Rajasthan High Court - Jodhpur
Hdfc Ergo General Ins. Co. Ltd vs Nemichand And Anr. (2024:Rj-Jd:37070) on 6 September, 2024
Author: Nupur Bhati
Bench: Nupur Bhati
[2024:RJ-JD:37070]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
S.B. Civil Misc. Appeal No. 3245/2017
HDFC ERGO General Insurance Company Limited through
Assistant Manager Claim, First Floor, N.K. Tower, Plot No. 49,
Opposite Kohinoor Tower, Chopasani Road, Jodhpur.
----Appellant
Versus
1. Nemichand S/o Gheesa Karar, R/o Laxmipura, Police
Station Basoli, Tehsil Hindoli, District Bundi. Claimant
2. Madan Lal S/o Ram Karan Das Bairagi, R/o Mal Ka Khera,
Tehsil Mandalgarh, District Bhilwara. Owner/driver
----Respondents
Connected With
S.B. Civil Misc. Appeal No. 3240/2017
HDFC ERGO General Insurance Company Limited through
Assistant Manager Claim, First Floor, N.K. Tower, Plot No. 49,
Opposite Kohinoor Tower, Chopasani Road, Jodhpur.
----Appellant
Versus
1. Devraj S/o Jagroop Meena, R/o Khati Khera, Police
Station Basoli, Tehsil Hindoli, District Bundi. Claimant
2. Madan Lal S/o Ram Karan Das Bairagi, R/o Mal Ka Khera,
Tehsil Mandalgarh, District Bhilwara Owner/driver
----Respondents
S.B. Cross Objection (Civil) No. 119/2020
Nemi Chand S/o Shri Gheesa Karad, aged about 31 years, R/o
Khati Khera, Police Station Basoli, Tehsil Hindoli, District Bundi
(Raj.).
----Appellant
Versus
1. Madan Lal S/o Ram Karan Das Bairagi, R/o Mal Ka Khera,
Tehsil Mandalgarh, District Bhilwara (Raj.).
2. HDFC ERGO General Insurance Company Limited, through
Branch Manager, Office No. 2, 3Rd Floor, C-98 Sanghvi
Upsana Tower, Subhash Marg, C-Scheme, Jaipur (Raj.).
302001. (Insurance Company).
----Respondents
(Downloaded on 06/09/2024 at 09:46:28 PM)
[2024:RJ-JD:37070] (2 of 8) [CMA-3245/2017]
For Appellant(s) : Mr. T.R.S. Sodha.
For Respondent(s) : Mr. Sanjay Nahar.
Mr. S.K. Sankhala.
HON'BLE DR. JUSTICE NUPUR BHATI
Judgment
06/09/2024
1. The appellant/non-claimant No.2, has preferred two misc.
appeals being CMA No.3245/2017 and 3240/2017, assailing the
validity of judgment and award dated 04.09.2017 passed by
learned Judge, Motor Accident Claims Tribunal, Bhilwara
('Tribunal') in MAC Case Nos.1291/2013 and 1289/2013
respectively. The learned Tribunal while passing the impugned
judgment and award has awarded compensation of Rs.87,800/- in
MAC Case No.1291/2013 and Rs.2,89,257/- in MAC Case
No.1289/2013 along with interest @ 6% per annum. The learned
Tribunal held both the non-claimants i.e. appellant and owner of
the offending vehicle liable to pay the compensation.
2. Claimant Nemichand, after being served with the notices of
the instant appealm filed cross objection on 24.09.2018 with a
delay of 128 days with the prayer to dismiss the appeal filed by
the appellant and to enhance the compensation. Along with the
cross-objection, an application under Section 5 of the Limitation
Act for condoning the delay has also been filed.
