Rajasthan High Court - Jodhpur
United India Insurance Co. Ltd vs Smt. Kela Devi And Ors. ... on 21 October, 2024
Author: Nupur Bhati
Bench: Nupur Bhati
[2024:RJ-JD:43092]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
S.B. Civil Misc. Appeal No. 2620/2017
United India Insurance Company Ltd., Divisional Office,
Residency Road, Jodhpur.
----Appellant
Versus
1. Smt. Kela Devi Wife of Late Shri Dala Ram @ Daluram,
2. Dala Ram @ Dalu Ram Son of Shri Mala Ram Ji, Resident
of Hanuman Sagar Khatoda, Tehsil Khinwsar, District
Nagaur Raj..
3. Shri Mahendra Jakhad Son of Shri Narayan Ram Ji,
Resident of Jakhado Ka Bas, Ashop Road, Bhopalgarh,
District Jodhpur. Owner pf Vehicle Bus No. RJ-04-P-0377.
4. Shri Samad Khan Son of Shri Lakhe Khan, Resident of
Razad Chouhtan, District Barmer. As Per Insurance Policy
Owner Bus No. RJ-04-P-0377
----Respondents
For Appellant(s) : Mr. U.C.S. Singhvi.
For Respondent(s) : Mr. K.S. Choudhary, R-3 Owner
HON'BLE DR. JUSTICE NUPUR BHATI
Judgment 21/10/2024
1. The appellant/non-claimant No.3 has preferred the instant misc. appeal under Section 173 of the M.V. Act, 1988 assailing the validity of the judgment and award dated 18.04.2017 passed by learned Judge, Motor Accident Claims Tribunal-I, Jodhpur ('Tribunal') in MAC Case No.72/2013 (748/2014), whereby the learned Tribunal has awarded compensation in favour of claimants to the tune of Rs.2,29,500/- alongwith interest @ 8.5% p.a. from the date of filing the claim petition and the liability was fastened upon all non-claimants jointly and severally. (Downloaded on 23/10/2024 at 10:07:27 PM)
[2024:RJ-JD:43092] (2 of 7) [CMA-2620/2017]
2. Briefly stated, the facts of the case are that the respondents No.1 and 2/claimants filed claim petition under Sections 163A of the M.V. Act claiming compensation on account of death of Ramniwas, who was ten months of age at the time of accident and lost his life in an accident, which took place on 03.05.2012. In the claim petition, it was inter alia stated that on 03.05.2012 at about 02:45 pm, Kamla Devi was returning from Village Jakhan to her village, after getting vaccinated to her brother-in-law's son, namely, Ram Niwas on a motorcycle (RJ-19-8M-2598), which was driven by Hukma Ram. When they reached near the agriculture land of Chimna Ram and Tejaram, a Bus (RJ-04-P-0377), which was plied by its driver rashly and negligently hit the motorcycle, as a result of which Smt. Kamla Devi and Ram Niwas, who was in the lap of Smt. Kamla, fell down and sustained injuries and later during the course of treatment, Ram Niwas died. The claimants, being the parents of Ram Niwas, an infant child of 10 months' old, filed claim petition claiming compensation of Rs.2,31,500/- from the non-claimants under various heads. An FIR of the accident was also lodged, wherein after investigation, charge sheet was filed against the driver and owner of the Bus for offences under Sections 279, 337, 407 IPC & Section 134, 187, 66, 198A, 50 and 190 of the M.V. Act.
3. After service of the summons of the claim petition, the non- claimant No.1 (owner) filed reply to claim petition while denying the facts averred in the claim petition for want of knowledge. It was stated that there was no fault of driver of the offending Bus and the accident occurred due to negligence on the part of rider of the motorcycle. It was further stated that at the time of accident, (Downloaded on 23/10/2024 at 10:07:27 PM) [2024:RJ-JD:43092] (3 of 7) [CMA-2620/2017] the vehicle was insured and the Bus was being plied under a valid and effective licence by its driver. A prayer was thus made for rejecting the claim petition qua non-claimant No.1.
4. On behalf of appellant/non-claimant No.3, reply to claim petition was filed while denying the facts averred therein. It was admitted by the insurance company that the vehicle in question was insured with it from 05.08.2011 to 04.08.2012. It was further stated that the accident occurred due to negligence on the part of rider of motorcycle and, therefore, there was contributory negligence on the part of rider of the motorcycle. It was further stated that the insurance company was not apprised about the accident and further the offending vehicle was being plied without there being valid period. A prayer thus was made by the appellant insurance company for its exoneration.
5. On the basis of pleadings of the parties, the learned Tribunal proceeded to frame four issues. In support of the claim petition, the claimants examined Daluram, Kamla Devi and Hukmaram. In documentary evidence, 15 documents were exhibited by the claimants. On behalf of non-claimants, NAW.1 Pradeep and NAW.2 Premraj Khanna were examined and in documentary evidence Ex.14/A and 15/A were exhibited.
6. The learned Tribunal thereafter proceeded to hear arguments of the counsel for the parties and after considering the evidence available on record, vide impugned judgment and award dated 18.04.2017 proceeded to partly allow the claim petition filed by the respondents No.1 and 2/claimants and thereby awarded compensation of Rs.2,29,500/- along with interest @ 8.5% p.a. from the date of filing the claim petition i.e. 19.02.2013 while (Downloaded on 23/10/2024 at 10:07:27 PM) [2024:RJ-JD:43092] (4 of 7) [CMA-2620/2017] while holding all the non-claimants jointly and severally liable to pay the compensation.
