Sohani Devi vs Paburam
2021 Latest Caselaw 6315 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Misc. Appeal No. 3603/2019

1. Sohani Devi W/o Late Shri Bansilal, Aged About 51 Years,

2. Sandeep S/o Late Shri Bansilal, Aged About 22 Years,

3. Pooja D/o Late Shri Bansilal, Aged About 21 Years,

4. Seema D/o Late Shri Bansilal, Aged About 18 Years,

5. Sangeeta D/o Late Shri Bansilal, Aged About 15 Years, Appellant/Claimant No.5 Minor Through Her Mother Smt. Sohani Devi (Natural Guardian), All are B/c Bishnoi, R/o Village Jajiwal Vishnoiyan, Tehsil Jodhpur, District Jodhpur.

----Appellants/Claimants Versus

1. Paburam S/o Shri Sukha Ram, Aged About 48 Years, B/c Bishnoi, R/o Village Birami, Jodhpur (Raj.)

---(Driver Of Bolero Camper No. RJ-19-GD-1527)

2. Bhagaram S/o Shri Gokul Ram, B/c Bishnoi, R/o Village Basni Nikuba, Jodhpur (Raj.)

---(Owner Of Bolero Camper No. RJ-19-GD-1527)

3. The Oriental Insurance Company Ltd., Through Its Manager, Address- Bhansali Tower Residency Road, Jodhpur (Raj.)

---(Insurer Of Bolero Camper No. RJ-19-GD-1527)

----Respondents

For Appellant(s) : Mr. Sandeep Bishnoi, appellant-

present-in-person For Respondent(s) : Mr. Bhagirath Lal, for respondent No. 1&2 Mr. Vinod Kumar Bhadu, for respondent No.3

HON'BLE MR. JUSTICE VINIT KUMAR MATHUR

Judgment

03/03/2021

The present appeal has been preferred against the judgment

and award dated 10.10.2019 passed by Motor Accident Claims

Tribunal, Jodhpur Metropolitan in Claim Case No. 133/2015

(2 of 7) [CMA-3603/2019]

(3503/2015) whereby the claim petition of the claimants-

appellants seeking compensation on account of injuries suffered

by Bansilal, was rejected.

A claim petition was filed by the injured- Bansilal before the

Tribunal claiming compensation under various heads on account of

grievous injuries suffered by him in the accident which occurred

on 07.05.2014. During the pendency of the claim petition, he

(Bansilal) died and Legal Representatives were brought on record.

Learned Tribunal after framing the issues, evaluating the

evidence on record and hearing the counsel for the parties decided

Issue Nos. 1 and 2 against the claimants-appellants holding that

the vehicle Bolero Camper bearing Registration No. RJ-19-GD-

1527 driven by the respondent No.1, which was insured with the

respondent No.3, was not involved in the accident causing injuries

to Bansilal. Since the findings on Issue Nos. 1 & 2 were against

the claimants-appellants, the findings on Issue Nos. 3, 4 & 5 were

adjudged against the claimants-appellants and, therefore, no

amount of compensation was awarded in their favour.

With the consent of the parties, the matter is heard finally

and decided.

Appellant No.2- Mr. Sandeep Bishnoi, who has appeared in

person submits that on 07.05.2014 at around 8.30 P.M., when his

father-Bansilal was going on motorcycle from Jodhpur to Jaleli to

meet his relative, a Balero Camper No. RJ-19-GD-1527 coming

from the opposite direction dashed the motorcycle of Bansilal. In

the accident, Bansilal sustained grievous injuries on the head and

was taken to the hospital by Bagaram and Jagdish who were also

traveling with Bansilal on another motorcycle. The injured -

Bansilal was taken to the Suncity Hospital in the same Bolero

(3 of 7) [CMA-3603/2019]

