Rajasthan High Court - Jodhpur
The Oriental Insurance Co. Ltd vs Kamla on 15 December, 2020
Author: Arun Bhansali
Bench: Arun Bhansali
(1 of 5) [CMA-594/2020]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Misc. Appeal No. 594/2020
The Oriental Insurance Co. Ltd., T.p. Hub, Through Its Legally
Constituted Authority, Divisional Office 637-B, Bhansali Tower,
Residency Road, Jodhpur.
----Appellant
Versus
1. Kamla W/o Late Dwarka Prasad, R/o Village Bhaiya Kalan,
Tehsil Makrana, District Nagaur.
2. Nathmal S/o Late Dwarka Prasad, R/o Village Bhaiya
Kalan, Tehsil Makrana, District Nagaur.
3. Ganeshram S/o Late Dwarka Prasad, R/o Village Bhaiya
Kalan, Tehsil Makrana, District Nagaur.
4. Mst. Basanti @ Deepika D/o Dwarka Prasad, R/o Village
Bhaiya Kalan, Tehsil Makrana, District Nagaur.
5. Smt. Godawari W/o Tulchhiram, R/o Village Bhaiya Kalan,
Tehsil Makrana, District Nagaur.
6. Sheikh Mohammad Haneef S/o Rasul Bux Sheikh
Musalman, R/o Parbatsar, Tehsil Parbatsar, District Nagaur
(Driver)
7. Rajendra Kumar Sain S/o Bhanwarlal Sain, R/o Near State
Bank Of India, Bhuwana, Udaipur (Owner)
----Respondents
For Appellant(s) : Mr. Jagdish Vyas (through VC)
For Respondent(s) : Mr. Ravindra Acharya (through VC)
HON'BLE MR. JUSTICE ARUN BHANSALI
Order 15/12/2020 This appeal is directed against the judgment and award dated 18.11.2019 passed by Motor Accident Claims Tribunal, Parbatsar, Nagaur ('the Tribunal'), whereby, the Tribunal has awarded compensation to the tune of Rs. 5,49,540/- alongwith interest @ 7% per annum from the date of application i.e. 23.11.2017.
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(2 of 5) [CMA-594/2020] The application for compensation was filed by the legal representatives of one Dwarka Prasad inter alia with the submissions that on 15.6.2017 at about 8:00 pm, when Dwarka Prasad was going on his motorcycle RJ-21-ST-0674 from Gachhipura to Bhaiyakala, when the offending motorcycle RJ-27- ST-7510 being driven by Shekh Mohammed rashly and negligently, collided with his motorcycle, resulting in, grievous injuries to Dwarka Prasad, to which he succumbed. Based on the further averments pertaining to the age and income of the deceased, compensation to the tune of Rs.87,23,000/- was claimed.
A response to the application was filed by the driver and owner of the motorcycle and Insurance Company. While owner and driver denied the fact of accident and claimed that the accident occurred on account of the motorcycle of Dwarka Prasad skidding, the Insurance Company raised issues pertaining to lack of valid and effective driving licence. Further contentions were raised that the FIR was lodged against the vehicle having registration No. RJ-21-ST-7510 and the insured vehicle having registration No. RJ-27-ST-7510 has been wrongly implicated.
Based on the averments of the parties, the Tribunal framed five issues. On behalf of the claimant, three witnesses including Chainsukh - brother of the deceased, who was pillion rider on the motorcycle at the time of accident, was examined and 24 documents were exhibited. On behalf of the non-claimants, no evidence was led.
The Tribunal after hearing the parties came to the conclusion that there was no material difference between registration number of vehicles as indicated in the FIR and against which, the challan was filed by the police and application for compensation was filed (Downloaded on 17/12/2020 at 08:30:22 PM) (3 of 5) [CMA-594/2020] and the same might have occurred on account of some mistake and found that the driver of the motorcycle was rash and negligent. The Tribunal assessed the compensation at Rs. 5,49,540/- and passed the award as noticed hereinbefore.
