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Rajasthan High Court · body

2005 DIGILAW 1866 (RAJ)

Bajrangi Bai v. Prabhu Lal

2005-07-21

N.K.JAIN

body2005
Honble JAIN, J.–This misc. appeal is directed against the judgment/award dated 17.12.1993 passed by the Motor Accident Claims Tribunal, Kota in Motor Accident Claim Case No. 111/1991 whereby while rejecting an application for compensation filed by the claimant appellants, awarded a sum of Rs. 25,000/- as compensation on account of no fault liability in favour of claimant appellants and against the non claimant-respondent No. 2 Ram Kishan. (2). The claimant appellants filed a claim petition under Section 166 and 140 of the Motor Vehicles Act, 1988, wherein it was stated that Prabhu Lal, non-claimant-respondent No. 1 was driver of the Truck No. RJR-7875. The deceased Dhana Lal was in employment on the non claimant respondent No. 2, owner of the said truck. It was also stated that due to rash and negligent driving on the part of the driver of vehicle an accident took place, wherein Dhana Lal, died, who was travelling in the Truck. It was also pleaded that Dhana Lal was 25 years of age and was earning Rs. 2000/- per month. The claimant appellants claimed a total amount of compensation of Rs. 12,83,000/-. (3). The non claimant Nos. 1 and 2 driver and owner filed their separate written reply, wherein they denied the fact relating to the accident and submitted that claimants are not entitled to get any compensation. It was also stated that deceased was in employment of non claimant-respondent No. 2. Therefore, he should have filed an application under the provisions of Workman Compensation Act, 1923. It was stated by non claimant No. 2 owner of the vehicle that the truck was insured with the non claimant No. 3, insurance company. (4). The non claimant No. 3 insurance company also filed its separate written reply to the claim application, wherein it was admitted that the truck was insured with it. However, no objections were taken that the driver of the vehicle was not holding any valid driving licence at the time of accident and such there was violation of terms and conditions of the insurance policy. It was also pleaded that an application for compensation has been filed with conspiracy in between the claimants and the non claimant No. 2. (5). The tribunal framed five issues and examined applicants witnesses namely; AW-1 Panthu Lal, AW-2 Bajrangi Bai and AW-3 Chhagan Lal. The non claimants examined NAW-1 Prabhu Lal and NAW- 2 Ram Kishan. It was also pleaded that an application for compensation has been filed with conspiracy in between the claimants and the non claimant No. 2. (5). The tribunal framed five issues and examined applicants witnesses namely; AW-1 Panthu Lal, AW-2 Bajrangi Bai and AW-3 Chhagan Lal. The non claimants examined NAW-1 Prabhu Lal and NAW- 2 Ram Kishan. The insurance company, non claimant No. 3 did not produce any evidence oral or documentary. (6). The tribunal vide its judgment/award dated 17.12.1993 decided issue No. 1 against the claimants and in favour of the non claimants and held that on the basis of evidence produced by claimants, the negligent driving of non claimant No. 1 driver of vehicle is not proved. So far as issued No. 2 is concerned. The tribunal held that claimants are entitled to get only a sum of Rs. 25,000/- as compensation on the basis of no fault liability from the non claimant No. 2, owner of the vehicle. Issues Nos. 3 and 4 were not pressed by the insurance company. Issue No. 5 was also not pressed by the learned counsel for the non claimant No. 3, insurance company. In the result, learned tribunal dismissed the claim application against the non claimant No. 1 and 3, driver and insurance company, but allowed claim application against the non claimant No. 2 Ram Kishan, owner of the vehicle and passed an award of Rs. 25,000/- with interest at the rate of 12% per annum from the date of filing of the claim application. (7). Being aggrieved with the above judgment, the claimant appellants have preferred this appeal. (8). I have heard the learned counsel for both the parties and examined the impugned award as well as record of the tribunal. (9). Learned counsel for the claimant appellants contended that tribunal has committed an illegality in deciding the issue No. 1 against appellants. There was sufficient evidence available on record to prove issues Nos. 1 and 2 in favour of appellants. (9). Learned counsel for the claimant appellants contended that tribunal has committed an illegality in deciding the issue No. 1 against appellants. There was sufficient evidence available on record to prove issues Nos. 1 and 2 in favour of appellants. He has referred the statement of AW-3 Chhagan Lal, who has stated that the deceased Dhana Lal died in accident and he lodged the report in this regard, which is Ex.1 in which it has specifically been mentioned that on 31.5.1991 the deceased Dhana Lal was going in Truck No. RJR 7875 and due to negligence of truck driver, the truck hit the tree and accident took place wherein Dhana Lal died. The police investigated the matter. Site plan was prepared, which is also available on record as Ex.3. Charge-sheet Ex.2 under Section 304-A IPC was filed against the non claimant No. 1 Prabhu Lal, driver of truck. The post mortem report Ex-4 was also filed in the case. Ex. 5 is the copy of the notice