Rajasthan High Court - Jodhpur

United India Insurance Company ... vs Lalita on 23 March, 2021

Bench: Vinit Kumar Mathur

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Misc. Appeal No. 2314/2018

United India Insurance Company Limited, Through Its Legally Constituted Authority, T.p. Hub, 74A, Bhati-N-Plaza, Pal Road, Jodhpur.

----Appellant Versus

1. Smt. Lalita W/o Late Shivkaran,

2. Mst. Lajita D/o Late Shivkaran, (Minor), Minor Is Represented Through Her Natural Guardian Mother Smt. Lalita.

3. Amarchand S/o Motaram Jat

4. Smt. Kesar Devi W/o Amarchand Jat, All B/c Jat, R/o Chenpura, Tehsil Ratangarh, District Churu.

(Claimants)

5. Manjoor Ali S/o Taj Mohammad Lohar, R/o Old Ward No. 25, New Ward No. 9, Chamanbas, Churu.

                                                                       (Owner)
                                                                ----Respondents


For Appellant(s)         :     Mr. Jagdish Vyas.
For Respondent(s)        :     Mr. Shambhool Singh.



        HON'BLE MR. JUSTICE VINIT KUMAR MATHUR

                                Judgment

23/03/2021

With the consent of learned counsel for the parties, the

matter is being heard finally and decided at this stage.

The present appeal has been filed against the judgment and

award dated 02.04.2018 passed by Motor Accident Claims Tribunal

cum Family Court, Churu in Motor Accident Claim Case No.3/2017

(24/2015), whereby the Tribunal awarded a sum of

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Rs.51,61,000/- in favour of the respondents-claimants on account

of death of Shivkran in the accident which occurred on23.10.2014.

The Tribunal after framing the issues, evaluating the

evidence available on record and hearing counsel for the parties

decided the claim petition of the respondents-claimants and

awarded the amount of compensation as mentioned above.

Learned counsel for the appellant submits that the finding

recorded by the Tribunal on issue No.1 is incorrect being casual

and there is no discussion of the facts of the accident as projected

in the site map prepared by the police during the course of

investigation in the criminal case. The counsel further submits that

merely on the statement of AW2 Shiv Lal, the Tribunal has decided

the issue No.1 against the present appellant fastening the entire

liability of paying the compensation in the present case. It is

contended that a bare look of the site map prepared shows that

the accident took place in the center of the road and there was a

head on collision of two motorcycles coming from opposite

direction. It is also mentioned in the site plan that the width of the

road is 12 feet. The place of the accident is marked as 'X' and the

place of accident is six feet from either end of the road. Thus, the

counsel submits that firstly, the accident took place on the center

of the road and secondly there was head on collision. In the

circumstances, fastening the entire liability on the motorcycle

insured with the appellant is on the face of it is illegal and

incorrect. Relying upon the judgment of the Hon'ble Supreme

Court in the case of Bijoy Kumar Dugar Vs. Bidya Dhar Dutta &

Ors. reported in MACD 2006 (1) (SC) 371, learned counsel prays

that the amount of award in the present case may be reduced on

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account of the contributory negligence attributed to both the

riders of the motorcycles.

Per contra, learned counsel appearing on behalf of the

respondents-claimants submits that the finding of the Tribunal on

issue No.1 was correctly recorded as there was clinching evidence

of AW2 Shivlal showing that the rider of the motorcycle insured

with the appellant was rash and negligent in driving the

motorcycle and caused the accident in the present case. He was

solely responsible for causing the accident, therefore, fastening of

the liability on the appellant is perfectly justified in the instant

case. The counsel further submits that even as per the site plan,

the motorcycle driven by Shivkaran was on the correct side and it

was fault of the motorcycle insured with the appellant which hit

the motorcycle of Shivkaran causing the accident. The counsel

submits that no interference is warranted by this court on the

finding recorded by the tribunal on issue No.1.

