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Rajasthan High Court · body

2015 DIGILAW 1795 (RAJ)

Mausmi Devi v. Pauri Sami

2015-10-16

J.K.RANKA

body2015
JUDGMENT 1. - The instant appeal is directed against the award dated 27.8.2013 passed by Motor Accident Claims Tribunal-1, Jaipur Metropolitan, Jaipur, in MAC Case No.1363/2012, whereby Rs. 9,45,125/- has been awarded to the claimants exonerating respondent-Insurance Company from its liability to pay the compensation amount. 2. The brief facts noticed are that on 29.5.2012 at about 1:00 PM, one Kamlesh Meena was going to Badekhann from his village on Lalsot-Madhopur Mega Highway on motorcycle bearing no. RJ29 35M 5705, and the motorcycle was being driven in a moderate speed and on correct side abiding the traffic rules. It was claimed that when the motorcycle reached near Bhadoti Toll Plaza, at that time a trailer bearing no. TN28 AK 2235, which was being driven in a high speed, rash and negligent manner, came on wrong side and hit the motorcycle by which the motorcycle was carried on the road for sometime, consequent thereto, Kamlesh Meena was said to have suffered grievous injuries, and during the course of treatment died in the S.M.S. Hospital, Jaipur. FIR was lodged under Section 279, 304A IPC and after investigation police filed charge-sheet against driver of the trailer. The Tribunal, after analysing the material on record, came to the conclusion that though the accident did occur on account of the fault of the driver, namely Pauri Sami, and after investigation, considering issue no.3 exonerated the Insurance Company of the claim primarily in view of the fact that the trailer had no permit at the time when the vehicle hit the motorcycle of Kamlesh Meena, and accordingly though allowed the claim to the extent of Rs. 9,45,125/-, but to be recovered from respondent nos.1 and 2, namely the driver and owner of the said vehicle. 3. Learned counsel for the appellants restricted his arguments only on issue no.3 by which the Insurance Company, respondent No.3, had been exonerated by the Tribunal on the premise that the trailer (vehicle) had no valid permit and thus gave up other issues/grounds raised in appeal on merits and enhancement, and restricted his submissions on the issue no.3. 3. 3. Learned counsel for the appellants restricted his arguments only on issue no.3 by which the Insurance Company, respondent No.3, had been exonerated by the Tribunal on the premise that the trailer (vehicle) had no valid permit and thus gave up other issues/grounds raised in appeal on merits and enhancement, and restricted his submissions on the issue no.3. 3. 1 Learned counsel for the appellants contended that the order of the Tribunal is unjust and perverse, particularly in view of the fact that the offending vehicle was duly insured and had a valid permit to ply the said vehicle on road and though the claimant/appellants being widow and minor children, were not able to place on record the permit on account of illiteracy, being unaware of the technicalities of law and on account of the fact that they come from a poor class of citizens, therefore, they were not able to place on record the permit of the vehicle. He further contended that thereafter the appellants have been able to get details on internet of the permit details of the vehicle which has been placed on record by filing an application under Order 41, Rule 27 CPC and contended that the additional evidence deserves to be taken on record and considered in the light of the said permit. He further contended that in a case like this, technicalities should not come in the way when the Hon'ble Apex Court has time and again opined that this being a beneficial legislation, primarily to help the family of the deceased/injured who may not be aware of the technicalities of law, such technicalities by the Tribunal ought not to have been taken into consideration, and the order in the light of the same deserves to be modified. He relied upon T.V. Augustine v. Ayyappan Kutty @ Mani and Others 2015 (2) ACC 749 , M/s. Shri Ram Trading v. Khuma & Others 2015 ACJ 570 , Mahila Ramkali Devi & Others v. Nandram & Others AIR 2015 SC 2270 , Rameshkumar Agarwal v. Rajmala Exports Pvt. Ltd. & Others, AIR 2012 SC 1887 , Nagappa v. Gurudayal Singh & Others AIR 2003 SC 674 , and submitted that identical issue has been decided by the Hon'ble Apex Court observing that party cannot be refused just relief merely because of some mistake, negligence or inadvertence or infraction of rules of procedure. He further contended that the permit was in existence was valid and the Insurance Company cannot be absolved of its liability. He further contended that just and proper compensation ought to have been allowed and the deceased died at a young age of 36 years leaving behind a widow and minor children as also aged parents. He contended that the income of the deceased has been taken only at Rs. 135/- per day, which is too meager for a person who was hale & hearty and it was claimed that he was earning income to the extent of Rs. 8,000/- per month and was employed as a driver with M/s. Sanjay Bricks Co., Shikarpura, and necessary evidence of earning of Rs. 8000/- was placed on record. He further contended that the other amount viz. for loss of love and affection, and loss of consortium is also quite meager and deserves to be enhanced appropriately. 