given by Investigating Officer to the owner of truck Ram Kishan. The mechanical report is Ex. 6, which shows that truck met with in an accident. The above evidence clearly shows that Dhana Lal, died in an accident, which took place because of rash and negligent driving of the non claimant No. 1 Prabhu Lal. Therefore, it is clear that the finding of the learned tribunal in respect of issue No. 1 is not correct. In fact the learned tribunal has not even referred and considered the above referred documents, which were available in respect of issue No. 1 is liable to be reversed. The issue No. 1 is decided in favour of claimants and it is held that Dhanna Lal died in an accident which took place because of negligent driving of the non-applicant No. 1 Prabhu Lal. (10). So far as other issues are concerned. It is clear from the judgment itself that issue No. 5 was specifically framed as to whether the insurance company, in view of para No. 3 and 4 of its reply, is liable to indemnify the liability of the insured. The judgment of the tribunal shows that this issue was not pressed by the learned counsel for the insurance company, who appeared in the tribunal. The judgment of the tribunal shows that this issue was not pressed by the learned counsel for the insurance company, who appeared in the tribunal. The paragraph No. 3 of the reply of the insurance company relates to conspiracy in between the claimants and non claimant No. 2, owner of vehicle. Para No. 4 of the reply of the insurance company relates to gratuitous passenger. It was stated that vehicle, in dispute was insured as a goods vehicle wherein driver, cleaner and four labourers were covered. Issue No. 3 was not pressed by the learned counsel for the insurance company in the tribunal. The respondent No. 3 now submits that the deceased was neither cleaner nor driver or labour. Therefore the insurance company should be exonerated from its liability. However no explanation has been given with regard to the findings of the tribunal in respect of issue No. 5, wherein it has been mentioned that learned counsel for the insurance company does not press this issue. So far as insurance of vehicle is concerned, the same is not in dispute. Insurance policy is Ex-A-1. Therefore, in these circumstances, it is clear that the insurance company is liable to indemnify the liability of the insured. (11). Now the question remains about the award of compensation as to what should be reasonable amount of compensation, which should be awarded in favour of the claimants appellants looking to the age and income of the deceased. (12). AW-1 Panthu Lal, the father of deceased, has stated in his statement that the age of deceased was 25 years at the time of accident and he was earning Rs. 2500/- per month as salary. AW-2 Bajrangi Bai, the wife of deceased, has stated in her statement that the age of deceased was 25 years at the time of accident and he was earning Rs. 2500/- per month as salary. AW-3 Chhagan Lal, has also stated about about the age and income of the deceased as 25 years and Rs. 2500/- per month. NAW-1 Prabhu Lal, the driver of vehicle, has not stated in his statement in this regard. NAW-2 Ram Kishan, the owner of vehicle, has stated in his statement that the deceased was in his employment and his salary was Rs. 300/- per month. He denied the salary of deceased as Rs. 2000/- per month. (13). 2500/- per month. NAW-1 Prabhu Lal, the driver of vehicle, has not stated in his statement in this regard. NAW-2 Ram Kishan, the owner of vehicle, has stated in his statement that the deceased was in his employment and his salary was Rs. 300/- per month. He denied the salary of deceased as Rs. 2000/- per month. (13). So far as the age of deceased as 25 years is concerned, the same is proved from the statements of AW-1 to AW-3 and also from the post mortem report, Ex-4. (14). So far as the income of deceased is concerned, either of the party has not placed on record any documentary evidence in support of their respective case. The statements of applicants as well as non-applicants in respect of the income does not appear to be genuine. Therefore, looking to the age and income of deceased, it will be fit and proper to award a lump sum amount of Rs. 1,25,000/- as compensation under all heads. The amount is just and reasonable, If a sum of Rs. 25,000-awarded by Tribunal, has been paid to claimants, then the same will be adjusted. The amount shall carry interest at the rate of 6% per annum from the date of filing of the claim petition i.e., 11.3.1992 till the date of deposit of the amount by the respondents. (15). Consequently, the appeal is allowed. The impugned judgment is modified. The respondents are directed to deposit the amount of compensation as mentioned above within a period of one month in the tribunal. The appellant No. 1 Bajrangi Bai will be entitled to receive 75% of the total amount for herself and her daughter Pinki. The appellant No. 2 and 3 Panthu Lal and Gordhani Bai, who are parents of the deceased will be entitled to receive 25% of the amount of compensation. The tribunal is directed to deposit the entire amount of compensation in the Monthly Income Scheme of the Post Office for a period of six years in the name of claimants. The claimants will be entitled to receive monthly interest and the full amount on the date of maturity of the M.I.S. There will be no order as to costs.