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2008 DIGILAW 1015 (MP)

Oriental Insurance Co. Ltd. v. Chogalal

2008-08-12

J.K.MAHESHWARI

body2008
JUDGMENT J.K. Maheshwari, J. 1. This appeal is filed by the appellant insurance company, assailing the award dated 26.10.2006, passed by learned M.A.C.T., Indore in Claim Case No. 8 of 2005. By the impugned award, the Claims Tribunal has awarded a total sum of Rs. 1,54,500 with interest to the respondents by way of compensation for the death of their daughter Radha. 2. A claim petition was filed by the claimants-respondent Nos. 1 and 2, seeking compensation for an accident that took place on 16.11.2000 by Tata Sumo bearing registration No. MP 09-S 5894. It is stated in the claim petition that Radha aged 10 years along with her friend Reena was standing on the bank of the road near primary school of village Bhorasla at Indore-Sanwer Road to cross it. At that time, Tata Sumo bearing No. MP 09-S 5894 driven rashly and negligently by the driver hit Radha whereby she died on the spot and Reena was seriously injured. Respondent No. 3 was the owner of the said vehicle, which was insured with the appellant; however, the compensation was sought for to the tune of Rs. 1,00,000. Respondent No. 3 has denied the accident. It is averred that in the F.I.R. the accident was said to have been caused by Tempo Trax bearing registration No. 5894; however, the accident has not been done by Tata Sumo. It is further averred that the said Tata Sumo was in the use of one Civil Judge Rajiv Pal of Jhabua; however, the accident near Indore cannot take place by such Tata Sumo on the date of incident. In view of the said defence, prayer was made to dismiss the claim petition. 3. Appellant insurance company has filed their reply taking a preliminary objection that because the driver of the vehicle was not joined as party to the proceeding, who is a necessary party, therefore, the claim petition is liable to be dismissed. The insurance of Tata Sumo bearing No. MP 09-S 5894 with the appellant was denied. It is further denied that the driver was having a valid driving licence. It is also averred that in the F.I.R. name of the driver has not been mentioned and the make of the vehicle was shown as Tempo Trax No. 5894, therefore, the claim petition filed alleging involvement of Tata Sumo is false and fabricated. It is further denied that the driver was having a valid driving licence. It is also averred that in the F.I.R. name of the driver has not been mentioned and the make of the vehicle was shown as Tempo Trax No. 5894, therefore, the claim petition filed alleging involvement of Tata Sumo is false and fabricated. It is also averred that because the police authorities have not done any investigation, no challan has been filed for the said accident against the driver of the vehicle. On the contrary, final report was submitted because the make of the vehicle was different from that specified in the F.I.R. In such circumstances it was prayed that the claim petition is liable to be dismissed. 4. Learned Claims Tribunal has framed as many as five issues. Issue No. 1 relates to occurrence of the accident on 16.11.2000 by Tata Sumo bearing No. MP 09-S 5894 and causing death by rash and negligent driving and other issues relate to various other pleadings for computation of compensation and of liability. Learned Claims Tribunal has recorded a finding that the accident took place by Tata Sumo bearing No. MP 09-S 5894, which was driven rashly and negligently by the driver and by causing accident, thereby Radha has died. Claims Tribunal awarded an amount of compensation of Rs. 1,54,500 along with interest at the rate of 6 per cent per annum. 5. Mr. S.V. Dandwate, learned Counsel appearing on behalf of the appellant has argued with vehemence that the Tribunal has committed an error in recording the finding regarding occurrence of the accident on 16.11.2000 by Tata Sumo bearing No. MP 09-S 5894 causing death of Radha. It is argued by him that in the F.I.R. the make of the vehicle was mentioned Tempo Trax bearing No. 5894, but no vehicle was registered on such number, therefore, the police has submitted the final report. In such circumstances the involvement of the vehicle is doubted, even then the Tribunal has recorded a finding of causing accident by Tata Sumo bearing No. MP 09-S 5894. Such finding is illegal and contrary to the evidence available on record. In such circumstances the involvement of the vehicle is doubted, even then the Tribunal has recorded a finding of causing accident by Tata Sumo bearing No. MP 09-S 5894. Such finding is illegal and contrary to the evidence available on record. He further argues that because final report in criminal case was submitted, therefore, the finding recorded that the said accident is caused by Tata Sumo bearing No. MP 09-S 5894 is without any basis, merely relying on the statement of the close relatives is unsustainable. 