Rajasthan High Court - Jodhpur
N.I.A.Co.Ltd vs Smt.Lal Kunwar And Ors. ... on 19 October, 2024
Author: Nupur Bhati
Bench: Nupur Bhati
[2024:RJ-JD:42812]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
S.B. Civil Misc. Appeal No. 387/2013
The New India Assurance Company Ltd. through its Legally
constituted Attorney Divisional Manager, Divisional Office, 1 st
Abhay Chambers, Jalori Gate, Jodhpur.
----Appellant
Versus
1. Smt. Lal Kunwar @ Lali Kumar W/o late Gordhan Singh,
2. Miss Jaya @ Sapna Kunwar D/o late Gordhan Singh, aged
about 11 years,
3. Miss Nikita Kunwar D/o Gordhan Singh, aged about 9
years,
4. Master Ajit Singh S/o Gordhan Singh, aged about 5 years,
5. Shri Bharat Singh S/o Bhanwar Singh,
6. Smt. Antar Kunwar W/o Bharat Singh,
Claimants No.2, 3 and 4 are minor through their natural
guardian mother Smt. Lal Kunwar @ Lali Kumari W/o late
Gordhan Singh,
Residents of Thada, Thana Rathanjana, Tehsil and District
Pratapgarh (Raj.)
---respondents No.1 to 6/claimants
7. Shri Raja Ram S/o Nanuram Teli, Resident of Salampura,
Tehsil and District Pratapgarh.
--- respondent No.7/vehicle driver
8. Shri MubarikKhan S/o Mohamed Khan, Resident of Sarkari
Bagh, Outside Bus Stand, Udaipur Road, Nimbaheda,
District Chittorgarh. (Vehicle owner)
----respondent No.8/vehicle owner
For Appellant(s) : Mr. Rajesh Choudhary.
For Respondent(s) : Mr. Anil Bhandari & Mr. Shambhoo
Singh, R-1 to 6/claimants
HON'BLE DR. JUSTICE NUPUR BHATI
[2024:RJ-JD:42812] (2 of 13) [CMA-387/2013]
Judgment
19/10/2024
1. Appellant/non-claimant No.3 Insurance Company has
preferred the instant misc. appeal under Section 173 of the Motor
Vehicles Act, 1988 ('Act of 1988') assailing the validity of the
judgment and award dated 22.01.2013 passed by learned Judge,
Motor Accident Claims Tribunal, Pratapgarh ('Tribunal') in MAC
Case No.197/2008, whereby the learned Tribunal has partly
allowed the claim petition filed by the respondents No.1 to
6/claimants and awarded compensation of Rs.16,10,120/- along
with interest @ 7.5% per annum from the date of filing the claim
petition. All the non-claimants were held jointly and severally
liable to satisfy the award.
2. Facts apposite for the purpose of disposal of this misc.
appeal are that the claimants, respondents No.1 to 6, filed a claim
petition under Section 166 of the Act of 1988 claiming
compensation of Rs.43,60,000/- on account of death of Sh.
Gordhan Singh, the sole breadwinner of the claimants, in the
accident, which took place on 05.10.2006. In the claim petition, it
was inter-alia stated that in the intervening night of
05/06.10.2006, deceased Gordhar Singh while plying his
motorcycle (RJ-09-SA-7130) was going from village Fachar to
Nimbaheda. On the way, on Nimbaheda-Chittorgarh road, near
Abhilasha Restaurant, Laxmipura, Rajendra Singh and Jairam
Constable met him to whom he provided lift. While all the three
boarded the motorcycle, near Laxmipura, the driver/non-claimant
No.1 (Rajaram), while driving his Trailer (RJ-27-G-6279) rashly
and negligently hit the motorcycle, as a result of which, rider
[2024:RJ-JD:42812] (3 of 13) [CMA-387/2013]
(Gordhan Singh) and pillion riders fell down and sustained
injuries. Gordhan Singh received injuries on head, hands and feet
and he was taken initially to Nimbaheda Hospital and thereafter he
was referred to Government Hospital, Udaipur when during the
course of treatment, he died on 12.10.2006. An FIR (FIR
No.430/2006) of the incident was lodged at concerned police
station, wherein after investigation, charge sheet came to be filed
against the driver of the offending vehicle for offences under
Sections 279, 337 IPC and 304A of IPC.
