Rajasthan High Court - Jodhpur
Hetram vs State Of Rajasthan on 1 September, 2022
Author: Dinesh Mehta
Bench: Dinesh Mehta
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Misc(Pet.) No. 1502/2022 Hetram S/o Shri Jagdish Prasad, Aged About 34 Years, B/c Jat, R/o Khojawas, Tehsil Navalgarh, Dist. - Jhunjhunu (Raj.) Through Power Of Attorney Jai Singh Rathore S/o Dilip Singh Rathore, B/c Rajput, Aged About 24 Years, R/o Saami, Via Khudd, Tehsil Dataramgarh, Dist. - Sikar (Raj.)
----Petitioner Versus State Of Rajasthan.
----Respondent
For Petitioner(s) : Mr. Rahul Sharma
For Respondent(s) : Mr. Anees Bhurat, Public Prosecutor
JUSTICE DINESH MEHTA
Order
Reportable
01/09/2022
1. Instant petition filed under Section 482 of the Code of Criminal Procedure (hereinafter referred to as "the Code"), lays challenge to the order dated 31.03.2021, passed by the learned Additional Sessions Judge No.1, Parbatsar, Nagaur (hereinafter referred to as "the Revisional Court"), whereby the order dated 27.11.2020, passed by the learned Civil Judge and Judicial Magistrate, Kuchaman City (hereinafter referred to as "the Trial Court") has been affirmed in essence, albeit, with a minor modification.
2. Shorn of unnecessary details, the facts germane for the present purposes are that the petitioner's vehicle -Bus bearing Registration No.RJ-18-PA-7417 was seized, as it was involved in (Downloaded on 06/09/2022 at 09:27:39 PM) (2 of 6) [CRLMP-1502/2022] an accident which happened on 28.10.2020 and led to untimely death of one Kanaram and consequential FIR (being No.193/2020, dated 28.10.2020) being registered at P.S. Chitava, District Nagaur against the driver of the vehicle.
3. The petitioner moved an application under Section 451 of the Code for release of the bus in question, which application was allowed by the learned trial Court with a condition of furnishing a Bank guarantee to the tune of Rs.10 lacs, besides usual conditions of release of a vehicle on supurdginama.
4. The petitioner preferred a revision petition under Section 397 of the Code, which though was dismissed by the learned Revisional Court vide order dated 31.03.2021, however, with a limited indulgence that requirement of furnishing Bank guarantee was reduced from Rs.10 lacs to Rs.8 lacs.
5. Learned counsel for the petitioner submitted that imposition of the condition of Bank guarantee is unconscionable and is violative of petitioner's right to carry on trade.
6. He argued that such condition is not supported by any law. Relying upon the judgment dated 06.04.2022 of this Court in Kalpesh Kumar Vs. State of Rajasthan (S.B. Criminal Misc. Petition No.664/2022).
7. He argued that the Revisional Court has simply reduced the amount of Bank guarantee, without appreciating the core issue and ignoring that neither the amount of award nor the amount claimed by the claimant was before the Court.
8. Heard learned counsel for the parties and perused the material available on record.
9. The trial Court has recorded a finding that the vehicle was got insured on 29.10.2020, whereas the accident took place on (Downloaded on 06/09/2022 at 09:27:39 PM) (3 of 6) [CRLMP-1502/2022] 28.10.2020, which shows that on the date of accident, the vehicle in question was not insured.
10. It is pertinent to note that the petitioner has not challenged such finding; he has rather placed on record a copy of a cover note (Annex-3) which is in conformity with the finding recorded by the trial Court that on the dte of accident the vehicle was not insured.
11. Such being the position, the liability, if any, arising out of the claim will have to be borne by the driver and owner of the vehicle. Such liability will have a charge over the vehicle in question (bus), as per the judgment of Hon'ble the Supreme Court in the case of Jai Prakash Vs. National Insurance Co. Ltd. & Ors. reported in (2010) 2SCC 607. The relevant portion is reproduced hereinfra:-
"28. Where there is no insurance cover for a vehicle, the owner should be directed to offer security or deposit an amount, adequate to satisfy the award that may be ultimately passed, as a condition precedent for release of the seized vehicle involved in the accident. If such security or cash deposit is not made, within a period of three months, appropriate steps may be taken for disposal of the vehicle and hold the sale proceeds in deposit until the claim case is disposed of. The appropriate Governments may consider incorporation of a rule on the lines of Rule 6 of the Delhi Motor Accident Claims Tribunal Rules, 2008 in this behalf."
