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2011 DIGILAW 1312 (RAJ)

National Insurance Co. Ltd. v. Anokha Bai

2011-07-06

MAHESH CHANDRA SHARMA

body2011
Hon'ble SHARMA, J.—Since these three misc. appeals relate to common award dated 15.9.2005 passed by Judge, Motor Accident Claims Tribunal, Jhalawar in MACT Cases Nos. 295/2004, 296/2004 and 297/2004, they are being disposed by this common judgment. 2. The facts have been set out in the impugned judgment and hence I am not repeating the same here except wherever necessary. 3. Facts in brief are that on 19.10.2004 claimant Sonu, Smt. Anokha Bai were going on motorcycle along with deceased Chhotu Lal, the father of Sonu and husband of Smt. Anokha Bai to Chatawa. The deceased Chhotu Lal was driving the motor cycle. When they reached near the Simalkhedi, their motorcycle collided with he Tractor along with trolley, which caused injuries to Sonu and Smt. Anokhi Bai and Chotu Lal died on the spot. The number of Tractor was RJ 17 E 1120. Bajranglal was the driver of the tractor trolley and Bhanwar Lal was the owner of the tractor trolley who died before the accident and the legal heirs of the deceased Bhanwar Lal had not informed the Insurance Co. about the death of Bhanwar Lal. On these allegations claimants filed three different claim petitions. The tractor owner filed separate reply to the claim petitions. The tractor owner filed separate reply to the claim petitions and denied the accident. The appellant Insurance Company filed the reply and denied the allegations and also pleaded that the driver of the tractor was not having valid license and this fact was known to the owner of the tractor thus there was breach of the conditions of the insurance policy. It was also pleaded that the tractor was not insured with it. It was also pleaded that the deceased driver of the motor cycle was also not having the valid license and as such the claimant had no right of any compensation. On the basis of the pleadings of the parties 4 issues were framed including that of relief. Both the parties led evidence oral as well as documentary. After hearing the parties the MACT vide its judgment dated 15.9.2005 decided the issue 1 and 2 in favour of the claimants and issue No.3 against the appellant insurance company awarding compensation to the claimants. 4. The learned counsel for the appellant insurance company has argued that the MACT has committed serious illegality in deciding the issue No.1 in favour of the claimants. 4. The learned counsel for the appellant insurance company has argued that the MACT has committed serious illegality in deciding the issue No.1 in favour of the claimants. There is no evidence that the accident occurred due to rash and negligent driving of the Tractor driver. On the other hand deceased owner of the motorcycle was not having the valid license and against law 3 persons were ridding on the motorcycle. The deceased owner of the motorcycle himself was driving the motorcycle rash and negligently. The MACT has not considered this aspect of the matter and simply on the basis of police papers has held that the accident had occurred due to rash and negligent driving of the tractor trolley by the driver of the tractor. The MACT has committed serious illegality in holding that if more than authorized passengers are allowed to ride on the vehicle it does not show any negligence. Admittedly 3 persons were ridding on the motor cycle and as such deceased motorcycle driver was himself responsible for the accident as it was rash and negligent act of the driver and as such claimants are not at all entitled for compensation. The MACT has failed to consider the fact that Bhanwar Lal, owner of the tractor trolley was expired before the accident and as such it cannot be held that the vehicle was insured with the insurance company. It was the duty of the legal heirs of the deceased Bhanwar Lal to inform the insurance company about this fact and in the absence of this it cannot be held that vehicle was insured on the date of accident. The intimation about the death and accident was not given and as such there was violation of provisions of Sections 134-C and 157(2) of the Act of 1998. The tractor driver was not having a valid license and he was holding only license for light motor vehicle. The MACT has wrongly interpreted the provisions of Section 2(21) of the Act of 1988 in holding that the tractor is light motor vehicle. Before holding that the vehicle is a light motor vehicle, it will have to show hat it does not exceed the weight of 7500 kg. only then it can be a light motor vehicle. The MACT has wrongly interpreted the provisions of Section 2(21) of the Act of 1988 in holding that the tractor is light motor vehicle. Before holding that the vehicle is a