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2017 DIGILAW 71 (RAJ)

Pratap Singh v. Mangla Ram

2017-01-05

ARUN BHANSALI

body2017
JUDGMENT Arun Bhansali, J. - These appeals are directed against the judgment and award dated 22.11.2000 passed by the Motor Accident Claims Tribunal (I), Jodhpur (''the Tribunal''), whereby the Tribunal has awarded a sum of Rs. 63,500/- as compensation to the claimant-Mangla Ram for the injuries suffered by him. 2. While CMA No. 290/2001 has been filed by the owner and driver of the vehicle questioning the finding of the Tribunal regarding the involvement/negligence of the driver of the vehicle and exoneration of the Insurance Company, CMA No. 273/2001 has been filed by the claimant seeking enhancement of compensation and questioning the exoneration of the Insurance Company. 3. The application for compensation was filed by the claimant injured with the averment that on 10.2.1990 at about 8:30 p.m. he was riding his motor-cycle No.RJ-19-6636 when the offending vehicle jeep No.RST-4701, which was being driven rashly and negligently by Chhail Singh, struck him from behind, resulting in, his falling down and suffering injuries to his leg, leg was imputed from above the knee. It was alleged that the accident occurred on account of rash and negligent driving of the jeep. It was also claimed that the injured was a driver and on account of the injuries suffered by him and amputation, a compensation to the tune of Rs. 11,17,000/- was claimed. 4. A reply to the application was filed by the driver of the vehicle and the fact of accident was denied and it was indicated that the vehicle was insured with the insurance company. The owner also filed his reply and denied the involvement of the vehicle. 5. The insurance company filed its reply and indicated that though the cover note belonged to the company, the same was issued unauthorisedly by its Development Officer and as no premium was deposited and no policy was issued. The Development Officer was sacked from the company and notice was published in the news-paper indicating the cover notes which remained with him and the cover note in question was part of the said cover notes and therefore, the Insurance Company was not liable. 6. Based on the averments of the parties, the Tribunal framed as many as five issues. 7. On behalf of the claimant, 05 witnesses were examined 38 documents were produced. 6. Based on the averments of the parties, the Tribunal framed as many as five issues. 7. On behalf of the claimant, 05 witnesses were examined 38 documents were produced. On behalf of the driver & owner, 03 witnesses were produced and on behalf of the Insurance Company 01 witness was produced. 8. After hearing the parties, the Tribunal based on the evidence available on record, came to the conclusion that though the evidence, which came on record, was not convincing regarding the involvement of the vehicle. However, as the police after investigation has found the involvement of the vehicle as proved and in the investigation report accident marks were found on the vehicle and there is no reason to disbelieve the action of the police and therefore, it held that the accident occurred from the vehicle in question. 9. The Tribunal also came to the conclusion based on the site map (Ex.-2) that the claimant was equally liable for the accident as he was driving the motor-cycle in middle of the road and held him equally responsible for the accident. 10. While deciding the issue pertaining to the liability of the Insurance Company, the Tribunal came to the conclusion that as the cover note of the Jalore Branch was obtained from Jodhpur, on account of fraud the Insurance Company was not liable. 11. While assessing the amount of compensation, the Tribunal came to the conclusion that the claimant was entitled for compensation to the tune of Rs. 1,27,000/- by assessing the same at Rs. 5,000/- for treatment, Rs. 2,000/- for repair of motor-cycle, Rs. 20,000/- for physical and mental harassment and Rs. 1,00,000/- for loss of income on account of amputation and reduced the same by 50% on account of contributory negligence. 12. It is submitted by learned counsel for the appellants-owner & driver that the award passed by the Tribunal is ex-facie illegal, inasmuch as, the Tribunal despite coming to the conclusion that the evidence available on record does not prove the involvement of the vehicle, however, by merely relying on the fact that the police after investigation filed challan, has held the appellants liable. 13. 13. It is further submitted that the Tribunal has failed to even record a finding regarding negligence of the driver of the vehicle and has simply relied on the police documents/challan for the purpose of coming to the conclusion about involvement only and therefore, the finding deserves to be quashed and set-aside. 14. In respect of exoneration of the Insurance Company, it was submitted that from the material available on record, the insurance of the vehicle is proved and the Insurance Company has failed to discharge its burden seeking to disown its liability despite issuance of such cover note and therefore, the finding of the Tribunal merely on account of the fact that the cover note pertaining to the Jalore branch was issued at Jodhpur cannot be sustained and the same, therefore, deserves to be quashed and set-aside. 15. Further submissions were made that the finding of the Tribunal regarding contributory negligence and quantum for compensation does not call for any interference. 16. Learned counsel appearing for the claimants supported the judgment impugned in so far as involvement and negligence of the vehicle is concerned. It was submitted that even if the findings based on the police documents are ignored, the evidence available on record which includes the evidence of claimant-Mangla Ram as an eye-witness was sufficient for the Tribunal came to the conclusion that the accident occurred from the vehicle in question and the negligence of the driver of the jeep is proved based on the principles of res ipsa loquitur, in as much as, the jeep struck the motor-cycle from behind. 17. Further submissions were made that the exoneration of the Insurance Company is not justified, inasmuch as, the Insurance Company has failed to lead any evidence supporting the plea of issuance of cover note after the Development Officer was sacked and therefore, the findings in this regard deserves to be set-aside. 18. It was also submitted that the finding of the Tribunal regarding contributory negligence based on the site map (Ex.