Hdfc Ergo General Insurance Co. ... vs Jubeda
2021 Latest Caselaw 6804 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Misc. Appeal No. 100/2021

Hdfc Ergo General Insurance Co. Ltd., through Manager, Office Upasana Tower, Third Floor, Ahinsa Circle C Scheme, Jaipur (Insurer of Jeep Commander No. RJ-32-UA-1134)

----Appellant Versus

1. Jubeda W/o Abdul Hakeem, Aged About 44 Years,

2. Abdul Samad S/o Abdul Hakeem, aged about 18 years, both r/o Luharon Ka Mohalla, Kuchaman City, Dis. Nagaur Rajasthan Note- Abdul Hakeem s/o Kamruddin aged about 47 years, claimant no. 1 who was the father of deceased Shahid, died during the pendency of claim petition, therefore, his name was deleted from array of respondents vide order dated 04/05/2019 by the Tribunal

--claimants-respondents

3. Om Prakash S/o Mohan Ram, r/o Rasal, Tehsil Nawa, Dis.

Nagaur (Raj.) (Driver of commander jeep No. RJ-32-UA-1134)

4. Ameen Khan S/o Ismile Khan, Dhankeli, Tehsil Deedwana, Dis. Nagaur (Raj.) (Registered owner of commander jeep No. RJ-32-UA-

       1134)
                                                                ----Respondents


For Appellant(s)         :     Mr. Vishal Singhal
For Respondent(s)        :     Mr. SK Joshi



       HON'BLE MR. JUSTICE VINIT KUMAR MATHUR

                                Judgment

09/03/2021

The present appeal has been preferred by the appellants

against the Judgment and Award dated 21.11.2020 passed by the

Motor Accident Claims Tribunal, Parbatsar, Nagaur (Raj.) in M.A.C.

(2 of 4) [CMA-100/2021]

Case No. 78/2013 (CIS No. 512/2014), whereby an amount of Rs.

6,82,580/- was awarded as compensation in favour of the

claimants/respondents.

Learned Tribunal after framing the issues, evaluating the

evidence on record and hearing the counsel for the parties,

decided the claim petition of the claimants awarding the

compensation to the tune of Rs. 6,82,580/- under various heads

in favour of the claimants/respondents.

Learned counsel for the appellant submits that the Tribunal

committed an error while recording the findings on Issue Nos. 1

and 3. He further submits that the eye-witness Amba Lal, who

specifically gave the number of the Commander Jeep involved in

the accident, was not produced before the Tribunal to prove the

fact of accident with the insured vehicle. He further contends that

AD-2 Umang Soni, who has given the statement to the police

under Section 161 of Cr.P.C., has also not specifically given the

number of the jeep involved in the accident. However, he

improved his version and in his testimony before the Tribunal he

specifically gave the number of the jeep involved in the accident.

He further submits that the statement of the child witness Umang

Soni is tutored and therefore, the Tribunal committed an error

while deciding Issue Nos. 1 and 3 relying upon his testimony. He

further submits that as per the site plan prepared by the police

during the course of investigation, the accident occurred in the

center of the road. Thus, the responsibility cannot be fastened

solely on the insured jeep and a perusal of the site plan reveals

that the rider of the motor-cycle i.e. deceased Shahid was equally

responsible for rash and negligent driving at the time of accident.

He, therefore, submits that the factor of the contributory

(3 of 4) [CMA-100/2021]

negligence should be applied and the amount awarded by the

Tribunal should be appropriately reduced on account of the

contributory negligence of the motor-cycle rider Shahid.

Per contra, learned counsel for the respondents/claimants

submits that the finding of fact recorded by the Tribunal on issue

Nos. 1 and 3 does not suffer from any infirmity. He further

submits that the Tribunal has taken note of evidence produced

before it and rightly recorded the fact that the Commander Jeep

No. RJ-32-UA-1134 was involved in the present accident and since

the same was insured with the appellant, the award was rightly

passed by the Tribunal. He further submits that even as per the

site plan, the accident site is in the center of the road and since

the motor-cycle was being driven on the correct side, the

commander jeep which came from the opposite direction, hit the

vehicle in the center of the road. Therefore, a close look of site

plan does not reveal that Shahid who was driving the motor-cycle

was at any fault and therefore, there is no question of contributory

negligence of the motor-cycle rider i.e. deceased Shahid. He

further submits that the findings recorded by the Tribunal does not

suffer from any infirmity and hence, no interference is required by

this Court in the award passed by the Tribunal.

I have considered the submissions made at the Bar and gone

through the Judgment and Award dated 21.11.2020 as well as

other relevant record of the case.

A close look at the findings of the Tribunal recorded on Issue

Nos. 1 and 3 reveals that the testimony of AD-2 Umang Soni is

clear and specific and shows that the commander jeep No. RJ-32-

UA-1134 was involved in the accident. Even, in his cross-

examination the witness Umang Soni remained credible. The

(4 of 4) [CMA-100/2021]

Tribunal, in addition to the evidence brought on record, also taken

note of the reply filed by the owner of the vehicle to the notice

received under Section 133 of the M.V. Act. As per the said reply,

the owner of the Commander Jeep No. RJ-32-UA-1134, which was

being driven by its driver at the time of the accident, admitted the

fact of accident. Therefore, in addition to the testimony of Umang

Soni, (statement of Amba Lal's was recorded under Section 161 of

Cr.P.C. by the police during the course of investigation) the fact of

involvement of the commander jeep was proved beyond doubt and

therefore, the Tribunal has not committed any error while deciding

Issue Nos. 1 and 3 in the present case.

As far as the submissions of learned counsels on the point of

contributory negligence are concerned, it is noted that as per the

site plan prepared by the police, the accident has taken place in

the center of the road and therefore, the same was rightly

attributed to the driver of the jeep and not to the motor-cycle

rider. Thus, the finding of fact recorded by the Tribunal that the

Commander Jeep No. RJ-32-UA-1134 was solely responsible for

the accident in this case is correct.

In view of the discussions made above, the finding recorded

by the Tribunal does not warrant any interference by this Court.

The appeal is therefore, dismissed being devoid of any merit.

(VINIT KUMAR MATHUR),J

11-Payal/-

Powered by TCPDF (www.tcpdf.org)