Rajasthan High Court - Jodhpur
Kaluram And Anr vs Sita Ram And Ors on 8 August, 2019
HIGH COURT OF JUDICATURE FOR RAJASTHAN
JODHPUR
S.B. Civil Misc. Appeal No. 164/2001
1. Kaluram s/o Girdhari Ram b/c Nayak R/o Pandlu, Tehsil
Merta, Distt. Nagaur.
2. Pemudi w/o Kaluram b/c Nayak R/o Pandlu, Tehsil Merta,
Distt. Nagaur.
----Appellants
Versus
1. Sita Ram s/o Gudaram b/c Meghwal R/o Pundlu, Tehsil
Merta, Distt. Nagaur.
2. Gordhan Singh s/o Bheem Singh b/c Rajput, R/o Chouda,
Tehsil Bilara.
3. The New India Insurance Company Ltd. Branch Jodhpur.
----Respondents
For Appellant(s) : Mr.Ranjeet Joshi.
For Respondent(s) : Mr.NK Mehta.
HON'BLE MR. JUSTICE SANJEEV PRAKASH SHARMA
Judgment 08/08/2019
1. The present appeal is preferred by the claimants/ appellants assailing the judgment dated 19.9.2000 passed by the Motor Accident Claims Tribunal, Merta City whereby, the claim petition was rejected on the ground that the story set up by the claimants was found to be false and the Court held that the accident was not caused on account of wrongful and rash driving of truck no. RNN 9882 by the driver Sita Ram and the death of Kana Ram was not caused on the said basis.
2. Learned counsel for the appellants submits that the police had after thorough investigation on the basis of the FIR lodged by the appellants, came to a finding that the truck no. RNN 9882 was actually involved in the accident and Sita Ram was driving the same. Charge-sheet in this regard was filed as against (Downloaded on 30/08/2019 at 01:25:23 AM) (2 of 7) [CMA-164/2001] the driver. He submits that in the claim petition, the owner and driver were impleaded along with the insurance company and a reply was filed on behalf of the owner and driver and they admitted the involvement of truck no.RNN 9882 in the accident. Thus, there was no occasion for the learned Tribunal to have decided otherwise. Learned counsel for the appellants submits that the truck was duly insured with the insurance company and the insurance company did not lead any evidence with regard to the issue no.3 relating to the liability of the insurance company. The learned Tribunal has decided the issue no.3 as against the insurance company and, therefore, the insurance company has been held liable. Learned counsel for the appellants has taken this Court to the evidence which has been recorded and also to the written statement. Learned counsel for the appellants submits that AW2 Bastiram has deposed in his evidence that he was working on the same truck along with deceased Kana Ram and while he was loading stones, the driver Sitaram by driving the vehicle rashly and negligently caused the accident. In the cross examination conducted by the advocate of owner and driver, there was no suggestion made that the truck was not involved in the accident. He has on the other hand asserted that his statement was recorded before the ACJM court in the criminal case. With regard to the cross examination conducted by the advocate of the insurance company, he stated that he does not know as to by which vehicle, the accident occurred. He stated that he was a labourer and today, does not know the date and time when the accident occurred and that the deceased was not his relative. At the time when the accident occurred, he was filling up the vehicle with stones. Thus, learned counsel for the appellants submits that (Downloaded on 30/08/2019 at 01:25:23 AM) (3 of 7) [CMA-164/2001] evidence of eye witness had remained undeterred and there was no occasion for the learned Tribunal to hold otherwise. It is his further submission that in view of the law laid down by the Hon'ble Apex Court in Narayan Bhagwantrao Gosavi. vs. Gopal Vinayak Gosavi reported in AIR 1960 SC 100, if the averments have been clearly admitted, no further evidence is required to be led with regard to the same. Learned counsel for the appellants also submits that there is no evidence led either by the owner or driver or by the insurance company. In view thereof, he states that the claim petition ought to have been allowed.
3. Per contra, learned counsel for the respondent insurance company submits that there is a cloud of doubt relating to the accident. Kaluram father of the deceased Kanaram who has lodged the FIR does not mention of the truck no.RNN 9882 to be involved in the accident but has submitted that his son was working on the truck no.RNN 9882 and another truck which was owned by Prem Singh was involved in causing the accident. He submits that the insurance cover note for the truck has been issued on the same day and thus, there is likelihood that at the time when the accident took place, the vehicle was not insured and later on, it might have been insured.
4. I have considered the submissions and scanned the record.
5. The claim petition of the claimants has been rejected by the learned Tribunal by not relying on the evidence which had come on record. However, this Court finds that there was no evidence to take another view available on record. Merely on surmises and conjectures, a decision cannot be rendered. Though strict rule of evidence may not apply in cases relating to motor (Downloaded on 30/08/2019 at 01:25:23 AM) (4 of 7) [CMA-164/2001] accident claims, the theory of preponderance of probabilities does require that atleast there should be some evidence on record to take a different view and to reject the evidence which has come on record.
