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2004 DIGILAW 472 (RAJ)

National Insurance Company Limited v. Thandas

2004-03-26

H.R.PANWAR

body2004
Judgment H.R. Panwar, J.-This appeal is directed against the Judgment and award dated 31.03.2003 passed by Motor Accident Claims Tribunal, Udaipur (for short ‘the Tribunal’ hereinafter referred to) whereby the Tribunal awarded compensation of Rs. 2,04,700/-in favour of respondents No. 1 to 3 (for short ‘the claimants’ hereinafter referred to) and against respondents No. 4, 6 and the appellant. 2. Aggrieved by the Judgment and award impugned the appellant National Insurance Company Limited (for short ‘the Insurance Company’) has filed the instant appeal. 3. I have heard learned Counsel for the appellant. 4. It is contended by learned Counsel for the appellant that before the Tribunal the appellant moved an application under Section 170 of the Motor Vehicles Act, 1988 (for short ‘the Act’) which was allowed by the Tribunal and the appellant was allowed to contest the claim on all grounds that are available to the insured i.e., owner of the vehicle against whom the claim has been made. It is contended that the accident in question resulted due to sole negligence of the respondent No. 4, the driver and the owner of the truck No HR-38-7877 and, therefore, it is contended that the Tribunal fell in error in holding respondent No. 6 owner of truck No. HR-26-4888 as also the appellant liable for the compensation. The respondent claimants filed a claim petition before the Tribunal against respondents No. 4, 5 and 6 and the appellant. The respondents No. 4 and 6 are owners of truck No. HR-38-7877 and HR-26-4888 respectively. 5. On 24th November, 1996, at about 3.00 p.m. both the trucks noticed above collided against each other on the road from Udaipur to Pullgawa. One Jassaram who was occupant of truck No. HR-26-4888 which was driven by its driver Roop Chand suffered injuries and ultimately he succumbed to the injuries. The claimants are legal representatives of deceased Jassaram. The claimants filed a claim petition against the owners and the insurer of both the trucks stating therein that the said accident was result of composite negligence of drivers of respective vehicles. The truck No. HR-38-7877 was driven by Vijendra Singh and the truck No. HR-26-4888 was driven by Roopchand. Before the Tribunal claimant examined AW. 1 Deevandas, AW. 3 Meetudas and AW. 4 Bhanwarlal, all the three eye-witnesses and the AW. 2 Thandas, the claimant. The truck No. HR-38-7877 was driven by Vijendra Singh and the truck No. HR-26-4888 was driven by Roopchand. Before the Tribunal claimant examined AW. 1 Deevandas, AW. 3 Meetudas and AW. 4 Bhanwarlal, all the three eye-witnesses and the AW. 2 Thandas, the claimant. The appellant as well as the owners of the truck involved in the accident did not lead any evidence before the Tribunal. AW. 2 Devandas clearly stated on oath before the Tribunal that the truck in which he was occupant as well as the truck which came from opposite direction both were driven at high speed, rashly and negligently resulting thereby to a head of collision between both the trucks. He further stated that he suffered injuries on leg, head etc. He stated that the said accident occurred due to fault of drivers of both the trucks due to which Jassaram succumbed to the injuries. He further stated that drivers of both the trucks were responsible for happening of the said accident. AW. 3 Meetudas is also an injured eye-witness and the occupant of the truck. He also made a similar statement and stated that the said accident was caused due to fault of drivers of both the trucks. He stated that both the truck collided head on. AW. 4 Bhanwarlal a labourer in the truck stated that the truck in which he was occupant collided with the truck which came from opposite direction and he suffered injuries on head and leg which resulted in fracture. He placed on record treatment bills, injury report etc. He categorically stated that the said accident took place due to fault of the driver of the truck in which he was occupant. As such, from the statements of these witnesses it has further been established that the said accident was result of rash and negligent driving of the trucks by their respective drivers. There is no dispute that both the trucks collided head to head and Jassaram succumbed to the injuries and afore noticed eye-witnesses suffered number of injuries. 