Rajasthan High Court - Jodhpur
Sumer Singh And Anr vs Smt.Vidhya Devi And Ors on 24 October, 2019
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Misc. Appeal No. 483/2010
U.i.ins.co.ltd.
----Appellant
Versus
Smt.phooli Devi And Ors.
----Respondent
Connected With
S.B. Civil Misc. Appeal No. 2712/2007
Inder Chand
----Appellant
Versus
Smt.vinod And Ors.
----Respondent
S.B. Civil Misc. Appeal No. 2713/2007
Sumer Singh And Anr.
----Appellant
Versus
Smt.phooli Devi And Ors.
----Respondent
S.B. Civil Misc. Appeal No. 2714/2007
Sumer Singh And Anr.
----Appellant
Versus
Smt.vidhya Devi And Ors.
----Respondent
S.B. Civil Misc. Appeal No. 274/2010
U.i.ins.co.ltd.
----Appellant
Versus
Smt.vinod And Ors.
----Respondent
S.B. Civil Misc. Appeal No. 3041/2011
U.i.ins.co.ltd.
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----Appellant
Versus
Smt.vidhya Devi And Ors.
----Respondent
For Appellant(s) : Mr. Jagdish Vyas
For Respondent(s) : Mr. Sunil Beniwal
Mr. Lalit Pareek
Mr. M.S. Soni for
Mr. Rajesh Panwar
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Order 24/10/2019
1. These appeals under Section 173 of the Motor Vehicles Act, 1988 have been filed against the common judgment & award dated 24.8.2007.
2. The unfortunate accident happened when Sumer Singh and Indrachand were going on 03.1.1998 at about 2:30 pm in vehicle No. RJ-14G-5370 and vehicle No.HR-22C-2451 and there was a collision between truck and jeep, which resulted into the casualties in-question.
3. Insurance Company has challenged liability of the truck in-question in CMA No.483/2010, 274/2010 & 3041/2011.
4. In CMA No.2712/2007, 2713/2007 & 2714/2007 the truck owner & driver have challenged the impugned award on the ground that firstly they were having licence of Light Motor Vehicle (LMV) and secondly on the ground of non-involvement of the truck in-question in the accident.
5. Counsel for the appellant-Insurance Company Mr. Jagdish Vyas submits that all the witnesses including the eye- (Downloaded on 30/10/2019 at 08:31:33 PM)
(3 of 5) [CMA-483/2010] witnesses, namely, Mani Ram, Ridhkaran and Hiralal have not whispered a single word about truck number and have admitted in cross-examination that they have not seen the truck in-question. Counsel for the appellant submits that the criminal case which was filed resulted into final negative report showing non-involvement of the truck. Counsel for the appellant further states that in the FIR also there was reference about truck number. In the investigation conducted by I.O., he has categorically held that the truck in-question was not involved in the accident. Counsel for the appellant has shown from record slip of 'Guru Nanak Dharamkanta' to show that the truck in-question on the relevant date was standing at Hissar (Haryana) and was not involved in the accident, thus, has shown that the truck in-question has been implanted in this case just for the purpose of recovery of compensation. Counsel for the appellant further submits that at the instance of complainant second investigation was conducted and then also the I.O. did not found involvement of the truck in- question, however, counsel for the appellant submits that there was a protest petition, in which, cognizance has been taken and the cognizance order has also been quashed Criminal Revision No.120/2006 on 22.7.2011.
6. Counsel for the truck owner & driver submits that the driver of truck was having LMV licence, for non-commercial purposes, therefore, if at all any liability was there, then it would not be of truck driver but rather shall be of Jeep as their case is clear case of non-involvement of truck in the accident and their case shall be covered by Mukund Dewangan Vs. Oriental Insurance Co. Ltd. [2017 AIR(SC) 3668].
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7. Counsel for the Zeep owner & driver submits that number of witnesses have been considered by the learned Tribunal including the eye-witness i.e. Mani Ram, Ridhkaran and Hiralal and once probability of the truck holding wood has been established, then on the basis of theory of 'preponderance of probability', the impugned judgment and award is justified. Counsel for the Zeep owner & driver also submits that no strict principles of proof, which are there in criminal case, are attracted in MV Act and no criminal case can be made the baseline of coming to a conclusion in such a case. Counsel for the Zeep owner & driver also submitted that the truck in-question was loaded with wood in such a way that even the number plate was not visible, hence, the determination of compensation made by the learned Tribunal does not call for any interference. Counsel for the Zeep owner & driver submits that Mani Ram was the eye-witness of the case and he has gone to Police Station to enable lodging of FIR, thus, was sure about involvement of the truck in the accident.
8. This Court after hearing counsel for the parties and perusing record finds that the eye-witnesses i.e. Mani Ram, Ridhkaran and Hiralal have categorically mentioned in their cross- examination that they do not exactly know the number of truck, thus, there presence at the site is doubtful and direct visionary evidence is doubted by their statement. The investigation which was conducted twice; on both the occasions the Investigating Officer concluded about non-involvement of the truck in-question in the accident, thus, on submission of negative final report a protest petition came to be filed, in which, cognizance was taken and the cognizance order has also been quashed by the learned trial court in Criminal Revision No.120/2006 (Sumer Singh Vs. (Downloaded on 30/10/2019 at 08:31:33 PM) (5 of 5) [CMA-483/2010] Heeralal & Ors.), decided on 22.7.2011 after examining the same at length against the truck for rash and negligent driving. This Court on careful examination of record does not find an iota of evidence suggesting involvement of the truck in the accident. At this stage counsel for the Insurance Company submits that negligence of Jeep driver in the case in hand was well established in the case. This Court after examining record holds Jeep driver and owner were negligent.
9. Hence, appeal of the truck-owner and the Insurance Company are allowed and the quantum claimed shall remain the same but the liability of paying the same shall be upon the Jeep owner. However, it is made clear that in the interest of justice and looking into the fact that the accident happened on 03.01.1998 and also that there is no interim order passed by this Court in the appeals pending before this Court for more than a decade, we assume that the compensation might have been paid to the claimants by the Insurance Company. Thus, while allowing the appeal of the Insurance Company & the truck-owner, we permit them to recover the amount in-question from the Jeep owner.
(DR. PUSHPENDRA SINGH BHATI),J 126-Sanjay/-
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