3. After being served of the notices of the claim petition, the
non-claimants No.1 and 2 filed their joint reply to the claim
petition while refuting the claim laid by the claimants. It was
stated that the vehicle was insured with non-claimant No.3,
therefore, they could not have been held liable to pay the
compensation.
4. On behalf of non-claimant No.3, appellant herein, reply to
claim petition was filed while stating therein that deceased rider
was also equally responsible for the accident. An objection with
regard to not impleading the owner of the motorcycle and insurer
as party non-claimant(s) was also raised by the insurance with a
prayer to reject the claim petition.
5. On the basis of pleadings of the parties, the learned Tribunal
framed five issues for determination. To prove their claim, the
claimants examined AW.1 Smt. Lal Kunwar @ Lali Kumar, AW.2
Rajendra Singh and documents Ex.1 to Ex.17 were exhibited,
including statements of Smt. Lal Kunwar (Ex.A/1) and statement
of Rajendra Singh (Ex.A/2), Policy (Ex.A/1) and investigation
report (Ex.A/2) were exhibited. On behalf of non-claimants, in oral
[2024:RJ-JD:42812] (4 of 13) [CMA-387/2013]
evidence, one Ravindra Kumar (NAW.1) was examined, however,
no documents were exhibited.
6. The learned Tribunal thereafter proceeded to hear arguments
of the counsel for the parties and after considering the evidence
and material available on record, the learned Tribunal vide
impugned judgment and award dated 22.01.2013 proceeded to
partly allow the claim petition filed by the claimants.
7. Assailing the judgment and award impugned dated
22.01.2013, the appellant insurance company has preferred the
instant misc. appeal. The instant misc. appeal was admitted by a
Coordinate Bench of this Court vide order dated 22.05.2013. While
admitting the appeal, the Coordinate Bench of this Court also
passed an interim order while directing that if the appellant
Insurance Company deposits the amount of cash component of
award i.e. Rs.50,000/- each for the parents and Rs.1,00,000/- to
the widow of the deceased alongwith interest within a period of
four weeks, the rest of the award, which relates to putting the
amount in fixed deposits shall remain stayed. The amount upon
being deposited was ordered to be disbursed to the claimants in
terms of the award. Thereafter, the interim order granted on
22.05.2013 was confirmed till disposal of the appeal vide order
dated 26.09.2013 and the stay application was disposed of. As per
office report dated 24.08.2013, the notices of respondents No.7
and 8 received serviced, however, none appeared on their behalf.
8. Mr. Rajesh Choudhary, learned counsel appearing for the
appellant- Insurance Company submits that the learned Tribunal
has erred in deciding the Issue No.1 while holding that the insured
Trailer was involved in the accident. Learned counsel for the
[2024:RJ-JD:42812] (5 of 13) [CMA-387/2013]
appellant submits that the Tribunal has failed to consider and
appreciate the fact that the insured vehicle was not involved in the
accident and a false case was foisted by the police as the
deceased was a police constable. Learned counsel for the
appellant submits that as per the story, as put forth by the
claimants, the deceased who was plying the motorcycle, was
accompanied by two other persons at the time of alleged accident
and the information of the accident was given by one Rajendra
Singh (pillion rider) to the Police, however, in the FIR (Ex.2),
wherein it was specifically recorded that information of the
accident was received on 06.10.2006 at 09:30 am, through a
telephone call made by some unknown truck driver to the effect
that some unknown truck had hit one person, who is lying on the
road and on receipt of said information, the police reached on the
spot, whereby they found one person in an unconscious state i.e.
Gordhan Singh (now deceased).
