Vikram Khan And Anr vs Ishitiyaq Mohammed And Anr
2021 Latest Caselaw 7643 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Misc. Appeal No. 502/2002

1. Vikram Khan s/o Raju Khan aged 19 years

2. Mam d/o Raju Khan b/c Kayamkhani aged 15 years through natural guardian uncle Umar Khan s/o Firoj Khan b/c Kayamkhani. Both r/o Nagaur Mohalla near Rathori Kunwa Rambag, Tehsil and District Nagaur.

----Appellant Versus

1. Ishitiyaq Mohammed

2. Iliyash Mohammed both s/o Dauod Khan b/c Musalman r/o Near Iedgah, Bhinmal District Jalore.

3. Kalu Ram s/o Manaji b/c Bhil r/o Near Iedgah, Bhinmal District Jalore.

4. The New India Insurance Co. Ltd. New India Insurance Building, 87 Mahatma Gandhi Marg, Fort, Mumbai-400001

----Respondent

For Appellant(s) : Mr. Sunil Mehta For Respondent(s) : Mr. CVS Rathore Mr. D.K. Bhootra through VC

HON'BLE MR. JUSTICE VINIT KUMAR MATHUR

Judgment

18/03/2021

Heard learned counsel for the parties.

The present appeal has been preferred by the appellants

against the Judgment and Award dated 23.03.2002 passed by the

Motor Accident Claims Tribunal, Nagaur in M.A.C. Case No.

09/2000, whereby, the claim-petition preferred by the

appellants/claimants, was rejected by the Tribunal while deciding

Issue No. 1 against the appellants.

(2 of 6) [CMA-502/2002]

Brief facts of the case as per the claim-petition are that on

13.09.1995, when Raju Khan was going on the Bhinmal-Raniwada

road, the bus bearing registration No. RSN 4210, which was being

driven by respondent No. 3, Kalu Ram hit, the deceased Raju

Khan, as a result of which he died on the spot. In these

circumstances, a First Information Report was lodged before the

police authorities. The police authorities after investigating the

matter, filed the charge-sheet against the driver Kalu Ram. Since

Raju Khan died, his legal representatives preferred a claim

application before the Motor Accident Claims Tribunal, Nagaur and

the Tribunal after framing the issues, evaluating the evidence on

record, decided the claim petition of the appellants vide judgment

dated 23.03.2002.

Learned counsel for the appellants/claimants vehemently

submitted that the findings of fact recorded by the Tribunal on

Issue No. 1 are erroneous and incorrect. He further submits that it

was recorded by the Tribunal that as per the claim application,

deceased Raju Khan was suffering from mental illness and had left

his house without informing his children. The finding of Tribunal

that the deceased was a mentally retarded person, therefore, he

jumped in front of the bus and committed suicide, is contrary to

the pleadings and no such averments have been made in the

claim application in this regard. He further submits that the police

after investigation prepared the site plan Exhibit EX-2 of the

accident. As per the site plan, the bus is stated to be going from

Raniwada to Bhinmal and the accident occurred at a place which

is marked as 'X' in the site plan. The width of the road is stated to

be 12.5 feet. He further submits that the accident occurred on the

right side of the road which is opposite to the correct lane on

(3 of 6) [CMA-502/2002]

which the bus was supposed to be driven. He further submits that

as per the site plan the bus crossed the mid-line and hit Raju Khan

who was going on the right side of the road. The site plan clearly

shows that the bus at the time of accident has crossed the half

way mark of the line and hit the deceased who was standing or

walking on the extreme right side of the road. The bus was not

going on the side it was supposed to go and if the said accident

occurred on the opposite side then, it can safely be presumed that

the bus was being driven rashly and negligently by its driver Kalu

Ram. Learned counsel has further contended that even in the

cross-examination of AW-1 Vikram Khan, he has stated that the

deceased Raju Khan was coming from Bhinmal side, which was

the correct side of the road.

In view of the submissions made, learned counsel for the

appellant submits that the Tribunal has committed error in

recording the finding on Issue No. 1 against the appellant.

Per contra, learned counsel for the respondents submits that

the finding of fact recorded by the Tribunal does not suffer from

any infirmity as the Tribunal minutely scrutinized the evidence on

record and rightly concluded that it was the fault of the deceased

Raju Khan, who jumped in front of the bus and committed suicide.

