Cholamandalam Ms General ... vs Bhuri
2021 Latest Caselaw 13136 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Misc. Appeal No. 2253/2019

Cholamandalam Ms General Insurance Co. Ltd., Jodhpur Office At K.p. Tower, Chopasni Road, Jodhpur Through Its Authorized Representative.

----Appellant Versus

1. Bhuri W/o Late Kojaram, R/o Jakhadon Ki Dhani, Village Samarau, Tehsil Osian, District Jodhpur

2. Bhomaram S/o Late Kojaram, (Minor) Minor Is Represented Through His Natural Guardian Mother Smt. Bhuri. R/o Jakhadon Ki Dhani, Village Samarau, Tehsil Osian, District Jodhpur

3. Smt. Bhuri Devi W/o Bheraram, R/o Jakhadon Ki Dhani, Village Samarau, Tehsil Osian, District Jodhpur

4. Bheraram S/o Aasuram, R/o Jakhadon Ki Dhani, Village Samarau, Tehsil Osian, District Jodhpur

5. Jasraj S/o Kishnaram Brahmin, R/o Village Chamu, Tehsil Shergarh, District Jodhpur (Driver)

6. Abheysingh S/o Vijaysingh Rajpurohit, R/o Roopnagar, Nathadau, Tehsil Balesar, District Jodhpur (Registered Owner)

7. Jethmal Harkut S/o Ramchandra Harkut, R/o Village Dechu, Tehsil Shergarh, District Jodhpur (Owner)

----Respondents

For Appellant(s) : Mr. J. C. Vyas.

For Respondent(s)        :     Mr. G. S. Rathore.



           HON'BLE MR. JUSTICE ARUN BHANSALI

                                    Order

26/08/2021

This appeal is directed against the judgment and award

dated 03.05.2019 passed by Motor Accident Claims Tribunal - I,

Jodhpur, whereby, the Tribunal has awarded a sum of Rs.

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10,60,792/- alongwith interest @ 9% per annum from the date of

application i.e. 30.08.2014.

The application for compensation was filed inter alia with the

submissions that one - Kojaram was riding on a motorcycle on

30.05.2014, when the offending vehicle struck him from behind

resulting in the deceased suffering grievous injuries, to which he

ultimately succumbed. It is claimed that the deceased - Kojaram

was aged 25 years, was a workman and used to earn Rs. 15,000/-

per month, based on the said submissions, compensation to the

tune of Rs. 1,09,58,000/- was claimed. The matter proceeded ex-

parte against the driver and owners of the vehicle.

The appellant - Insurance Company filed its reply and

contested the claim.

Based on the pleadings of the parties, Tribunal framed four

issues. On behalf of the claimants, two witnesses were examined

and eleven documents were exhibited. On behalf of the Insurance

Company, one witness was examined and one document was

exhibited.

After hearing the parties, the Tribunal came to the conclusion

that the accident occurred on account of negligence of the driver

of the vehicle and awarded compensation as noticed hereinbefore.

Learned counsel for the appellant - Insurance Company

made submissions that the Tribunal fell in error in deciding issue

No.1 by holding that the accident occurred from the insured

vehicle. It was indicated that the FIR was lodged against an

unknown vehicle on the next day of the accident and one eye

witness (AW-2) - Motaram was produced, based on whose

statements, it was found by the Tribunal that the vehicle was

involved. It is submitted that the deceased - Kojaram has suffered

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chrush injuries and looking to the nature of vehicle, it cannot be

said that the accident occurred from the said vehicle.

Further submissions were made that Motaram in his

statement had indicated that he has informed about the

involvement of the vehicle to the family members, despite that the

same was not indicated in the FIR, which clearly shows that the

vehicle was not involved and on that count, the finding recorded in

this regard deserves to be set aside. It was also submitted that

Tribunal has awarded interest at excessive rate and, therefore, in

case the Insurance Company is found liable, the interest be

reduced appropriately.

Learned counsel for the respondents opposed the

submissions. It was submitted that it was not even the case of the

appellant - Insurance Company that the vehicle was not involved.

A look at the reply filed by the Insurance Company, in fact,

indicates that the vehicle was involved, however, allegations have

been made that the deceased - Kojaram was driving his

motorcycle rashly and negligently and, therefore, the plea is not

available to the appellant.

Further submissions have been made that Tribunal has

awarded the interest, based on the fact that the accident had

occurred in the year 2014 and, therefore, the said rate of interest

also does not call for any interference.

I have considered the submissions made by learned counsel

for the parties and have perused the material available on record.

A bare look at the FIR (Ex.-2) indicates that brother of the

deceased lodged FIR by indicating that the deceased - Kojaram

was riding his motorcycle on the correct side, when an unknown

vehicle which was being driven, rashly and negligently, struck his

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motorcycle from behind and that the tyre of the vehicle, ran over

the head of his brother, to which injuries he succumbed.

After investigation and response to notice under Section 134

of the Motor Vehicles Act, 1988, the Police filed challan in relation

to the insured vehicle. During course of the present application,

(AW-2) - Motaram was examined as eye witness by the claimants,

who indicated that he was travelling on another motorcycle with

one - Manohar Singh and going ahead of deceased - Kojaram,

when he heard the sound of the accident and that the vehicle

Bolero crossed him and he noted the numbers of the vehicle. He

further indicated that he had informed the family members of the

Kojaram the above facts and that Police had also come at the site.

On behalf of the Insurance Company, the officer who

appeared, exhibited the Rojnamcha as Ex.1-A.

The Tribunal while deciding issue No.1, based on the

material, which came on record, came to the conclusion that the

accident occurred from the insured vehicle.

The submissions made by learned counsel for the appellant

is essentially based on the fact that FIR was lodged against an

unknown vehicle and, therefore, the insured vehicle has been

wrongly involved. Merely, because FIR was lodged against an

unknown vehicle, it cannot be held only on that count that the

vehicle, which has been found involved is wrongly implicated.

There is no further material produced by the appellant - Insurance

Company to support the contention. It is another matter that

insofar as the reply to the application is concerned, no such plea

was raised, on the other hand, as pointed out by the learned

counsel for the respondents the plea taken is that the insured

vehicle was not being driven rashly and negligently and the

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deceased - Kojaram was driving his motorcycle rashly and

negligently, which is essentially an admission of the involvement

of the vehicle.

In view of the above fact situation, insofar as the finding

recorded by the Tribunal regarding the involvement of the vehicle

is concerned, no case for interference is made out.

So far as the award of interest @ 9% per annum is

concerned, looking to the fact that the accident took place in the

year 2014, the award of interest @ 9%, which was then the

prevalent rate, cannot be said to be excessive so as to require

interference.

In view of above discussion, there is no substance in the

appeal, the same is, therefore, dismissed.

The record of the Tribunal be sent back immediately.

(ARUN BHANSALI),J 74-Sachin/-

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