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2006 DIGILAW 236 (RAJ)

Rama v. Jariya

2006-01-23

MANAK MOHTA

body2006
Judgment Manak Mohta, J.-The instant appeal has been preferred against the Judgment and award dated 25.03.1996 passed by Judge, Motor Accident Claims Tribunal, Dungarpur in MACT Claim Case No. 51 of 1988 whereby the claim filed by the claimant-appellant has been dismissed. 2. Briefly stated the facts of the case are that on 212.1987 at 1.30 P.M., when appellant-Rama was going on bicycle from village Sabla to Aspur then he saw a Jeep No. RNY 5569 which was being driven by its driver-Jariya (Respondent No. 1) rashly and negligently, hit the cycle, as a result of which, he fell on the road from his bicycle and got fracture in his right leg. It was alleged that the jeep was being driven by Respondent No. 1, the owner of the jeep was Respondent No. 2 and the jeep was insured with Respondent No. 3. A report with regard to the said accident was lodged at the Police Station, Aspur Dist. Dungarpur on the same day by Respondent No. 2 Harish, owner of the jeep. After investigation, challan was submitted by the police against the driver of the jeep (Respondent No. 1) in the competent Court. 3. In the claim petition, it was stated that on account of the injuries sustained to the claimant in the said accident, he was medically examined at M.G. Hospital, Banswara. The doctor advised the claimant-injured Rama for X-ray examination of his right leg and in the X-ray report, the doctor found fracture in his right leg. 4. It was also alleged in the claim petition that the claimant was Khalasi and was earning Rs. 1,000/ -per month. At the time of accident, he was aged 30 years. The claimant has three children. His parents, brother are dependent upon the earnings of the claimant. The injured-claimant remained under treatment for about two months. On account of fracture, the injured-claimant could not do the job for about six months. On 19.07.1988, the injured-claimant filed a claim petition for compensation of Rs. 51,000/- (including loss of monthly income, medical treatment expenses, transportation charges and loss due to permanent dis-ablement). 5. In reply to the claim petition, Respondent No. 3 - Insurance Company stated that the jeep was not insured with it. The cover-note was issued by the Agent to defraud the Insurance Company. The driver of vehicle was not having a valid and effective driving licence. 5. In reply to the claim petition, Respondent No. 3 - Insurance Company stated that the jeep was not insured with it. The cover-note was issued by the Agent to defraud the Insurance Company. The driver of vehicle was not having a valid and effective driving licence. The Respondent No. 3, in its reply denied that the accident occurred due to rash and negligent driving of the jeep. The nature of injury sustained to the claimant was stated to be of simple nature and not of permanent nature. It was prayed that the Insurance Company was not liable to pay any amount of compensation as claimed by the claimant, therefore, the claim petition may be dismissed. 6. Another reply, submitted on behalf of the owner of the vehicle (Respondent No. 2), he denied to be the registered owner of the offending vehicle No. RNY 5669 and stated that he was not liable to pay compensation. He also denied the fact that the claimant sustained injuries from his vehicle. It was also stated that the amount of compensation claimed was exorbitant. It was prayed that the petition may be rejected. 7. On the basis of the pleadings of the parties, following six issues were framed by the the learned Tribunal :- .8. From the claimants side, Rama got examined himself as PW. 1. From the appellants side, FIR (Exhibit-1), injury report (Exhibit-2), charge-sheet (Exhibit-3), and site-plan (Exhibit-4) Registration of Vehicle (Exhibit-5) were produced and got exhibited. In defence, DW. 1 Prakash Patel got examined and produced copy of the Cover-note (Exhibit-A1), copy of the application for taking jeep .(Exhibit-A2), copy of Supurdginama (Exhibit-A3), copy of release order of the jeep (Exhibit-A4) and copy of the registration certification of the jeep (Exhibit-A5). No oral or documentary evidence was led by the Insurance Company. .9. The learned Tribunal, after hearing both the parties, decided issues No. 1,2 and 6 against the claimant-appellant and held that the appellant is not entitled to receive any compensation and vide Judgment and award dated 23.03.1996 rejected the claim petition. The claimant-appellant being aggrieved by that, preferred the present appeal before, this Court. .10. I have heard learned Counsel for the parties and carefully perused the records of the case. 11. The claimant-appellant being aggrieved by that, preferred the present appeal before, this Court. .10. I have heard learned Counsel for the parties and carefully perused the records of the case. 11. During the course of argument, the learned Counsel for the appellant submitted that the learned Tribunal has not properly considered the material available on record and gave erroneous findings on the relevant issues. It was contended that the offending jeep No. RNY 5569 being driven by Jariya to whom the appellant was knowing because of the fact that the driver was also resident of the same village Aspur where the appellant was residing. The Jeep was at high speed and was driven