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2022 Supreme(Raj) 151
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR
BIRENDRA KUMAR, J.
New India Assurance Company Ltd., through Regional Manager, Nehru Place, Tonk Road, Jaipur– Appellant
Versus
Smt. Kanchan Devi W/o Shri Chathurbhuj Ji Soni and Ors. – Respondent
S.B. Civil Miscellaneous Appeal No. 2423/2012
Decided on : 05-02-2022
For the Appellant :Praveen Jain, Advocate
For the Respondent:Rishipal Agarwal and Jai Prakash Gupta, Advocates
Headnote:
Appellant-New India Assurance Company Ltd. is insurer of Truck – Motor vehicle accident – Claim - Payment of compensation - Truck was dashed by a rash and negligent trolley which resulted in death of driver - For accident aforesaid City PS Case was registered - Police came and with help of JCB Crane dragged the damaged truck to the soiled portion of road and the truck was left there under seizure of police - Copy of the FIR - Driver along with others was driving car - FIR of City PS registered would reveal that said one was rash and negligent while driving the car and dashed with said truck from behind truck, resulting in death and injury to others - After investigation of City PS police found that accident was due to rash and negligent driving of Pawan Kumar - Car was insured with Respondent -Oriental Insurance Company Ltd - Legal representatives of victim brought Claim before the Motor Accident Claims Tribunal - Whether appellant-Assurance Company can be held liable to pay compensation or it is the respondent No. 12-Oriental Insurance Company, which should bear the liability of payment of compensation– Held, In court view, none of aforesaid cases are helping respondent in facts and circumstances of this case - In Raj Rani (supra) case the driver of truck had parked truck on mid of the road without any flash light or indicator working - In Shriram General Insurance Co. Ltd. (supra), again driver of lorry had parked half on the Tar road (pitch road) - Likewise, in National Insurance Company Ltd. (supra) truck was parked by driver without any reflectors, blinkers or indicators - Against the said truck a jeep with a moderate speed had collided - Learned Tribunal on wrong in appreciation of the facts as well as law while holding that 50% of contribution to accident was of truck - There is no evidence that the truck was parked at the public place by its driver or owner rather definite evidence is that police crane had dragged the truck to soiled portion of the road leaving the pitch road completely free for movement and car had dashed going on soiled portion of the road without any perceivable obstruction from any other vehicle - Appellant would be entitled to be reimbursed by respondent - Respondent No. 12 shall pay the aforesaid amount to the appellant along with interest paid by appellant to the claimant on the aforesaid amount - Exercise be completed within three months to avoid 12% interest till recovery - Accordingly, this appeal stands allowed.
JUDGMENT :
BIRENDRA KUMAR, J.
1. Appellant-New India Assurance Company Ltd. is the insurer of the Truck bearing Registration No. HR-38H-5545. On 24.12.2007, the truck was dashed by a rash and negligent trolley which resulted in death of driver Raghuvir Singh. For the accident aforesaid Sojat City PS Case No. 389/2007was registered on 25.12.2007. The police came and with the help of JCB Crane dragged the damaged truck to the soiled portion of the road and the truck was left there under seizure of the police. Copy of the FIR is Ex-8 on this record.
2. On 26.12.2007, driver Pawan Kumar alongwith others was driving the car bearing Registration No. RJ-21CA-0783. The FIR of Sojat City PS Case No. 390/2007 registered on 27.12.2007 would reveal that Pawan Kumar was rash and negligent while driving the car on 26.12.2007 and dashed with the said truck from behind the truck, resulting in death of the Pawan Kumar and injury to others. After investigation of Sojat City PS Case No. 390/2007, the police found that the accident was due to rash and negligent driving of Pawan Kumar. The car was insured with Respondent No. 12-Oriental Insurance Company Ltd. The legal representatives of victim Pawan Kumar brought Claim Case No. 364 of 2011 (78/2008) before the Motor Accident Claims Tribunal (Upper District & Sessions Judge) (Fast Track) No. 2, Beawar.
3. The Tribunal found that the said accident was due to negligent parking of the truck without any flash light for guidance of other moving vehicles or any other sign showing stationed truck. In the result, the Tribunal fixed 50% liability on the truck and 50% contributory negligence on the deceased.
4. The appellant is aggrieved by the impugned judgment dated 01.05.2012 passed in Claim Case No. 78 of 2008/364 of 2011.
5. Mr. Praveen Jain, learned counsel for the appellant contends that without verifying the actual state of affairs, the driver and owner alongwith insurer of the truck were impleaded as party in the claim petition alongwith owner and insurer of the car. Without verifying the fact that driver Raghuvir Singh had already died two days back in the accident of the said truck. Learned counsel contends that the Tribunal wrongly fixed 50% negligence of already damaged truck rather the accident was due to 100% negligence of car driver. Moreover, the truck was under the seizure of the police, hence it could not have been held that the parking of the truck was result of negligence of driver or owner of the vehicle. The owner of the truck Jaswant Singh was examined as NAW-2 in the claim case and he is specific that the crane brought by the police had dragged and shifted the truck to the soily road by the side of the main pitch road. The police was not made party deliberately otherwise the entire matter would have surface before the Tribunal.
6. While admitting this appeal for hearing, this Court issued notice to Respondent No. 12 only on the question whether the appellant-Assurance Company can be held liable to pay the compensation or it is the respondent No. 12-Oriental Insurance Company, which should bear the liability of payment of compensation.
7. Mr. Rishipal Agarwal, learned counsel for the respondent No. 12 contends that the Tribunal has relied on the judgment of Raj Rani and Ors. v. Oriental Insurance Company Ltd., reported in 2009 (13) SCC 654 corresponding to 2008 ACJ (SC) 1617 wherein the fact of the case was that the truck was parked on the middle of the road without any flash light and the vehicle which caused death was coming from behind the truck and dashed against the truck. Learned counsel further relies on the judgment of Hon'ble Karnataka High Court in Misc. First Appeal No. 1378/2017: Shriram General Insurance Co. Ltd. v. Pushpa & Ors., in support of his contention on the point of contributory negligence. Reliance has been placed on National Insurance Company Ltd. v. Mrs. Sunita Yadav and Ors., reported in 2007 (1) TAC 992 (Raj.).
8. In my view, none of the aforesaid cases are helping
