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2008 DIGILAW 1401 (RAJ)

Deva Ram v. Jaidev Singh @ Jagbeer Singh

2008-05-19

MANAK MOHTA

body2008
JUDGMENT 1. - The instant appeal has been preferred by the claimants against the judgment and award dated 24.5.2004 passed by the Judge, Motor Accident Claims Tribunal Banner in Claims Case No. 25/1999 whereby the learned Tribunal has dismissed the claim petition filed by the claimants. 2. The facts of the case, in brief are that on 30.09.1998 deceased Junjaram left his village Kitnoriya for village Sanavra at Barmer to see his materials residing there. At about 05.00 PM, while he was going from Sanavra bus-stand to the house of his uncle Rekharam and was walking at the left side of the tarred road, a truck bearing No. WB-37/4580, which was rashly and negligently driven by Jagdev Singh @ Jagbeer Singh, respondent No. 1 hit the deceased Junjaram, further more, fro was dragged by the said truck for about 15ft ahead on the road, as a result of which he died on the spot. The report of this incident was lodged at Police Station, Sadar Banner, after investigation, respondent No. 1 driver of the Truck Jagdev Singh was found responsible for committing accident and for causing death of Junja Ram. A charge sheet was filed against him in the Court. It was stated that Jagdev Singh, respondent No. 1, was the driver as well as was the owner of the truck and the said truck was insured with the Oriental Insurance Company Ltd., Jodhpur respondent No.2. 3. The legal representatives, being father and mother of deceased Junjaram further staled in claim petition that at the time of accident he was 14 years old and was earning Rs. 1800/- per month, the claimants wore used to ho benefited by his income but due to untimely death they suffered a lose of income as well as mental shock. They submitted a claim petition before the Motor Accident Claims Tribunal, Banner on 07.02.1999 under Sec. 166 of the M.V. Act for awarding Rs. 8,28,000/- as compensation on various heads, for the untimely death of Junja Ram in the road accident stating both the respondents responsible for payment of compensation. The claimants also placed certified copies of challan papers filed against respondent No.1. They also filed certified copies of the driving licence of the Truck driver as well as the copy of the insurance cover note of truck issued by respondent No. 2, along with claim petition. 4. The claimants also placed certified copies of challan papers filed against respondent No.1. They also filed certified copies of the driving licence of the Truck driver as well as the copy of the insurance cover note of truck issued by respondent No. 2, along with claim petition. 4. Jagdev Sing @ Jagbeer Singh, respondent No.1 and the Oriental Insurance Company, respondent No.2 contested the claim and in their replies they denied the averments made in the claim petition Respondent No.1 Jagdev Singh driver cum-owner of the said truck further admitted in reply that at the time of accident he was driving the said vehicle and he was having proper and valid licence to driven the said vehicle and further admitted the occurrence of accident in which Junja Ram died hut it was slated that the accident occurred due to his own negligence as he' was walking on the road. It was also stated in reply that he was the owner of the truck and the said truck was insured with respondent No.2 therefore, in case any situation arises for granting compensation then respondent No.2 would be responsible for the payment of compensation. 5. Respondent No.2, Insurance Company also filed separate reply denying the allegations made in claim petition but did not specifically deny the factum of insurance of said truck with its company and gave a vague reply that the cover note available on record was not visible and further took a stand that accident occurred due to deceased's own negligence. Therefore, it was prayed to dismiss the claim petition. 6. It is revealed from the record that after framing of the issues the claim case was fixed for producing claimants' witness hut it is borne out from the record that thereafter the case remained pending for disposal of application filed under Order 6 Rule 5 or under Order 14 Rule 5 CPC and on so many dales, Presiding Officer was also not available and finally case was fixed for claimant's witness on 24.5.2004 hut on that day neither any witness was present, nor any witness was called and again time was sought by the appellant, to produce evidence but the learned Tribunal closed the evidence and on the same day i.e. 24.05.2004 decided the matter. 7. 7. The learned Tribunal held that the claimants have failed to prove that the accident took place due to rash and negligent driving of the nick by its driver Jagdev Singh respondent No.1, therefore decided issue Nos. 1 and 2 against the claimants. The learned Tribunal also decided issue Nos. 3, 4, 5, and 6 against the non-claimants respondents. But on the basis of observations made on issue Nos.1 and 2, vide its judgment and award dated 24.5.2004, dismissed the claim petition. Hence, being aggrieved and dissatisfied by the judgment of the learned Tribunal, this appeal has been preferred by the claimants-appellants. 8. The notices of the appeal were issued. The record of the case was called and the arguments were heard. 9. During the course of arguments, learned counsel for the claimant-appellants submitted that the learned Tribunal has not properly proceeded and concluded the trial and illegally closed the evidence and decided the issues against claimants and wrongly dismissed the claim petition. Thus the said judgment is not sustainable and liable to be quashed and set aside. 