Rajasthan High Court - Jodhpur

Devji And Anr vs Lala Ji And Ors. (2024:Rj-Jd:39043) on 20 September, 2024

Author: Nupur Bhati

Bench: Nupur Bhati

[2024:RJ-JD:39043]

        HIGH COURT OF JUDICATURE FOR RAJASTHAN

                                   AT JODHPUR


                     S.B. Civil Misc. Appeal No. 305/2010

1.     Devji S/o Homa Ji Meena, aged 65 years, Resident of
       Karnaua Nichla Fallan, Tehsil Kherwara, District Udaipur.
2.     Narayan Lal S/o Devaji Meena, Resident of Karnaua Nichla
       Fallan, Tehsil Kherwara, District Udaipur.
                          ----Appellants/Non-claimants/Owner & Driver
                                        Versus
1.     Lala Ji S/o Jhoma Ji Meena, Resident of Ghodi, Tehsil
       Kherwara, District Udaipur. Claimant.
2.     The New India Insurance Company Ltd., Branch Udaipur.
       Insurer (Jeep No.RJ-27-C-2816)
3.     Piyush Bhai S/o Goverdhan Bhai Patel, Resident of 75, Kunj
       Society, Alkapuri, Barodara (Gujarat) Driver & Owner (Car
       No.GJ-6/A-5777)
4.     National Insurance Company, Branch Baroda, D.O.-II,
       Baroda (Gujarat) Insurer (Car No.GJ-6/A-5777)
                                                                      ----Respondents
                                  Connected With
                     S.B. Civil Misc. Appeal No. 367/2010
1.     Devji S/o Homa Ji Meena, aged 65 years, Resident of
       Karnaua Nichla Fallan, Tehsil Kherwara, District Udaipur.
2.     Narayan Lal S/o Devaji Meena, Resident of Karnaua Nichla
       Fallan, Tehsil Kherwara, District Udaipur.
                          ----Appellants/Non-claimants/Owner & Driver
                                        Versus
 1.    Smt. Laxmi Devi W/o late Harishchandra Parmar Meena,
 2.    Miss. Anju @ Anjana D/o late Harishchandra Parmar
       Meena, aged 6 years,
 3.    Miss. Shivani D/o late Harishchandra Parmar Meena, aged
       4 yuears,
       Respondents No.2 & 3 are minor through their natural
       guardian mother Smt. Laxmi                       Devi         Parmar W/o   late
       Harishchandra Parmar Meena, all r/o village Bhaloon, Tehsil
       Kherwara, District Udaipur. Claimants.
 4.    The New India Insurance Company Ltd. Branch Udaipur,
       (Jeep No.RJ-27-C-2816)

                         (Downloaded on 23/09/2024 at 08:49:55 PM)
 [2024:RJ-JD:39043]                  (2 of 10)                      [CMA-305/2010]


 5.    Piyush Bhai S/o Goverdhan Bhai Patel, Resident of 75, Kunj
       Society, Alkapuri, Barodara (Gujarat) Driver & Owner (Car
       No.GJ-6/A-5777)
 6.    National Insurance Company, Branch Baroda, D.O.-II,
       Baroda (Gujarat) Insurer (Car No.GJ-6/A-5777)
                                                                 ----Respondent


For Appellant(s)          :     Mr. Sandeep Saruparia.
For Respondent(s)         :     Mr. L.D. Khatri, R- NIC Ltd.
                                Mr. Dhanpat Choudhary with
                                Ms. Jyoti R. Patel, R-NIA Co. Ltd.
                                Mr. Manish Kumar Pitaliya.



               HON'BLE DR. JUSTICE NUPUR BHATI

Judgment

20/09/2024

1. Both these misc. appeals have been preferred by the

appellants/non-claimants No.1 and 2, who are the owner and

driver of the offending vehicle (Car No.GJ-6/A-5777) under

Section 173 of the M.V. Act, 1988 challenging the judgment and

award dated 19.11.2009 passed by learned Judge, Motor Accident

Claims Tribunal-cum-Additional District Judge (FT) No.3, Udaipur

Camp Salumber in MAC Case Nos.116/2009 and 117/2009

respectively, whereby the claim petitions filed by the claimants

were partly allowed while awarding compensation of Rs.19,000/-

and Rs.4,49,000/- in favour of respective claimants along with

interest @ 7.5% p.a. from the date of filing the claim petition. The

learned Tribunal fastened the liability to satisfy the award upon

the appellants/non-claimants No.1 and 2 while exonerating the

insurance companies from their liability to pay the compensation.