light motor vehicle, it will have to show hat it does not exceed the weight of 7500 kg. only then it can be a light motor vehicle. The MACT has wrongly held in issue No.3 that as the tractor was involved in the accident therefore the appellant insurance company is liable for the same. The MACT has failed to consider that the claimants had failed to implead the insurance company of the motorcycle involved in the accident. In the absence of the same, the insurance company cannot be held liable. On issue No.4 the MACT has wrongly held that the claimants entitled for the compensation and the appellant insurance company is liable to make payment. The MACT has not considered this aspect that the insurance company of the motorcycle involved in the accident was not impleaded as party. The MACT has also failed to consider that the deceased motorcycle driver was himself responsible for the accident and thus there was contributory negligence and for that appellant insurance company cannot be held liable for making payment of the compensation in any case. 5. The counsel for the claimants opposed the arguments of the counsel for the insurance company and it was argued that the MACT by a well reasoned awarded the compensation to the claimants and the same cannot be said to be unjustified and perverse. The MACT on the basis of the oral and documentary evidence and on the basis of the charge-sheet filed against the driver of the Tractor, it was held that it was only account of rash and negligent driving of the tractor trolley the accident took place in which Chhotulal died and Sonu and Smt. Anokha received injuries. The MACT considered the income of the deceased awarded the compensation and similarly on account of the injuries received by the claimants the MACT awarded compensation to them. The same cannot be said to be unreasonable. 6. I have heard the learned counsel for the parties and gone through the material available on record. 7. The MACT considered the income of the deceased awarded the compensation and similarly on account of the injuries received by the claimants the MACT awarded compensation to them. The same cannot be said to be unreasonable. 6. I have heard the learned counsel for the parties and gone through the material available on record. 7. In relation to issue No.1, the claimants produced the evidence of Smt. Anokhi, who stated that she went with her husband and his son on motorcycle to know the whereabout of her relative at her maternal house. As soon as they reached Semalkhedi, from the opposite side Tractor No. RJ 17 R 2306 with Trolley No. RJ 17 E 1120 came rash and negligently with high speed and hit the motor cycle on account of which her husband died on the spot and she and her son received injuries. In relation to this issue they produced the Ex. 1 to 6 and photographs 7 to 9, Medical report of Sonu, Medical report of Anokha. In Ex.1 first information report tractor No. RJ 17 R 2306 is entered with trolley and due to the negligence of the driver the accident took place. The police after investigation filed challan against Bajranglal for the offences under Sections 279, 337, 338 and 304 IPC. As against this evidence the insurance company only produced the evidence of NAW Ravi Mali, who has only submitted that on the motor cycle three persons were sitting and the driver of the motor cycle was not having any license. the insurance company as against the oral and documentary evidence has not produced any evidence hence the MACT on the basis of the documents and oral evidence decided the issue No.1 in favour of the claimants and it was held that the accident took place on account of rash and negligent driving of the tractor and trolley and on account of which Chhotulal died and Sonu and Anokha received injuries. I have gone through the findings arrived at by the MACT. The MACT arrived at the findings on the basis of the oral and the documentary evidence. This finding of the MACT cannot be said to be perverse. 8. I have gone through the findings arrived at by the MACT. The MACT arrived at the findings on the basis of the oral and the documentary evidence. This finding of the MACT cannot be said to be perverse. 