6. Learned Counsel for the appellant contended that as per Exhibit-P/4 site map the accident was due to rash and negligent driving of truck No. HR-38-7877. There is no dispute that both the trucks collided head to head and Jassaram succumbed to the injuries and afore noticed eye-witnesses suffered number of injuries. 6. Learned Counsel for the appellant contended that as per Exhibit-P/4 site map the accident was due to rash and negligent driving of truck No. HR-38-7877. It was further contended that driver of truck No. HR-26-4888 Roopchand lodged a first information report Exhibit-P/3 with the police with the allegation that the accident was due to rash and negligent driving of truck No. HR-38-7877. Before the Tribunal the appellant or the contesting respondent did not produce any evidence and author of the FIR was also not produced. No Motbir of the site map or the author of Exhibit-P/4 were produced. Not only this driver of both the trucks were not produced by the respective owners as also by the appellant insurer who was permitted to contest the claim on all grounds available to the insured. 7. Learned Counsel for the appellant contended that the FIR and site map are not required to be proved in such cases. In the instant case, FIR was lodged by Roopchand driver of truck No. HR-26-4888, who himself was primarily responsible for the accident alongwith driver of other truck and, as such he is an interested persons. The FIR has not been lodged by independent person, on the contrary author of the FIR was a interested person, who is primarily responsible for the accident. The site map was prepared by the police after the accident at the instance of author of the FIR. Under these circumstances, these documents in absence of proof , can not be preferred as against the oral evidence tested by cross-examination. 8. Learned Counsel for the appellant further contended that in the instant case the maxim res ipsa liquitur applies. He replied on a Judgment of this Court in Rajasthan State Road Transport Corporation vs. Nand Kishore and Others, 2002 ACJ 1564. In that case the maxim res ipsa loquitur was applied in a case where the offending bus went off the road to the kachhi patri which is about 5-6 ft. away from the metalled portion of the road and hit the deceased pedestrian resulting in his death. The bus went in kachha and covered a distance of 61 ft. after hitting the deceased. 9. away from the metalled portion of the road and hit the deceased pedestrian resulting in his death. The bus went in kachha and covered a distance of 61 ft. after hitting the deceased. 9. In the instant case, cause of the accident is known to the witnesses and the claimants have produced eye-witnesses and on the basis of which the Tribunal arrived at the conclusion that the said accident was caused due to rash and negligent driving of both the trucks by their respective drivers. 10. It was lastly contended by learned Counsel for the appellant that the compensation awarded by the Tribunal is excessive. Deceased Jassaram was aged about 50 years and used to earn Rs. 2,000/-per month. He was an agriculturist. The Tribunal determined the monthly income of the deceased Rs. 1,800/-and on deducting 1/3rd as his personal living expenses, the monthly dependency was determined at Rs. 1,200/-, and such the annual dependency was determined at Rs. 14,400/-. The annual dependency was further multiplied by multiplier of 13 years’ purchase factor. 11. In the Second Schedule to Section 163-A of the Act, for the age above 45 years not exceeding 50 years, multiplier of 13 years purchase factor is provided by the statute. Thus, by multiplying the annual dependency by purchase factor of 13 years, total compensation comes to Rs. 1,87,200/-, to which a sum of Rs. 15,000/-was added for loss of love and affection etc., and Rs. 2,000/-for funeral expenses and Rs. 500/-for transportation of the dead body. Thus, the Tribunal awarded total compensation of Rs. 2,04,700 /-. The compensation awarded by the Tribunal cannot be said to be on the higher side, on the contrary it is just and proper. Hence, the contention of the learned Counsel deserves to be rejected. 12. No other point was argued. 13. In view of aforesaid discussion, I do not find any error in the Judgment and award impugned. Accordingly, the appeal fails and is hereby dismissed summarily.