Rajasthan High Court - Jodhpur
P.I.Industries Ltd vs Smt.Manu And Ors on 22 November, 2019
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Misc. Appeal No. 619/2009
P.i.industries Ltd.
----Appellant
Versus
Smt.lali And Ors.
----Respondent
Connected With
S.B. Civil Misc. Appeal No. 616/2009
P.i.industries Ltd.
----Appellant
Versus
Thavra And Ors.
----Respondent
S.B. Civil Misc. Appeal No. 617/2009
P.i.industries Ltd.
----Appellant
Versus
Smt.sumali And Ors.
----Respondent
S.B. Civil Misc. Appeal No. 618/2009
P.i.industries Ltd.
----Appellant
Versus
Nopi And Ors.
----Respondent
S.B. Civil Misc. Appeal No. 3430/2011
P.i.industries Ltd.
----Appellant
Versus
Limba And Ors.
----Respondent
S.B. Civil Misc. Appeal No. 3585/2011
P.i.industries Ltd.
----Appellant
Versus
Smt.babli And Ors.
----Respondent
S.B. Civil Misc. Appeal No. 3623/2011
P.i.industries Ltd.
----Appellant
Versus
Chhoga @ Chhoga Ram And Ors.
----Respondent
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(2 of 8)
S.B. Civil Misc. Appeal No. 3665/2011
P,i,industries Ltd.
----Appellant
Versus
Jomi And Ors.
----Respondent
S.B. Civil Misc. Appeal No. 3667/2011
P.i.industries Ltd.
----Appellant
Versus
Smt.kesi And Ors.
----Respondent
S.B. Civil Misc. Appeal No. 3669/2011
P.i.industries Ltd.
----Appellant
Versus
Smt.shanti And Ors.
----Respondent
S.B. Civil Misc. Appeal No. 3671/2011
P.i.industries Ltd.
----Appellant
Versus
Smt.kanku And Ors.
----Respondent
S.B. Civil Misc. Appeal No. 3683/2011
P.i.industries Ltd.
----Appellant
Versus
Jagga And Ors.
----Respondent
S.B. Civil Misc. Appeal No. 3689/2011
P.i.industries Ltd.
----Appellant
Versus
Smt.manu And Ors.
----Respondent
S.B. Civil Misc. Appeal No. 3695/2011
P.i.industries Ltd.
----Appellant
Versus
Dalla And Ors.
----Respondent
S.B. Civil Misc. Appeal No. 3698/2011
P.i.industries Ltd.
----Appellant
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(3 of 8)
Versus
Ms.savi And Ors.
----Respondent
S.B. Civil Misc. Appeal No. 3897/2011
P.i.industries Ltd.
----Appellant
Versus
Reshmi And Ors.
----Respondent
S.B. Civil Misc. Appeal No. 3067/2011
P.i.industries Ltd.
----Appellant
Versus
Samta And Ors.
----Respondent
For Appellant(s) : Ms.Rekha Borana a/w Mr.Saransh Vij
& Ms.Vaishali Parihar.
For Respondent(s) : Mr.Sanjeev Johari a/w Mr.Lalit Parihar.
Mr.Sunil A.Vyas.
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Judgment 22/11/2019
1. All these appeals have been preferred by the appellant
- dumper owner against the common judgment and award dated 30.10.2006 passed by Motor Accident Claims Tribunal, Udaipur. All these appeals involve common question of law, hence, are decided by this judgment.
2. The unfortunate accident happened on 13.10.1996 when the Dumper No.RJW 7758 carrying labour to Khertala Mines at about 6:00 AM was going on Devala Chouraha to Pindwara- Sirohi road and near a culvert, while the dumper was being rashly and negligently driven, it met with an accident with tractor troley no.RJ 27/P-1449 which was also being driven rashly and (Downloaded on 29/11/2019 at 08:23:13 PM) (4 of 8) negligently. The dumper overturned and while labour Rani, Rupa and Rati sitting in the dumper and one Sama sitting in the tractor died due to the injuries suffered by them, rest of the labours received grievous injuries. The dumper was being driven by Roop Singh. The police conducted their investigation and prima-facie found the dumper driver responsible for negligently driving while not holding the tractor driver as responsible.
3. Learned counsel for the appellant submits that there was consistency in the statements made by all the claimants that the accident had happened due to the negligence of the drivers of the tractor trolley as well as dumper. Learned counsel for the appellant has drawn attention of this Court to the deliberations made by the learned Tribunal while deciding the issue no.1. The learned Tribunal while dealing with the issue no.1, observed that the witnesses AD2 Jagga, AD3 Kanku, AD4 Jogi, AD5 Shanti, AW6 Limba, AW7 Savi, AW8 Keshi, AW9 Reshmi, AW10 Moti etc. almost all had mentioned a consistent stand that the dumper was being rashly and negligently driven and it met with accident with the tractor which was also being rashly and negligently driven. Learned counsel for the appellant has further drawn attention of this Court towards para 17 of the impugned judgment in which the learned Tribunal has dealt with the issue that some of the statements rendered by the claimants were indicating that it was the negligence of the dumper driver alone. Learned counsel for the appellant further submits that the learned Tribunal has assumed that the witnesses were tutored and thus have gone into to depose that both the tractor and dumper were responsible for the accident due to their composite negligence. Learned counsel for the appellant further submits that the FIR which has been taken to (Downloaded on 29/11/2019 at 08:23:13 PM) (5 of 8) be the basis for deciding the issue no.1 ought not to have been relied upon so heavily as the FIR lodger Phusa Ram was neither examined as a witness nor did he depose at any time before the learned Tribunal thus, his version that the dumper driver was intoxicated and driving the dumper on the wrong side at a fast speed cannot be believed. Moreover, the criminal proceedings cannot be treated to be baseline for determining compensation under law of torts. Learned counsel for the appellant submits that there is not an iota of evidence regarding intoxication or the fact of driving in wrong side raised in the issue, found place in the statements recorded. Learned counsel for the appellant has read various statements before this Court namely, Jomi, Shanti, Limba, Savi, Kesi, Bhuta and Champa. Learned counsel for the appellant thus submits that once all the witnesses were neutrally deposing that the composite negligence of the drivers of dumper as well as tractor was made out, it was not open for the learned Tribunal to assume total responsibility of the dumper alone.