6. From the evidence which has come on record, specially the statement of Bastiram, who is an eye witness, it is apparent that the accident took place by a truck which was being driven by Sitaram. His presence at the site cannot be doubted. In his statement, he does not mention the number of truck. The FIR which has been lodged by Kalu Ram is based on what he was informed by one Pokar Ram. Thus, the FIR contents relating to the number of truck cannot be accepted as it is. Kalu Ram has later on stated in his version before the investigating authority that the truck which was actually involved was bearing no.RNN 9882 as it is noticed from the document Ex.2 and the final investigation report Ex.3. Moreover, it is also noticed that a written statement has been separately filed to the claim petition and paras no.16, 17, 18 & 19 of the claim petition have been admitted while other paras have been denied. The paras no.16, 17, 18 & 19 of the claim petition are in relation to the vehicle which was involved in the accident mentioning that the truck no.RNN 9882 was involved. Thus, the owner and driver have jointly admitted in the written statement about the involvement of truck and their involvement in the accident. In view thereof, the finding of the learned Tribunal that the accident has not been caused by the offending truck no.RNN 9882 is found to be contrary to the evidence which has come on record. This Court holds that the accident has been caused by the truck no.RNN 9882 which was being driven by Sitaram. As the evidence of AW2 Bastiram is on record, this Court (Downloaded on 30/08/2019 at 01:25:23 AM) (5 of 7) [CMA-164/2001] also holds that the truck was being driven rashly and negligently which has resulted into causing of accident and subsequent death of deceased Kana Ram.
7. On the issue regarding the liability of the insurance company, this Court finds that the insurance company has not led any evidence. The cover note has been exhibited as Ex.7 which has been admittedly issued by the New India Insurance Company Ltd. On 17.7.1995 at 10:30 AM. No documentary or oral evidence has come forward on behalf of the insurance company to disprove the existence of cover note and that the vehicle was duly insured. The argument raised by the learned counsel for the insurance company that there is a doubt relating to the cover note having been issued on a back date is found to be without any basis and without any such averment having been raised in their written statement too. The only plea taken by the insurance company in the written statement was that the owner of the vehicle had given a statement that no accident had occurred prior to 17.7.1995. If any fraud would have been played by the owner with the insurance company, definitely certain evidence would have come forward. The action would have definitely been taken against the concerned development officer who had issued the cover note. However, this Court finds that no such averment has come on record nor any action has been taken. In view thereof, the contention of the learned counsel for the insurance company is found to be without any basis and the insurance company is held to be liable.
8. The question regarding the valid driving license of the driver Sita Ram was also not accepted by the learned Tribunal and no challenge to the issue no.3 has been made by the insurance (Downloaded on 30/08/2019 at 01:25:23 AM) (6 of 7) [CMA-164/2001] company either in cross appeal or by filing any separate appeal and, therefore, the issue no.3 which has already been decided against the insurance company, stands accepted.
9. The question now arises relating to grant of compensation. The deceased Kanaram was 19 years of age at the time of accident. His father Kaluram in the statement stated that his son was getting Rs.70/- per day as wages. He further stated that he spent a sum of Rs.25,000/- for the treatment of his son and so also, spent an amount of Rs.2,000/-. Thus, this Court finds that deceased Kanaram was an unskilled labour and taking into consideration the minimum wages of an unskilled labour as applicable in the year 1994, as the accident took place in 1995, the deceased would be getting atleast minimum wages of Rs.832/- per month which can be rounded off to Rs.900/- per month taking into consideration that he was a freelancer. Thus, in view of the judgment of the Hon'ble Apex Court in the case of National Insurance Co. Ltd. vs. Pranay Shetty reported in AIR 2017 SC 5157, the determination of compensation is as follows :-
Sr. No. Heads Rs.
1. Compensation under the head of salary :- 1,74,960/-
Wages monthly Rs.900/-
Less 50% deduction being bachelor
(900 - 450) Rs.450/-
Yearly Rs.5,400/-
Multiplier 18 x 5,400 Rs.97,200/-
40% future prospects Rs.77,760/-
Rs.1,74,960/-
2. Funeral Expenses 15,000/-
3. Loss of Estate 15,000/-
4. Loss of Filial Consortium 40,000/-
Total 2,44,960/-
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10. Accordingly, this appeal is allowed and the judgment dated 19.9.2000 is set aside. The claimants/appellants are held entitled to a sum of Rs.2,44,960/- as compensation. The said amount shall be released along with interest at the rate of 6% per annum from the date of filing of the claim petition. Record be returned to the M.A.C.T. All pending applications stand disposed.
(SANJEEV PRAKASH SHARMA),J 3-SPhophaliya/-
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