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Rajasthan High Court · body

2019 DIGILAW 2223 (RAJ)

New India Assurance Co. Ltd. v. Dhapu Bai

2019-08-20

VINIT KUMAR MATHUR

body2019
JUDGMENT : Vinit Kumar Mathur, J. 1. The present appeal has been filed by the appellant-insurance company against the award dated 02.05.2015 passed by learned Motor Accident Claims Tribunal, Chittorgarh in Motor Accident Claim Application Case No. 326/2008. 2. The respondent-claimants preferred a claim petition seeking grant of compensation on account of death of Ratanlal who died in a accident which took place on 28.02.2008, on various grounds before the learned Motor Accident Claims Tribunal, Chittorgarh. The reply was filed on behalf of the appellant-insurance company as well as the respondents/non-claimants (Driver & Owner of the offending Car) denying the allegations in the claim petition. Thereafter, on completion of the pleadings, the learned Tribunal framed the issues. 3. After hearing the counsel for the parties, the learned Tribunal decided the claim petition of the respondents/claimants and awarded a sum of Rs. 5,91,500/- in favour of the respondents/claimants and directed the appellant as well as respondents/non-claimants to pay an interest @ 9% per annum on the amount awarded from the date of filing of the claim petition. 4. With the consent of the parties, the matter is being decided finally. 5. Heard. 6. In the present case, the factum of accident with insured vehicle has been disputed. 7. Learned counsel for the appellant vehemently argued that the learned Tribunal fell into error while considering the fact that the accident took place by the insured vehicle RJ-09C-5412. He further submits that immediately after the accident, the FIR was registered in which the number of vehicle was stated to be RJ-09C-5254. He further submits that in order to get the compensation, the number of the offending vehicle has been changed. He submits that the original number of vehicle which was initially involved in the accident was changed when the charge-sheet was filed by the police, after the investigation. 8. Learned counsel for the appellant while taking this Court to the evidence recorded by the learned Tribunal particularly the cross-examination of AW-4 (Gajraj Singh) who was the Investigating Officer of the Criminal Case, has submitted that the requisite information with respect to the Indica Car No. RJ-09C-5412 was not specifically obtained by him during the course of investigation from the RTO. He further submits that when the FIR was lodged by one Jamil Khan who stated the number of the offending vehicle being RJ-09C-5254 has not been produced in the witness box before the Tribunal and, therefore, there is no reason to disbelieve the number of the vehicle stated to be given by Jamil Khan in the First Information Report. He further submits that in the cross-examination of AW-3 Yashwant Singh, he has also stated that Jamil has submitted the First Information Report in his presence and the number of the car was also stated by him of the vehicle, which was involved in the accident. 9. On the strength of these arguments, the learned counsel for the appellant submits that just to get compensation from the Insurance Company the present vehicle has been involved which is insured by the appellant. 