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2017 DIGILAW 1891 (RAJ)

Mangla v. National Insurance Co. Ltd.

2017-08-24

ARUN BHANSALI

body2017
JUDGMENT : Arun Bhansali, J. This appeal is directed against the judgment and award dated 19.09.2000 passed by the Motor Accident Claims Tribunal, Dungarpur ('the Tribunal'), whereby the Tribunal has awarded compensation to the tune of Rs. 1,00,000/- to the claimant for the injuries suffered by him. 2. The application for compensation was filed by the injured Govind Ram, inter alia, with the averments that on 25.09.1996, when he was travelling in Bus No. RJ-02/P-0217, the same was being driven rashly and negligently by driver of the Bus, resulting in gate of the Bus opening and he fell out of the Bus and suffered fractures in both the legs. Based on the said averments, compensation to the tune of Rs. 6,50,300/- was claimed. The application was resisted by the driver and owner by filing reply and claiming that plea regarding accident is incorrect. In the additional pleas, it was stated that the claimant might have tried to latch on to the back of the Bus and was not sitting in the Bus and, therefore, the non-claimants were not liable for payment of compensation. 3. The Insurance Company also filed its reply and stated that as the driver was not in possession of valid driving licence, for violation of policy conditions, the Insurance Company was not liable for payment of compensation. 4. The Tribunal framed four issues. On behalf of the claimant, he himself was examined as PW-1 and his brother was examined as PW-2. On behalf of the Insurance Company, one Brijmohan as DW-1 was examined and the driver was examined as DW-2. 5. The Tribunal after hearing the parties, came to the conclusion that from the circumstances, it doesn't appear that one person sitting on the seat can fall out of the Bus on account of any jerk and there appears to be some negligence of the claimant himself. 6. While deciding the issue pertaining to the liability of the Insurance Company, it was held that as the driver was not in possession of driving licence authorizing him to drive 'Heavy Motor Vehicle' and for violation of policy conditions, the Insurance Company was not liable. 7. While assessing the amount of compensation, the Tribunal after taking into consideration various aspects pertaining to award of compensation, awarded a sum of Rs. 1,00,000/- under various heads and directed the owner and driver to make payment of the said amount of compensation. 7. While assessing the amount of compensation, the Tribunal after taking into consideration various aspects pertaining to award of compensation, awarded a sum of Rs. 1,00,000/- under various heads and directed the owner and driver to make payment of the said amount of compensation. 8. In the present appeal when the same came up for admission, the execution of the award other than the amount deposited under proviso to section 173 of the Motor Vehicles Act, 1988 was stayed. 9. Despite service and filing of Vakalatnama on behalf of the claimant, no one is present on behalf of the claimant. 10. The Insurance Company is represent by the learned counsel. 11. It is submitted by learned counsel for the appellants that the finding of the Tribunal on issue No.1 pertaining to rash and negligent driving by the driver of the Bus is on its face contradictory, inasmuch as, the Tribunal on the one hand has simply observed that the circumstances indicated were surprising, and then has suddenly jumped to the conclusion that the vehicle was being driven rashly. Further submissions were made that from the evidence, which has come on record, it is in no way proved that the vehicle was being driven rashly and negligently by driver of the Bus, which resulted in the so called accident. 12. It was submitted that it is apparent from the entire sequence of events as claimed by the claimant that having suffered injuries else where, the claim was sought to be raised against the driver and owner of the Bus, who had no relation with the said accident and, therefore, the award impugned deserves to be quashed and set aside. 13. Though submissions were made that the Insurance Company was wrongly exonerated, in view of the admitted fact situation, wherein the driving licence of the driver clearly indicates having the endorsement of authorization of drive 'Heavy Transport Vehicle' on 10.01.1997, the said aspect was not pressed further. 