Rajasthan High Court - Jaipur
United India Insurance Companey vs Smt Vimlesh And Ors on 26 August, 2022
Author: Anoop Kumar Dhand
Bench: Anoop Kumar Dhand
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Miscellaneous Appeal No. 2124/2013
United India Insurance Company Ltd., Divisional Manager,
Numaish Road, Kumher Gate, Distt. Bharatpur having its
Regional Office at Sahara Chambers, Tonk Road, Jaipur through
its constituent attorney
----Appellant/Non-Claimant
Versus
1. Smt Vimlesh W/o Late Shri Gopal, aged about 33 years,
2. Mahendra S/o Late Shri Gopal, aged about 11 years,
3. Netrapal S/o Late Shri Gopal, aged about 9 years,
4. Rama D/o Late Shri Gopal, aged about 6 years,
Respondents No. 2 to 4 are minor through legal guardian
mother Vimlesh W/o Late Shri Gopal All R/o Ajan Ka Bada Nagla, Teh. Kumher, Distt. Bharatpur, Raj.
---Claimants/Respondents
5. Ramveer Singh S/o Shri Chirmoli, R/o Post Pla, Teh. Kumher, Distt. Bharatpur, Raj. (Owner)
6. Pratap Singh S/o Shri Mukhtiyar Singh, R/o Sonkh, Distt. Mathura, U.P. (Driver)
----Non-Claimants/Respondents Connected With S.B. Civil Miscellaneous Appeal No. 2285/2013
1. Vimlesh W/o Gopal, aged about 45 years,
2. Mahendra S/o Gopal, aged about 24 years,
3. Netrapal S/o Gopal, aged about 22 years,
4. Rama D/o Gopal, aged about 19 years, All R/o Ajan Ka Bada, Nagla, Teh. Kumher, Distt. Bharatpur, Raj.
----Appellants/Claimants Versus
1. Ramveer Singh S/o Shri Chirmoli, R/o Post Pala, Teh. Kumher, Distt. Bharatpur (Owner of Jeep)
2. Pratap Singh S/o Shri Mukhtiyar Singh, R/o Saukh, Distt. Mathura, U.P. (Driver of Jeep)
3. United India Insurance Company Ltd., Regional Manager, United India Insurance Company Ltd. Numayash Road, Kumher Gate, Bharatpur (Insurer of Jeep)
----Non-Claimants/Respondents (Downloaded on 25/12/2022 at 06:02:15 AM) (2 of 8) [CMA-2124/2013] For Appellant(s) : Mr. Tripurari Sharma (CMA No. 2124/2013) Mr. S.K. Soni and Ms. Chelsi Gangwal (CMA No. 2285/2013) For Respondent(s) : Mr. S.K. Soni and Ms. Chelsi Gangwal (CMA No.2124/2013) Mr. Tripurari Sharma (CMA No.2285/2013) HON'BLE MR. JUSTICE ANOOP KUMAR DHAND Judgment 26/08/2022 Both the appeals arise out of the common judgment and award, hence, the same are being decided together.
Both these appeals arise out of the impugned judgment and award dated 23.03.2013 passed by the Motor Accident Claims Tribunal cum Additional District Judge No.3, Bharatpur (for short 'the Tribunal') in Motor Accident Claim Case No. 251/2012 by which the claim petition filed by the claimants has been allowed and the Insurance Company was directed to pay a compensation of Rs. 4,29,000/- along with interest @ 9% per annum. S.B. CMA No. 2124/2013 (United India Insurance Company Ltd. Vs. Smt. Vimlesh and Ors.) Learned counsel for the appellant- Insurance Company submits that injured- Gopal sustained certain injuries in a road accident which occurred on 07.11.1999. Thereafter, he submitted a claim petition under Section 140/166 of the Motor Vehicles Act, 1988 (for short 'the Act of 1988') claiming compensation for the injuries sustained by him. Counsel submits that during pendency of that claim petition, the injured died on 16.07.2001. Thereafter, (Downloaded on 25/12/2022 at 06:02:15 AM) (3 of 8) [CMA-2124/2013] the legal representatives of the injured deceased submitted an application for substitution. The said application was allowed and the legal representatives were substituted as claimants. The said claim petition was decided by the Tribunal vide judgment and award dated 19.10.2004 and a finding was recorded on issue No.1 that the death of the injured has not resulted on account of the injuries sustained by him. The Tribunal came to the conclusion that no post-mortem report or any other document was submitted on the record to prove the fact that the injured had died due to the injuries sustained by him in the accident which had occurred on 07.11.1999. Taking into consideration the documents available on the record, the claim petition was disposed of directing the Insurance Company to pay compensation of Rs. 20,000/- to the legal representatives of the injured deceased.
