HIGH COURT OF JUDICATURE FOR RAJASTHAN

BENCH AT JAIPUR

S.B. Civil Miscellaneous Appeal No. 46/2010

1. Ashok Kumar Sharma son of Sh. Mool Chand Sharma

2. Smt. Madhu Sharma wife of Sh. Ashok Kumar Sharma

both residents of Toli Ka Kuwa, Alwar.

----Claimant-Appellants

Versus

1. Atul Kishore Gupta son of Sh. Jugal Kishore Gupta, resident of

Rav Raja House, Nayawas, Alwar.

...owner of vehicle

2. National Insurance Company Ltd., MI Road, Jaipur.

----Insurer-Respondents

For Appellant(s)

:

Ms. Manisha Surana

For Respondent(s)

:

Mr. Avadesh Kumar Purohit

HON'BLE MR. JUSTICE ANOOP KUMAR DHAND

Judgment

13/05/2022

Instant appeal has been preferred by the appellants (parents

of the deceased Rajesh Sharma) against the judgment and award

dated 01.10.2009 passed by the Court of Motor Accident Claims

Tribunal (Special Judge, SC-ST), Alwar (hereinafter referred to as

'the Tribunal') in MAC case No.24/2005 whereby the claim petition

filed by the claimants-appellants has been rejected.

Counsel for the appellant submitted that on 03.02.2001

deceased Rajesh Sharma was coming on his scooter bearing

No.RJ02-5M-9002 with his friend Anoop Kishore from Ghegholi

Farm to Alwar. The driver of the scooter i.e. Anoop Kishore was

driving the scooter in a rash and negligent manner and by plying

the same to a wrong side, caused the accident by striking the

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[CMA-46/2010]

tractor No.RJ04-R-0743. In the aforesaid accident, both the driver

and pillion rider i.e. Anoop Kishore and Rajesh Sharma sustained

injuries and expired.

Counsel for the appellant further submitted that due to

negligence of the driver of the scooter, the accident occurred,

hence, the claim petition under Section 166 of the Motor Vehicles

Act was submitted before the Tribunal but the Tribunal rejected

the claim petition by holding that the pillion rider is not entitled to

get any compensation as the negligence of the driver of the

scooter was not proved. The Tribunal also held that since the claim

petition was submitted against the driver/owner and insurance

company of the scooter and after investigation, the police has not

submitted charge-sheet against the driver of the scooter, hence

the negligence has not been proved and the claim petition has

been rejected.

Counsel for the appellant further submitted that the legal

heirs of the other deceased i.e. Anoop Kishore submitted a claim

petition under Section 163A of the Motor Vehicles Act before the

same Tribunal and their claim petition was allowed vide judgment

dated 26.09.2007 and compensation was granted to the legal

heirs of the deceased Anoop Kishore. He further submitted that

the claimants-appellants are not aware about the niceties of law

and they didn't know under which provision, claim petition should

have been submitted and under the same eventuality the Tribunal

could have granted adequate compensation by treating the claim

petition under Section 163A of the Motor Vehicles Act.

In support of his contentions, counsel for the appellant

placed reliance on the judgments of Telangana High Court in

the case of Boggarapu Venkata Narayana Vs. B.

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[CMA-46/2010]

Venkateshwarlu, judgment of Madras High Court in the

case of N. Karupayee & Ors. Vs. T. Padmanaban & anr.,

judgment of Hon'ble Supreme Court in the case of Nishan

Singh & Ors. Vs. Oriental Insurance Company Ltd. & Ors.

reported in AIR2018 (SC) 2118 and judgment of this Court

in the case of National Insurance Co. Ltd. Vs. Smt. Vinod &

Ors.

Lastly, he argued that the matter requires reconsideration,

so, the matter be remitted back to the Tribunal for its fresh

adjudication on merits.

Per contra, learned counsel for the respondent opposed the

arguments raised by counsel for the appellant and submitted that

the Tribunal has not committed any illegality in rejecting the claim

petition filed by the appellants as the claimants-appellants have

failed to prove the ne