The court upheld the tribunal's finding of negligence against the driver and affirmed the Insurance Company's liability for compensation.

JUDGMENT :

Sanjay K. Agrawal, J.

1. This appeal under Section 173 of the Motor Vehicles Act, 1988 (for short “Act of 1988”) has been preferred by the appellant calling in question the legality, validity and correctness of the impugned award dated 27.10.2021 passed by the 2^nd Additional Motor Accident Claims Tribunal, Durg, Chhattisgarh (for short ‘Claims Tribunal’) in Claim Case No. 298/2019, whereby learned Claims Tribunal has fastened the liability upon the Insurance Company/appellant here to pay the awarded a total sum of Rs.13,47,080/- as compensation for the death of Tejram Yadav who was a mason, aged about 22 years at the time of incident.

2. Mr. P.K. Tulsyan, learned counsel for the appellant, would submit that the Claims Tribunal is absolutely unjustified in fastening the liability upon the Insurance Company as the driver of the motor cycle/offending vehicle was not negligent while driving it and the accident has occurred due to rashly and negligently driving of the unknown truck driver against whom charges-sheet has been filed for offence under Sections 279, 337 and 304-A of the IPC which was closed. He would also submit that the said fact is also proved from the statement of Rinku Kumar (PW-2), pillion rider, sitting with the deceased and respondent No.1 herein on the said motorcycle/offending vehicle. In support of his submission, he would rely upon the decision of the Supreme Court in the matters of Oriental Insurance Co. Ltd. v. Premlata Shukla and Ors., [2007 AIR SCW 3591] Nishan Singh v. Oriental Insurance Company Ltd. , [AIR 2018 SC 2118]  & Anil v. New India Assurance Co. Ltd. , [AIR 2018 SC 612].

3. Mr. Utsav Mahiswar, learned counsel for the respondents/claimants, would support the impugned award passed by Claims Tribunal and oppose the prayer made by the learned counsel for the appellant.

4. I have heard learned counsel for the parties, considered their rival submissions made herein above and gone through the records minutely.

5. Though the Insurance Company/appellant herein has taken the plea in the written statement that the driver of the truck is solely responsible, but the Insurance Company did not lead any evidence in support of its pleadings that the driver of the truck was fully responsible for the accident and respondent No.1 was not driving the motorcycle/offending vehicle rashly and negligently. Learned counsel for the appellant has relied upon the statement of eye witness Rinku Kumar (PW-2), pillion rider, who was sitting on the offending vehicle along with the deceased and which was driven by respondent No.1 herein. Rinku Kumar (PW-2) has clearly stated in his statement at paragraph No. 1 & 2 that respondent No.1, at the time of incident, was driving the motorcycle/offending vehicle rashly and negligently due to which the accident was occurred and the said fact has further been reiterated by him (PW-2) at paragraphs No.6 & 7 also.

6. The Supreme Court in the matter of National Insurance company Ltd. v. Chamundeshwari & Ors., [(2021) SCC OnLine 849], has held that if any evidence runs contrary before the Tribunal to the FIR, the evidence recorded by the Tribunal has to be given weightage over the FIR and observed as under:-

“8. …….. 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……….”

7. Since the Claims Tribunal has relied upon the statement of the eye witness to the incident i.e. Rinku Kumar (PW- 2) and merely because of closer of criminal case against the unknown truck driver, the