9. Learned counsel for the appellant submits that the witness
examined by the claimants viz. AW.2 Rajendra Singh, in his
statements deposed contrary to what has been stated in the FIR;
inasmuch as AW.2 Rajendra Singh, has stated that information
with regard to accident was given by him at concerned SHO of the
police Station and on receipt of the information, the police reached
on the spot. Learned counsel for the appellant also relied upon the
testimony Hanuwant Singh, who was the investigating officer, who
has stated that no information with respect to accident was
received on the date of accident and the report was lodged on the
basis of information given by some unknown driver, who had
called at the police station at 07:30 am, while informing that an
[2024:RJ-JD:42812] (6 of 13) [CMA-387/2013]
injured is lying on the road, who might have been hit by unknown
vehicle and on receipt of said information, the police authorities
reached on the spot where the injured was lying in pool of blood.
Learned counsel appearing for the appellant further submits that
AW.2 Rajendra Singh, also deposited that he had mentioned the
vehicle number of the offending vehicle while furnishing
information to the police, however, contrary to this, Hanuwant
Singh (NAW, before MACT, Chittorgarh) has categorically stated
that number of vehicle was not stated to them. Learned counsel
for the appellant submits that the statement of the witness AW.2
Rajendra Singh, cannot be believed as in the FIR, the number the
vehicle have not been mentioned, which was lodged on the basis
of information given by some unknown truck driver and not by
AW.2 Rajendra Singh.
10. Learned counsel appearing for the appellant further submits
that AW.2 Rajendra Singh and other pillion rider, namely, Jairam,
were constables, therefore, in case they were accompanying the
deceased, then there should have been entry in the 'Rojnamcha'
of the concerned police station, with respect to their leaving the
police station and reporting to the police station back. Learned
counsel for the appellant submits that as per the investigation
report (Ex.A/2), no such entries were made in the Rojnamcha qua
AW.2 Rajendra Singh or Jairam.
11. Learned counsel appearing for the appellant further submits
that the MTO report does not mention any damage caused to the
offending vehicle, if there had been accident between the
offending vehicle and the motorcycle, then certain damage would
have been caused to the offending vehicle, however, this aspect of
[2024:RJ-JD:42812] (7 of 13) [CMA-387/2013]
the matter has not been considered. Learned counsel for the
appellant also relied upon the testimony of one Praveen Kumar,
owner of Abhilasha Restaurant, who submitted his affidavit to the
effect that on the date of accident, the deceased came to his hotel
on a motorcycle in drunken state and asked for food, however,
upon being refused he returned and while going towards
Nimbahera, he fell down from the motorcycle. Learned counsel for
the appellant thus submits that the offending vehicle has been
falsely implicated in this case with a view to get compensation in
the connivance. Learned counsel for the appellant also questioned
the multiplier applied by the learned Tribunal and awarding future
prospects to the extent of 50% of the income. In support of his
arguments, learned counsel for the appellant relied upon
judgments in Smt. Meena Sharma & Ors. v. Babulal & Anr. : S.B.
Civil Misc. Appeal No.2689/2006 decided on 06.10.2017 at Jaipur
Bench; Shriram General Insurance Co. Ltd. v. Akeela Bano &
Ors. : S.B. Civil Misc. Appeal No.1710/2022 decided on
17.01.2023, and Jansi Ram v. Vinod Kumar & Ors. : S.B. Civil
Misc. Appeal No.2635/2007 decided on 06.01.2014 at Jaipur
Bench.
12. On the other hand, learned counsel appearing for the
respondents No.1 to 6/claimants vehemently submits that the
submissions of learned counsel for the appellant is baseless.
Learned counsel for the claimants submits that witness AW.2
Rajendra Singh is not constable and he is working with Zinc and
his father was a constable, who had retired. Learned counsel for
the claimants further submits that under Section 133 of the Act of
1988, in response to notice issued to the owner of the offending
[2024:RJ-JD:42812] (8 of 13) [CMA-387/2013]
vehicle (Ex.7), he has stated that on the date of accident i.e. on
05.10.2006, Rajaram was driving the vehicle in question. Learned
counsel for the claimants further submits that the onus with
regard to non-involvement of the offending vehicle in the accident
was upon the insurance company, which has not been discharged
by leading cogent and convincing evidence, either by examining
the owner or the driver of the offending vehicle. Learned counsel
appearing for the claimants further submits that the accident took
place on 05.10.2006, whereas the offending vehicle was seized on
25.11.2006 and the MTO report has been made on 27.11.2006 i.e.
after a gap of more than a month, and the possibility of repairing
the damage caused to the offending vehicle cannot be ruled out.
