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Rajasthan High Court · body

2008 DIGILAW 1032 (RAJ)

National Insurance Co. Ltd. v. Smt. Yashoda Jain

2008-04-15

MANAK MOHTA

body2008
JUDGMENT 1. - By this appeal, the appellant-National Insurance Company has challenged validity and propriety of the judgment and Award passed by the learned Judge, Motor Accident Claims Tribunal Balotra dated 3.6.1994 whereby the learned Judge has partly allowed the claim petition and awarded compensation of Rs. 3,75,500/- to claimant No.1 Smt.Yashoda, Rs. 77,000/- to claimant No.2- Smt. Bharti Devi and Rs. 53,000/- to claimant No.3-Tarachand Jain with interest @ 12% per annum from 16.11.1993. In this way, the learned Tribunal awarded a sum of Rs.5,05,500/- as compensation to the claimants. Out of that amount, the learned Tribunal further held the jointly and severally responsibility of the truck driver, owner and Insurance Company of the truck for the payment of compensation upto 80% of the awarded amount along with interest and for the remaining 20% held jointly and/or severally responsibility for the payment of bus driver, owner and Insurance Company of the bus (appellant). The claim petition was dismissed against the non-claimants No.5 and 8. 2. The facts of the case, in brief, are that the deceased Surya Prakash @ Ramesh Kumar was travelling from Jodhpur to Barmer in the Roadways Bus being No. RJ 19P/989. The incident took place on 1.3.1995, at about 2.20 PM on Jodhpur-Pachpadra Road at a distance of 1= Kms from Bhandiyawas Bus-stand. At that time, a Truck bearing No. RSA 107, which was being driven rashly and negligently by Chainsukh @ Prem Dass, was coming from Panchpadra side and Bus No. RJ 19P/989 which was being driven by Shyam Bharti, was going towards Pachpadra side. Due to negligent driving of the Truck it dashed with the bus and caused accident. whereby, Surya Prakash, who was sitting just behind the seat of the driver in the Bus, sustained severe injuries and due to that, died in accident. It was stated that the deceased was 35 years of age at the time of accident and was doing business of Commission Agency and was earning Rs.5000/- per month. It was submitted that the whole family was dependent upon the income of deceased, thus, they suffered monetary loss and mental shock. The claimants herein are the dependents, i.e. widow, mother and father of late Surya Prakash who have filed a claim petition for awarding the compensation of Rs. 33,01,000/- on various heads in the court of M.A.C.T. At Nohar. 3. The claimants herein are the dependents, i.e. widow, mother and father of late Surya Prakash who have filed a claim petition for awarding the compensation of Rs. 33,01,000/- on various heads in the court of M.A.C.T. At Nohar. 3. Non-claimant No.1 and 2 owner and driver of the said truck filed a joint reply. In their reply, they denied all the averments made in the claim petition. It was stated that the accident took place due to rash and negligent driving of the bus by its driver and, therefore, they are not responsible for paying compensation and further denied rest of averments made in the claim petition. 4. Non-claimant No.3 insurer of the truck-United India Insurance Company also filed reply to the claim petition denying their responsibility for compensation further stating therein that the driver of the truck was not having valid licence at the time of accident that was a breach of the terms of policy, therefore, the Insurance Company can not be held responsible to pay compensation to the claimants. 5. A joint reply was filed on behalf of the bus driver and owner non-claimant-respondents No. 4, 5 and 6. In reply, non-claimant- respondents No.6 and 4 driver and registered owner of the bus and his attorney respondent No.5 denied their fault for committing accident. It was further stated that it was the truck who hit the bus.. 6. In the reply filed on behalf of the insurer of the bus non-claimant No.7-appellant-National Insurance Company took a stand in his reply that the accident took place due to rash and negligent driving of the truck by its driver. It was submitted that it is evident from the site-plan and other papers prepared by the police during investigation of the said report of the incident. In such circumstances, the Insurance Company can not be held responsible to pay compensation to the claimants. The answering-non-claimant denied rest of the averments made by the claimants in their claim petition. 7. Non-claimant No.8 RSRTC has also filed reply to the claim petition. The answering-RSRTC has denied all the averments for want of knowledge. It was stated that the accident occurred due to rash and negligent driving of the truck. It was prayed that the claim petition may be dismissed. 8. 