-2) is also baseless as once it has come on record that the jeep struck the motor cycle from behind, it cannot be said that the claimant was negligent in driving the motor cycle. 19. For the amount of compensation, it was submitted that the Tribunal has awarded meagre sum despite the fact that the claimant''s leg has been amputated from above the knee. 19. For the amount of compensation, it was submitted that the Tribunal has awarded meagre sum despite the fact that the claimant''s leg has been amputated from above the knee. The claimant was driver by profession and on account of amputation taking his physical disability at 40%, his functional disability would be 100% and therefore, the amount of compensation deserves to be enhanced. It was prayed that the appeal filed by the driver/owner be rejected regarding the involvement and that amount of compensation be enhanced and the Insurance Company be held liable. 20. Learned counsel appearing for the Insurance Company submitted that the Tribunal has apparently committed error in recording the finding about involvement of the vehicle as the same is not proved from the record. It was further submitted that from the beginning, it has been the case of the respondent-Insurance Company that based on the cover note, no premium was ever deposited with the Insurance Company and no policy was issued, mere issuance of cover note by itself cannot create liability against the Insurance Company. 21. Further submissions were made that the Development Officer in question was sacked from the Company and the cover note has apparently been issued after his sacking and that a notice in this regard was published in the news-papers. It was prayed that the appeals filed by the owner/driver and the claimant against the Insurance Company be dismissed. 22. I have considered the submissions made by learned counsel for the parties and have perused the material available on record. 23. A bare look at the finding recorded by the Tribunal pertaining the involvement/negligence of the vehicle jeep in question reveals that the Tribunal, after considering the oral evidence of the parties did not believe the oral evidence of the parties and based on the evidence of the defendants indicating the vehicle being not available at the relevant place, observed that though the said statements may be correct, however, as the police after investigation has filed challan, there is no reason not to believe the conclusion arrived at by the police, which is based on the evidence of Gopa Ram, Chokha Ram and Pratap Singh, though the said persons were not produced before the Tribunal. 24. 24. Though it is apparent from the finding recorded by the Tribunal that the Tribunal based on the oral evidence available on record, was not convinced about the involvement of the vehicle, based on the fact that the challan was filed indicating the involvement of the vehicle, has held that the involvement is proved. However, after reaching the said conclusion about involvement, no finding regarding negligence of the driver of the jeep has been recorded. On the other hand, based on the site map (Ex.-2), it has recorded a finding that the claimant himself was equally negligent in driving the motor cycle in middle of the road. 25. The procedure adopted and finding recorded by the Tribunal on face of it does not appear to be correct. Merely, on account of filing of the charge-sheet without knowing of the result of the said charge-sheet as to whether ultimately conviction took place in the said case or not, relying on the said material despite coming to the conclusion that oral evidence available on record, was not convincing enough cannot be a reason to come to the conclusion that the vehicle in question was involved. Further a mere finding about involvement of the vehicle is not sufficient, based on the evidence available on record, the Tribunal is required to reach a conclusion that the driver of the vehicle involved was negligent in driving the vehicle, which resulted in the accident and the said negligence cannot be presumed, however, the said aspect is wholly missing from the finding recorded by the Tribunal. 26. So far as the submissions made by learned counsel for the claimant regarding examining the oral evidence of the parties is concerned, dehors the filing of challan by the police, the Tribunal while dealing with the statements of all the witnesses, has one by one discarded/doubted the statement of each witness i.e. PW-1 to PW-4, the analysis/assessment thereof by the Tribunal cannot be said to be incorrect. 27. Another reason recorded by the Tribunal pertains to the mechanical investigation report of the police. 28. A bare look at the statement of the claimant indicates that the claimant specifically indicated in his cross-examination that However, a bare look at the mechanical investigation report (Ex.-5) indicates the following :- 29. 27. Another reason recorded by the Tribunal pertains to the mechanical investigation report of the police. 28. A bare look at the statement of the claimant indicates that the claimant specifically indicated in his cross-examination that However, a bare look at the mechanical investigation report (Ex.-5) indicates the following :- 29. From the statement of the claimant and the investigation report, it is apparent that the same are in contradiction to each other and therefore, the reasons recorded by the Tribunal regarding the mechanical report showing involvement of the vehicle in accident also appears to be baseless and consequently, the finding recorded on the issue No. 1 cannot be sustained, the same is therefore, reversed. 30. In view of the above, the finding recorded by the Tribunal regarding involvement of the vehicle on Issue No. 1, cannot be sustained. The same is contrary to the settled position and for lack of any finding pertaining to negligence. 31. So far as the finding of the Tribunal pertaining to the liability of the Insurance Company is concerned, in view of the fact that the finding of the Tribunal regarding involvement of the vehicle has been covered, the issue regarding the liability of the Insurance Company looses its significance. Further the appeal filed by the respondent regarding enhancement of the amount of compensation also looses its significance. 32. In view of the above discussion, the SBCMA No. 290/2001 is allowed. The award dated 22.11.2000 passed by the Tribunal is set-aside. Consequently, the SBCMA No. 273/2001 filed by the claimant is dismissed.