Learned counsel for the appellant - Insurance Company vehemently submitted that the Tribunal was not justified in not accepting the plea of the Insurance Company regarding the wrong implication of the insured vehicle. Submissions were made that the registration number of the motorcycle was specifically indicated in the FIR lodged by the brother of the deceased, who was pillion rider on the motorcycle at the time of accident and indicated the same as RJ-21-ST-7510, however, later on, in his statement under Section 161 Cr.P.C., he changed the number to RJ-27-ST-7510 i.e. the Insured vehicle.
Further submissions were made that the said discrepancy in the registration number of the motorcycle was not explained by the witness - first informant Chainsukh when he appeared in the witness-box and, therefore, the Tribunal was not justified in coming to the conclusion that the accident occurred from the insured vehicle.
The first informant witness again in his cross-examination repeated the fact that the accident occurred from the vehicle RJ- 21-ST-7510, which aspect could not have been ignored by the Tribunal and, therefore, the finding of the Tribunal in this regard deserves to be quashed and set aside and the award against the owner driver and the Insurance Company deserves to be set aside.
Learned counsel appearing for the claimants on caveat contested the submissions made by learned counsel for the (Downloaded on 17/12/2020 at 08:30:22 PM) (4 of 5) [CMA-594/2020] appellant. It was submitted that the Tribunal has thoroughly considered the said aspect and has recorded a categorical finding regarding the involvement of the insured vehicle and, therefore, the finding in this regard does not call for any interference.
I have considered the submissions made by learned counsel for the parties and have perused the award passed by the Tribunal.
At the outset, it may be noticed that in the two registration numbers, which are subject-matter of the present case i.e. RJ-21- ST-7510, which was indicated in the FIR and RJ-27-ST-7510, against which, challan was filed by the police based on the statement of the first informant under Section 161 Cr.P.C. and the claim application was filed is minimal i.e. 1 and 7. The accident occurred on 8:00 pm on 15.6.2017 and the FIR was lodged by the brother on 16.6.2017 at about 3.55 pm i.e. within a short period on the next day.
The claim of the Insurance Company regarding wrongly implicating the vehicle in question, is essentially based on the difference in the registration numbers as indicated in the FIR and the filing of the charge-sheet by the police and the claim application. Apparently, no further investigation was made by the Insurance Company and even during course of examination of the eye-witness - brother of the deceased, who was the pillion rider at the time of accident, he was not put any question pertaining to the discrepancy in vehicle registration number in the FIR and the application / regarding the vehicles involved. Even a suggestion was not given to him regarding the wrongful implication of the insured vehicle.
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(5 of 5) [CMA-594/2020] As noticed hereinbefore, the difference between the two registration numbers is minimal, wherein, instead of 27 apparently 21 was indicated by the first informant, which was changed based on his statement under Section 161 Cr.P.C. and, therefore, the finding by the Tribunal that the said changed number might have occurred on account of some mistake on part of the first informant, cannot be faulted.
It would be alleging too much against the claimants / first informant to find / search out a vehicle of identical number from a different district and then implicate it, that also after convincing the owner of the said vehicle and the driver in this regard and, therefore, the plea raised by the appellant - Insurance Company has rightly been discarded by the Tribunal.
The strong reliance placed by learned counsel for the appellant regarding the witness again repeating the same number i.e. RJ-21-ST-7510 in his cross-examination also cannot have much implication for the same reasons as noticed hereinbefore as he was not confronted with the fact of difference in the two numbers i.e. what was indicated in the FIR and the FR.
In view thereof, no case is made out to reverse the finding as record by the Tribunal pertaining to the involvement of the insured vehicle. No other aspect was argued by learned counsel for the appellant.
In view of the above discussion, there is no substance in the appeal. The same is, therefore, dismissed.
(ARUN BHANSALI),J 51-Sumit/-
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