He further submits that the deceased was suffering from mental

illness and therefore, the accident occurred for which the

respondents cannot be held liable. Learned counsel for the

respondents has also relied upon the news item published in the

Rajasthan Patrika on 16.09.1995 wherein, it was mentioned that a

mentally retarded person committed suicide by jumping in front of

the bus. He, therefore, submits that no interference on the finding

recorded by the Tribunal is warranted in the present case.

                                          (4 of 6)                   [CMA-502/2002]



     On   the    quantum      of    award,        learned       counsel   for   the

respondents submits that the Tribunal awarded the compensation

on the higher side and since nothing has come on record, the

income of the deceased should be calculated as per the Minimum

Wages Act prevailing at the time of accident. He, therefore,

submits that while taking into consideration the income of the

deceased as Rs. 884/- per month and the multiplier of 15 should

be applied in the present case. Since, two members are in the

family, therefore, deduction of 1/3rd of income is required to be

done. He further submits that the loss of income towards the

future prospects is also required to be taken into consideration

while computing the award. Thus, he submits that the amount

awarded by the Tribunal is on the higher side and the same should

be Rs. 1,78,680/- as calculated above. The calculation made by

the learned counsel for the respondents is not objected by the

learned counsel for the appellants.

I have considered the submissions made at the Bar and gone

through the Judgment and Award dated 23.03.2002 as well as

other relevant record of the case.

The finding recorded by the Tribunal on issue No. 1 that in

the application preferred by the appellants, it has been written

that deceased was suffering from mental illness and he had left

his house without informing his children, is not borne out from the

record. No such averments have been made in the application

preferred by the appellants. Therefore, the fact noted by the

Tribunal on the face of it, is incorrect. Although, in the reply filed

by the respondent No. 3 Kalu Ram does mention about the mental

state of the deceased but that cannot be taken as a gospel truth

because no documentary evidence in support thereof was placed.

(5 of 6) [CMA-502/2002]

Merely because a news item was published in the newspaper. The

Tribunal could not have taken cognizance of the fact that the

deceased Raju Khan was a mentally ill person. This is a case in

which there is no direct evidence of the accident therefore, we

have to assess and evaluate the evidence for coming to the

conclusion that whether the accident which happened on

13.09.1995 was because of the rash and negligent driving by the

driver of the bus or it was a suicide committed by the deceased

Raju Khan. For this purpose, a close look of the site plan reveals

that the bus was going from Raniwada to Bhinmal on 12.5 feet

road. The bus was required to be driven on the left side which is

the correct side but the place of accident is shown on the opposite

side which is marked as 'X'. The driver in his cross-examination

has stated that the deceased Raju Khan was coming from Bhinmal

side and was walking on his correct side. The site plan also shows

the place of accident which is marked as 'X' towards the right side

of the bus that is opposite side on which the bus was supposed to

go.

A close analysis of the site plan along with the statement of

the driver of the bus Kalu Ram reveals that it was the bus which

has crossed the half way mark of the road and hit the deceased

Raju Khan who was walking on the opposite side and therefore, it

can be presumed that the bus was not driven on the correct side

and thus, the accident occurred because of the rash and negligent

driving by the driver of the bus. The fact of accident is also not

disputed and the acquittal of the driver Kalu Ram in the criminal

case will have no bearing in the present case while deciding Issue

No. 1. Therefore, this Court is of the opinion that the finding

recorded by the Tribunal is not correct and suffers from palpable

(6 of 6) [CMA-502/2002]

errors and the same, is quashed and set aside. Since Issue No. 1

has been decided against the appellants, the findings on Issue No.

1 recorded by the Tribunal are thus, quashed and set aside. The

other issues which have been decided by the Tribunal are not

disturbed as the same have not been challenged.

In view of the discussions made above, the present appeal is

allowed. With the modification of the quantum of award, the

respondent - Insurance Company is directed to pay a

compensation of Rs. 1,78,680/- to the claimants within a period of

eight weeks from today. The amount shall carry interest @ 7.5%

from the date of application till the same is paid.

(VINIT KUMAR MATHUR),J

9-Payal/-

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