14. It was prayed that the award impugned deserves to be set aside. 15. Learned counsel appearing for the respondent-Insurance Company supported the finding recorded by the Tribunal pertaining to its liability. 16. I have considered the submissions made by learned counsel for the parties and have perused the material available on record. 17. 14. It was prayed that the award impugned deserves to be set aside. 15. Learned counsel appearing for the respondent-Insurance Company supported the finding recorded by the Tribunal pertaining to its liability. 16. I have considered the submissions made by learned counsel for the parties and have perused the material available on record. 17. The Tribunal while deciding the application on issue No.1 pertaining to the alleged rash and negligent driving of the driver of the Bus, inter alia, observed as under:- ^^gkykafd rF;ksa ifjfLFkfr;ksa dks ns[krs gq, ;g Hkh izdV gksrk gS fd ,d lhV ij cSBk gqvk O;fDr >Vdk yxus ls ckgj ugha fxj ldrk gSa vr% blesa FkksM+h ykijokgh izkFkhZ dh Hkh utj vkrh gSa] D;ksafd cM+k vk'p;Ztud gS fd mlds ikl cSBk gqvk dksbZ Hkh O;fDr ckgj ugha fxjkA vr% ;g izekf.kr gks tkrk gS fd nq?kZVuk foi{kh la0&1 ds vkaf'kd mRrstuk ls xkM+h pykus ds dkj.k ?kVh vkSj mlesa izkFkhZ dks nksuksa iSjksa esa xEHkhj pksVsa vkbZA** 18. The Tribunal referred to documents - Charge-Sheet (Ex.-1), FIR (Ex.-2) and Injury Report (Ex.-3) and ignored the judgment of the criminal court, wherein the driver was acquitted from the charge of rash and negligent driving on the court coming to the conclusion that mere opening of the gate even if held proved by itself cannot amount to rash and negligent driving by driver of the Bus. 19. The accident is alleged to have occurred on 25.09.1996 and FIR in the matter was lodged on 10.01.1997. Though the same is sought to be explained on account of the injuries suffered by the claimant, however, looking to the allegations made in the application and the sequence of events, which have been alleged, the delay in filing the FIR assumes significance. It was a specific case of the claimant that alongwith him on the seat one Mogji s/o. Lalji was also sitting, however, he did not fell down/out of the Bus and despite the fact that there were 25 to 30 persons, who were travelling in the Bus none of them had any such issue regarding the Bus having suffered some jerk etc., resulting in the gate of the Bus opening and the person sitting on the seat falling out of the running Bus. 20. 20. The said aspect, which is alleged and has not been supported by evidence of any of the co-passengers though it was claimed that few of the co-passengers were travelling with the injured to the factory, where the injured was working, raises serious doubt pertaining to the story, which has been propounded by the claimant regarding the injuries suffered by him. 21. As already noticed hereinbefore, the Tribunal though expressed surprise at the story propounded by the claimant, jumped on to the conclusion that the claimant may have contributed to the accident but the driver was driving the Bus rashly and negligently. The finding of the Tribunal for the above reasons cannot be sustained. 22. In view of the above, the finding of issue No.1 pertaining to the rashly and negligently driving by driver of the Bus is set aside. As a consequence to which, the findings recorded by the Tribunal on the issue pertaining to the quantum of compensation is rendered meaningless in the circumstances of the case. 23. So far as the finding regarding the liability of the Insurance Company is concerned, as already noticed hereinbefore, in view of the fact that the driver was not in possession of valid driving licence authorizing him to drive 'Heavy Transport Vehicle' at the time of accident, on account of violation of policy conditions, the Tribunal was justified in exonerating the Insurance Company. 24. In view of the above discussion, the appeal filed by the driver and owner is allowed. The award dated 19.09.2000 is set aside and the claim application filed by the claimant is dismissed. 25. The amount of Rs. 25,000/- as deposited by the appellants, if disbursed to the claimant, the appellants would be entitled to recover the same from the claimant. 26. No order as to costs.