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2013 DIGILAW 1040 (RAJ)

Dungar Singh v. Naresh Kumar Patidar

2013-05-20

VIJAY BISHNOI

body2013
JUDGMENT 1. - This misc. appeal has been preferred by the appellant, while challenging the validity of the judgment dated 18.10.2000 passed by Motor Accident Claims Tribunal Kushalgarh (for short 'the Tribunal' hereinafter), whereby the learned Tribunal has dismissed the claim petition preferred by the appellant and directed the appellant to refund the amount of 'no fault liability compensation' within a period of two months. 2. Brief facts of the case are that the appellant preferred a claim petition before the Tribunal, while alleging that on 22.9.1994 at about 11.00 A.M., he was going to village Rakho to Bagidora in Bus No. RRJ-19, at that time a Tractor Trolley No. RJ-03-R0223 came from opposite direction and collided with the bus, on account of that, he fell down from the bus and suffered injuries. The claim petition preferred by the appellant was contested by the respondent-Insurance Company as well as owner of the bus. On the basis of pleadings of the parties, the learned Tribunal had framed as many as four issues and after taking into consideration the evidence adduced on behalf of the parties, the Tribunal decided the Issue Nos. I and 3 against the claimant and held that the appellant sustained injuries on account of his own negligence as he was sitting beside the driver on the gate of the bus and when the tractor-trolley came from the opposite direction, the body of the appellant lying outside the frame of the bus came into the contract of the tractor-trolley and on account of that, the appellant fell down from the bus and received injuries. Therefore, the learned Tribunal has held that the appellant is not entitled to get any compensation for the injuries sustained by him on account of his own negligence. 3. The learned counsel for the appellant has argued that though the appellant was sitting beside the driver-on the gate of the bus but he sustained injuries on account of rash and negligent driving of the tractor trolley by its driver, therefore, the learned Tribunal was wrong in holding that the injuries sustained by the appellant was on account of his own negligence. The learned counsel for the appellant has further argued that the learned Tribunal has erred in directing to refund the amount of 'no fault liability within a period of two months, failing which the appellant was liable to pay the interest at the rate of 12% per annum. It has also been argued that no such direction can be issued by the learned Tribunal under the provisions of Motor Vehicles Act, 1988. 4. Per contra, learned counsel for the respondents has supported the judgment passed by the learned Tribunal and has argued that from the material available on record, it is clear that the appellant sustained injuries on account of his own fault and negligence and, therefore, no compensation is liable to be paid to the appellant. 5. So far question of refund of amount received by the petitioner as 'no fault liability is concerned, the respondents are not in a position to defend the said directions. 6. Heard learned counsel for the parties and perused the record. 7. The learned Tribunal, after taking into consideration the evidence available on record, has held that since the appellant was sitting beside the driver-on the gate of the bus, and when the tractor-trolley was passing through the bus, he came into the contact of the tractor-trolley and sustained injuries and, therefore, it cannot be said that the appellant has sustained injuries on account of negligent driving of the driver of the tractor-trolley. 8. After perusal of the record of the case, this Court has found that there is no illegality in the findings given by the learned Tribunal, while deciding issue Nos. 1 and 3 as the materials available on record suggest that the appellant had sustained injuries on this own negligence and not on account of the negligence on the part of the driver of the tractor-trolley. In the circumstances, the tribunal has not committed any illegality in rejecting the claim petition preferred by the appellant and, therefore, no interference is called for in relation to the findings given by the Tribunal in respect of the issue Nos. 1 and 3. 9. In the circumstances, the tribunal has not committed any illegality in rejecting the claim petition preferred by the appellant and, therefore, no interference is called for in relation to the findings given by the Tribunal in respect of the issue Nos. 1 and 3. 9. So far direction given by the learned Tribunal for refunding the amount received by the appellant as 'no fault liability compensation' is concerned, the same is not sustainable as the amount of 'no fault liability compensation' paid under Section 140 of the Act of 1988 is based on the principle of 'no fault liability and, therefore, no such direction can be given for refunding of the amount received by a person as 'no fault liability compensation'. The Hon'ble Apex Court, in Indra Devi & Ors. v. Bagada Ram & Anr., reported in 2011 R.A.R. 21 (SC) , has held as under: "We have examined the nature of the 'no fault compensation' payable under Section 140 of the Act in Eshwarappa C' Maheshwarappa & Anr. v. C.S. Gurushanthappa & Anr., Civil Appeal No. 7049 of 2002 , the judgment in which is pronounced today. We, therefore, do not wish to elaborate the point further. Suffice to say that in view of our judgment in Civil Appeal No. 7049 of 2002, the Tribunal was patently in error, in directing for the refund of the amount of 'no fault compensation' already paid to the claimants, to the insurance company. The High Court was equally in error in missing out this grave mistake in the judgment and order passed by the tribunal and not setting it right." 10. In view of the aforesaid authoritative pronouncement of Hon'ble Apex Court, this appeal is partly allowed and the findings given by the learned Tribunal in respect of Issue Nos. 1 and 3 are hereby confirmed. The dismissal of the claim petition preferred by the 'appellant is also confirmed. However, the direction given by the learned Tribunal of refunding the amount of 'no fault liability compensation' received by the appellant is set aside. The order of the Tribunal is modified accordingly.Appeal Party Allowed. *******