Feeling aggrieved and dissatisfied with the judgment and award dated 19.10.2004 passed by the Tribunal, the legal representatives of the injured deceased submitted SB Civil Misc. Appeal No. 145/2005 before this Court and after hearing the arguments of both sides, the matter was remitted back to the Tribunal to decide issue No.2 afresh in the light of judgment rendered in the case of Khairullah @ Babu and Anr. Vs. Smt. Anita @ Amruthalal Patel and Ors., reported in 1994 SCJ 1017 vide order dated 12.07.2011.
Counsel for the appellant submits that after remand of the matter on issue No.2, the Tribunal has allowed the claim petition directing the appellant-Insurance Company to pay the amount of compensation. Counsel submits that this Court has not remanded (Downloaded on 25/12/2022 at 06:02:15 AM) (4 of 8) [CMA-2124/2013] the matter on issue No.1. Counsel submits that the matter was confined to issue No.2 only. Counsel submits that the Tribunal has decided issue No.2 as if the Tribunal was deciding issue No.1 and held that the death of injured deceased has resulted on account of injuries sustained by him in the aforesaid accident. Counsel submits that the whole basis for recording such finding was a document Ex.5 submitted by the claimants. Counsel submits that this document Ex.5 is simply an information cum notice issued by the Sarpanch of Gram Panchayat Ajan Teh. Kumher (Bharatpur) and on the basis of this document it cannot be believed that the injured had died due to the injuries sustained by him in the accident which had occurred on 07.11.1999. Counsel submits that no material was available on the record to prove that the deceased had died on account of injuries sustained by him in the aforesaid accident and no post-mortem report of the deceased was available on the record. In support of his contentions, counsel for the appellant has placed reliance on the judgment passed by this court in the case of Pushpendra Singh Vs. Samay Singh alias Tofani and Ors., reported in 2007 RAR 343. Counsel submits that in view of the submissions made hereinabove, the impugned judgment and award passed by the Tribunal be quashed and set aside.
Per contra, learned counsel for the claimants respondents opposed the arguments raised by the counsel for the appellant Insurance Company and submitted that earlier an erroneous finding was recorded by the Tribunal when the claim petition was decided vide judgment and award dated 19.10.2004 that is why (Downloaded on 25/12/2022 at 06:02:15 AM) (5 of 8) [CMA-2124/2013] the claimants submitted SB Civil Misc. Appeal No. 145/2005 before this Court and the matter was remitted back to the Tribunal to decide issue No.2 afresh in the light of judgment passed by the Andhra Pradesh High Court in the case of Khairullah @ Babu (supra). Counsel submits that after remand of the matter, the Tribunal decided issue No.2 afresh and rightly came to the conclusion that the injured/deceased had died on account of the injuries sustained by him in the accident which occurred on 07.11.1999. Counsel submits that the claimants submitted document Ex.5 issued by the Sarpanch of the Gram Panchayat and the same was duly verified by the Medical Officer of Primary Health Centre, Ajan, (Bharatpur) which clearly indicates that the deceased died due to the injuries sustained by him in the aforesaid accident. Counsel submits that there was no need to submit any post-mortem report to prove the fact that the injured died due to the injuries sustained by him in the aforesaid accident. Counsel submits that under these circumstances, no illegality has been caused by the Tribunal while allowing the claim petition of the claimants and directing the Insurance Company to pay amount of compensation.