6. On the other hand, Mr. H.S. Rajpal, learned Counsel appearing for claimants-respondent Nos. 1 and 2 has argued with vehemence that the Claims Tribunal has appreciated the evidence adduced in the claim case in paras 9 to 18 wherein the statement of claimants were found worthy of credence and relied upon. Accordingly, the finding as recorded by the Claims Tribunal is based on due appreciation of the evidence and well considered which is not liable to be interfered with until and unless it is shown to be perverse. The appellant has failed to demonstrate that such findings are perverse. On the contrary, the Tribunal has rightly observed that the evidence of the criminal case cannot be relied upon and form the basis in a claim case. In that view of the matter the finding recorded by the Claims Tribunal is liable to be upheld and the compensation awarded by Claims Tribunal is also liable to be upheld by dismissing the appeal filed by the insurance company. 7. After having heard the learned Counsel appearing for the parties and on going through the statement of AW 1, Chogalal; AW 2, Kailash; AW 3, Sarwar Qureshi and the statement of non-applicants Govindram Meena and Dilip Yadav it is apparent that Radha was standing along with her friend Reena at the bank of the road. At that time Tata Sumo bearing No. MP 09-S 5894 coming from Sanwer dashed Radha and Reena. Mere writing the different make of vehicle in the F.I.R. which was lodged by a police official does not dislodge the commission of the accident, because in the statement of Kailash, AW 1 it was specifically said by him that on 16.11.2000 at about 10 a.m. in the morning, Tata Sumo bearing No. MP 09-S 5894 was driven rashly and negligently by the driver and dashed against Radha, who died in the said accident. He further stated that he did not make any report in the police station because he took away Radha and Reena to the hospital for treatment. The testimony was found in ocular by the Claims Tribunal. It is further seen that the F.I.R. was registered on the instigation of constable Ramnarain and not by Kailash, wherein final report was submitted by the police authorities, due to difference in make of the vehicle from the F.I.R.; however, a memorandum was submitted by Chogalal to the police authorities to take action against erring police officers who have not seized the vehicle Tata Sumo bearing registration No. MP 09-S 5894, Exh. P2. The Tribunal has further considered that if the vehicle was with a Judge, then it is highly improbable to keep said vehicle with him for 4-5 days without running anywhere. Tribunal has also observed that the driver of the vehicle has not been called for in the witness-box who can safely depose that where the said vehicle had remained during such period and plied at how many places. In view of these facts in consideration of the ocular testimony of the witnesses of the claimants and also looking to the request made to the Superintendent of Police as per Exh. P2 the finding is recorded that merely not taking any action by the police authorities and by submitting the final report in criminal case the accident cannot be doubted. It is further held that merely change of the make of the vehicle does not falsify the claim particularly when the eyewitness AW 1, Kailash has specifically stated the registration number of vehicle and said that he has seen the accident committed by Tata Sumo bearing No. MP 09-S 5894 dashing against Radha and Reena. Thus, relying upon this statement and the statements of other witnesses the finding has been recorded by the Claims Tribunal proving the said accident. Claims Tribunal has elaborately discussed the statements of witnesses in paras 9 to 17 and thereafter in para 18 finding has been recorded on issue No. 1 in favour of the claimants to prove the accident by Tata Sumo bearing No. MP 09-S 5894 and of causing death of Radha in that accident. I am satisfied that such finding recorded by the Tribunal is based on the appreciation of evidence and not perverse, thus do not call for any interference. I am satisfied that such finding recorded by the Tribunal is based on the appreciation of evidence and not perverse, thus do not call for any interference. Merely on submitting final report by the police authorities does not fortify the claim filed by the claimants seeking compensation for death of Radha. Learned Counsel for the insurance company has not assailed the quantum as awarded by the Claims Tribunal. Even otherwise the compensation awarded to the claimants to the tune of Rs. 1,54,500 is just and reasonable for the death of a child aged 10 years. 8. In view of the foregoing discussion, I am of the considered view that the appeal filed by the appellant insurance company is without any merit and liable to be dismissed. It is, accordingly, dismissed. In the facts and circumstances of the case, parties are directed to bear their own costs.