10. Per contra, the learned counsel for the respondents submits that the Tribunal has correctly evaluated the testimony of eyewitness in the shape of AW-3 Yashwant Singh who has categorically stated that while he was driving the motor-cycle, he was following Ratanlal just at a distance about 20 feet and he saw the accident. After the accident, he took Ratanlal to the hospital in the same Indica Car (RJ-09C-5412) which collided with the motorcycle driven by Ratanlal. The Investigating Officer of the Criminal Case (AW-4 Gajraj Singh) has also deposed before the learned Tribunal that his investigating also revealed the involvement of the Indica Car No. RJ-09C-5412 in the present case. The counsel for the respondents further submits that the Tribunal after proper appreciation of the evidence on record has correctly come to the conclusion that the vehicle involved in the present case was Indica Car RJ-09C-5412. 11. I have considered the submissions made at the Bar and have gone through the award passed by the learned Tribunal as well as relevant records of the case. 12. The sequence of events which have been projected in the present case show that Ratanlal who is the deceased in the present case was driving the motor-cycle and he was being followed by AW-3 Yaswant Singh on the motor-cycle on the date of accident i.e. 28.02.2008. Immediately, after the accident, AW-3 Yaswant Singh took the deceased Ratanlal to the hospital in the Indica Car RJ-09C-5412 which was involved in the accident. Immediately, after the accident, AW-3 Yaswant Singh took the deceased Ratanlal to the hospital in the Indica Car RJ-09C-5412 which was involved in the accident. As per the evidence of eye-witness in clear and unambiguous terms, the involvement of Indica Car RJ-09C-5412 in the accident cannot be disbelieved. Further, the investigation in the criminal case also reveals the fact that on notice being given to the owner of the vehicle Ramchhabile under Section 133 of the M.V. Act, he disclosed the fact that on 28.02.2008, the subject vehicle was being driven by Narayan Lal. The disclosure of the name of the driver in the statement of the AW-3 Yashwant Singh also corroborates the fact that on 28.02.2008, the offending vehicle was being driven by Narayan Lal. The learned Tribunal has correctly appreciated the evidence on record and rightly come to the conclusion that the vehicle involved in the present case was Indica Car No. RJ-09C-5412. The relevant portion of order of learned Tribunal which is reproduced as under is, therefore, upheld. The learned Tribunal has correctly appreciated the evidence on record and rightly come to the conclusion that the vehicle involved in the present case was Indica Car No. RJ-09C-5412. The relevant portion of order of learned Tribunal which is reproduced as under is, therefore, upheld. ^^esjs }kjk mDr fcUnq ij mHk; i{kksa dh cgl ij euu fd;k x;kA ;g mYys[kuh; gS fd gLrxr izdj.k esa ,M1 /kkiwckbZ] ,M2 lR;ukjk;.k] ,M3 ;'koUrflag o ,M4 xtjktflag ,,lvkbZ dh lk{; ys[kc) djkbZ xbZ gSA ftlesa ls /kkiwckbZ o lR;ukjk;.k ?kVuk ds p'en'khZ lk{kh ugha gSA gLrxr izdj.k esa vizkFkhZx.k dh rjQ ls dksbZ lk{; ys[kc) ugha djkbZ xbZ gSA ,M3 ;'koUrflag us vius l'kiFk dFkuksa esa bl vk'k; ds dFku fd;s gS fd fnukad 28-02-08 dks eSa eksVjlkbZfdy ysdj nqxZ ls fpRrkSMx<+ 'kgj dh rjQ vk jgk Fkk rFkk esjs vkxs jruyky eksVjlkbZfdy ysdj mrj jgk Fkk ihNs ls okgu bf.Mdk uEcj vkjts 09 lh 5412 dks mldk pkyd ukjk;.kyky rstxfr] xQyr o ykijokghiwoZd pykrs gq, vkWojVsd djrs gq, jruyky dh eksVjlkbZfdy ds VDdj ekj nh ftlls jruyky ds 'kjhj esa dbZ xaHkhj o lka?kkfrd pksVs vkbZ] mijksDr lk{kh ds izfrijh{k.k esa ,slk dksbZ dFku ugha vk;k gS ftlls mlds dFkuksa dh fo'oluh;rk [kf.Mr gksA ;g mYys[kuh; gS fd vizkFkhZx.k dh rjQ ls mijksDr lk{kh ds [k.Mu esa dksbZ lk{; izLrqr ugha dh xbZ gSA tgka rd izFke lwpuk esa dkj dk uEcj vkjts 09 lh 5412 ds LFkku ij vkjts 09 lh 5254 vafdr gksus dk iz'u gS] ;g mYys[kuh; gS fd izFke lwpuk o Dyse ihfV'ku nksuksa esa ;g of.kZr gS fd nq?kZVuk bf.Mdk dkj }kjk dkfjr dh xbZ FkhA ;fn izFke lwpuk esa dkj dh txg thi }kjk nq?kZVuk dkfjr djus dk mYys[k gksrk o Dyse