8. On issue No.3, the MACT observed as under : ^^vizkFkhZ chek dEiuh ds fo}ku odhy dk rdZ gS fd oä nq?kZVuk VªsDVj pkyd ds ikl VªsDVj pykus dk ykbZlsUl ugha FkkA chek dEiuh dh vksj ls bl lEcU/k esa dksbZ lk{; is'k ugha gqbZ gSA izkFkhZ i{k dh vksj ls pkyd dk tks ykbZlsUl izn'kZ 41 is'k gqvk gS ftlds rgr foi{kh la-1 nq?kZVuk ds le; ykbV eksVj Oghdy pykus ds fy; vuqKfIr FkkA eksVj okgu vf/kfu;e dh /kkjk 2¼21½ ds vuqlkj ykbZV eksVj Oghdy esa VªsDVj Hkh 'kkfey gSA vr% ;g ugha ekuk tk ldrk fd oä nq?kZVuk foi{kh la-1 pkyd ds ikl VªsDVj pykus dk ykbZlsUl ugha FkkA ikWfylh izn'kZ ,u-,-1 ds vuqlkj Qkjxqu VSªDVj ekWMy 1998 pSfll uEcj 220656 o bUtu uEcj 222980 fnukad 10-2- 2004 ls 9 -2-2005 rd dh vof/k ds fy;s chehr FkkA jftLVªs'ku izek.ki= izn'kZ 40 esa of.kZr bUtu uEcj o pSfll uEcj] ikWfylh izn'kZ ,u-1 esa of.kZr bUtu uEcj o pSfll ucj ls esy [kkrh gSA bldk jftLVªs'ku uEcj vkjts 17 vkj 2306 gSA bl izdkj nq?kZVuk ds le; nq?kZVuk esa fyIr VªsDVj vizkFkhZ la- 3 ds ;gka chfer gksuk izekf.kr gSA blfy;s vizkFkhZ la- 3 {kfriwfrZ ds fy;s mÙkjnk;h gSA 9. I have gone through the findings of the MACT on issue No.3. I am in agreement with the findings of the MACT. The finding cannot be said to be perverse. The finding is based on the basis of the documentary evidence. 10. In Claim Case No. 295/2004 filed by Sonu, the MACT on the basis of injury report Ex.35 awarded a sum of Rs. 8,000/- for the four injuries received by the claimant Sonu. For the fracture received by claimant Sonu, the MACT awarded a sum of Rs. 25,000/-. The claimant has not produced any disability certificate the MACT has not awarded any amount on this head. For the medical treatment the claimant produced Ex.10 to 50 for Rs. 3565/- but the MACT considering the treatment taken by the claimant awarded a sum of Rs. 6,000/-. Since the claimant suffered mental agony etc. on account of accident the MACT awarded a sum of Rs. 10,000/- in all. Over all Rs. For the medical treatment the claimant produced Ex.10 to 50 for Rs. 3565/- but the MACT considering the treatment taken by the claimant awarded a sum of Rs. 6,000/-. Since the claimant suffered mental agony etc. on account of accident the MACT awarded a sum of Rs. 10,000/- in all. Over all Rs. 49,000/- were awarded to the claimant Sonu. I have considered the findings arrived at by the MACT in relation to claim case No. 295/2004 in relation to issue No.2. In my view the findings on issue No.2 in relation to Sonu, cannot be said to be perverse, thus the appeal filed by the insurance company in claim case No. 295/2004 deserves to be rejected. 11. In claim case No. 297/2004 filed by Smt. Anokha Bai, the MACT on the basis of injury report Ex.37 awarded a sum of Rs. 10,000/- for the five injuries received by her. The claimant has not produced any disability certificate the MACT has not produced any disability certificate the MACT has not awarded any amount on this head. For the medical treatment the claimant has not produced any medical bill, but the MACT considering the injuries received by the claimant awarded a sum of Rs. 1,000/-. Since the claimant suffered mental agony etc. on account of accident the MACT awarded a sum of Rs. 2,000. In all Rs. 13,000/- were awarded to the claimant Anokha Bai. I have considered the findings arrived at by the MACT in relation to claim Case No. 297/2004 in relation to issue No.2. In my view the findings on issue No.2 in relation to Anokha Bai, cannot be said to be perverse, thus the appeal filed by the Insurance Company in claim case No. 297/2004 deserves to be rejected. 12. In claim case No. 296/2004 filed by the claimants for the death of Chhotulal. The MACT determined his age to be 28 years. It was stated by the claimant that deceased was earning Rs. 6,000/- but doing mesion work he cannot earn more than Rs. 3,000/- it was held by the MACT and one third was to be incurred by him on himself and in this manner the dependency towards his family was determined to be Rs. 2,000/-. For the age of 28, the multiplier of 15 was allowed. In this manner the MACT awarded Rs. 3,60,000/- as compensation for the death of Chhotulal. 3,000/- it was held by the MACT and one third was to be incurred by him on himself and in this manner the dependency towards his family was determined to be Rs. 2,000/-. For the age of 28, the multiplier of 15 was allowed. In this manner the MACT awarded Rs. 3,60,000/- as compensation for the death of Chhotulal. For cremation the MACT awarded a sum of Rs. 2,000/-. For love and affection the MACT awarded a sum of Rs. 30,000/-. For transportation a sum of Rs. 1,000/- was awarded. In this manner in total Rs. 3,93,000/- was awarded as compensation to the claimants. I have gone through the findings of the MACT in claim case No. 296/2004 and in my view the findings recorded by the MACT for the death of Chhotulal cannot be said to be perverse. Thus, the appeal filed against the award in claim case No. 296/2004 by the insurance company deserves to be rejected. 13. In view of the above the misc. appeals Nos. 204/2006, 610/2006 and 205/2006 filed by the appellant Insurance Company against the award dated 15.9.2005 passed by Judge, Motor Accident Claims Tribunal, Jhalawar in MACT Cases Nos. 295/2004, 296/2004 and 297/2004 granting compensation to the claimants, being devoid of merit stand rejected. The award stands confirmed. The parties are directed to bear their own costs.