4. Per contra, learned counsel for the respondent-Insurance Company seriously objected to the consideration of the said additional evidence which has been placed by filing application under Order 41, Rule 27 CPC, and contended that it deserves to be rejected and ignored out-rightly. He further contended that now in connivance with the owner and driver, the so-called permit has been procured by the claimants, which cannot now be considered by this court. He further contended that on the one hand driver and owner chose not to appear but now from behind the scene has given the socalled permit which even otherwise has no validity. He further contended that the accident admittedly took place on 29.5.2012 and ample time was granted by the Tribunal to the appellants to place material evidence and finding none, the Tribunal decided the claim/award on 27.8.2013 giving ample and sufficient time, and after the lapse of so many years it cannot be relied upon and deserves to be ignored. He further contended that even the so-called permit does not inspire confidence as it is a copy obtained from the internet and even is not certified/authenticated from the authority issuing the said so-called permit and thus contended that the Tribunal has rightly exonerated the Insurance Company and the appellants are free to claim the said amount from the driver as well as owner and there is no difficulty in recovering the said amount in these very proceedings. 5. 5. I have considered the arguments advanced by the counsel for the parties and in my view, having considered the arguments advanced by the counsel for the appellants and certainly from the facts narrated by the counsel for the appellants, the claimant-appellants appear to be a widow coming from a small place and the deceased had left not only the widow but three minor children as also aged parents, and certainly they may not be aware of the technicalities and niceties of law in obtaining the material which can be said to be in their favour, and may be after disposal of the claim-petition counsel for the appellants has placed on record the so-called permit under Order 41, Rule 27 CPC, and in my view merely because the said so-called permit has been obtained later-on, it cannot be brushed aside as it goes to the root of the matter and the Tribunal harped on issue no.3 mainly because the claimants were not able to prove as to whether the trailer was being driven with a valid permit or not. 6. In my view, in the light of the judgments relied upon by the learned counsel for the appellants and taking into consideration the interest of justice, it would be appropriate to set aside the award of the Tribunal to re-decide the issue afresh only on issue no.3. 7. Accordingly, the appeal is allowed, award of the Tribunal is quashed and set aside qua issue no.3, and the Tribunal may go into the issue afresh in the light of the material now placed before this court, certainly after hearing respondent No.3 only, in accordance with law, since respondent Nos.1 and 2 chose not to appear before Tribunal, they need not be heard afresh now. 7. 1 Needless to mention, the appellants will restrict its claim only on issue no.3 only as counsel for the appellants gave up his submissions on other issues on enhancement etc. in appeal as observed in para 3 hereinbefore. Needless to mention, the Tribunal will have to go into and satisfy about the authenticity of the permit and appellants will have to satisfy the authenticity of the permit in accordance with law. 8. Let the Tribunal may pass an order expeditiously and within a period of six months from the date certified copy of this order is received by it. 8. Let the Tribunal may pass an order expeditiously and within a period of six months from the date certified copy of this order is received by it. Let the parties may appear before the Tribunal on 30.10.2015 and the Tribunal may regulate the proceedings thereafter. Record, if any, received by this court, be sent back to the Tribunal immediately.Appeal allowed. *******