13. Learned counsel for the respondents/claimants submits that
the affidavit furnished by Praveen Kumar, owner of Abhilasha
Hotel, cannot be believed, inasmuch as the accident had taken
place in the mid night and the place where the accident took
place, is at a distance of approximately 70 meters and in a dark
night even the site i.e. place of accident was not visible. He
further submits that in the affidavit, the owner of the hotel has
nowhere stated that the road was well-lighted, because of which
the site was completely visible to him and he could make out that
the deceased fell from the motorcycle at his own. Learned counsel
for the claimants thus submits that the judgment and award
passed by the learned Tribunal calls for no interference and the
appeal preferred by the insurance company be dismissed.
14. Learned counsel appearing for the respondents/claimants
relied upon judgment passed by Hon'ble Apex Court in the case of
Sajeena Ikhbal & Ors. v. Mini Babu George & Ors. : Civil Appeal
[2024:RJ-JD:42812] (9 of 13) [CMA-387/2013]
No.7881/2024 decided on 17.10.2024, Jiju Kuruvila & Ors. v.
Kunjujamma Mohan & Ors. : 2015 (2) R.A.R. 182 (SC), Sunita &
Ors. v. RSRTC & Ors. : 2019 (2) WLN 229 (SC), Mangla Ram v.
Oriental Insurance Co. Ltd. & Ors. : 2018 (1) R.A.R. 135 (SC),
Vimla Devi & Ors. v. National Insurance Co. Ltd. & Ors. : 2019 ACJ
454 and Dhani Devi & Ors. v. New India Assurance Co. Ltd. & Ors.
: 2013 (1) WLN 330.
15. I have considered the submissions made by counsel for the
parties at length and have perused the material available on
record and the case laws cited.
16. This Court finds that the learned Tribunal while deciding the
Issue No.1 has considered the statements of AW.1 Smt. Lal
Kunwar @ Lali Kumari, wife of the deceased, who in her
statements stated that on 05.10.2006 at about 11-11:30 pm her
husband after effective service of notice was coming back on
motorcycle (RJ-09-7130) owned by her brother, met with accident
on Chittorgarh-Nimbaheda road. She further stated that along
with her husband, Jairam and Rajendra Singh were also
accompanying him. The said witness further stated that the
accident was caused by Trailer and in the accident her husband
sustained injuries on head, hands and feet; he was taken to
hospital, however, during treatment her husband expired on
12.10.2006 at Govt. Hospital, Udaipur. In the cross-examination,
AW.1 stated that she apprised the number of the offending vehicle
on the next day and she also mentioned number while her
statements were recorded earlier at Chittorgarh court. The
testimony of said witness remained uncontroverted by the non-
claimants.
[2024:RJ-JD:42812] (10 of 13) [CMA-387/2013]
17. The learned Tribunal has considered the statements of AW.2
Rajendra Singh, who was the pillion rider along with deceased on
the date of accident. The said witness in his evidence has stated
that it was at about 11-11:30 pm, on 05/06.10.2006 he along
with deceased and Jairam were going from Nimbaheda to
Chittorgarh, and when they reached near Abhilasha Hotel, the
offending Trailer which came from opposite side, hit the
motorcycle plied by deceased Gordhan Singh while avoiding a
ditch on the road, as a result of which Gordhan Singh fell down
and received injuries all over his body. The said witness stated
that he saw the number of the offending vehicle and he made a
call at police station, on which the police party reached there and
also took him to police station; whereas Gordhan Singh was taken
to Nimbaheda Hospital. In the cross-examination, the said witness
specifically denied that the rider of the motorcycle was in drunken
state or the motorcycle was plied at high speed and dashed the
Trailer. Insofar as the FIR (Ex.2) is concerned, this Court finds
that the learned Tribunal observed that according to FIR (Ex.2),
on 06.10.2006 deceased Gordhan Singh was found injured on the
road and he was taken to hospital for treatment. The eyewitness
of the incident i.e. AW.2 Rajendra apprised the police about the
offending vehicle number. After registration of the FIR, in
response to the notice issued under Section 133 of the Act of 1988
to the owner, the owner admitted that on the date of accident, the
vehicle was driven by non-claimant No.1 Rajaram and charge
sheet was also filed against him. The owner also stated that he
had obtained the seized Trailer on 'Supurdgi' from the concerned
court and no challenge was laid to the proceedings being initiated
[2024:RJ-JD:42812] (11 of 13) [CMA-387/2013]
in connection accident and seizure of the vehicle. The learned
Tribunal has also found that best evidence of the driver has not
been led in the instant case. In the considered view of this Court,
the occurrence of accident is not disputed in view of the fact that
owner and driver of the offending vehicle have nowhere denied
involvement of the offending vehicle and no challenge has been
laid to the proceedings initiated pursuant to the FIR (Ex.2).