12. It is to be noted that in the case of Jai Prakash (supra) Hon'ble the Supreme Court had directed the Central/State (Downloaded on 06/09/2022 at 09:27:39 PM) (4 of 6) [CRLMP-1502/2022] Government to amend the applicable laws suitably. Accordingly, the Rajasthan Motor Vehicle Rules, 1990 have been amended in 2019 and as per of Rule 10.2A, it is enjoined upon the Court to release the vehicle only upon furnishing satisfactory security regarding claim(s) of the claimant(s) in relation to death, injury or damage to the property arising out of the vehicular accident.
13. It will not be out of place to reproduce the amended provision Rule 10.2A, which reads as follows:-
"10.2A. Prohibition against release of motor vehicle involved in accident.- (1) No court shall release a motor vehicle involved in an accident resulting in death or bodily injury or damage to property, when such vehicle is not covered by the policy of insurance against third party risks taken in the name of registered owner or when the registered owner fails to furnish copy of such insurance policy despite demand by investigating police officer, unless and until the registered owner furnishes sufficient security to the satisfaction of the court to pay compensation that may be awarded in a claim case arising out of such accident.
(2) Where the motor vehicle is not covered by a policy of insurance against third party risks, or when registered owner of the motor vehicle fails to furnish copy of such policy in circumstance mentioned in sub-rule(1), the motor vehicle shall be sold off in public auction by the magistrate having jurisdiction over the area where accident occurred, on expiry of three months of the vehicle being taken in possession by the investigating police officer, and proceeds thereof shall be deposited with the Claims Tribunal having jurisdiction over the area in question, within fifteen days for purpose of (Downloaded on 06/09/2022 at 09:27:39 PM) (5 of 6) [CRLMP-1502/2022] satisfying the compensation that may have been awarded, or may be awarded in a claim case arising out of such accident."
14. In the face of the amendment brought in the form of Rule 10.2A of the Rajasthan Motor Vehicle Rules, 1990, it is the duty of the Court to ensure that the claimants are not left high and dry. If the vehicle is released on supurdginama simply on furnishing solvent surety, in the event of award being passed, the claimants will have to run from pillar to post to recover the claim amount.
15. The trial Court was not legally justified in concluding that Bank guarantee of Rs.10 lacs would be sufficient. In absence of the crystalised amount claim or requisite details germane for determination of the claim, the trial Court was not justified in arriving at a figure of Rs.10 lacs.
16. The Court(s) while deciding the application for release of vehicles involved in the accidents, which are not having insurance coverage are required to either consider the amount awarded or go through the claim petition filed by the claimant for arriving at a reasonable or just figure for which the owner should furnish security. In absence of such details, the Court should invariably direct that FDR or Bank guarantee equal to the value of the vehicle be furnished.
17. A perusal of the cover note dated 29.10.2020 (Annex.-3) shows that the approximate value of the vehicle (bus) is Rs.15 lacs.
18. Hence, the trial Court ought to have asked the petitioner to furnish security of Rs.15 lacs.
19. In the case in hands, the trial Court directed the petitioner to furnish a Bank guarantee to the tune of Rs.10 lacs, which has (Downloaded on 06/09/2022 at 09:27:39 PM) (6 of 6) [CRLMP-1502/2022] been modified by the Revisional Court to Rs.8 lacs and there is no cross appeal/revision by the State, hence, this Court is not inclined to alter the quantum of Bank guarantee.
20. The petition stands dismissed, however with above observations.
21. In case the petitioner does not furnish requisite Bank guarantee by 15.09.2022, the concerned Magistrate shall auction the Bus and its proceeds shall be forwarded to the Motor Accidents Claims Tribunal where the claimants (legal heirs of deceased Kanaram) have filed their claims as mandated by proviso to sub- rule (2) of the Rule 10.2A.
22. Stay petition also stands dismissed.
(DINESH MEHTA),J 6-Ramesh/-
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