2. Briefly stated, the facts of the case are that the claimants

filed two claim petitions claiming compensation. Claimant- Lala

[2024:RJ-JD:39043] (3 of 10) [CMA-305/2010]

filed Claim Case No.116/2009 claiming compensation for the

injuries suffered by him in the accident; and the claimants Smt.

Laxmi Devi and 3 others filed claim petition claiming compensation

on account of death of their sole breadwinner late Sh.

Harishchandra Parmar. In the claim petitions, it was alleged that

on 14.11.2006 at 03:45 pm, on NH No.8 near Banjriya village,

two vehicles viz. RJ-27-C-2816 (Jeep) and GJ-06-BA-5777 (Car)

collided on account of rash and negligent driving of drivers of both

the vehicles. Claimant Lala and one Sh. Harji (now deceased)

were the occupant of Jeep. In the said accident, claimant Lala

suffered various injuries, whereas Sh. Harji (husband claimant

Smt. Laxmi Devi) died on account of injuries suffered by him.

3. In the claim petition filed by claimant Lala, it was alleged

that at the time of accident, he was 30 years of age and he was

earning Rs.3000/- per month. Claimant Lala claimed

compensation of Rs.2,14,000/- under various heads.

4. In the claim petition filed by claimants, Smt. Laxmi Devi, it

was alleged that deceased Harji was employed as cleaner of Jeep

and apart from this work, he was also discharging the work of

loading and unloading the goods. The claimants thus claimed

compensation of Rs.40,58,000/- on account of untimely death of

their sole breadwinner under various heads. The accident was

reported to the police and FIR was registered, wherein after

investigation charge sheet came to be filed against non-claimant

No.1.

5. The claim petitions were contested by the non-claimants

No.1 and 2 by filing reply while denying the contents thereof. It

was alleged that vehicle Jeep (RJ-27-C-2816) was plied by its

[2024:RJ-JD:39043] (4 of 10) [CMA-305/2010]

driver cautiously and it was the driver of the another Car ( GJ-06-

BA-5777), who plied his car negligent and hit the jeep. On behalf

of non-claimant No.3 i.e. the New India Insurance Co. Ltd. reply

to claim petition was filed and, it was alleged that the vehicle Jeep

was registered in the name of non-claimant No.2 and it was a

private LMV vehicle, however, the same was used as passenger

vehicle, therefore, it was not liable to pay any compensation.

While filing reply to Claim Case No.117/2009, the non-claimants

alleged that on 14.11.2006, his neighbourer Lala came to him and

requested to drop them to hospital, as his wife was suffering from

labour pain. It was further alleged that in the aforesaid

circumstances and taking humanitarian approach while he started

for hospital in his Jeep, which was plied at a moderate speed,

though in wrong side, it was hit by a Car and there was no

negligent on their part. It was thus prayed that the claim petitions

be dismissed.

6. On behalf of non-claimant No.4, owner of Car (GJ-06-BA-

5777), reply to claim petitions was filed, while stating therein that

the vehicle was insured with non-claimant No.5 and the accident

took place on account of rash and negligent driving of driver of

Jeep and there was no fault on his part. It was thus prayed that

the claim petitions be dismissed.

7. As per the pleadings of the parties, the learned Tribunal

framed four issues including relief. In support of their claim

petitions, the claimants examined AW.1 Smt. Laxmi Devi, AW.2

Lala and exhibited 24 documents. On behalf of non-claimants,

NAW.1 Shantiprakash Jhalani, NAW.2 Deva, NAW 3 NarayanLal

and AW.4 Dinesh were examined.

