Hdfc Ergo General Insurance Co. ... vs Suman
2021 Latest Caselaw 8869 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT

JODHPUR.

..

S.B. Civil Misc. Appeal No. 3116/2019.

Hdfc Ergo General Insurance Co. Ltd., Jodhpur Office At N.k.

Tower, Chopasni Road, Jodhpur Through Its Authorized

Representative.

----Appellant Versus

1. Suman W/o Late Balbir Singh, B/c Jat, R/o Village Baresar

Budhu, Tehsil Rajgarh, District Churu.

2. Virendra Kumar S/o Late Balbir Singh, (Minor) Minor

Through Natural Guardian Mother Smt. Suman. B/c Jat,

R/o Village Baresar Budhu, Tehsil Rajgarh, District Churu.

3. Mst. Manisha D/o Late Balbir Singh, (Minor) Minor

Through Natural Guardian Mother Smt. Suman. B/c Jat,

R/o Village Baresar Budhu, Tehsil Rajgarh, District Churu.

4. Sanjeev Kumar S/o Ramkumar Jat, R/o Village Nunia

Gothra, Tehsil Chirawa, District Jhunjhunu. (Owner)

5. Rajesh S/o Dayanand Jat, R/o Village Budania, Ps

Mandrela, District Jhunjhunu. (Driver)

----Respondents

For Appellant(s) : Mr. Jagdish Chandra Vyas. For Respondent(s) : Mr. D.L. Motasara, for the respondents No. 1 to 3 (claimants).

HON'BLE MR. JUSTICE DEVENDRA KACHHAWAHA

Order

06/04/2021

Heard learned counsel for the parties.

(2 of 4) [CMA-3116/2019]

As per office report, 'Dasti' notices sent to the unserved

respondent No.4 are still awaited.

Learned counsel for the appellant stated that the respondent

No. 4 is the owner of the offending vehicle, who is avoiding service

of the notices and, therefore, service could not be effected upon

him. Learned counsel requested for issuance of fresh notices to

the respondent No.4.

In view of above, issue fresh notices to the unserved

respondent No.4, returnable within a period of six weeks.

Learned counsel for the appellant is directed to file notices in

two sets; one set of notices be given 'Dasti' to the learned counsel

for the appellant to be sent through registered post

acknowledgment due and another set of notices be sent through

ordinary course.

Learned counsel for the appellant stated that execution

proceedings were filed before the learned Tribunal concerned.

This fact of filing of execution proceedings was not denied by the

learned counsel appearing for the respondents No.1 to 3

(claimants). Learned counsel for the appellant further requested

for grant of interim order, of course, with the condition of

depositing 50% of the award amount. This prayer for granting

interim order is opposed by the learned counsel appearing for the

respondents No. 1 to 3 (claimants).

(3 of 4) [CMA-3116/2019]

Learned counsel for the appellant stated that the insured

vehicle, i.e, jeep was wrongly involved in this case and in fact, the

accident took place with the tractor and this point was also raised

before the learned Tribunal that there is sufficient evidence that

the accident took place with tractor but despite of that, the

learned Tribunal has not accepted this plea of the Insurance

Company and has wrongly held that the accident took place with

the alleged jeep. In this context, learned counsel for the appellant

has placed for the Court's perusal a copy of the postmortem report

of the deceased in which, it was clearly mentioned that the

accident took place between the motorcycle and tractor.

After perusal of copy of the postmortem report of the

deceased, this Court finds that, ^^eksVjlkbZfdy ls VªsDVj ls ,fDlMsaV ls e`R;q gks x;hA^^

Learned counsel for the respondents No.1 to 3 (claimants)

requested to peruse the Exhibit-P/3 on the basis of which, the

Medical Officer stated that the accident took place with the tractor

whereas, the police officials requested him for medical

examination of the dead body and in that Memo., it was stated by

the Police that, ^^eksVjlkbZfdy ds lkFk VDdj gks x;hA^^

A bare perusal of photocopy of Ex.P/13 reveals that the

Tribunal has observed that, ^^eksVjlkbZfdy ls VDdj ls ,fDlMsaV esas e`R;q gks x;hA^^ Whereas, it appears that the learned Tribunal on the basis of that Ex.P/13 held that the

language of Ex.P/13 is not clear, therefore, it was explained by Dr.

(4 of 4) [CMA-3116/2019]

Ummed Singh that possibly due to inadvertence, the word

"VDdj" has been written as "VªsDVj".

Therefore, in these circumstances, effect, operation and

execution of the impugned judgment and award dated 24.07.2019

passed by the learned Judge, Motor Accident Claims Tribunal,

Rajgarh, District Churu in Claim Case No. 81/2014 (CF 04/2015)

titled as "Suman & Ors. Vs. H.D.F.C. ERGO General Insurance

Company Ltd. & Ors." shall remain stayed qua the appellant

Insurance Company subject to the condition that the appellant

shall deposit 60% of the award amount, including the amount of

interest, before the learned Tribunal within a period of one month,

after adjusting the amount, if any, already deposited by the

appellant Insurance Company.

Upon deposition of the amount aforesaid by the appellant

Insurance Company, the Tribunal shall disburse the said amount

amongst the claimants, as per award.

List the matter after six weeks.

(DEVENDRA KACHHAWAHA),J 108-Mohan/-

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