Further, the appellant insurance company has failed to examine
the owner and driver of the offending vehicle. This Court finds that
in motor accident claims, preponderance of probabilities must be
applied and no strict proof is required.
18. The Hon'ble Apex Court in the case of Sajeena Ikhbal
(supra), observed that in motor accident claim cases, the courts
must apply the principle of preponderance of probability and
cannot apply the test of proof beyond reasonable doubt. In the
aforesaid case, the claimants' claim petition was contested by the
respondents on the ground that the car was not involved in the
accident and the courts below have recorded the finding of non-
involvement of the car in the accident while disbelieving the
testimony of eyewitness only on the ground that in the police
investigation, he was not examined as an eyewitness. The Hon'ble
Apex Court while reversing the finding of the courts below
observed as under:
"16. In claim cases, arising out of motor accident, the
court has to apply the principles of preponderance of
probability and cannot apply the test of proof beyond
reasonable doubt. The evidence available in the present
case tested on the principles of preponderance of
probability can record only one finding that the car was
involved in the accident, otherwise, the damage found to
the car in the Mahazar (Annexure P-2) was not possible."
[2024:RJ-JD:42812] (12 of 13) [CMA-387/2013]
The judgments cited by learned counsel for the appellant
Insurance Company does not render any support to the
contentions raised by him.
19. Insofar as argument of learned counsel for the appellant that
relevant entry with respect to leaving and reporting for duties by
AW.2 Rajendra Singh was not recorded in the Rojnamcha is
concerned, this Court finds that the same is misconceived,
inasmuch as witness AW.2 Rajendra Singh has specifically stated
that he was not constable and he is working with Zinc and his
father was a constable, who has retired.
20. This Court also considered the submission made by counsel
for the appellant that as per the affidavit furnished by owner of
Abhilasha Hotel, the deceased himself was in drunken state,
however, nothing has been placed on record by the appellant
insurance company to substantiate the aforesaid ground. Neither
any medical evidence has been produced by the insurance
company, nor the owner of Abhilasha Hotel, whose affidavit was
furnished, has been examined by the insurance company. Thus,
the reliance placed by counsel for the appellant on the affidavit of
Praveen Kumar, is of no avail. This Court finds that the offending
vehicle was seized on 25.11.2006 and the MTO report has been
made on 27.11.2006 and thus possibility of repairing the damage
caused to the offending vehicle cannot be ruled out.
21. This Court finds that the amount of compensation quantified
by the learned Tribunal while applying the multiplier of 18 and
awarding 50% towards future prospects is appropriate one,
inasmuch as the deceased was 28 years of age at the time of
[2024:RJ-JD:42812] (13 of 13) [CMA-387/2013]
accident and he was serving as Constable in Police Department
drawing the monthly salary of Rs.6,012/-. This Court finds no
force in the contention raised by the learned counsel for the
appellant that excess compensation has been awarded.
22. Accordingly, and in view of above discussion, this Court finds
no force in the instant misc. appeal and, therefore, the same is
hereby dismissed. The amount of compensation withheld under
the interim order of this Court shall be payable to the claimants.
The insurance company is directed to deposit the amount of
compensation as quantified and awarded by the learned Tribunal
along with interest within a period of four weeks from the date of
this judgment, if not already deposited by it. Record be sent back
forthwith.
(DR. NUPUR BHATI),J
19-DJ/-
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