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2020 Supreme(Raj) 423
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR
PRAKASH GUPTA, J.
National Insurance Company - Appellant
Versus
Smt. Sumitra Devi W/o. Shri Ghanshyam Sain & Ors. - Respondents
S.B. Civil Miscellaneous Appeal No. 2200 of 2019
Decided On : 28-02-2020
For the Appellant : Mr. Tripurari Sharma.
For the Respondents: Mr. Jai Prakash Gupta, Mr. D.K. Garg.
Point of law:
Approach in examining the evidence in accident claim cases is not to find fault with non examination of some “best” eye witness in the case but to analyse the evidence already on record to ascertain whether that is sufficient to answer the matters in issue on the touchstone of preponderance of probability.
Headnote:
Indian Penal Code, 1860 - Section 279, 304 - Constitution of India, 1950 - Article 41 - Motor Vehicles Act, 1988 - Accident claim – Compensation - where the evidence of claimant’s eyewitness was discarded by the Tribunal and that the respondent in that case was acquitted in the criminal case concerning the accident. This Court, however, opined that it cannot be overlooked that upon investigation of the case registered against the respondent, prima facie, materials showing negligence were found to put him on trial.
Facts of the case:
claimants filed a claim petition before the Tribunal with regard to the death of Ghanshyam Sain in a road accident which took place. With regard to the said accident, a complaint was lodged by the brother of the deceased. investigation was commenced. After investigation, the police filed charge sheet against the driver of the offending vehicle. A claim petition was filed by the claimants, claiming Rs. 80,30,000/- as compensation. None appeared for the respondents no. 1 and 2 despite service of summons and therefore, ex-parte proceedings were carried out against them.
Finding of the court:
Approach in examining evidence in accident claim cases is not to find fault with non examination of some “best” eye witness in case but to analyse evidence already on record to ascertain whether that is sufficient to answer matters in issue on touchstone of preponderance of probability - This view of the matter, learned Tribunal is found not to have committed any error while passing impugned judgment and award and Court in agreement with findings arrived at by Tribunal - Aforesaid reason, appeal filed by Insurance Co.
Result: Petition dismissed.
JUDGMENT :
1. This Civil Misc. Appeal has been filed against the judgment dated 27.2.2019 passed by Motor Accident Claims Tribunal, Beawar (hereinafter referred to as ‘the Tribunal’), whereby a sum of Rs. 8,93,032/- has been decreed in favour of the claimant and against the non claimants respondents.
2. Facts of the case are that the claimants filed a claim petition before the Tribunal with regard to the death of Ghanshyam Sain in a road accident which took place on 26.10.2017 at 8.30-9.00 PM with a motor cycle no. RJ 30 SN 5313 when he was returning from village Bhaisapa to village Durgawas on his motor cycle no. RJ 36/SC 5109.
3. With regard to the said accident, a complaint was lodged by the brother of the deceased on 27.10.2017 at 10.30 AM, whereupon an FIR bearing No. 319/2017 was registered on 27.10.2017 at Police Station, Jawaja for the offences under Section 279, 304A IPC and investigation was commenced. After investigation, the police filed charge sheet against the driver of the offending vehicle.
4. A claim petition was filed by the claimants, claiming Rs. 80,30,000/- as compensation. None appeared for the respondents no. 1 and 2 despite service of summons and therefore, ex-parte proceedings were carried out against them on 8.2.2018.
5. Evidence was led and after hearing both the parties, the Tribunal vide its judgment dated 27.2.2019 awarded a sum of Rs. 8,93,032/- as compensation in favour of the claimants. Aggrieved therefrom, the present Civil Misc. Appeal has been filed by the Insurance Co.
6. Learned counsel for the Appellant Insurance Co. submitted that the Insurance Co. produced the investigator NAW-1 Lalta Prasad and exhibited A/2 and A/3 i.e. Rojnamcha Report. NAW-1 Lalta Prasad stated before the Tribunal that as per his investigation, no accident had taken place with the insured motor cycle no. RJ-30 SN 5313. In-fact the accident had taken place between two motor cycles i.e. RJ 36-SF-9248 Hero Deluxe and RJ-36-SC 5109. He further submitted that from Ex. –A/2 Rojnamcha Report, it is clear that upon receiving the information, police reached the spot and two motor cycles no. RJ-36-SF-9248 Hero Deluxe and RJ-36-SC-5109 Deluxe were lying on the side of the road and both motor cycles were brought to the police station on 27.10.2017. In such circumstances, the police could have or ought to have seized the motor cycle bearing no. RJ 36-SF-9248 on the same day i.e. 27.10.2017. The seizure of the insured motor cycle after 6 days of alleged accident clearly shows that the insured motor cycle bearing No. RJ 30 SN 5313 was falsely involved in the alleged accident. The Tribunal has utterly failed to consider this aspect of the matter. On this count, the impugned judgment and award needs to be quashed and set-aside. In support of his contentions, he has placed reliance on the following judgment:
Cholamandalam General Insurance Co. Ltd. Versus Smt. Badami & Ors. – S.B. Civil Misc. Appeal No. 1148/2018.
7. Learned counsel for the respondents defended the impugned judgment and award and stated the same to be just and proper. In support of his contentions, he has placed reliance on the following judgments:
(i) Mangla Ram Versus The Oriental Insurance Co. Ltd. & Ors. – Civil Appeal Nos. 2499-2500 of 2018, arising out of SLP (Civil) Nos. 28141-42 of 2017
(ii) Sunita and others Versus Rajasthan State Road Transport Corporation and Another – 2019 (1) TAC 710 (SC)
8. Heard. Considered.
9. In the instant case, first information report was submitted on 27.10.2017 at 10.30 AM, wherein the numbers of both the motor cycle were mentioned as RJ 36 SC 5109 and RJ 30 SN 5313.
10. If the contents of Roznamcha are taken into consideration, it is revealed that Roznamcha was prepared on 27.10.2017 at 6.58 AM, and the first information was submitted on 27.10.2017 at 10.30 AM. Although Roznamcha (Ex.A/2 and A/3) was prepared prior to the submission of first information report (Ex.-2), yet to prove the Roznamcha (Ex.A/2 and A/3), its scribe has not been exam