3. Briefly stated, the facts of the case are that claimants,
namely, Nemichand and Devraj filed claim petitions, claiming
compensation against the non-claimants for the injuries suffered
by them in the accident. It was inter-alia alleged in the claim
[2024:RJ-JD:37070] (3 of 8) [CMA-3245/2017]
petitions that on 16.05.2013 the claimants were going by
motorcycle, they were hit by a jeep (RJE-5784), which was being
plied by its driver rashly and negligently. The claimants sustained
grievous injuries and remained hospitalized. The incident was
report to the police, upon which FIR was registered, wherein after
conducting investigation, charge sheet was filed against non-
claimant No.1. Claimant- Nemichand claimed compensation of
Rs.14,76,000/-, whereas claimant Devraj claimed compensation of
Rs.20,68,000/-.
4. The claim petitions were contested by the non-claimants by
filing their replies. The appellant/non-claimant No.2 filed its reply
while admitting the fact that the at the relevant point of time, the
jeep was insured with it, however, other averments made in the
claim petitions were denied. It was alleged that the rider of the
motorcycle himself was negligent in plying its motorcycle.
Objection with regard to driver of offending jeep not having a valid
and effective licence was taken. Apart from this, objection with
regard to delay in lodging the FIR was also taken by the appellant/
non-claimant No.3.
5. On the basis of pleadings of the parties, the learned Tribunal
framed five issues. The parties led their respective evidence, oral
as well as documentary.
6. The learned Tribunal after considering the arguments made
by respective parties and considering the material produced by
the parties vide judgment and award dated 04.09.2017 partly
allowed the claim petitions and awarded compensation in favour of
claimants, as mentioned above while fastening the liability upon
the non-claimants, jointly and severally.
[2024:RJ-JD:37070] (4 of 8) [CMA-3245/2017]
7. A Coordinate Bench of this Court while admitting the appeals
preferred by the appellant insurance company vide order dated
08.01.2018 stayed the execution of the impugned judgment and
award dated 04.09.2017 qua the appellant insurance company.
8. Learned counsel for the appellant/non-claimant No.2 submits
that the learned Tribunal while passing the impugned judgment
and award has not considered the arguments raised and evidence
led by the appellant/non-claimant No.2. Learned counsel for the
appellant submits that though the accident took place on
16.05.2013, however, FIR of the accident was lodged with
unexplained delay of 18 days. He further submits that in the FIR,
the name of the driver of offending jeep was mentioned as
'Dilkhush S/o Madanlal Bairagi', however, the investigation of the
FIR resulted in filing of a charge sheet against Madanlal (non-
claimant No.1), who is the father of said Dilkhush. Learned
counsel for the appellant further submits that the name of Madan
Lal implicating him as driver of the vehicle was shown later
without there being any reason for the same. Learned counsel for
the appellant submits that this aspect of the matter has not been
considered or dealt with by the learned Tribunal while passing the
impugned judgment and award.
9. Learned counsel for the appellant thus prayed that the misc.
appeals may be allowed and the impugned judgment and award
passed by the learned Tribunal holding the appellant liable to
satisfy the award may be quashed and set aside.
10. On the other hand, learned counsel appearing for
claimant/cross-objector submits that some delay has occasioned
on the part of claimant/cross-objector in filing the cross-objection,
[2024:RJ-JD:37070] (5 of 8) [CMA-3245/2017]
which in the interest of justice may be condoned. He further
submits that the cross-objector, in good faith, had misconstrued
the accurate deadline for filing the cross objection. Learned
counsel for the cross objector submits that the delay is bonafide
and unintentional, therefore, the same may be condoned. Learned
counsel for the claimant submits that the learned Tribunal has
awarded a meager sum of Rs.87,800/- as compensation, which is
on lower side, looking to the nature of injuries the claimant had
suffered in the said accident. Learned counsel for the claimant
submits that the claimant had suffered 15% permanent disability
and the said fact was amply proved by the claimant by exhibiting
medical certificate (Ex.12) issued by the competent authority,
however, the same has not been considered by the learned
Tribunal. Learned counsel for the claimant/cross-objector further
submits that no amount towards future prospects has been
awarded by the learned Tribunal while computing the quantum of
compensation. He further submits that the interest awarded by
the learned Tribunal @ 6% p.a. also deserves to be enhanced to
12% p.a. Learned counsel for the claimant further submits that for
the injuries suffered by the claimant, he remained hospitalized for
two months, however, the learned Tribunal has awarded meager
amount of Rs.6800/- for medical bills, whereas the bills submitted
were of much higher amount. Learned counsel for the claimant
thus submits that the compensation be enhanced appropriately.
