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2017 Supreme(Raj) 1854
IN THE HIGH COURT OF RAJASTHAN
ARUN BHANSALI, J.
MOHNI — Appellant
Vs.
RAJENDRA — Respondent
Civil Misc. Appeal No. 672 of 2002
Decided on : 29-08-2017
Advocate Appeared:
For the Appellant :Mr. J.R. Choudhary, Advocate
For the Respondent:Mr. Jagdish Vyas, Advocate
Headnote:
Motor Vehicle Accident Compensation – This appeal is directed against the judgment & award passed by the Motor Accident Claims Tribunal, whereby, the Tribunal has rejected the application for compensation filed by the appellants – It is submitted by learned counsel for the appellants that the Tribunal committed a grave error in arriving at the finding at issue No. 1 and rejecting the claim of the appellants – It was submitted that from the material available on record, it was proved that the accident occurred on account of rash and negligent driving by driver of the Jeep, however, based on conjectures and surmises the issue has been decided against the appellants – Held, So far as the fact as to whether the driver of the Jeep was rash and negligent in driving the vehicle, A.W.2 has clearly stated in his statement that on the straight road when he along with his brother ( deceased) were standing on the side of the road, the vehicle struck them on the wrong side of the road – A look at the site map produced as Ex.3 clearly indicates the tire marks from C to D and the Motor Cycle, which was on its correct side (left), upon being hit by the Jeep, has gone to other side of the shoulder of the road, which clearly indicates that the driver of the Jeep was driving rashly and negligently – In view thereof, the finding on issue No. 1 recorded by the Tribunal is reversed and it is held that the accident occurred on account of rash and negligent driving by the driver of the Jeep, which resulted in grievous injuries to Deceased to which he succumbed – So far as the amount of compensation is concerned, the Tribunal has not dealt with the said issue and normally the matter should have been remanded back to the Tribunal for determination on the said aspect, but looking to the fact that the accident occurred in the year 2000 and the present appeal is pending since 2002, this appeal was decided once on 02.08.2016 now remanding back the matter to Tribunal would be too harsh for the appellants, therefore, same is being determined hereunder – In view thereof, there is no substance in the plea raised by the Insurance Company seeking to disown its liability towards the said vehicle – In view of the above discussion, the appeal is partly allowed, the judgment and award passed by the Tribunal is set aside, the claimants are held entitled to a sum of Rs. 3,61,500/- as compensation along with interest @ 7% p.a. from the date of filing of application on the said amount from the respondents and The National Insurance Company Limited, for which they are jointly and severally liable – Appeal Partly Allowed
Arun Bhansali, J.
This appeal is directed against the judgment & award dated 06.02.2002 passed by the Motor Accident Claims Tribunal, Merta ('the Tribunal'), whereby, the Tribunal has rejected the application for compensation ('the application') filed by the appellants.
2. Earlier the appeal was decided by judgment dated 02.08.2016, whereby, the appeal was allowed. However, on an application filed by the then respondent No. 4 the New India Assurance Company Limited seeking recall of judgment dated 02.08.2016 passed by this Court, it was found that though it was National Insurance Company Limited, which was party respondent before the Tribunal, the New India Assurance Company was wrongly impleaded as party in the appeal and the appeal in the presence of counsel representing the said Insurance Company was decided and, therefore, by order dated 02.09.2016 the judgment dated 02.08.2016 was recalled and matter was ordered to be listed for hearing again after the amended cause title was filed by the appellants and notices were issued to the newly added respondent No. 4-Insurance Company.
3. Both the counsels were heard on the appeal.
4. The application was filed inter alia with the averments that deceased Daya Ram along with his brother Mewa Ram was riding Motor Cycle No. RJ-21-1M-4903 from Merta to his residence on 17/4/2000, when in front of Hanuman Hotel, Jeep No. RJ-21-C-5671, which was being driven rashly & negligently by its driver, collided with them in which Daya Ram suffered injuries and succumbed to the same. It was claimed that age of the deceased was 25 years and his income was Rs. 5000/- per month. Based on the said averments, compensation of Rs. 30,91,000/- was claimed.
5. The claim application was initially filed by Smt. Manori-wife, Mohini-mother, Shivji Ram-father, Mewa Ram-brother and Chotusister, however, as Manori remarried during the pendency of the application, the application was filed seeking withdrawal of the claim on her behalf and to that extent the claim was withdrawn. The application was resisted by respondent nos. 1 to 3, driver, owner and the person in possession of vehicle, respectively denying the averments made in the application. The Insurance Company also filed its reply and denied the averments. It was also claimed that on the date of accident the vehicle was insured in the name of Sugan Chand, whereas, the vehicle stands in the name of someone else and, therefore, the Insurance Company is not liable.
6. On behalf of the claimants, two witnesses i.e. A.W.1-Shivji Ram, father, and A.W.2-Mewa Ram, brother, were examined. On behalf of the Insurance Company N.A.W.1-Atul Kumar Dixit was examined.
7. After hearing the parties, the Tribunal came to the conclusion that as the eye witness Mewa Ram, who claimed to be riding with the deceased on the Motor Cycle has wrongly stated that the FIR was lodged by his uncle Deva Ram, the same creates suspicion. The Jeep was not seized on the spot, the first informant did not see the number of vehicle and from the criminal papers, it cannot be deciphered as to how the vehicle's involvement came to light and consequently held that it cannot be said that the accident took place from the vehicle in question and the Tribunal decided the issue against the claimants. Rest of the issues were decided in light of the issue No. 1 and claim application was rejected.
8. It is submitted by learned counsel for the appellants that the Tribunal committed a grave error in arriving at the finding at issue No. 1 and rejecting the claim of the appellants. It was submitted that from the material available on record, it was proved that the accident occurred on account of rash and negligent driving by driver of the Jeep, however, based on conjectures and surmises the issue has been decided against the appellants. With reference to the police documents and statement of Mewa Ram, it was submitted that it was nobody's case that the vehicle in question was not involved, however, the Tribuna
