he was in another vehicle behind the one which the deceased was driving, that the accident happened around midnight and he could not have possibly seen the manner in which the accident happened. Furthermore, he being a helper would be and indeed was sitting on the left side of the vehicle, therefore, he could not have a clear view of the entire accident. Additionally, there was no mention of the said witness - Mr. Ashok Kumar Yadav (PW3) in the claim petition, whereas Mintu, the helper, who was sitting beside the deceased driver Narayan Singh, was never produced. The learned MACT accepted the case of the claimants and granted them due compensation without apportioning any contributory negligence on the part of the deceased driver.

(3.) Mr. Gaur, the learned counsel for the appellant - insurance company, refers to the Site Plan made by Sub Inspector of Police on 19.12.2013 at 1240 hours i.e. approximately 12 hours after the accident, which shows the two vehicles plying on their extreme left respective side of the road. The involvement of the two vehicles in the accident is not in doubt. The offending insured vehicle i.e. HR-38N-9699 is shown to be lying beyond the width of the road. Similarly, the Eicher Van, which the deceased was driving, is also shown to be lying beyond the width of the road. It is argued that since both the vehicles are shown to be on their respective sides of the road, therefore, in the absence of any eye-witness, it cannot be assumed that only the offending insured vehicle was at fault.