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Rajasthan High Court · body

2010 DIGILAW 1141 (RAJ)

Kantilal Bechardas v. Shantaben Sanabhai

2010-07-02

RAVI R.TRIPATHI

body2010
Hon'ble TRIPATHI, J.—The present First Appeal is filed by one Kantilal Bechardas, who was opponent No.4 in Motor Accident Claim Petition No.177 of 1983, being aggrieved by judgment and award dated 18th September 1990 passed by the Motor Accident Claims Tribunal (Main), Surendranagar, whereby the Tribunal was pleased to pass the following order: "The claim petition is allowed in part and it is ordered that the opponent nos.1 and 4 do pay jointly and severally the sum of Rs.1,95,000/- (Rs. One lakh ninety five thousand only) to the claimants, with running interest at 6 per cent per annum from the date of the petition till payment , with proportionate costs. The opponents nos.1 and 4 shall bear their own costs. Claim petition against opponents nos.2, 3 and 5 shall stand dismissed with no order as to the costs. Out of the amount of Rs.1,95,000/-, the claimant No.1 would be entitled to receive sum of Rs.60,000. She would also be entitled to recover costs and interest. Out of the amount of Rs.60,000/-, to which she is entitled, sum of Rs.40,000/- is ordered to be deposited in a fixed deposit with any nationalised bank for a period of five years. The claimant No.2 is also entitled to sum of Rs.55,000/- out of the said amount of Rs.1,95,000/-. Out of this amount of Rs.55,000/-, to which he is entitled, sum of Rs.35,000/- is ordered to be deposited in a fixed deposit with any nationalised bank for a period of five years. The entire amount of Rs.55,000/- to which minor claimant No.3 is entitled is ordered to be deposited in a fixed deposit with any nationalised bank for a period of five years and it is to be renewed from time to time till the minor attains majority and shall be payable to him only on his attaining majority. Out of the total amount of compensation of Rs.1,95,000/- claimant No.4 is entitled to the sum of Rs.10,000/- and the claimant No.5 is entitled to the sum of Rs.15,000/- it be paid to them by account payee cheque. Award accordingly." The learned advocate for the appellant vehemently submitted that the Tribunal has erred in holding opponent No.4 as owner of the vehicle and hence liable for compensation to the deceased-P.S.I., who was on probation. Award accordingly." The learned advocate for the appellant vehemently submitted that the Tribunal has erred in holding opponent No.4 as owner of the vehicle and hence liable for compensation to the deceased-P.S.I., who was on probation. He submitted that it is on record from the deposition of one Maheshbhai Dayajibhai, a Clerk serving in the RTO Office, Rajkot, Exh.77, that, it was opponent No.2, who was the owner of the vehicle on the day of the accident, viz. 26.03.1983. He submitted that it is deposed by the said witness that the vehicle in question being Matador Van bearing Registration No. GTG 2984 was in the name of opponent No.2 since 25.09.1981 to 11.10.1983. He emphatically submitted that, that being so, the Tribunal, who has held 'the owner of the vehicle' liable then it was opponent No.2, and not the present appellant-opponent No.4. In the alternative, he submitted that there was existing insurance policy of the vehicle in question, by virtue of that it was the Insurance Company, who ought to have been held liable to pay compensation on behalf of the owner of the vehicle. Both these points are negatived by the Tribunal by cogent and convincing reasons. This Court has examined the relevant papers and is of the opinion that opponent No.4 was trying to play smart with the Tribunal. Initially, he 'disowned' the ownership. When he did not succeed in that he tried to put forth a case that it was the Insurance Company, which ought to have been held liable and ought to have been made to pay the amount of compensation. The learned advocate for the appellant vehemently submitted that the Tribunal committed grave error in taking into consideration, Exhibits 113 and 114 which are the statements recorded by the Investigating Officer in a criminal case, which was filed in the matter of this very accident. In this regard it will be appropriate to consider the contents of para 18 onwards. In para 18, the Tribunal has considered the question as to who was the real owner of the offending vehicle on the date of the accident. That discussion continues right upto para 24. In para 19, the Tribunal has recorded the contention of respondent No.4 to the effect that:- " .. .. In para 18, the Tribunal has considered the question as to who was the real owner of the offending vehicle on the date of the accident. That discussion continues right upto para 24. In para 19, the Tribunal has recorded the contention of respondent No.4 to the effect that:- " .. .. he was not the owner of the offending vehicle on the date