Heard the contentions raised by the rival sides and perused the record.
This fact is not in dispute that injured Gopal met with an accident on 07.11.1999 and sustained certain injuries for which he filed a claim petition under Section 140/166 of the Act of 1988. This fact is also not in dispute that during pendency of the said claim petition, the injured died on 16.07.2001. This fact is also not (Downloaded on 25/12/2022 at 06:02:15 AM) (6 of 8) [CMA-2124/2013] in dispute that after the death of the injured an application was submitted by his legal representatives for their substitution in the claim petition and the said application was allowed and the legal representatives i.e. the claimants were taken on record. This fact is also not in dispute that earlier the Tribunal decided the claim petition vide judgment and award dated 19.10.2004 and held that the claimants have not produced any medical evidence to prove the fact that the injured died on account of injuries sustained by him in the aforesaid accident and directed the Insurance Company to pay compensation of Rs. 20,000/- to the claimants. The claimants were not satisfied with the finding so recorded by the Tribunal, hence, they knocked the doors of this Court by way of filing SB Civil Misc. Appeal No. 145/2005 and the same was disposed of with direction to the Tribunal to decide issue No.2 afresh in the light of judgment rendered in the case of Khairullah @ Babu (supra). Although the learned counsel for the appellant has raised contention that the matter was never remitted back to the Tribunal to decide issue No.1 and the matter was remanded to decide issue No.2 only, this may be a typographical error that instead of issue No.1, issue No.2 was typed in the order dated 12.07.2011 passed by this Court because the observations so recorded by this Court in the order dated 12.07.2011 indicate that the directions were specific to decide issue in the light of judgment rendered in the case of Khairullah @ Babu (supra).
Now the question for consideration of this Court is "Whether the injured had died due to the injuries sustained by him in the aforesaid accident?"
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(7 of 8) [CMA-2124/2013] Perusal of the record indicates that except Ex.5 no other medical evidence was produced by the claimants to prove that the deceased had died on account of injuries sustained by him in the aforesaid accident. Perusal of the document Ex.5 indicates that this is an information/report issued by the Sarpanch of Gram Panchayat, Ajan (Bharatpur) which bears the signatures of one Medical Officer of Primary Health Centre, Ajan (Bharatpur). Neither the Sarpanch, nor the Medical Officer appeared in the witness box to prove this document. Merely on the basis of this document it cannot be believed that the cause of death of the deceased was the injuries sustained by him in the aforesaid accident. Except this document, no corroborative evidence has been produced on the record to show that the cause of death of the deceased was the injuries suffered by him the accident. This Court in the case of Pushpendra Singh (supra) has held that in absence of any medical certificate or documentary evidence of any competent Doctor, it is difficult to believe that the death has occurred on account of the injuries sustained in the accident. This Court has held that in absence of post-mortem report or medical certificate, no presumption can be drawn about the cause of death. I see no reason to take any other view than the one which has already been taken by this Court in the case of Pushpendra Singh (supra).
Hence, under these circumstances, the appeal filed by the appellant-Insurance Company stands allowed. The impugned judgment and award dated 23.03.2013 passed by the Tribunal is quashed and set aside.
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(8 of 8) [CMA-2124/2013] Stay application and all pending application(s), if any, also stand disposed of.
Since the appeal filed by the Insurance Company has been allowed by this order, the appeal No. 2285/2013 filed by the claimants stands dismissed automatically.
All pending application(s), if any, also stand dismissed.
(ANOOP KUMAR DHAND),J Ritu/12-13 (Downloaded on 25/12/2022 at 06:02:15 AM) Powered by TCPDF (www.tcpdf.org)