Tata Aig General Insurance Co. Ltd vs Manju Devi
2021 Latest Caselaw 10533 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Misc. Appeal No. 795/2019 Tata Aig General Insurance Co. Ltd., Registered Office Peninsula Business Park, Tower A, 15Th Floor, Ganapatrav Kadam Marg, Lower Parel, Mumbai-400013

----Appellant Versus

1. Manju Devi W/o Late Satyanarayan, Aged About 37 Years, R/o Gajner Tehsil Kolayat, District Bikaner.

2. Rameshwar S/o Late Satyanarayan, Aged About 18 Years, R/o Gajner Tehsil Kolayat, District Bikaner.

3. Pinki D/o Late Satyanarayan, Aged About 16 Years, R/o Gajner Tehsil Kolayat, District Bikaner.

4. Nirmal S/o Late Satyanarayan, Aged About 14 Years, R/o Gajner Tehsil Kolayat, District Bikaner.

5. Komal D/o Late Satyanarayan, Aged About 10 Years, R/o Gajner Tehsil Kolayat, District Bikaner.

6. Surja Devi W/o Late Mobta Ram, Aged About 77 Years, R/o Gajner Tehsil Kolayat, District Bikaner.

7. Shri Balaji Mines, Proprietor Narendra Malik, S/o Sultan Singh Malik R/o 146, Village K. Umaakhi, Near N.h. 15 Diyatara, Tehsil Kolayat District Bikaner, Currently R/o Village Daderi Tehsil And District Hisar (Haryana) (Registered Owner)

8. Chotu Singh Rajpurohit S/o Pabudan Singh, R/o Deh Tehsil Kolayat District Bikaner. (Power Of Attorney Holder)

9. Roop Singh S/o Babu Singh, R/o Khinchan, Tehsil Phalodi, District Jodhpur (Driver)

----Respondents

For Appellant(s) : Mr. P.S.Khinchi for Mr. Vinay Kothari.

HON'BLE MR. JUSTICE ARUN BHANSALI Judgment 12/07/2021

This appeal is directed against the judgment and award

dated 7/1/2019 passed by the Motor Accident Claims Tribunal,

Bikaner ('the Tribunal'), whereby, the Tribunal has awarded a sum

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of Rs. 10,60,662/- as compensation along with interest @ 7%

from the date of application.

An application for compensation was filed by the legal

representatives of one Satya Narayan inter alia with the

averments that on 8/7/2014 said Satya Narayan was travelling in

a pickup along with his goods from Kolayat to Gajner, at around

10.15 - 10.30 pm a JCB being driven rashly and negligently by

Roop Singh struck the said pickup, resulting in grievous and

simple injuries to Satya Narayan, to which he succumbed. Based

on the above, compensation was claimed for untimely death of

Satya Narayan.

Reply was filed by the registered owner and person in

possession of the vehicle denying the averments made in the

application. It was claimed that the accident occurred due to

negligent driving by driver of the pickup and it was prayed that in

case compensation is to be paid, the same be paid by the

Insurance Company.

The Insurance Company filed its response and claimed that

the driver was not in possession of an effective and valid driving

license and on account of violation of policy conditions, it was not

liable for making payment of compensation.

The Tribunal framed five issues. On behalf of the claimants,

two witnesses were examined and 45 documents were exhibited.

On behalf of the respondent 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 rash and negligent

driving by Roop Singh - driver of the JCB, which resulted in the

(3 of 5) [CMA-795/2019]

accident. After assessing the quantum of compensation based on

the principles laid down by Hon'ble Supreme Court in National

Insurance Company Ltd. v. Pranay Sethi & Ors. : AIR 2017 SC

5157, awarded the compensation, as noticed hereinbefore.

It is submitted by learned counsel for the appellant that the

Tribunal fell in error in coming to the conclusion that the vehicle in

question was being driven by respondent Roop Singh. It was

submitted that in the FIR (Ex.1) it was indicated that the vehicle

was driven by one Surja Ram Meghwal and that the first informant

knew the driver from before the accident, however, apparently

driver Roop Singh was swapped in place of Surja Ram Meghwal for

obvious reasons and, therefore, the Insurance Company is not

liable. It was emphasized that the claimants in collusion with the

owner of the insured vehicle, replaced the name of actual driver,

apparently as the actual driver Surja Ram Meghwal was not in

possession of a valid driving license. However, the Tribunal,

though noticed all the contentions, only on account of the fact that

in response to the notice under Section 133 of the Motor Vehicles

Act, 1988, the owner of the vehicle indicated the name of Roop

Singh as driver, has discarded the evidence available on record

and, therefore, the finding on the issue deserves to be set aside

and consequently the appellant Insurance Company deserves to

be exonerated.

I have considered the submissions made by learned counsel

for the appellant and have perused the material available on

record along with the statement of witnesses.

It is not in dispute that in the FIR (Ex.1) Ashok Kumar

indicated the name of Surja Ram Meghwal as driver of the

offending JCB. However, during the course of investigation,

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apparently based on the response to the notice under Section 133

of the Act, the police after investigation filed challan against Roop

Singh, based on which Roop Singh was impleaded as party

respondent to the present proceedings. The first informant Ashok

Kumar was examined as A.W.-2, who in his cross examination,

though admitted the portion of the FIR where name of Surja Ram

Meghwal was indicated, however, stated that he had indicated the

name of driver based on hearsay. Other than that there is no cross

examination on the said aspect. The witness of the Insurance

Company, N.A.W.-1 - Rajeev Gunjal reiterated the stand of the

Insurance Company regarding the driver swapping, however in the

cross examination indicated that the company did not make any

inquiry from the registered owner/person in possession regarding

the driver of the vehicle and he was stating the above aspect

based on the record, however, admitted that the police had filed

challan against Roop Singh.

From the above material which has come on record,

apparently the appellant Insurance Company simply relied on the

indication made in the FIR, however when the first informant

A.W.-2 was examined, except for putting the question to him

regarding indication of name in the FIR, which he clearly explained

was indicated by him based on hearsay, no further cross

examination was made on the said aspect and admittedly no

further inquiry was made by the Insurance Company in this

regard. Once the first informant himself has appeared in the

witness box and explained the indication made in the FIR and as

there is no contrary evidence available on record, the finding

recorded by the Tribunal on the issue cannot be faulted.

(5 of 5) [CMA-795/2019]

In view of the above discussion, the findings recorded by the

Tribunal on the issue of negligent driving by respondent no.3 in

driving the vehicle and negating the stand of the Insurance

Company regarding driving swapping do not call for any

interference.

No other issue was argued/pressed.

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

appeal, the same is, therefore, dismissed.

(ARUN BHANSALI),J

10-baweja/-

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