7. Non-claimant No.8 RSRTC has also filed reply to the claim petition. The answering-RSRTC has denied all the averments for want of knowledge. It was stated that the accident occurred due to rash and negligent driving of the truck. It was prayed that the claim petition may be dismissed. 8. On the basis of the pleadings of the parties, the learned Tribunal has framed the following issues:- " 1- vk;k foizkFkhZ ua0 1 us fnukad 01-09-1993 dks ljgn HkkafM;kokl esa okgu V~d ua0 vkj0,l0,0 107 dks rst xfr o ykijokgh ls pykdj cl uEcj vkj0ts0 19 ih@0989 ds Vddj ekjdj nq?kZVuk dkfjr dh] ftlls lw;Zizdk'k mQZ jes'k dqekj dh e`R;q gqbZ\ 2- vk;k izkFkhZx.k gtkZuk ikus ds vf/kdkjh gS\ ;fn gka rks fdlls o fdl dnj\ 3- vuqrks"kA " 9. The learned Tribunal recorded the evidence produced by the parties and exhibited the documents. 10. After perusing the evidence and taking into consideration, the documents available on record and after hearing both the sides vide judgment and Award dated 3.6.1995, the learned Tribunal held that the accident occurred out of use and involvement of the said both the vehicles. The learned Tribunal further held that the truck was driven rashly and negligently at a high speed and the Bus driver had not taken due precaution in saving accident. Thus, held contributory responsibility of the truck and bus owners in ratio of 80:20 in causing accident resulting in death of Surya Prakash and thus held their responsibility for paying compensation accordingly. The learned Tribunal has over-ruled the other contentions raised by the non-claimants and after considering the age and income of the deceased awarded compensation as stated above. 11. Being aggrieved by the judgment and Award dated 3.6.1995, the National Insurance Company-insurer of the said bus, filed the present appeal challenging the finding and conclusion of the learned Tribunal in holding the contributory negligence to the extent of of the bus in causing accident and holding their responsibility to the extent of 20% of the total awarded amount. Notice of the appeal was issued to the opposite parties, record of the case was called and arguments of the parties were heard. 12. Notice of the appeal was issued to the opposite parties, record of the case was called and arguments of the parties were heard. 12. During the course of arguments, learned counse for the appellant contended that the appellant-National Insurance Company though has not taken permission under Section 170 of the M.V.Act to contest the case on all defence available to the owner of the vehicle but looking at the finding and conclusion drawn thereon by the learned Tribunal that is perverse and against the finding of the learned Tribunal itself and on that basis erroneous judgment has been passed by holding responsibility for the payment of part compensation that is not maintainable, therefore, the contentions placed by the appellant may be considered and appreciated and the judgment and Award passed against the appellant may be quashed. 13. It was contended by the learned counsel that the bus in question was plying at his right side beyond tarcoal road, therefore, no question arises for negligent act on the part of the bus driver. It was the truck, which was driven by the driver rashly and negligently at a high speed and came in the wrong side and dashed the bus. It was urged that same thing has been stated by the witnesses appearing on behalf of the claimants. They have nowhere stated that the bus was driving rashly and negligently, therefore, it was a total case of negligence on the part of the truck driver but the learned Tribunal while discussing the material available on record, held 20% contributory negligence of the bus. It was also urged that this finding is also against the conclusion drawn by the learned Tribunal itself on issue No.1, in which, at the first place, the learned Tribunal has stated that the accident has occurred due to rash and negligent driving of the truck. Thus, the finding is contradictory. On the basis of these submissions, it was prayed that the finding on issue No.1 may be set aside and the conclusion of contributory responsibility in causing accident by the bus driver may be set aside. The appellant-Insurance Company may be exonerated from paying the compensation. 14. On the contrary, the learned counsel for the respondents refuted the contentions and made submissions that the present appeal has been filed by the Insurance Company but their defence are limited. The appellant-Insurance Company may be exonerated from paying the compensation. 