I have considered the submissions made at the bar, gone

through the judgment dated 02.04.2018 passed by the Tribunal,

relevant record of the case as also the judgment of Hon'ble

Supreme Court in the case of Bijoy Kumar Dugar (supra).

The Tribunal while deciding the issue No.1 has recorded the

finding that the motorcycle insured with the present appellant was

being driven rashly and negligently. The finding was recorded on

the strength of AW2 Shivlal who was a pillion rider on the

motorcycle which was driven by Shivkaran. A perusal of the

discussion made by the Tribunal while deciding the issue No.1

clearly shows that while deciding the issue No.1, the Tribunal has

not taken into consideration the site map prepared by the police

during the investigation. For better understanding of the facts and

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scene of the accident, this court feels persuaded to have a close

look at the site map. A bare perusal of the site map goes to show

that the width of the road is 12 feet. The place of the accident is

marked 'X'. The distance of place of the accident 'X" on both the

sides of the road is six feet. The distance between the two sides is

six feet from each side. Thus, it can safely be presumed that the

accident took place in the middle of the road. It is an admitted

position that the present was a case of head on collision in which

both the riders of the motorcycle died. It is also an admitted

position that both the motorcycles suffered damages on their

front side. Thus, the finding of the Tribunal fastening the entire

liability on the motorcycle insured with the appellant is not correct

and factor of contributory negligence is required to be taken into

consideration.

The Hon'ble Supreme Court in the case of Bijoy Kumar

Dugar (supra) observed as under:-

"Adverting to the next contention of the claimants, no doubt the High Court has not dealt with the point in issue. However, we have noticed the reasoning and finding of the MACT recorded under Issue No.2. It is the evidence of Rajesh Kumar Gupta-P.W.2 who was travelling in the Maruti car along with the deceased Raj Kumar Dugar on the day of the accident that he also suffered some injuries in the said accident. He stated that while coming from Digboi, the Maruti car being driven by the deceased met with an accident at a place near Kharjan Pol. Before the accident, Raj Kumar Dugar noticed a passenger bus coming from the opposite direction and the movement of the bus was not normal as it was coming in a zigzag manner. The Maruti car being driven by the deceased Raj Kumar Dugar and the offending bus had a head- on collision. The MACT has not accepted the evidence of P.W. 2 to prove that the driver

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of the offending bus was driving the vehicle in abnormal speed. If the bus was being driven by the driver abnormally in a zigzag manner, as P.W. 2 wanted to believe the Court, it was, but natural, as a prudent man for the deceased to have taken due care and precaution to avoid head-on collision when he had already seen the bus from a long distance coming from the opposite direction. It was head- on collision in which both the vehicles were damaged and unfortunately, Raj Kumar Dugar died on the spot. The MACT, in our view, has rightly observed that had it been the knocking on one side of the car, the negligence or rashness could have been wholly fastened or attributable to the driver of the bus, but when the vehicles had a head-on collision, the drivers of both the vehicles should be held responsible to have contributed equally to the accident. The finding on this issue is a finding of fact and we do not find any cogent and convincing reason to disagree with the well-reasoned order of the MACT on this point. The MACT has awarded interest at the rate of 10% per annum on the amount of compensation from the date of filing of the claim application till the date of payment. It is a discretionary relief granted by the MACT and, in our view, the discretion exercised by the MACT cannot be said to be inadequate and inappropriate."

Thus, in view of the findings recorded by the Tribunal, this

court is persuaded to accept the argument of the counsel for the

appellant that fastening of the entire liability on the motorcycle

insured with the appellant is incorrect and this court feels inclined

to reduce the amount of compensation awarded by the Tribunal to

the extent of 50% in view of the facts and circumstances of the

present case. Thus, the amount of compensation awarded by the

Tribunal vide its judgment and award dated 02.04.2018 is not

disturbed. However, the amount shall be paid by the insurance

company to the respondents-claimants to the extent of 50% only

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as the liability is apportioned on the motorcycle insured with the