11. I have considered the submissions made by counsel for the
appellant and the cross-objector and perused the material
available on record.
[2024:RJ-JD:37070] (6 of 8) [CMA-3245/2017]
12. So far as objections raised by the appellant with regard to
delay in lodging the FIR (Ex.2) and changing the name of driver
while filing the charge sheet are concerned, this Court finds that
while the claimants met with the accident, the first and prime aim
of injured, is to get first treatment and not to rush to concerned
police station and lodge the FIR. The claimants after being
recovered from the trauma being suffered by them in the accident
lodged the FIR and, therefore, delay has occasioned in lodging the
same. At the time of lodging the FIR, the name of Dilkhush was
mentioned by the injured while they were in traumatic state of
mind, however, the investigation of the FIR resulted in filing of
charge sheet against Madan Lal (Non-claimant No.1). This Court
considered the submission made by counsel for the appellant that
merely because Dilkhush, whose name was mentioned in the FIR
as driver at the first instant, was not having a valid licence,
therefore, name of Madan Lal was mentioned later on, it is seen
that no evidence was led by the appellant that Dilkhush was not
having valid and licence. The learned Tribunal also observed that
no efforts were made by the appellant/non-claimant No.2 either to
summon said Dilkhush or against owner/driver i.e. Madanlal with
respect to alleged collusive deal.
13. This Court finds that the learned Tribunal has considered the
testimony of AW.3 Om Prakash, who stated in unequivocal terms
that at the time of accident the jeep was being plied by Madanlal
negligently. Thus the learned Tribunal has not committed any
error while deciding the relevant issue framed in this regard i.e.
issue No.3 and the appeals filed by the appellant are devoid of any
merit.
[2024:RJ-JD:37070] (7 of 8) [CMA-3245/2017]
14. This Court also considered the submissions made by counsel
for the claimant/cross-objector Nemichand. The cross-objection
filed by the claimant/cross-objector is reported to be barred by
limitation. There is delay of 148 days.
15. This Court considered the application preferred by
claimant/cross-objector under Section 5 of the Limitation Act and
having regard to the submissions made therein, the delay
occasioned in filing the cross-objection is condoned.
16. This Court finds that the learned Tribunal has considered the
permanent disability certificate (Ex.73) issued by the Medical
Board, wherein the Medical Board found 15% permanent disability
being sustained by claimant/injured Nemichand. The learned
Tribunal considering the nature of injury found that as such there
no adverse effect in the earning capacity of the claimant,
however, the learned Tribunal has awarded a sum of Rs.75,000/-
for the injuries suffered by him under the head of pain and
suffering @ Rs.5000 for per percentage of permanent disability
being suffered by injured. The claimant/injured had not exhibited
any document either discharge ticket or admit ticket. The learned
Tribunal has awarded Rs.6000/- for four simple injuries and
Rs.6800/- towards the medical expenses incurred by the injured
for his treatment. The compensation awarded by learned Tribunal
in favour of claimant of Rs.87,800/- appears to be adequate and
the same calls for no enhancement.
16. Accordingly and in view of above discussion, this Court finds
no force in the misc. appeals filed by the appellant insurance
company and the cross-objection filed by the claimant/injured
[2024:RJ-JD:37070] (8 of 8) [CMA-3245/2017]
seeking enhancement of the compensation. No interference is
called for in the impugned judgment and award passed by the
learned Tribunal.
17. Consequently, the misc. appeals and cross-objections are
dismissed. The interim order dated 08.01.2018 is vacated and the
stay petitions are also dismissed. No costs.
(DR. NUPUR BHATI),J
59 to 61-DJ/-
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