Rajasthan High Court - Jaipur
United India Insurrance Co Alt vs Ram Sahay & Ors on 19 December, 2013
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR J U D G M E N T S.B. CIVIL MISC. APPEAL NO. 1701/2002 United India Insurance Co. Ltd. Vs. Ram Sahay & Ors. DATE OF JUDGMENT: 19th December,2013 P R E S E N T HON'BLE MR. JUSTICE J.K. RANKA Mr. Tripurari Sharma, for the appellant Mr. Sandeep Mathur, for the respondents BY THE COURT
The instant civil misc. appeal has been filed by the appellant-claimant under Section 173 of the Motor Vehicles Act for quashing the impugned award dated 15.5.2002 passed by the MACT, Malpura (Tonk) in claim case No.60/2000, whereby claimant-respondents have been awarded a compensation of Rs.3,19,800/- on all counts with interest at the rate of 9% per annum.
2. The brief facts as emerging on the face of record are that a claim petition came to be filed before the Tribunal by the claimants on account of death in a motor accident against the non-claimants driver-Rajaq Mohammad, owner-Noor Mohammad and The United Insurance Company Ltd.. It was alleged therein that in the intervening night of 11th & 12th April, 2000, when deceased Purushottam was going to urinate from the factory situated in village Lava, where he was working as Mistri at that time non-petitioner No.1-Rajaq Mohammad @ Goru was driving the Truck bearing No. RPF 9585 in a rash and negligent manner came from Diggi side and crushed deceased Purushottam and ran away with the vehicle towards Jharana due to which Purushottam sustained head and body injuries and died on the spot. In relation to this accident, an FIR bearing No.47/2000 was registered and after investigation challan was filed against driver- Rajaq Mohammad in the concerned court. It has come on record that deceased Purushottam was a young boy of 26 years of age and was working as Mistri (Welding Channelgate & Windows) and from this he was earning Rs.5000/- per month and he was maintaining his family also. It was alleged that due to the accidental death of Purushottam claimants -petitioners No.1 & 2 father and mother of the deceased have been deprived of love and affection of their son, claimant-petitioner No.3, wife of the deceased deprived of consortium of her husband at an early age. It was alleged that non-petitioner No.2 is the registered owner of the vehicle in question and the impugned vehicle was insured by the non-petitioner No.3 Insurance Co. Before the Tribunal, a total claim of Rs.31,22,000/- with interest at the rate of 18% p.a. was prayed to be awarded in favour of the claimants.
3. The Tribunal framed as many as 4 issues including the issue of relief and after hearing both the parties, considering the material available on record passed the award and held liable the non-petitioners Nos. 1 to 3 for paying an amount of Rs.3,19.200/- as compensation to the claimant jointly and severally.
4. Aggrieved with the aforesaid impugned award, appellant Insurance Company has filed this appeal for setting aside the impugned award.