10. It was submitted by the learned counsel for the appellants that the respondent owner-cum-driver of the said truck, has admitted in his reply the occurrence of the accident and the demise of Junja Ram in accident, but took a plea that accident occurred due to the fault of deceased. In these circumstances, it was contended that as the death of Junja Ram has been admitted arisen out of the use of Motor vehicle by way of best admission made in written statement and, thereafter, no evidence in rebuttal from the owner's side that the accident occurred due to the fault of the deceased himself, in that situation the learned Tribunal should have drawn the adverse inference against respondent No.1 and should have decided issue Nos. 1 and 2 in favour of claimant-appellants. It was urged that it was within the specific knowledge of the owner that how accident had occurred and he has not dared to come forward in witness-box and the police has also, after investigation, found respondent No.1 responsible for causing accident, the certified copies of challan papers were on record. Therefore, it was prayed that the learned Tribunal should have appreciated the material and should have decided the issues on merit in favour of claimants. Therefore, it was prayed that the learned Tribunal should have appreciated the material and should have decided the issues on merit in favour of claimants. It was also submitted that the Insurance Company has also not specifically denied the factum of insurance of truck, thus that was deemed admission on its part. Therefore, the learned Tribunal should have decreed the claim filed by the claimants against the respondents. It was also contended that after framing of issues, the case remained pending for long time for the disposal of application filed under Order 6 Rule 5 and Order 14 Rule 5 C.P.C. by the other side, therefore' the claimants could not produce witnesses in time. The learned Tribunal has not granted proper reasonable time to produce the evidence. 11. It was also contended that the claimants are old mother and father of deceased, they belong to rural background and they are illiterate, due to death of their son they were mentally shocked, therefore, they could no' met their counsel time to time. The learned Tribunal closed the evidence on 24.5.2004 and decided the case in utmost manner on the same day without giving proper opportunity for hearing the case on merit. On these submissions it was urged that judgment of the learned Tribunal might be set aside and appeal may he allowed and reasonable compensation may be awarded. 12. On the other hand, learned counsel for the Insurance Company, refuted the contentions and supported the judgment of learned Tribunal. It we, further stated that it was the legal obligation of the claimants to prove that accident occurred due to rash and negligent driving of the concerned driver until and unless it is proved the responsibility of Insurance Company could not arise for paying compensation. It was prayed to dismiss the appeal. 13. I have considered the rival submissions and have gone through the findings on issue and conclusion drawn thereon by the learned Tribunal. 14. The learned Tribunal has not decided the issue on merit of the case but due to non production of oral evidence issue Nos. 1 and 2 have been decided the issues against the claimants and on that basis claim petition has been dismissed. 15. I have perused the record of the case. 14. The learned Tribunal has not decided the issue on merit of the case but due to non production of oral evidence issue Nos. 1 and 2 have been decided the issues against the claimants and on that basis claim petition has been dismissed. 15. I have perused the record of the case. From perusal of the record it reveals that after framing of issues, the case remained pending for a long time for the disposal of application filed by respondent side. Thereafter, the case was fixed for the evidence of claimant's side but proper opportunities have not been given and in a hasty manner, evidence has been closed and without considering the material available on record and without providing opportunity to the opposite party to produce evidence, but only due to closure of evidence, dismissed the claim petition. The learned Tribunal has not gone through the replies as well as the certified copies produced by the parties and its impact thereon. The claimants are the old parents of rural background, the learned Tribunal should have granted proper time to produce evidence. Thus, the judgment given by the learned Tribunal is not correct and is liable to be quashed. Thus, without commenting anything on the merit of the case, looking to the facts and circumstances of the case, in the interest of justice, the case is required to be remitted back for afresh hearing on all the issues to the learned Tribunal. 16. In view of the aforesaid discussion, the appeal is partly allowed, judgment and award dated 24.05.2004 is set aside and the case is remanded back for afresh hearing to the Motor Accident Claims Tribunal, Barmer on all issues it is made clear that the learned Tribunal will not be influenced by any observation made in the order and decide the case afresh, after giving time to produce the evidence to claimant's side if respondents also apply for the same, time may be granted to them. The dated 14.07.2008 is fixed for the appearance of the parties before the Motor Accident Claims Tribunal, Barmer. The case be concluded expeditiously. No order as to costs.Appeal Partly Allowed. *******