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2017 DIGILAW 1230 (RAJ)

Hari Singh v. Bhopal Singh

2017-05-12

GOVERDHAN BARDHAR

body2017
JUDGMENT Goverdhan Bardhar, J. - The instant civil misc. appeal has been filed by the appellant under Section 173 M.V. Act, 1988 against the judgment dated 04.02.2012 passed by the learned Judge, MACT, Nathdwara in claim case No. 06/2010 whereby the learned judge dismissed the claim petition of the appellant. 2. Briefly stated that facts of the case are that the appellant filed the claim petition under Section 166 M.V. Act before the learned Motor Accident Claims Tribunal, Nathdwara alleging therein that on 26.03.2009 the claimant appellant after giving the examination of Class X was going to Bada Bhanuja to his village Kama on motor cycle then at 6.00 p.m. in between the way of Bada Bhanuja to Karai near Bheel Basti Gandhi Nagar, respondent No. 1 first signaled the appellant to go ahead but the respondent No. 1 suddenly turned his Jeep No. RJ 30CB0382 again on road and hit the motor cycle of the appellant due to which the appellant alongwith motor cycle fell down and suffered injuries. The FIR of the case was registered bearing FIR No. 88/2009 at P.S. Khamnor. The appellant claimed a compensation in the sum of Rs. 7,10,000/- under various heads. 3. The notices of the claim petition were issued to the respondents but the respondent No. 1 despite service, did not participate in the court proceedings. 4. The respondent No. 2 filed the reply to the claim petition and averred in the preliminary objection that the accident has occurred on 26.03.2009 but an application was filed before the learned Judicial Magistrate only on 23.05.2009 and thereafter the case was registered. As such there was delay of 1 month 28 days in filing the complaint which create suspicion about the involvement of the vehicle in accident. The claimant with the collusion of owner and driver of the vehicle has registered the FIR with intend to receive the claim amount from the insurance company and at the time of accident the Jeep No. RJ 30CB0382 was not insured with the respondent No. 2 insurance company. The claimant with the collusion of owner and driver of the vehicle has registered the FIR with intend to receive the claim amount from the insurance company and at the time of accident the Jeep No. RJ 30CB0382 was not insured with the respondent No. 2 insurance company. In the additional plea the respondent No. 2 further averred that at the time of accident the driver of the jeep was not having valid and effective driving licence and the insured has violated the terms and condition of the insurance policy while not giving the information about the accident to the insurance company and at the time of accident the claimant was driving the motor cycle in high speed, rashly and negligently and due to slip of motor cycle claimant has sustained injuries, therefore, the Insurance company is not liable to pay any compensation. 5. On the basis of the pleadings, the learned tribunal framed as many as five issues in the case. In support of the claim petition appellant claimant examined as A.W. 1 and exhibited 21 documents. 6. The learned tribunal after hearing the arguments of the rival parties dismissed the claim petition filed by the appellant vide judgment dated 04.02.2012. Hence, this appeal. 7. Learned counsel for the appellant argued that the impugned judgment passed by learned tribunal is ex-facie illegal, perverse, arbitrary, contrary to law and facts and against the material available on record. It is argued that the learned tribunal has committed grave illegality while deciding the issue No. 1 against the appellant by holding that on alleged date, time and place the accident of the motor cycle of the appellant and injuries sustained by the alleged vehicle is not proved. It is argued that the appellant by his oral as well as documentary evidence has clearly proved that the appellant sustained injuries in the accident caused by the alleged vehicle involved in the accident. It is further argued that the learned tribunal decided the issue No. 1 against the appellant only on the basis of the pleadings of the respondent No. 2 insurance company that appellant has filed the claim petition with collusion of the respondent No. 1 owner and driver of the jeep just with a view to receive the compensation. It is further argued that the learned tribunal decided the issue No. 1 against the appellant only on the basis of the pleadings of the respondent No. 2 insurance company that appellant has filed the claim petition with collusion of the respondent No. 1 owner and driver of the jeep just with a view to receive the compensation. It is further argued that the father of the appellant sought to file the report to the Police Station Khamnor just after the accident but for long time the police has neither proceeded nor registered the FIR, therefore, the complaint was filed on 25/03/2009 after one month and 28 days. It is further argued that the learned tribunal has committed grave error of law as well as facts while deciding the issue No. 4 against the appellant as the learned tribunal has assessed the compensation to the tune of Rs. 61,770/- in favour of the appellant but has declined to pay the compensation to the appellant on the basis that the issue No. 1 has been decided against the appellant and such finding of the learned tribunal is illegal. 8. I have perused the impugned judgment dated 04.02.2012 passed by the learned Judge, MACT, Nathdwara as also material available on record. 9. The factum of accident on 26.03.2009 and injuries suffered by the claimant appellant while coming after giving the examination of Class X from Bada Bhanuja to his village Kama on motor cycle is not disputed. However, in paragraph 25 of the impugned judgment the learned tribunal has come to the conclusion that possibility of nexus with regard to the involvement of the vehicle cannot be ruled-out. 10. From the perusal of aforesaid finding, it cannot be said that the finding of the learned Tribunal with regard to sustaining the injuries by the claimant is based on proper appreciation of evidence and material available on record. Moreover, in the criminal case lodged by the father of the claimant in which the police had filed charge-sheet against the owner and driver, the respondent Bhopal Singh has been convicted for offence under Section 279, 337, 338 IPC. Therefore, the findings recorded on surmises and conjectures by the learned Tribunal is not sustainable and same is set aside. Moreover, in the criminal case lodged by the father of the claimant in which the police had filed charge-sheet against the owner and driver, the respondent Bhopal Singh has been convicted for offence under Section 279, 337, 338 IPC. Therefore, the findings recorded on surmises and conjectures by the learned Tribunal is not sustainable and same is set aside. The matter is remanded back to decide afresh after considering the evidence on record within a period of six months from the date of certified copy of this order. Both the parties are directed to appear before the learned tribunal on 30.05.2017. The appeal is disposed of In above terms.