7. Aggrieved by the aforesaid judgment and decree, the appellant insurance company has preferred the instant appeal.
8. The instant misc. appeal was admitted by a Coordinate Bench of this Court vide order dated 02.11.2017 an interim order was also passed to the effect that if the appellant deposits 50% of the impugned award along with interest as awarded by the Tribunal within a period of four weeks, after taking into consideration any amount deposited under Section 140 and/or proviso to Section 173 (1) of the M.V. Act, the rest of the award qua the appellant insurance company was stayed. The amount if deposited, was ordered to be disbursed to the claimants in terms of the award.
9. Learned counsel appearing for the appellant while relying upon the testimony of NW.2 Premraj Khanna submits that permit for the insured Bus was for the period 26.03.2008 to 31.01.2012 and whereas the same was replaced on Bus bearing number RJ- 19-PA-9451 and thus on the date of accident, the insured vehicle had no permit. Learned counsel for the appellant thus submits that there was violation of the policy condition on the part of owner of the vehicle and, therefore, the insurance company could not have been held liable to pay the compensation. Learned counsel for the appellant further submits that on account of violation of the policy conditions, the owner and driver of the offending vehicle were notified by issuing Ex.A/2 and A/3, however, the same returned unserved. Learned counsel for the appellant submits that owner, rider and insurance company of the (Downloaded on 23/10/2024 at 10:07:27 PM) [2024:RJ-JD:43092] (5 of 7) [CMA-2620/2017] motorcycle were not impleaded as party in the claim petition, therefore, in absence they being impleaded as party, the learned Tribunal has erred in entertaining the claim petition.
10. Learned counsel for the appellant further submits that driver of the offending vehicle viz. Prema Ram was not impleaded as non-claimant in the claim petition, though he was necessary party and on this count alone, the claim petition was not maintainable. Learned counsel for the appellant further submits that the vehicle was insured in the name of Samad Khan, who however sold the same to Mahendra Jakhar, however, information in this regard was not provided to the insurance company, which as per Section 157 (2) of the M.V. Act is mandatory on the part of subsequent owner to inform the insurance company within a period of fourteen days from the date of transfer. Learned counsel for the appellant thus submits that no information was provided within the prescribed period, therefore, the insurance company was not liable to pay the compensation.
11. On the other hand, learned counsel appearing for respondent No.4/owner opposed the submissions made by counsel for the appellant insurance company.
12. This Court finds that the learned Tribunal decided the issue No.2 against the appellant- insurance company. The Issue No.2 framed by the learned Tribunal reads as under:
"2. vk;k vizkFkhZx.k ds }kjk vius tokc esa mYysf[kr vk/kkj ds cy ij vizkFkhZx.k {kfriwfrZ ds fy;s nkf;Rok/khu ugha gS\"
13. This Court finds that the learned Tribunal has considered the testimony of NAW.2, Premraj Khanna, D.T.O. who in his (Downloaded on 23/10/2024 at 10:07:27 PM) [2024:RJ-JD:43092] (6 of 7) [CMA-2620/2017] statements initially stated that there was no valid and effective permit qua the offending Bus at the time of accident, however, in cross examination, NAW.2 admitted that there was valid permit qua the vehicle Bus (RJ-04-P-0377) from 26.05.2006 to 25.05.2016. In the cross-examination the said witness stated that even if the Bus was required to be brought at Jodhpur, then temporary permit was required to be issued. The said witness, however, specifically admitted that he is not aware as to whether any temporary permit was issued or not and he has not checked or enquired from the office of R.T.O., Jaisalmer. The learned Tribunal has also considered the Insurance Policy (Ex.A/1), wherein there was no condition with regard to fitness and the said fact was also admitted by NAW.1 Pradeep Bhati, in his cross- examination. Thus, considering the aforesaid evidence available on record, the learned Tribunal has rightly observed that there was no violation of the conditions of the policy and thus the Issue No.2 has rightly been decided by the learned Tribunal against the non-claimant No.3/appellant Insurance Company. This Court finds that the onus to prove that the offending Bus was not having temporary permit while coming to Jodhpur for repairing, was upon the Insurance Company, however, no cogent evidence was led by the insurance company in this regard.
14. This Court finds that while deciding the Issue No.1, which was in relation to negligence on the part offending Bus, the learned Tribunal has considered the testimony of the relevant witnesses and considered the fact that the investigation of the FIR culminated in the submission of charge sheet against the driver of the offending Bus for offences under Sections 279, 337 and 304A (Downloaded on 23/10/2024 at 10:07:27 PM) [2024:RJ-JD:43092] (7 of 7) [CMA-2620/2017] of IPC. In the considered opinion of this Court, the learned Tribunal has not committed any error in holding the driver of the offending vehicle negligent in plying the vehicle and causing the accident.
15. Further, the contention raised by the appellant that driver of the offending vehicle Bus was not impleaded as party non- claimant in the claim, therefore, the claim petition was not maintainable is concerned, in the considered view of this Court is devoid of any merit. The claim petition No.72/2013 was filed under Section 163A of the Act, wherein negligence on the part of the driver of the offending vehicle was not required to be pleaded and proved. Thus, even if the driver of the offending vehicle was not impleaded as non-claimant in the claim petition, the proceedings before the learned Tribunal could not be said to be vitiated solely on this ground.
16. Accordingly and in view of above, this Court finds no force in the contentions raised by counsel for the appellant Insurance Company. The misc. appeal being devoid of any merit deserves dismissal; the appeal is accordingly dismissed. No costs. The amount of compensation withheld under the interim orders passed by this Court be released in favour of claimants within a period of four weeks from the date of this judgment in terms of judgment and award passed by learned Tribunal. Record be sent back to the learned Tribunal forthwith.
(DR. NUPUR BHATI),J 71-DJ/-
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