4. Learned counsel for the respondent National Insurance Company Ltd., (tractor insurer) has vehemently rebutted the arguments raised by the learned counsel for the appellant and has submitted that the onus of proving negligence was upon the claimants. He further submits that the narration in the FIR clearly indicated that the driver of the dumper was intoxicated and used to drive rashly and negligently and on the concerned day also, he was driving the dumper rashly and negligently and which was found proved by the police and challan has been filed finding that the dumper driver was solely responsible for the accident in question. He further submitted that the cross examinations of many of the witnesses clearly indicated that they were sitting in (Downloaded on 29/11/2019 at 08:23:13 PM) (6 of 8) the dumper and since they were not having a direct view of the road, therefore, they could not have seen the accident happening and thus, their credibility pertaining to negligence of the tractor driver is doubtful. He further submits that the claimants have not been able to prove the negligence of the tractor driver and thus, relying upon the first version of the FIR and investigating agency was permissible in law. He further submits that the site plan clearly shows that there was a curve on the road where the accident happened and the dumper driver was negligent and could not control the vehicle and thus, struck the tractor and caused the accident.
5. Learned counsel for the respondent United India Insurance Company Ltd., (dumper insurer) has submitted that the dumper which the insurance company was supposed to indemnify had violated all policy conditions including carrying passengers in a goods vehicle and thus, the learned Tribunal has rightly come to the conclusion that on such gross violation of policy conditions, the dumper owner and driver cannot be indemnified.
6. After hearing the learned counsel for the parties and after perusing the limited material available on record and the statements shown by learned counsel for the parties, this Court is of the opinion that the FIR could have been a credible evidence to exonerate the tractor had the FIR lodger been examined as a witness in the present litigation. The allegations of intoxication and other negligence of the dumper driver has not been supported by the statements of the witnesses. However, there is a consistency in their statements that the dumper was rashly and negligently driven and inspite of the request, he continued to drive as such and thus, the substantial negligence was that of the (Downloaded on 29/11/2019 at 08:23:13 PM) (7 of 8) dumper. This Court finds that sole reliance by the learned Tribunal upon the criminal proceedings which culminated into challan, was not justified. This Court also finds that treating all the witnesses as tutored witnesses and rejecting their testimony was not a right approach of the learned Tribunal. In the opinion of this Court, if the witnesses were tutored, then there would have been definitely inconclusive evidence, whereas there is consistency in all the statements that both the vehicles were being driven rashly and negligently and thus, caused the accident in question. The negligence of the dumper driver was well proved in the case of Sama who was sitting in the tractor and he died in the accident and his family received compensation from the respondent no.4 - insurer of dumper. This Court is of the opinion that as far as the liability of indemnifying the dumper is concerned, the learned Tribunal has rightly exonerated the respondent no.4 - United India Insurance Co. Ltd. as being the clear indication that there was gross violation of the insurance policy and thus, the incumbents may be gratuitous passengers in the dumper could not have been compensated by the respondent United India Insurance Co. Ltd. and the liability of the dumper has to be with the appellant owner only. The consistent version not controverted by either of the insurance companies that the tractor was equally responsible for the accident in question cannot be ignored at this stage even when this Court is of the opinion that the dumper was having substantial negligence on examination of site plan and all documents but somewhere in the curve, when the accident happened i.e. the way in which the dumper is lying at point 'A' and the tractor is lying at point 'B', it indicates that there was composite negligence of the tractor to some extent. The FIR and (Downloaded on 29/11/2019 at 08:23:13 PM) (8 of 8) investigation also favours the tractor but it cannot be sole ground for exonerating the tractor. The evidence of eye witnesses assumed to be tutored by the learned Tribunal cannot be said to be so because if a witness would be having inclined towards a sole party then he could be said to be prejudiced towards the other party whereas in this case, the witness has attributed the negligence to both the dumper and tractor and thus, they cannot be said to be tutored in favour of one of the parties. Thus, this Court is of the opinion that it would be suffice in peculiar facts and in the interest of justice to hold that there was composite negligence of the tractor driver to the extent of 20% and remaining 80% liability shall be of dumper driver.
7. In light of the above observations, all these appeals are partly allowed and it is held that there would be composite negligence of the dumper owner and the tractor owner to the extent of 80% and 20% respectively. The 20% liability of the tractor owner shall lie upon the respondent National Insurance Co. Ltd. - the tractor insurer. The appellant shall be entitled to recover the excess amount, if any, from the respondent National Insurance Co. Ltd.
8. All pending applications also stand disposed of.
(DR. PUSHPENDRA SINGH BHATI),J 107-122,92-S.Phophaliya/-
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