[2024:RJ-JD:39043] (5 of 10) [CMA-305/2010]

8. The learned Tribunal thereafter heard arguments of the

parties and after considering the material placed before it vide

judgment and award dated 19.11.2009 proceeded to partly allow

the claim petitions filed by the respective claimants and the

liability was fastened upon the appellants/non-claimants No.1 and

9. Aggrieved by the judgment and award impugned holding the

appellants liable to pay the compensation, the appellants have

preferred the instant misc. appeals seeking quashing of the

judgment and award impugned.

10. Insofar as CMA No.305/2010 is concerned, a Coordinate

Bench of this Court vide order dated 05.04.2010 while issuing the

notices to the respondents, rejected the stay application preferred

by the appellants looking to the meager amount of compensation.

11. In CMA No.367/2010, a Coordinate Bench of this Court, while

issuing notices to the respondents, stayed the operation of the

award, subject to the condition that the appellants shall deposit

50% of the awarded sum within a period of three weeks in the

concerned claims Tribunal. The aforesaid amount upon being

deposited was ordered to be disbursed to the claimants. It was

further directed that in case of non-deposition of the 50% of the

awarded sum, the stay granted was ordered to be automatically

vacated entitling the claimants to get the award executed. The

said appeal was thereafter admitted by another Coordinate Bench

of this Court on 02.03.2012 and the interim order dated

05.04.2010 was confirmed.

12. Learned counsel appearing for the appellants submits that

the learned Tribunal has erred while deciding the Issue No.1

[2024:RJ-JD:39043] (6 of 10) [CMA-305/2010]

regarding rash and negligent driving of the vehicle against the

appellants. Learned counsel for the appellants submits that merely

because the charge sheet was filed against the driver of Jeep, the

same could not be made basis to hold the appellants liable to

cause the accident. Learned counsel for the appellants submits

that there was negligence on the part of driver of car, which was

being driven rashly and negligently. Learned counsel for the

appellants further submits that the learned Tribunal has erred in

exonerating the insurance company i.e. non-claimant No.3 from

its liability to pay the compensation, inasmuch as there no

violation or breach of the policy conditions. Learned counsel for

the appellants, therefore, argues that the finding arrived at by the

learned Tribunal while deciding No.2 cannot be sustained. Learned

counsel for the appellants further submits that premium was

charged by the insurance company qua the cleaner and, therefore,

the insurance company could not have been exonerated from its

liability to pay the compensation.

13. Learned counsel for the appellants further submits that

although injured Lala in his evidence stated that Rs.6/- were

charged from him by the driver of jeep, however, the said

statement has not been proved. Learned counsel for the

appellants thus submits that vehicle was not being used as a

passenger vehicle and, therefore, the insurance company could

not have been exonerated from its liability.

14. Learned counsel for the appellants submits that deceased

Harishchandra was not the passenger in the jeep, and no fare was

charged from him and at best, he could be termed as third party

and being third party, the liability of paying the compensation,

[2024:RJ-JD:39043] (7 of 10) [CMA-305/2010]

could not have been fastened upon the appellants. Learned

counsel for the appellants also submits that compensation

awarded in favour of claimants on account of death of Sh.

Harishchandra is on higher side as no plausible evidence was led

by the claimants to prove the income of the deceased. Learned

counsel for the appellants thus submits that the instant appeals be

allowed and the impugned judgment and award be set aside.

15. On the other hand, learned counsel appearing for the

respondent The New India Insurance Company Ltd. submits that

the policy taken by the appellants was 'act only' policy, wherein

the occupants of the vehicle are not covered and, therefore, the

Tribunal has rightly exonerated the non-claimant No.3 from its

liability to pay the compensation to the claimants. Learned counsel

for respondent No.2 further submits that the vehicle Jeep was a

private LMV vehicle, however, the same was used as passenger

vehicle, therefore, the learned Tribunal has rightly exonerated the

respondent insurance company from its liability to pay the

compensation.