5. Shri Tripurari Sharma, learned counsel for the appellant has assailed the impugned award mainly on two points firstly there is no eye witness of the accident/incident and secondly involvement of the truck is not proved. For this purpose he read over statements of various witnesses. He submitted that in this case looking to the contents of the FIR, oral and documentary evidence laid by the claimants before the Tribunal, it shows clearly that the involvement of the truck in so called accident cannot be said to be proved. He further submitted that as per statement of Sita Ram (A.W.4), who lodged the FIR, rash and negligent driving by the driver of the vehicle in question and involvement of the vehicle in question cannot be said to be proved. Therefore, claimants are not entitled to get any compensation. He submitted that the vehicle in question has wrongly been implicated in the accident. He submitted that in the FIR no number of the vehicle is mentioned. He submitted that Sita Ram (A.W.4) FIR lodger in his statement before the Tribunal stated that he has not seen any accident and witnesses Ramsahay (A.W.1), Ratani (A.W.2) and Shankerlal (A.W.2) have also deposed in their cross examination that they have not seen any accident. Counsel for the appellant further submits that the claimants produced before the Tribunal the copy of the statements recorded under Section 161 Cr.P.C. of some persons but those persons were not examined before the Tribunal. He further submitted that the I.O. was not examined by the claimants. It is further submitted that the vehicle in question has wrongly been involved by the claimants with the conspiracy of non-claimants No.1 & 2 just to get the compensation. In the last it is submitted by the learned counsel for the appellant that since the involvement of the vehicle in question is not proved, the liability ought not to have been fastened upon the Insurance Company. Learned counsel for the appellant in support of his submissions has relied upon judgments in the case of Reshma Kumari & Ors. vs. Madan Mohan & Anr. reported in (2013) 9 SCC 65, Mataji Bewa & Ors. vs. Hemant Kumar Jena & Anr. reported in 1994 ACJ 1303, Lachhmi & Ors. vs. Baljit Singh & Ors. reported in (1994) I ACC 423, New India Assurance Co. vs. Jagannath Singh & Ors., Om Prakash Nayar vs. M/s National Productivity Council & Ors. reported in 2000(3) T.A.C. 376 (Del.), Smt. Sikandar Kaur & Ors. vs. Mukhtyar Singh & Ors. reported in 2000(3) T.A.C. 380 (MP), Rajender vs. Om Prakash & Ors. reported in (2007) 1 MACD 361 (Raj.). Vinobhai Gopalbhai Patel & Ors. vs. Bharatbhani Maganbhai Patel & Anr. reported in (2007) 1 MACD 363 (Guj.) and Vanam Sitarama Nageshwara Rao Vs. N. Sambasiva Rao & Ors. reported in 2010 ACJ 2395.
6. Per contra, Shri Sandeep Mathur, learned counsel for the respondents supported the impugned award and stated that the learned Tribunal has not committed any error in passing the impugned award.
He submitted that the owner and driver of the vehicle filed their written statement before the Tribunal in which they admitted the accident by the driver of the vehicle in question, but there was no fault on his part and only due to negligence of the deceased the accident took place. They further stated in their written statement that the accident did not take place on account of rash and negligent driving by the driver of the vehicle and it occurred due to negligence of the deceased and they are not liable to pay compensation and in case, the compensation is granted to the claimants, then they are entitled to recover from the Insurance Company. He further submits that after intensive investigation, the police filed charge-sheet against the non-petitioners. He further submitted that in a situation of this nature, the Tribunal has rightly taken a holistic view of the matter and it was necessary to be borne in mind that strict proof of an accident caused by a particular vehicle in a particular manner may not be possible to be proved by the claimants. The claimants were merely to establish their case on the touchstone of preponderance of probability and the standard of proof beyond reasonable doubt could not have been applied. In support of his submissions, he relied upon judgments in the case of Kusum Lata & Ors. vs. Satbir & Ors. reported in 2011 MACD 42 (SC).
7. I have heard the learned counsel for both the parties and perused the impugned award and have perused the evidence & material available on record.
