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Rajasthan High Court · body

2014 DIGILAW 1052 (RAJ)

Rajwati v. National Insurance Company Ltd.

2014-04-29

J.K.RANKA

body2014
JUDGMENT 1. - Heard the appeal finally with the consent of the parties. 2. The instant civil misc. appeal under section 173 of the Motor Vehicles Act is directed against order of the MACT, Dholpur 5.2.2009 passed in claim petition No. 280/2006. 3. The brief facts as has been gathered on the basis of arguments advanced by the learned counsel for the parties as also the impugned order is that on 5.2.2009 when Hotam Singh was going on his motorcycle from his village to Dholpur and at that time near Tivariya Bhilganva a vehicle Tempo bearing No. R.J.11/RA. 0035 (old No. M.R 07/T- 4087), which was coming from Dholpur side in a rash and negligent manner hit the vehicle of Hotam 1 Singh and on account of which Hotam Singh received severe and grievous injuries and died on the spot and the motorcycle was also badly damaged. It is claimed by the claimants/appellants that Hotam Singh was 28 years of age and was a driver and was earning an income of Rs. 5000/- per month. The claim was accordingly lodged amounting to Rs. 11,00,000/- against respondent No. 1 Insurance Company and Santosh Kumar Sharma owner of the Tempo. On behalf of respondents reply was filed and the Insurance Company submitted that the driver of the vehicle had no valid licence and there was breach of conditions of the Insurance Policy. On behalf of the owner of the offending vehicle it was submitted that since the vehicle Tempo was insured by the respondent No.1, there was valid licence, therefore, in so far as the compensation is concerned, the responsibility would be on the Insurance Company. 4. The Tribunal framed five issues and after considering the Issue No. 1, disbelieved the version of the claimants/appellants mainly in view of the fact that there was no eye-witness and that in the FIR, number of the vehicle was not mentioned by the person lodging the FIR. The Tribunal was also of the view that Rajwati wife of the decessed was not an eye-witness and even disbelieved the version of A.D. 2 Bhim Singh and A.D. 3 Mohar Singh and on account of suspicion disbelieved the version of the claimants/appellants that the vehicle Tempo bearing No. R.J.11/RA. 0035 was duly involved in the accident. Since the Tribunal disbelieved the version in Issue No. 1, therefore, it did not proceed to decide the other issues. 0035 was duly involved in the accident. Since the Tribunal disbelieved the version in Issue No. 1, therefore, it did not proceed to decide the other issues. Hence this appeal. 5. Learned counsel for the appellants vehemently submitted that the order of the Tribunal is perverse, unjust and based on suspicion, the claim has been disbelieved. He further contended that the accident occurred in the late evening in September, 2006 and immediately thereafter the family members certainly would carry the injured to the nearest hospital the first priority of the family members and other persons would be to take the injured to a nearby hospital for proper treatment rather than noticing the vehicle number of filing of FIR then and there. He further submitted that the brother of the decessed Ram Bharosi lodged FIR on 6.9.2006 at about 12 Noon and the post-mortem was also conducted on 6th September, 2006 at about 9.00 a.m. in the post-mortem report the doctor opined that "in my opinion this person died due to crush injury to forehead of skull causing laceration of brain leading to shock and death". He further i contended that as aforesaid an FIR was lodged and thereafter regular challan was also filed against the driver and once an FIR was lodged and thereafter regular challan was also filed against the driver and thereafter the police after investigation has filed a challan against the said vehicle then the Tribunal merely on suspicion not ought to have disbelieved the version. Certainly, information was received by nearby surrounding passengers about vehicle number and they conveyed it to police and thereafter on investigation it was found that the Tempo was involved in the accident. Accordingly, he submitted that the order of the Tribunal deserves to be reversed, be set aside and matter is required to be restored back to be decided on merits. He has relied upon the decision of this Court rendered in the case of Smt. Prem Kanwar & Ors. v. Aadam & Ors. reported in 2006 WLC (Raj.) UC 485. 6. Accordingly, he submitted that the order of the Tribunal deserves to be reversed, be set aside and matter is required to be restored back to be decided on merits. He has relied upon the decision of this Court rendered in the case of Smt. Prem Kanwar & Ors. v. Aadam & Ors. reported in 2006 WLC (Raj.) UC 485. 6. Per contra, learned counsel for the respondents has vehemently opposed to the arguments of the learned counsel for the appellant and submitted that the FIR was lodged after almost 16 hours of the incident and by that time vehicle number ought to have been known from the other people as the incident occurred just about half kilometer away from the main market and it cannot be believed that no one had noticed the vehicle number. He further contended that it is only an after thought that vehicle number was shown to be involved and in collusion with the owner of the vehicle (Tempo). In claim the number of the offending vehicle is required to be given under the provisions of the Motor Vehicle Act. He further contended that the Tribunal in an appropriate, just and proper manner after considering all the evidence on record has correctly come to the conclusion. He further submitted that the appeal being devoid of merit deserves to be dismissed. 7. I have considered the arguments advanced by the learned counsel for both the parties and have perused the impugned order. 8. In my view, admittedly on account of accident Hotam Singh died and may be the incident which was occurred about half kilometer from the market that does not mean that vehicle number of the offending vehicle would have been noticed by the person surrounded near the accident. The first priority of close by persons would be to take the person injured to the nearest hospital so that the injured may get proper treatment. Merely because the FIR was lodged by the brother of the decessed next day and the number of the vehicle was not provided does not mean that the accident did not occur on account of the offending vehicle. It has already been stated by the counsel for the appellant that after police investigation, it clearly came out on record that the Tempo 407 bearing No. R.J. 11/PA. 0035 was involved in the accident. It has already been stated by the counsel for the appellant that after police investigation, it clearly came out on record that the Tempo 407 bearing No. R.J. 11/PA. 0035 was involved in the accident. Even in the reply on behalf of the owner of the said Tempo, he has simply stated that the Tempo was insured with the Insurance Company and has not denied about accident having not occurred on account of the said Tempo. 9. Considering the statements, in my view, the Tribunal has not correctly appreciated the statement of one Mohar Singh, who claims to be an eye-witness, there may be some minor contradiction in his version on account of fact that people in villages by and large are illiterate and even by ignorance may not have noticed the vehicle number or may be in English version and noticed/recollected later on. In my view, the Tribunal has not correctly appreciated the evidence on record and investigation of police while filing challan and ought not to have rejected the claim petition in the manner rejected. 10. In my view, the impugned order passed by the Tribunal is required to be restored back to the Tribunal for considering the matter afresh and to decide the issues on merits also. Both the sides are free to bring on record any other material so also the other evidence, which may be helpful for disposal of the claim petition on merits. 11. Accordingly, the order of the Tribunal is quashed and set aside with a direction to pass an appropriate order. The Tribunal need not be inhibited/swayed on any of the observation made here-in-above. Since, the incident is of the year 2006, therefore, the Tribunal will decide the claim petition expeditiously and preferably within a period of six months from the date of receipt of certified copy of this order. 12. All the parties are directed to appear before the Tribunal on 26th May, 2014 and thereafter the Tribunal will regulate the hearing with the stipulation that it would be completed within a period of six months. With above the appeal stands disposed of. *******