16. Mr. L.D. Khatri, learned counsel appearing for respondent

National Insurance Company submits that there was no negligent

on the part of driver of the car, insured by the respondent and the

charge sheet was filed against the driver of jeep. He further

submits that in fact the jeep was being plied by its driver in wrong

side negligent, which fact has been admitted by the non-claimants

No.1 and 2 in their reply to the claim petition.

17. Learned counsel appearing for the respondents/claimants

submits that that NAW.2 Deva in his testimony has specifically

denied that deceased Harishchandra was employed as a cleaner

[2024:RJ-JD:39043] (8 of 10) [CMA-305/2010]

on his jeep, therefore, the grounds raised by the appellants that

premium was charged qua the cleaner, has no substance to stand

on.

18. I have heard learned counsel for the parties at length and

have perused the material available on record.

19. This Court finds that the learned Tribunal while passing the

impugned judgment and award has observed that the appellants,

who are the owner and driver of offending Jeep (RJ-27-C-2816),

have taken the insurance policy, which is 'act only' policy and no

premium was at all charged by the insurer qua the occupants of

the jeep and, therefore, the insurance company i.e. non-claimant

No.3 has rightly been exonerated from its liability to pay the

compensation. This Court finds that the learned Tribunal has

rejected the plea of the claimants that deceased Harishchandra

was not employed as cleaner on the jeep, however, while treating

deceased Harishchandra to be a daily wager, has quantified his

monthly income at Rs.3000/- and accordingly awarded

compensation of Rs.4,32,000/- under the head of loss of income.

This Court also finds that in the instant appeal, the appellants

have taken contradictory stand that premium was charged for

cleaner of the vehicle jeep, however, in their evidence, they have

specifically denied that deceased Harishchandra was ever engaged

by them as cleaner on their jeep. Therefore, in the considered

opinion of this Court, such contradictory pleadings cannot be

appreciated. This Court is of the opinion that non-claimant No.3

insurance company, has rightly been exonerated from its liability

to pay the compensation as no premium was at all charged qua

[2024:RJ-JD:39043] (9 of 10) [CMA-305/2010]

the occupants of the vehicle, as it was a private vehicle and not a

passenger/transport vehicle.

20. This Court also finds that the in the reply to claim petition

filed by the appellants/non-claimants No.1 and 2, have specifically

stated as under:

"----- Qksj ysu lM+d ls fu;ekuqlkj pyus ij djhc Ms< fdyksehVj dk pDdj dkVus ij dV Fkk ftlls vkus dh fLFkfr esa 8&10 feuV yx ldrs Fks rRi'pkr~ Hkh [kSjokM+k ds cktkj esa ls gksdj xqtjus dh fLFkfr esa vLirky igqapus esa yxHkx vk/kk ?k.Vk yx ldrk Fkk] rc rd ejht dh tku cpkuk vleHHko Fkk] ,sls esa foi{kh la[;k&1 us bUlkuh tku cpkus dh xjt ls jksax lkbZM okgu ysdj tgka ls flQZ rhu feuV esa vLirky igqapk tk ldrk Fkk] bl fodYi dks pquk rFkk b.MhdsVj o ykbVsa nsrs gq, rFkk ,dne fdukjs vius okgu dks /kheh xfr ls c<+k jgk FkkA lkeus ls mDr LdksMk dkj rst xfr ls vk;h ftlds pkyd us okgu ij fu;U=.k ugha j[kk vkSj u foi{kh ds thi ds psrkouh lwpd ykbZVks vkfn dk [;ky j[kk cfYd ?kMcMkgV esa vkSj xfr rst dj lh/ks vkdj thi ls Vdjk x;k---"

21. This Court finds that from the above quoted pleadings, which

is part of record, it is amply proved that there was negligence on

the part of driver of the offending Jeep, as it was plied by its

driver in wrong side at high speed. This Court also finds that after

investigation, the police had filed charge sheet against the driver

of the offending jeep, which is clearly indicator of the fact that

there was negligence on the part of the driver of the jeep in

question. This Court finds that the vehicle jeep was a private LMV

vehicle and was not even meant and insured for allowing

passengers to travel in it, therefore, the learned Tribunal has

rightly exonerated the insurance company (non-claimant No.3)

from its liability to pay the compensation.