8. The Tribunal while deciding issue No.1- whether on the intervening night of 11/12 April, 2000 the accident took place due to rash and negligent driving by driver A. Rajaq of vehicle bearing No. RPF 9585 and on account of which deceased Purushottam died, has discussed, scanned and evaluated each aspect of the matter. Sita Ram (A.W.4), who lodged the FIR stated before the Tribunal that on 12.4.2000 Purushottam was sleeping till 10.00 P.M. and he came to know that an unknown vehicle crushed him and on account of which he died. He reported the incident at Police Station Diggi. He further stated that thereafter the Inspector of Police Station, Diggi told him in investigation it is found that the accident was caused by truck No. RPF 9585, which was being driven by Rajaq Muslim of Diggi He narrated the whole incident. But he did not state that on whose fault the accident took place. A.W.1 Ram Sahay, the father of the deceased stated that after he got information about the accident, he went to Lava along with one Shanker and saw the crushed dead body of his son.. This witness has further stated that his son was doing welding work in the shop of Sitaram Khati at Lava. He also states that he came to know that the accident took place by the truck. The witness has exhibited copy of the FIR (Ex.1), charge-sheet (Ex.2), Site Plan (Ex.3), post-mortem report(Ex.4), mechanical examination Report of the vehicle (Ex.5), Insurance cover-note (Ex.6), Rajaq driving licence (Ex.7), registration (Ex.8) and also produced statements of witnesses Ramsahay, Shanker Lal, Ladu, Bajranglal, Sitaram, Rameshwar, Ramavtar, Narayan and Satyanarayan (Ex.9 to Ex.17 respectively in evidence. Similarly A.W.2 Smt. Ratani wife of the deceased stated about the accident in the same line. However, in the cross examination she admits that she did not see the accident. A.W.3 Shankar Lal stated that Purushottam died in Lava due to accident by truck about 1 years back. Regarding this, a person (Khatik) belonging to Lava came to give this information at Sameliya thereupon he, Ramsahay and some other persons (2-4) of the village went there. In cross examination, the witness denied of having seen the accident. Before the Tribunal, the counsel for the Insurance Company contended that there is no eye witness of the incident produced on behalf of the claimants, therefore, it cannot be presumed that the alleged truck caused the accident. Per contra, the counsel for the claimants submitted before the Tribunal that at the time of night when deceased was going to urinate, then at the edge of the footpath, the driver of the vehicle drove the vehicle rashly and negligently and caused the accident, which fact is clear from site-plan (Ex.3) and charge-sheet (Ex.2). The Tribunal was convinced and rightly so that the claimants have produced the natural and real evidence in their testimony and came to the conclusion that in the intervening night of 11/12 April, 2000 non-petitioner No.1 by driving Truck No. RPF 9585 rashly and negligently hit deceased Purushottam and caused the accident. The post-mortem report (Ex4) has proved that due to the accident deceased Purushottam died. The Tribunal further observed that copy of the registration (Ex.8) makes it clear that the involved vehicle's owner was non-petitioner No.2 in whose name the vehicle was registered and under his employment the non-petitioner No.1 was driving the vehicle in question on the date of accident and further that the vehicle involved in the accident was insured by the non-petitioner No.3. Thereafter, the Tribunal decided this issue in favour of the claimants and against the non-petitioners.
9. In respect of Issue No.3, the Insurance Company also took objection that there was no valid driving licence with the truck driver. But the claimants have produced the copy of driving licence of heavy vehicle of Rajjaq. The Insurance Company also contended before the Tribunal that the deceased was equally liable for the negligence. However, no evidence in this regard has been adduced on behalf of the Insurance Company. Therefore, the Tribunal came to the conclusion that from site-map and chargesheet it is amply proved that the vehicle was being driven by driver Rajjak and was liable to negligence on his part. The issue No.3 was decided against the non-petitioner3-Insurance Co. on the basis of copy of the licence (Ex.7), Site-plan (Ex.3) and charge-sheet (Ex.4).
10. While deciding issue No.2, the Tribunal held liable jointly and severally the non-petitioners No.1 & 2 and non-petitioner No.3 for payment of compensation to the claimants. The Tribunal taking into account the age, income of the deceased awarded a compensation of Rs.3,19,800 in favour of the claimants.
11. None of the judgments cited by the learned counsel for the appellant is applicable to the facts of the present case rather the judgment cited by the learned counsel for the respondents is more nearer to the facts of the present case.
12. In my view, the submissions of the learned counsel for the appellant has no substance. In my view, the Tribunal has passed the impugned award after taking into account all the aspects of the matter and committed no error in passing the impugned award in favour of the claimants. No interference is called for in the order/award passed by the Tribunal by this Court.
13. Consequently, the appeal being devoid of merits is dismissed. No order as to cost.
[J.K. RANKA],J.
BKS/-
All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
B.K. SHRIVASTAVA PRIVATE SECRETARY