of the accident." According to him, in para 20, opponent No.3-Insurance Company came forward and denied its liability, putting forward a plea of sale of vehicle by the insured before the date of the accident. In para 21 the Tribunal has taken trouble to consider the evidence of the RTO Clerk, Maheshbhai Dayajibhai, wherein it is specifically mentioned that the vehicle bearing Registration No. GTG 2984 was transferred in the name of opponent No.2 on 25.09.1981 and it continued to be in the name of opponent No.2 till 11.10.1983. The accident had taken place on 26.03.1983. It is the case of the appellant that in light of the aforesaid facts, it was opponent No.2, who was required to be held responsible as owner of the vehicle for payment of compensation and if not then the Insurance Company, because the vehicle was insured. The Tribunal has taken into consideration the other evidence on record and has discussed in para 22, wherein the Tribunal has taken into consideration the statement of exh.113 and also the statement of exh.114 and also the witness examined at exh.112. Exh.113 is discussed at length in para 23. For ready perusal, para 23 is reproduced hereunder: "Ex.113 is the statement of opponent No.4 recorded by PSI Shri Girischandra Raval. In his written statement, exh.58, it is contended by opponent No.4 that no statement of his was ever recorded by the police. Now pleading can never be said to be a proof. He has not stopped (sic.) into the witness box to state on oath that his statement was never recorded by the police. If we peruse this statement, which is at exh.113, we would find that the police could not have known all such details and description etc., as narrated in this statement, had Kantilal himself not stated all such facts and details. If we peruse this statement, which is at exh.113, we would find that the police could not have known all such details and description etc., as narrated in this statement, had Kantilal himself not stated all such facts and details. I do not find any good reason to disbelieve PSI Shri Raval when he states that he has recorded this statement ex.113, of opponent No.4, as stated before him by opponent No.4. In this statement ex.113 he has admitted that he has purchased this offending vehicle bearing No. GTG 2984 on 8.9.82 from opponent No.2, Prakash Bhagwanjibhai. His statement shows that in fact he has purchased two vehicle for carrying on his business of ANGADIA for carriage of parcels from Rajkot to Jamnagar and from Rajkot to Ahmedabad. His statement also shows that he had made an application to the transport authorities for transferring both those vehicle and to register them in the name of his business, running in the name of CHOKSHI Transport. His statement shows that he had employed two drivers - one Husen and the second the opponent No.1 - to ply both those vehicles. Thus, his statement, ex.113, shows that he was the real owner of the offending vehicle bearing registration No. GTG 2984 on the date of the accident. His statement also thus, shows that the opponent No.1 was in his employment as a driver of this vehicle on the date of the accident. It is important to note that he discharged the opponent No.1 from service on the very next day of the accident. (This fact is disclosed from his statement, ex.113)." 4. So far as the question as to whether exh.113 could have been taken into consideration, this Court is of the opinion that the Tribunal has not committed any error in taking into consideration the contents of exh.113. Last but not the least, in para 24 the Tribunal considered exh.114 and finally in para 25 the Tribunal recorded its finding saying that, "Thus, the statement, exs.113-114 of the opponent nos.4 and 2 respectively, slow that the offending vehicle was sold and delivered by opponent No.2 to the opponent No.4 on 8.9.82 and on the date of the accident, the opponent No.4 was the real owner. .. .. .." This being so, so far as the first aspect is concerned about opponent No.4-appellant herein is not the real owner stands answered by the Tribunal and which is found to be perfectly in order by this Court. 5. The second question which is submitted by the learned advocate for the appellant vehemently is about the liability of the Insurance Company. The learned advocate Ms. Karuna V. Rahevar for the Insurance Company invited attention of the Court to the relevant discussion in para 28. She also relied upon the decision of this Court in the matter of Shantilal Mohanlal and another vs. Aher Bawanji Malde and others, reported in A.I.R. 1985 Gujarat 164. From para 28 it is absolutely clear that the Tribunal was conscious of the law prevailing at the time and accordingly decided the question of liability of the Insurance Company. 6. In view of the aforesaid, this Court finds that the First Appeal is without any merit. The same deserves to be dismissed. It is accordingly dismissed.