ihfV'ku esa dkj }kjk nq?kZVuk dkfjr dk mYys[k gksrk rks ,slh fLFkfr esa ,slk fojks/kkHkkl egRoiw.kZ o lqlaxr gksrkA nq?kZVuk ds oDr nq?kZVuk dkfjr djus okys okgu dk uEcj xyr vafdr gks tkuk dksbZ ,slh ifjfLFkfr ugha gS fd ek= bl vk/kkj ij izkFkhZx.k ds dFkuksa dks vfo'oluh; eku fy;k tkosA nq?kZVuk dkfjr gksus ds i'pkr~ oks O;fDr tks ihfMr dks vLirky ys tkrs gS mudh izkFkfedrk ,sls O;fDr dk bZykt djokus dh gksrh gS ,slh fLFkfr esa dbZ ckj tYnckth esa nq?kZVuk dkfjr djus okys okgu dk uEcj xyr Hkh mYysf[kr gks tkrk gSA ;g mYys[kuh; gS fd gLrxr izdj.k esa izkFkhZx.k }kjk ,M1 xtjktflag }kjk mijksDr ?kVuk ls lacaf/kr vijkf/kd izdj.k dk vUos{k.k fd;k x;k gS dks lk{; esa is'k fd;k x;k gSA mijksDr xtjktflag ,M4 us vius izfrijh{k.k esa ;g dfFkr fd;k gS fd ckcwyky o ;'koUrflag us dkj la[;k 5412 ls nq?kZVuk gksuk crk;k FkkA gLrxr izdj.k esa ,M3 ;'koUrflag us vius l'kiFk dFkuksa esa ;g Li"V :i ls dfFkr fd;k fd nq?kZVuk mlds lkeus ls ?kVh Fkh mijksDr lk{kh dk ;g dFku gS fd bf.Mdk dkj uEcj vkjts 09 lh 5412 ds pkyd }kjk eksVjlkbZfdy pkyd jruyky dks vkWojVsd djrs gq, jruyky dh eksVjlkbZfdy ds VDdj ekjh] vr% ,slh fLFkfr esa ;g nf'kZr gksrk gS fd mijksDr lk{kh ,M3 ;'koUr flag tks fd ?kVuk dk p'en'khZ lk{kh gS o mDr ckcwyky ds c;kuksa ds vk/kkj ij vUos{k.k vf/kdkjh bl fu"d"kZ ij igqps fd nq?kZVuk dkj la[;k vkjts 09 lh 5412 ds pkyd ukjk;.k yky }kjk dh xbZA ;g Hkh mYys[kuh; gS fd vUos{k.k vf/kdkjh ,M4 xtjkt flag ds dFkukuqlkj mlus bf.Mdk dkj uEcj vkjts 09 lh 5412 ds ekfyd jkeNchys dks eksVjokgu vf/kfu;e dh /kkjk 133 ds vUrxZr uksfVl fn;k FkkA i=koyh ij miyC/k mijksDr uksfVl dh izfr izn'kZ 4 ij i`"Bkafdr mijksDr dkj uEcj vkjts 09 lh 5412 ds Lokeh jkeNchys us ;g dfFkr fd;k gS fd fnukad 28-02-08 dks mldh dkj dk pkyd ukjk;.kyky iq= ';ke yky FkkA i=koyh ij miyC/k jruyky dh iksLVekVZe fjiksVZ izn'kZ 5 ds voyksdu ls nf'kZr gksrk gS fd jruyky dh e`R;q flj ij vkbZ pksV ds dkj.k ls gqbZ FkhA xokg ;'koUrflag ,M3 ds dFkuksa ls nf'kZr gksrk gS fd vizkFkhZ ukjk;.k yky us dkj la[;k vkjts 09 lh 5412 pykrs gq, vius vkxs tkrs gq, eksVjlkbZfdy pkyd jruyky ds VDdj ekjh] ;g ifjfLFkfr nf'kZr djrh gS fd nq?kZVuk dkj pkyd ukjk;.kyky dh ykijokgh ds QyLo:i ?kfVr gqbZA ftlesa jruyky dh e`R;q gqbZA i=koyh ij miyC/k mijksDr dkj ds iathd`r izek.k i= ls ;g nf'kZr gksrk gS fd mijksDr dkj vkjts 09 lh 5412 dk Lokeh jkeNchys gS vr% ,slh fLFkfr es ai=koyh ij miyC/k lkexzh ls ;g izekf.kr gksrk gS fd fnukad 28-02-08 dks vizkFkhZ ukjk;.k yky us bf.Mdk dkj uEcj vkjts 09 lh 5412 dks mis{kkiw.kZ o ykijokgh ls pykrs gq, vius vkxs tk jgs eksVjlkbZfdy pkyd jruyky ds VDdj ekjh ftlds QyLo:i jruyky dh e`R;q gks xbZA vr% ,slh fLFkfr esa izkFkhZx.k rudh la[;k 1 dks vius gd esa fl) djus esa lQy jgs gSA^^ 13. This Court is also not impressed by the argument that on the date of lodging of the FIR by Jamil, the number of the Indica Car was stated to be RJ-09C-5254 in the First Information Report and if that is so, the appellant could have produced Jamil in the witness box to fortify the fact that because of the Indica Car which was informed in the accident was having No. RJ-09C-5254. Failure to produce Jamil in the witness box by the appellant, cannot be made dis-advantageous to the claimants. The claimants have produced evidence on record in the form of eye witness which clearly proves that Ratan Lal died because of collision of the Indica Car bearing No. RJ-09C-5412 which was being driven by Narayan Lal on the date of the accident. The finding of fact arrived at by the learned Tribunal is just and correct. 14. Taking into consideration the fact that Indica Car No. RJ-09C-5412 was involved in the accident and no other point was argued, the appeal lacks merit and therefore, the same is hereby dismissed. 15. Stay petition also stands disposed of.