Camper from which he met with the accident. Due to critical

condition, Bansilal was referred from Suncity Hospital to Manidhari

Hospital and from there, he was shifted to Sterling Hospital at

Ahmedabad on the next day. Bagaram and Jagdish accompanied

the injured (Bansilal) to Ahmedabad. He further submits that

when the position of the injured Bansilal improved, Bagaram and

Jagdish came back to Jodhpur and Bagaram lodged the First

Information Report on 20.05.2014. The appellant submits that

chronology of events shows that the accident occurred with the

vehicle which was insured with the respondent - Insurance

company and the F.I.R. was registered after a period of 13 days

on account of the fact that Bagaram accompanied the injured -

Bansilal to Ahmedabad, where he was critically ill. The appellant

contends that the findings of the Tribunal recorded on Issue Nos. 1

& 2 are based on conjectures. He further submits that in the case

summary/ discharged tickets issued by the Manidhari Hospital,

Jodhpur it was mentioned that Bansilal had suffered head injury

with acute massive subdural hematoma in left temporo-parietal

occipital and frontal region & midline shift, left temporo-parietal

Haemorrhagic contusions along with fracture of right temporal and

parietal bones. In the wake of these injuries, a person (Bansilal)

cannot speak. Bansilal became unconscious immediately on the

spot after the accident. Therefore, the Tribunal has grossly erred

while recording the finding that on 07.05.2014 in Manidhari

Hospital Bansilal stated that injuries were sustained on account of

the bike having slipped. The appellant further contends that

although, Bansilal was taken to the Suncity Hospital in the same

Bolero Camper but the driver of the said vehicle fled away from

the Suncity Hospital and thus, it can safely be presumed that

(4 of 7) [CMA-3603/2019]

Bagaram and Jagdish rightly identified the vehicle in question as

well as its driver. He further argues that delay in lodging the F.I.R.

cannot be a ground to reject the claim petition. Moreover, the

delay in lodging the F.I.R. has been very well explained and

therefore, the Tribunal erred while recording the findings on Issue

Nos. 1 & 2 against the appellants-claimants. The appellant

submits that as per the M.T.O. report of the Bolero Camper, it is

mentioned that there was dent on the front and right side of the

bumper with clear marks of scratches on the front and right side

of the rare bumper. He further submits that even as per the reply

to the notice received under Section 133 of the Motor Vehicle Act,

the owner of the vehicle i.e. respondent No. 2 Bagaram stated

that on 07.05.2014, his Balero Camper No.RJ-19-GD-1527 was

driven by his driver - Paburam, which met with the accident in

front of Euro Kids School on Uchiyarda Road which clearly

establishes that the subject vehicle was involved in the accident

and thus, the findings recorded on Issue Nos. 1 & 2 are incorrect.

The appellant contends that even as per the testimony of AW-2

Jagdish, he categorically stated that when they were traveling on

their motorcycle with the motorcycle of Bansilal, the accident took

place with the Bolero Camper and thereafter, they took him to the

hospital. The testimony of Jagdish, therefore, is a clinching

evidence and nothing contrary has been mentioned in his cross-

examination. But the Tribunal has not appreciated the same while

deciding the Issue Nos. 1 & 2. The Tribunal has decided the Issue

Nos. 1 & 2 only on the ground of suspicion and doubt in spite of

clear evidence brought on record showing the involvement of the

Bolero Camper No.RJ-19-GD-1527 in the accident in the present

case. Thus, he prays that the findings on Issue Nos. 1 & 2 may be

(5 of 7) [CMA-3603/2019]

quashed and set-aside and the claim petition of the appellants-

claimants may be allowed by awarding suitable amount of

compensation in the present case.

Per contra, learned counsels for the respondents submit that

the findings recorded by the Tribunal on Issue Nos. 1 & 2 are just,

proper and correct. They further submit that since the F.I.R. was

registered after a long delay of 13 days only with an intention to

falsely implicate the present vehicle, which was insured with the

respondent No.3, to get the compensation in this case. They

further submit that the Tribunal after appreciation of evidence on

record rightly concluded that the Bolero Camper No.RJ-19-GD-

1527 was not involved in the accident. Learned counsel further

submits that no interference in the well reasoned judgment

passed by the Tribunal in the present case is warranted and the

appeal is prayed to be dismissed.

