Research › Search › Judgment

Rajasthan High Court · body

2000 DIGILAW 1310 (RAJ)

National Insurance Co. Ltd. v. Bhoj Raj

2000-10-25

J.C.VERMA

body2000
Judgment J.C. Verma, J.-These two Miscellaneous appeals have been filed by National Insurance Co. Ltd. against the award of the Motor Accidents Claims Tribunal dated 4.2000 passed by the Judge, Motor Accidents Claims Tribunal, Beawar. S.B. Civil Miscellaneous Appeal No. 1246 of 2000 has been filed in the Claim Application No. 43 of 1998 in which an award of Rs. 4,55,000 with interest was passed, whereas Civil Miscellaneous Appeal No. 1247 of 2000 has been preferred in M.A.C.T. Case No. 42 of 1998 in which the award of Rs. 4,90,800 with interest at the rate of 12 per cent was passed. 2. Both the Miscellaneous appeals arise out of the same accident. 3. Thefacts are that on 1.1998 Atma Ram and Tara Chand (now deceased involved in the accident) were coming on scooter from Beawar to Ajmer when they were hit by truck No. GJ 12-U 8931 at about 2.30 p.m. on National Highway No. 8. It was alleged that the truck was being driven with high speed negligently and rashly. For the death of Tara Chand, Claim Application No. 43 of 1998 was filed by the parents, the widow of the deceased and minor son and daughter of the deceased whereas for the death of Atma Ram, Claim Application No. 42 of 1998 was filed by his widow Kavita Devi and four minor children of the deceased. 4. Necessary issues in regard to accident, negligence, death, quantum of compensation were framed. The claimants had produced their evidence and had exhibited number of documents. The respondent did not produce any witness. The record of the F.I.R., Exh. 1; charge-sheet, Exh. 2; site plan, Exh. 3; post-mortem reports, Exhs. 4 and 5; notice, Exh. 6, etc., were filed. Evidence was also filed in regard to profession of the deceased. According to the statement of the wife of Tara Chand, U.P. Ajmer Transport Company was owned by him. Learned Tribunal had come to a finding that Tara Chand was earning about Rs. 3,500 and after dividing into nine units, the dependency was fixed at Rs. 2,723 p.m. with the multiplier of 13, thus the amount of Rs. 4,24,788 was awarded as compensation. The widow was also awarded Rs. 30,000 for loss of consortium, expenses for cremation and for performing other rites. 5. Similarly, in Claim Application No. 42 of 1998 the Tribunal had assessed the income of Atma Ram to be Rs. 2,723 p.m. with the multiplier of 13, thus the amount of Rs. 4,24,788 was awarded as compensation. The widow was also awarded Rs. 30,000 for loss of consortium, expenses for cremation and for performing other rites. 5. Similarly, in Claim Application No. 42 of 1998 the Tribunal had assessed the income of Atma Ram to be Rs. 4,000 and after calculating ten units of the family Rs. 3,200 was assessed as dependency with the multiplier of 12. Compensation of Rs. 4,60,800 was awarded along with Rs. 30,000 for other expenses and on miscellaneous heads. Thus, the total amount of Rs. 4,90,800 was awarded. 6. The insurance company has preferred these appeals on the ground that it has not been proved on record to the effect that the truck was at fault. It was further submitted that the compensation awarded is on very high side. 7. Sofar as part of compensation is concerned, after going through the evidence as produced by the parties, i do not find any merit in the submission of the Counsel for the appellant. 8. Inregard to negligence, it is stated that F.I.R. was recorded immediately and investigation was made. 9. Counsel for the parties rely on the Judgment of the Supreme Court in the case of Pushpabai Purshottam Udeshi v. Ranjit Ginning and Pressing Co. 1977 ACJ 343 (SC), on the principle of res ipsa loquitur and the Judgment of this Court in the case of Gayatri Devi v. Ramesh Chand, 2000 ACJ 898 (Rajasthan), wherein it was held that where the respondent neither filed any reply nor deposed before the Tribunal that there was no negligence on the part of the respondent driver, the doctrine of res ipsa loquitur was held to be maintainable. 10. Counsel for the appellant submits that there can be circumstances when there is no eyewitness available or even if there is any eyewitness, such a witness is not under the control of claimants as they may not like to come to the Court for deposing about the accident and in such circumstances the principle of res ipsa loquitur as enunciated is applicable. For that purpose he relies on a Judgment in the case of Pushpabai Purshottam Udeshi v. Ranjit Ginning & Pressing Co. For that purpose he relies on a Judgment in the case of Pushpabai Purshottam Udeshi v. Ranjit Ginning & Pressing Co. 1977 ACJ 343 (SC), wherein it was held that normally it is for the plaintiff to prove negligence but as in some cases considerable hardship is caused to the plaintiff as the true cause of the accident is not known to him but is solely within the knowledge of the defendant who caused it, the plaintiff can prove the accident but cannot prove how it happened to establish negligence on the part of the defendant. This hardship is sought to be avoided by applying the principle of res ipsa loquitur. The general purport of the words res ipsa loquitur is that the accident speaks for itself or tells its own story. There are cases in which the accident speaks for itself so that it is sufficient for the plaintiff to prove the accident and nothing more. It will then be for the defendant to establish that the accident had happened due to some other cause than his own negligence. Where this maxim is applied the burden is on the defendant to show either that in fact he was not negligent or that the accident might more probably have happened in a manner which did not connote negligence on his part. For the application of the principle, it must be shown that the vehicle was under the management of the defendant and that the accident is such as in ordinary course of things does not happen if those who had the management used proper care. On the circumstances of the case of Pushpabai Purshottam Udeshi, it was held that even though there is no direct evidence available, the Tribunal was justified in applying the doctrine and that it was for the opponents to prove that the incident did not take place due to their negligence. 11. Counsel for the Appellants also relies on the Judgment of Division Bench of Madhya Pradesh High Court in case Padmabai v. M.P. State Road Trans. Corporation, 2001 ACJ 785 (MP), wherein it was held that deceased sustained injuries and died, under such circumstances, the burden shifted on respondents to prove that the bus driver was not responsible for accident. Respondents discharged their burden by examining the driver of the offending vehicle. Corporation, 2001 ACJ 785 (MP), wherein it was held that deceased sustained injuries and died, under such circumstances, the burden shifted on respondents to prove that the bus driver was not responsible for accident. Respondents discharged their burden by examining the driver of the offending vehicle. It was observed as under: “We considered the arguments advanced by the Counsel for both sides and perused the record. The argument of learned Counsel for the appellants that on the basis of the maxim res ipsa loquitur, it must be held that the accident occurred due to rash and negligent driving of the bus, is not acceptable. Normally, the burden of proving negligence is on the claimants but in some cases it is very difficult for them to prove it as cause of accident is not known to them, it is solely within the knowledge of the driver who was driving the vehicle at the time of accident. This hardship is sought to be avoided by applying the maxim res ipsa loquitur, which means that the accident tells its own story and under such circumstances, on proving that the deceased died as a result of motor accident, the burden shifts on the respondent to prove that the accident did not happen due to his own negligence.” 12. So far the principle of res ipsa loquitur is concerned, there is no dispute that it is settled principle of law that it is to be made applicable on the facts and circumstances of that case. 13. For the above said reasons and discussions, I find no merit in both the Miscellaneous appeals and the same are dismissed. The amount deposited be immediately disbursed.