in rashly and negligently. The Jeep hit the appellant and due to that, his right leg was fractured. It was contended by the learned Counsel for the appellant that this fact was corroborated by police investigation result also and on that basis, a charge-sheet was filed in the competent Court against the driver of the Jeep with regard to rash and negligent driving of the Jeep and causing injuries but the learned Tribunal has disbelieved the statement of PW. 1 Rama on minor contradiction. That is not sustainable particularly in MACT cases. It was further stated that the documents prepared during the course of investigation were produced and they also corroborated the facts that the accident occurred due to rash and negligent driving of the offending Jeep. It was stated that Respondent No. 1 - Jariya was at that time in the employment of Respondent No. 2 Harish Chandra Patel and Respondent No. 2 was the owner of the Jeep who being the owner has filed an application in the Court for giving the Jeep on Supurdginama. In this way, it was urged that the findings on issues No. 1, 2 and 6 are not sustainable and liable to be quashed and set aside. 12. Learned Counsel for the appellant also submitted that before accident, the appellant was engaged in the job of Khalasi and he was also doing work of agriculture. Out of that, he was earning Rs. 1,000/- per month but due to accident, he became unable to do the work of khalasi as well as hard work of agriculture. During treatment, he remained confined to bed for about four months. He is having three daughters and one son. Out of that, he was earning Rs. 1,000/- per month but due to accident, he became unable to do the work of khalasi as well as hard work of agriculture. During treatment, he remained confined to bed for about four months. He is having three daughters and one son. They all are dependent on the earnings of the claimant-appellant. Under compulsion, he has started the job of shoe policing and out of that, he earned Rs. 15-20 per day to run his family. It was stated that PW. 1 Rama has deposed before the Tribunal that at that time his age was 30 years. In the accident, his right leg was fractured and he suffered a heavy loss but the learned Tribunal has not properly considered these facts and inadequate amount of Rs. 10,000/-has been determined, that should be quashed. It was urged that reasonable amount of compensation may be awarded. 13. On the other hand, the learned Counsel for the respondents refuted the contentions raised by the appellants side and supported the Judgment . It was further contended by the learned Counsel for the respondents that no independent witness was produced to support the contentions of the appellant. It was also contended that the accident was not occurred due to rash and negligent driving of the concerned Jeep. The report was lodged by Respondent No. 2 on humanitarian ground as the injured was lying on the road. In this way, the Respondent No. 2 is not responsible for any sort of compensation. The learned Counsel for the respondent-Insurance Company also contended that the concerned Jeep No. RNY 5569 was not insured with it. If any cover note has been issued by the Agent to defraud the Company, the Insurance Company is not bound by the same. It was also stated that such objection was raised before the learned Tribunal but issue No. 3 has decided against them. It was stated that in fact, the burden of proving this fact that vehicle was validly insured during that period should have been on the owner of the vehicle but in any way, the Insurance Company is not responsible to pay compensation. The appeal is liable to be dismissed. 14. I have considered the rival contentions raised before me by the learned Counsel for the parties and perused the findings on issues. The appeal is liable to be dismissed. 14. I have considered the rival contentions raised before me by the learned Counsel for the parties and perused the findings on issues. Before discussing the contentions, it would be better to consider the material available on record. From the claimants side, PW. 1 Rama has stated that he was going on cycle from Aspur to Sabla when he reached near Forest Chowki Sabla, Jeep bearing No. RNY 5569 which was being driven by Jariya at a high speed, hit him. His right leg was fractured and injury report Exhibit 2 was prepared. It was stated that on the report to the police, the matter was investigated and relevant papers Exhibit 1 to 4 were produced. It was also stated that charge-sheet against the driver of the Jeep was filed in the Court. It was further stated that during investigation, the police inspected the site and prepared Exhibit 4 site-plan. It is also revealed from the statement of PW. 1 Rama that the driver of the Jeep was known to him because he was also resident of Aspur. The learned Tribunal has disbelieved his statement on the basis that in the statement, he has stated that the offending Jeep came from back side and in the claim petition, he has stated that the Jeep came from front side. In may opinion, the learned Tribunal has not appreciated the material fact in right perspective. PW . 