14. On the contrary, the learned counsel for the respondents refuted the contentions and made submissions that the present appeal has been filed by the Insurance Company but their defence are limited. They have no right to contest the case and to make submissions with regard to issue No.1 as they have not obtained proper permission under section 170 of the M.V.Act before the learned Tribunal. If they would have wanted to contest the case, they should have obtained the permission. Thus, the present appeal is non-maintainable. It was also contended that the finding on issue No.1 is based on whole facts available on record and the conclusion drawn by the learned Tribunal on issue No.1 is not per verse. The learned Tribunal has gone through the record of the case and on that basis, it was found that there was collusion between the two vehicles, the major role has been found of truck but involvement of bus was also there, therefore, the shared of responsibility has been determined in the ratio of 80:20, the finding with regard to contributory negligence is perfectly correct and no interference is required in appeal and the appeal is liable to be dismissed. 15. I have considered the rival submissions and perused the finding and the conclusion drawn thereon by the learned Tribunal. From perusal of the record, it is not disputed that the appellant has not obtained any permission u/170 of the M.V.Act to defend the case on the defence available to the owner before the learned Tribunal. It is also not revealed from the record that the appellant ever has applied for the same or made any prayer in this respect before the learned Tribunal. In the memo of appeal, they have also admitted this thing, therefore, looking to the status of the appellant-Insurance Company that there was no permission to defend the case on all the defences available to the owner. Thus the appellant Insurance Company was not entitled to contest the case with regard to issue No.1. A prayer was made during arguments to consider the contentions with finding on issue No.1 but considering the contentions, no exceptional special grounds exits to consider the prayer, therefore, the appeal prima facie is not maintainable and deserves to be dismissed. Thus the appellant Insurance Company was not entitled to contest the case with regard to issue No.1. A prayer was made during arguments to consider the contentions with finding on issue No.1 but considering the contentions, no exceptional special grounds exits to consider the prayer, therefore, the appeal prima facie is not maintainable and deserves to be dismissed. Even though, I have seen the finding on issue No.1 arrived at by the learned Tribunal. The learned Tribunal has first considered the role of the truck and came to the conclusion that due to rash and negligent driving of the truck, the accident has occurred and on that basis, held responsibility of the truck in causing the accident. Simultaneiously, the learned Tribunal has also looked into the other material available on record. By perusing of the site-plan and other material available on record, the contention of the appellant that at the time of accident, the concerned bus was plying beyond tarcoal Road is not correct as stated. In this respect, AW 2 Loonkaran has stated that at the time of accident, the bus was also on tarcoal road. The relevant portion of the statement of AW 2 Loonkaran is reproduced below:- " cl igys chp esa py jgh Fkg ,oa V~d vkrh ns[kdj viuh lkbZM esa yhA ;g Vddj gqbZ rc cl iwjh Macj lM+d ij gh Fkk mldk ,d ifg;k dPps esa Fkk ;g /;ku ughaA " 16. This fact also finds support from the site-plan(Ex.4) and site-inspection note (Ex.5) which were prepared just after accident by the police during investigation with regard to the report lodged in respect of the accident. From their perusal, it is made clear that there was a collusion of two vehicles. Thus the finding of the learned Tribunal that upto 20%, bus was also responsible for causing accident, is not per versed and against the record, therefore, the finding on issue No.1 arrived at by the learned Tribunal does not require any interference and that is required to be maintained. On that basis, the learned Tribunal held that the truck and bus were liable for causing accident in the ratio of 80:20 that is to be maintained. No other contention was raised by the appellant, therefore, the on the basis of the aforesaid discussion, the appeal deserves to be dismissed. 17. On that basis, the learned Tribunal held that the truck and bus were liable for causing accident in the ratio of 80:20 that is to be maintained. No other contention was raised by the appellant, therefore, the on the basis of the aforesaid discussion, the appeal deserves to be dismissed. 17. The net result, the appeal filed by the appellant- Insurance Company is liable to be dismissed and that is hereby dismissed. The judgment and Award passed by the learned Tribunal is confirmed. Looking to the facts and circumstances of the case, no order as to costs.Appeal dismissed. *******