I have considered the rival submissions made at the Bar and

gone through the impugned judgment as well as other relevant

record of the case.

The fact that the accident in the present case occurred on

07.05.2014 is established from the medical documents which

shows that Bansilal sustained serious injuries on the head. It is of

common prudence that if a person suffers grievous injuries like

acute massive subdural hematoma in left temporoparietal occipital

and frontal region & midline shift, left temporoparietal

Haemorrhagic contusions along with fracture of right temporal and

parietal bones then, he certainly will not be in a position to give

his statement or speak. Therefore, recording of the fact by the

Tribunal that Bansilal himself told the doctors at Manidhari

Hospital that injuries were sustained on account of the motorcycle

(6 of 7) [CMA-3603/2019]

having been slipped, is unbelievable. A person with such a

grievous injury cannot speak and therefore, the contention of the

appellant that Bansilal had become unconscious and could not

have spoken to the doctors at Manidhari Hospital, inspires

confidence.

The fact that in reply to the notice under Section 133 of the

Motor Vehicle Act received by the owner of the subject vehicle, it

is admitted by the owner of the vehicle himself that subject

Vehicle No. RJ-19-GD-1527 was being driven by Paburam which

met with accident on 07.05.2014 in front of Euro Kids School also

establish the fact that said Bolero vehicle was involved in the

accident and thus, there is no question of raising doubt on this

issue.

The testimony of eye-witness- Jagdish is also worth

believable and merely because he is a close relative of Bansilal

would not be sufficient to disbelieve his testimony, much less

nothing contrary has been stated during his cross-examination

before the Tribunal. Therefore, his testimony was required to be

taken into consideration by the Tribunal as a cogent piece of

evidence while deciding the Issue Nos. 1 & 2.

The delay in lodging the F.I.R. is also satisfactorily explained

as the accident took place at around 08:30 P.M. on 07.05.2014

and Jagdish and Bagaram took the injured Bansilal to the Suncity

Hospital, from where he was referred to Manidhari Hospital and

thereafter, he was shifted to Sterling Hospital at Ahmedabad.

Thus, within no time, the emergency treatment was extended to

injured (Bansilal) and Bagaram and Jagdish also accompanied him

throughout the treatment. Of-course, the first priority was to take

care and provide best medical treatment to the injured- Bansilal,

(7 of 7) [CMA-3603/2019]

therefore, the F.I.R. was registered only after Bagaram came back

from Ahmedabad. Thus, the delay in lodging the F.I.R. is

reasonably explained and that cannot be a ground to disbelieve

the involvement of the vehicle in question in the accident.

The statements of Bagaram and Jagdish recorded by the

Police under Section 161 of Cr.P.C. also show the involvement of

Bolero Camper insured with the respondent No.3 in the accident.

Thus, the findings recorded by the Tribunal on Issue Nos. 1 & 2

suffer from gross and palpable errors and the same are required

to be quashed and set-aside. Since, the findings on Issue Nos. 1 &

2 were recorded by the Tribunal against the appellant, therefore,

Issue Nos. 3, 4 & 5 were not adjudicated in this case.

In view of the discussions made above, the findings on Issue

Nos. 1 & 2 are quashed and it is held that the Bolero Camper

No.RJ-19-GD-1527 was involved in the accident in the present

case and therefore, the matter is remanded back to the Tribunal

for deciding the Issue Nos. 3, 4 & 5 afresh after giving reasonable

opportunities to all the parties by leading their evidence and

arguments strictly in accordance with law.

Since the accident is of 2014, the Tribunal is requested to

decide the claim petition at its earliest convenience. The parties

shall appear before the Tribunal on 22.03.2021 and thereafter, as

and when ordered by the Tribunal.

The civil misc. appeal is disposed of in the above terms.

Record of the Tribunal be sent back forthwith.

(VINIT KUMAR MATHUR),J 132-SunilS/-

Powered by TCPDF (www.tcpdf.org)