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2013 DIGILAW 1886 (RAJ)

Dal chand v. Mandovi Motors

2013-10-29

ARUN BHANSALI

body2013
JUDGMENT 1. - These appeals are directed the judgment and award dated 1.9.1997 passed by Motor Accident claims Tribunal, Udaipur, ('the Tribunal') whereby, the applications for compensation ('the applications') filed by the claimants have been dismissed. 2. Brief facts may be noticed thus : one Narendra Prasad, Rameshwarlal and Dal Chand, all three of them travelling on one Scooter from Udaipur to Kailashpur on 28.3.1993, claimed to have met with an accident with a Maruti Carrier Truck bearing registration No. KA-19-2900, which resulted in death of Narendra Prasad and Rameshwar lal and injuries to Dal Chand, three claims petitions were filed and the same were opposed by the owner, driver and insurer of the said Carrier Truck. It was, inter alia, contended that the vehicle was not involved and in any cased looking to the terrain whete the truck rashly and negligently. 3. The Tribunal consolidated all the three applications and evidence was recorded, whereby, seven witnesses including Jagdish Chandra and Dal Chand were examined by the claimants and driver was examined on behalf of the respondents. The Tribunal, after the evidence was led by the parties, came to the conclusion that the Truck in question was not involved and the deceased and claimant were negligent and, therefore, decided the issue regarding involvement/negligence against the claimants and dismissed the applications. 4. It is submitted by learned counsel for the appellants that the finding recorded by the Tribunal is ex facie against the material available on record and the same is wholly perverse, inasmuch as the documents have been misread, therefore, the finding on crucial issue No. 1 deserves to be quashed and set aside. 5. Learned counsel for the respondent submitted that it is apparent from the. material available on record that the vehicle in question was not involved and apparently for the reason that the vehicle had passed from the said road, the vehicle has been involved. In any case, it was submitted that negligence of the deceased/claimants is writ large on the record. of the case and, therefore, in ultimate analysis of finding on issue No. 1 deserves to be upheld. 6. I have considered the rival submissions. 7. In any case, it was submitted that negligence of the deceased/claimants is writ large on the record. of the case and, therefore, in ultimate analysis of finding on issue No. 1 deserves to be upheld. 6. I have considered the rival submissions. 7. It was the specific case of the parties that three persons Narendra Prasad, Rameshwar lal and Dal Chand were travelling on one Scooter from Udaipur to Kailashpuri and when they reached Chirwa Ghata, a Maruti Carrier Truck, which was driven rashly and negligently by its driver, came from wrong side and collided with the Scooter, which resulted in death of Rameshwarlal on the spot and injuries to Narendra Prasad and Dal Chand, later on Narendra Prasad succumbed to his injuries. It was also the case that at around the same time one Kishan Lai alongwith Jagdish Chandra were also travelling on the same road on the Motor Cycle of the said Kishan Lai and said Kishan Lai informed Mangilal Menariya brother of Rameshwarlal regarding the accident which led to filing of the F.I.R. 8. The Tribunal while considering the evidence of the parties and that of AW- 4 Jagdish Chandra, disbelieved his statement on the alleged ground that F.I.R. was not lodged by him and that his name was not indicated either in the F.I.R. or in the witnesses' name presented alongwith the challan. A bare look at the F.I.R. reveals that it has been specifically indicated therein that Kishan Lai informed Mangilal, who had lodged the F.I.R., that he alongwith Jagdish was travelling from Udaipur to Kailashpuri. When the accident occurred and gave out registration No. of the Truck as KA-19-2900. Not only this, in the challan, in the list of witnesses, the name of Jagdish Chandra is specifically indicated at Sr. No. 15. The above facts clearly goes to demonstrate that the finding given by the Tribunal for disbelieving the evidence of the said Jagdish Chandra is wholly perverse and against the record. 9. In the present case, not only the said Jagdish Chandra but AW-7 injured claimant Dal Chand, who was travelling on the Scooter, were also examined as eye-witnesses and both have clearly gave categorical evidence about the involvement of the said vehicle bearing registration No. KA-19-2900. 9. In the present case, not only the said Jagdish Chandra but AW-7 injured claimant Dal Chand, who was travelling on the Scooter, were also examined as eye-witnesses and both have clearly gave categorical evidence about the involvement of the said vehicle bearing registration No. KA-19-2900. The Tribunal was too much impressed by the fact that NAW-1 Harinarayan, driver of the Truck in his statement indicated that in his thirteen years' career as a Truck Driver, he as never met with an accident and there was no endorsement on his driving licence. The statement of the said driver Harinarayan (NAW-1), wherein, he had indicated that on the fateful day though he traveled on the road from Kailashpuri Udaipur, no accident took place and that he was followed by three other Trucks of similar nature which were also carrying Maruti Cars and he further went on to depose that no accident in fact took place. If the statement of the said driver is ken on its face value, it is apparent that when he passed from the said road om Kailashpur to Udaipur, no accident had taken place before he reached there. Once the Truck alongwith three other Trucks had passed the said spot and if the accident had occurred subsequent to their leaving the said place, with some other chicle, there does not appear to be any good/convincing reason for Kishan Lai to give the vehicle number of the said Truck KA-19-2900, when as per the version of e driver, there were three other Trucks which were following the said Truck. 10. From the statement of AW-4 Jagdish Chandra and AW-7 Dal Chand, who ere both eye-witness to the accident, it is apparent that the accident did take ace from the said vehicle bearing registration No. KA-19-2900 and the statement of NAW-1 Harinarayan cannot be believed for the reasons recorded hereinbefore. The finding of non-involvement is therefore set aside. 11. The Tribunal has simultaneously held based on a judgment of this Court Kamlesh Kumar v. Prahlad & Ors., 1986 ACC 112 that the accident occurred n account of rash and negligent driving by the Scooterist. The finding of non-involvement is therefore set aside. 11. The Tribunal has simultaneously held based on a judgment of this Court Kamlesh Kumar v. Prahlad & Ors., 1986 ACC 112 that the accident occurred n account of rash and negligent driving by the Scooterist. The findings recorded the Tribunal regarding non-involvement of the vehicle and negligence of the Scooterist at the same time are mutually destructive and, therefore, the finding of negligence of the Scooterist i.e. Rameshwarlal merely based on a judgment is also to aside and the same requires reconsideration by the Tribunal. 12. The Tribunal in view of its finding on issue No. 1, has not dealt with the sue of quantum of compensation etc. In view of the consideration above, the matter needs to be remanded back to the Tribunal to decide the same in accordance with the evidence available on record. 13. In view of the above discussion, while it is held that vehicle bearing registration No. KA-19-2900 was involved in the accident, all the three applications are remanded back to the Motor Accident Claims Tribunal, Udaipur for deciding the issues relating to the negligence, quantum of compensation and liability of insurance Company based on the evidence available on record. The parties are directed to appear before the Tribunal on 28.11.2013. 14. In view of the fact that the accident pertains to the year 1993, it is expected that the Tribunal shall deal with the matter most expeditiously an would make endeavor to decide the same within a period of three months. 15. Accordingly, the appeals are partly allowed and the applications are remanded back to the Tribunal to decide the same in terms of the directions contained hereinbefore. No costs.Appeals partly allowed. *******