1 has stated that the jeep hit him and he fell down. There is no rebuttal from the other side. During investigation, Exhibit-4 site-plan was prepared, which corroborated the fact that the claimant was hit by the said jeep. It is also revealed that the police, after investigation, has filed the charge-sheet against the driver of the jeep. Likewise, there is no rebuttal from the other side that the jeep driver Jariya was not in the employment of the Jeep owner Harish Chandra Patel at the time of accident. It is also revealed from the record that at the time of accident, the owner of the jeep was Harish Chandra Patel. The owner himself has not appeared but his real brother DW . 1 Prakash Patel has appeared and has stated that the owner of the jeep was Harish Chandra Patel. It is also revealed from the record that at the time of accident, the owner of the jeep was Harish Chandra Patel. The owner himself has not appeared but his real brother DW . 1 Prakash Patel has appeared and has stated that the owner of the jeep was Harish Chandra Patel. It was also admitted by him that the jeep was registered in the name of the Firm Hema Construction. He has further stated that Harish Chandra Patel is the Proprietor of the Firm Hema Construction. DW . 1 Prakash Patel has stated that the jeep was taken on Supurdginama by Harish Chandra Patel. He has produced the insurance cover note Exhibit A/1 of the Jeep of Respondent No. 3 -Insurance Company. For ready reference, the relevant portions of his statement are reproduced below:- 15. In this way, the findings given by the learned Tribunal on issues No. 1, 2 and 6 are against the record, cannot be sustained and liable to be set aside. On the basis of the discussion, it is held that on 212.1987, the accident was occurred due to rash and negligent driving of the offending jeep No. RNY 5569 which hit the claimant and due to that his right leg was fractured. It is also established that at that time, the jeep was being driven by Jariya who was under the employment of Harish Chandra Patel and Harish Chandra Patel was the owner of the jeep and the jeep was insured with Respondent No. 3 The Insurance Company has not produced any evidence to prove their stand. The learned Tribunal decided issue No. 3 against the Insurance Company. No interference is required. 16. On the point of quantum of compensation, I have considered the contentions raised by the parties. PW . 1 Rama has stated that his right leg was fractured. This fact is corroborated by the injury report. He has further stated that he remained confined to bed for near-about 4 months and due to injury, he is unable to do hard work. He has also stated that before accident, he was earning Rs. 1,000/-per month but now due to accident, he is unable to do hard work of agriculture and Khalasi. In his injury report, his age has shown 30 years. At the time of statement, he stated his age 35 years. He has also stated that before accident, he was earning Rs. 1,000/-per month but now due to accident, he is unable to do hard work of agriculture and Khalasi. In his injury report, his age has shown 30 years. At the time of statement, he stated his age 35 years. Taking his age of 35 years and the nature of injury sustained to him in accident, the monthly loss of Rs. 250/- can be assessed for atleast 10 years working line and taking the multiplier of 10, the amount of compensation comes to Rs. 30,000/-= (250 x12 x 10 ). Further Rs. 1,000/-is awarded for pain and suffering. Thus the total compensation comes to Rs. 31,000 /-. No other earning member is in his family. All are dependent upon the earnings of the claimant-appellant. The learned Tribunal has determined loss of earnings Rs. 10,000/-but that is not just and reasonable, that is quashed. Rs. 31,000/-as compensation is determined. Further the claimant-appellant wil be entitled interest @ 6 % per annum on the amount of compensation from the date of claim application. 17. On the basis of the above discussion, under the vicarious liability, the owner of the Jeep Harish Chandra Patel is responsible for the payment of compensation and it is further established that at that time, the vehicle was insured with Respondent No. 3. Thus, Respondents No. 1, 2 and 3 are jointly and severally responsible to pay the aforesaid compensation to the claimant. 18. On the basis of the above discussion, the findings given on issues No. 1, 2 and 6 against the claimant are set aside and the claim petition is partly allowed. Total compensation of Rs. 31,000/-is awarded and the respondents are made jointly and severally responsible for the payment. The appeal is partly allowed and the Judgment and award is passed in favour of the claimant to the tune of Rs. 31,000/-and against the respondents. Further the appellant will entitle to recover interest @ 6 % per annum on Rs. 31,000/-from the date of claim application till payment is made. The appeal is partly allowed and the Judgment and award is passed in favour of the claimant to the tune of Rs. 31,000/-and against the respondents. Further the appellant will entitle to recover interest @ 6 % per annum on Rs. 31,000/-from the date of claim application till payment is made. The vehicle was insured with Respondent No. 3, therefore, it is further directed that Respondent No. 3 should pay or deposit in the Motor Accident Claims Tribunal, Dungarpur, the aforesaid amount of compensation after deducting any amount paid or deposited by them within a period of two months from the date of Judgment failing which the claimant will be entitled to recover the due amount jointly and severally from the respondents. No order as to costs.