2014 Supreme(Raj) 1168
RAJASTHAN HIGH COURT AT JAIPUR BENCH
Nisha Gupta, J.
National Insurance Co. Ltd. - Appellant
Versus
Smt. Prabhu Devi & Ors. - Respondent
S.B. Civil Misc. Appeal No. 1734 of 2002.
Decided On : 25-03-2014
For the Appellant:Praveen Jain, Advocate.
For the Respondents:Sandeep Mathur, Advocate.
For the Respondent No. 9:Kuldeep Sharma for Mahendra Shandiliya, Advocates.
The involvement of a vehicle in an accident must be proved by the claimants on a balance of probabilities.
Headnote:
MOTOR VEHICLES ACT, 1988 - SECTION 173 - INVOLVEMENT OF VEHICLE - DRIVER'S LICENSE - INCOME ASSESSMENT - MULTIPLIERS - DEDUCTIONS - PERSONAL EXPENSES - DEPENDENTS - AGE OF DECEASED - SUMMARY OF THE ACTS AND SECTIONS REFERENCED AND DISCUSSED BY THE COURT.
Fact of the Case:
A claim petition was filed under Section 173 of the Motor Vehicles Act, 1988, alleging that the deceased, Kanhaiyalal, was hit by a truck and died due to the accident. The Insurance Company denied liability, claiming that the impugned vehicle was not involved in the accident and that the driver did not have a valid license.
Finding of the Court:
The court found that the involvement of the impugned vehicle was not proved by the claimants. The court also found that the driver of the impugned vehicle did not have a valid driving license. However, the court held that the Insurance Company could be given liberty to recover the amount from the driver and the owner of the vehicle.
Issues: 1. Whether the impugned vehicle was involved in the accident. 2. Whether the driver of the impugned vehicle had a valid driving license. 3. Whether the income of the deceased was assessed correctly. 4. Whether the multiplier applied was appropriate. 5. Whether the deduction towards personal expenses was appropriate.
Ratio Decidendi: 1. The court held that the involvement of the impugned vehicle was not proved by the claimants because: a) The FIR did not mention the number of the vehicle. b) The eye-witnesses could not identify the involved vehicle. c) The owner of the vehicle himself produced the vehicle at the Police Station, which raised suspicion. 2. The court held that the driver of the impugned vehicle did not have a valid driving license because: a) No specific evidence was produced by the Insurance Company. b) Charge-sheet under Section 3/181 of the Motor Vehicles Act was filed against the driver. c) The driver did not produce his driving license during the proceedings. 3. The court held that the income of the deceased was assessed correctly because: a) The court took into account the revised pay scale which would have been applied from 1.9.96. b) The court added 30% increase as future prospects. 4. The court held that the multiplier applied was appropriate because: a) The deceased was 35-40 years old at the time of death. b) The court applied a multiplier of 15, which is appropriate for a person of that age. 5. The court held that the deduction towards personal expenses was appropriate because: a) The deceased had 7 dependents. b) The court applied a deduction of 1/5, which is appropriate for a person with that number of dependents.
Final Decision: The appeal was allowed, and the judgment and award passed in the claim case were set aside.
JUDGMENT
1. - This appeal Under Section 173 of the Motor Vehicles Act, 1988 has been filed against the judgment and award dated 22.5.2002 passed by Judge, MACT, Tonk in Claim Case No. 440/2001 (6/95) whereby the Insurance Company has been held liable to pay the compensation.
2. The short facts giving rise to this appeal are that on 9.9.1994, deceased Kanhaiyalal was going on road to call veterinary doctor at about 10.00 PM, truck No. Rs. 2631 came and hit him and he died due to the accident. FIR No. 119/94 was lodged. The claimants preferred a claim petition was allowed hence this appeal.
3. The contention of the appellant is that impugned vehicle has been falsely involved in the accident, in FIR it has been specifically narrated that the accident has occurred by unknown vehicle and impugned vehicle has been falsely involved afterward by way of application Ex.4 two eye-witnesses have been stated out of which Kalyan had not been examined and Bhairu Singh has stated specifically in his cross-examination that he has not seen the number of the truck, hence involvement of the vehicle was not proved before the court below. Further contention of the Insurance Company is that the driver of the involved vehicle was not having a valid license, hence a liberty to recover the amount be allowed to it, income has been unnecessarily assessed on higher side, loss of income should be assessed after taking actual income, hence the compensation should be reduced appropriately.Per contra, the contention of the respondents is that the Insurance Company has not objected as regard the involvement of the vehicle, income has been assessed rightly, multiplier of 16 should be applied and looking to the number of dependents, 1/5 deductions should have been made.
4. Heard the learned counsel for the parties and perused the impugned award as well as the original record of the case.
5. The first contention of the appellant Insurance Company is that the impugned vehicle was not involved in the accident and it has been falsely involved. It is not in dispute that Prabhu Devi is not the eye-witness so also Kalyan- AW/3. In FIR number of the vehicle has not been mentioned. Admittedly, the accident has occurred on 9.9.94 and present vehicle has been involved by way of application Ex.4 which has been presented to the Investigating Officer on 2.11.94 about 2 months after the accident in which it has been stated that Kalyan and Bhairu Singh are the eye-witnesses. As already mentioned Kalyan has not been produced and Bhairu Singh has been examined as AW/2 but in cross-examination he has categorically stated that he could not say that which truck has hit the deceased and admittedly, he had not reported the matter to the police. Ex.4 has been lodged by Ratan Lal. Nothing has been explained that how Ratan Lal came to know about the fact that Kalyan and Bhairu Singh are the eye-witnesses of the accident. On the same day i.e. 2.11.94 on which Ex. 4 has been presented, the vehicle has been seized and that too has been produced by the owner of the vehicle himself at Police Station and he has also admitted the fact of accident which also caste a suspicion on the veracity of the evidence of the claimants, hence in view of the fact that basis of Ex.4 is missing and Bhairu Singh could not identify the involved vehicle, the involvement of the impugned vehicle was doubtful and findings to this effect on Issue No.1 are perverse and liable to be set aside and it can safely be concluded that involvement of the impugned vehicle was not proved by the claimants.
6. It is not in dispute that Motor Vehicles Act is a beneficial legislation and in claim petition, strict proof is not needed only on the probabilities, the evidence should have been assessed but here in the present case, there is a big question mark that on which basis the author of Ex.4 Ratan Lal could know about the fact that truck No. RSL 2631 is responsible for the accident and Issue No.1 is held decided in favour of appellant.
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