Research › Search › Judgment

Rajasthan High Court · body

2021 DIGILAW 541 (RAJ)

Sohani Devi v. Paburam

2021-03-03

VINIT KUMAR MATHUR

body2021
JUDGMENT 1. The present appeal has been preferred against the judgment and award dated 10.10.2019 passed by Motor Accident Claims Tribunal, Jodhpur Metropolitan in Claim Case No. 133/2015(3503/2015) whereby the claim petition of the claimants-appellants seeking compensation on account of injuries suffered by Bansilal, was rejected. 2. A claim petition was filed by the injured- Bansilal before the Tribunal claiming compensation under various heads on account of grievous injuries suffered by him in the accident which occurred on 07.05.2014. During the pendency of the claim petition, he (Bansilal) died and Legal Representatives were brought on record. 3. Learned Tribunal after framing the issues, evaluating the evidence on record and hearing the counsel for the parties decided Issue Nos. 1 and 2 against the claimants-appellants holding that the vehicle Bolero Camper bearing Registration No. RJ-19-GD-1527 driven by the respondent No.1, which was insured with the respondent No.3, was not involved in the accident causing injuries to Bansilal. Since the findings on Issue Nos. 1 & 2 were against the claimants-appellants, the findings on Issue Nos. 3, 4 & 5 were adjudged against the claimants-appellants and, therefore, no amount of compensation was awarded in their favour. 4. With the consent of the parties, the matter is heard finally and decided. 5. Appellant No.2- Mr. Sandeep Bishnoi, who has appeared in person submits that on 07.05.2014 at around 8.30 P.M., when his father-Bansilal was going on motorcycle from Jodhpur to Jaleli to meet his relative, a Balero Camper No. RJ-19-GD-1527 coming from the opposite direction dashed the motorcycle of Bansilal. In the accident, Bansilal sustained grievous injuries on the head and was taken to the hospital by Bagaram and Jagdish who were also traveling with Bansilal on another motorcycle. The injured -Bansilal was taken to the Suncity Hospital in the same Bolero Camper from which he met with the accident. Due to critical condition, Bansilal was referred from Suncity Hospital to Manidhari Hospital and from there, he was shifted to Sterling Hospital at Ahmedabad on the next day. Bagaram and Jagdish accompanied the injured (Bansilal) to Ahmedabad. He further submits that when the position of the injured Bansilal improved, Bagaram and Jagdish came back to Jodhpur and Bagaram lodged the First Information Report on 20.05.2014. Bagaram and Jagdish accompanied the injured (Bansilal) to Ahmedabad. He further submits that when the position of the injured Bansilal improved, Bagaram and Jagdish came back to Jodhpur and Bagaram lodged the First Information Report on 20.05.2014. The appellant submits that chronology of events shows that the accident occurred with the vehicle which was insured with the respondent - Insurance company and the F.I.R. was registered after a period of 13 days on account of the fact that Bagaram accompanied the injured -Bansilal to Ahmedabad, where he was critically ill. The appellant contends that the findings of the Tribunal recorded on Issue Nos. 1 & 2 are based on conjectures. He further submits that in the case summary/ discharged tickets issued by the Manidhari Hospital, Jodhpur it was mentioned that Bansilal had suffered head injury with acute massive subdural hematoma in left temporo-parietal occipital and frontal region & midline shift, left temporo-parietal Haemorrhagic contusions along with fracture of right temporal and parietal bones. In the wake of these injuries, a person (Bansilal) cannot speak. Bansilal became unconscious immediately on the spot after the accident. Therefore, the Tribunal has grossly erred while recording the finding that on 07.05.2014 in Manidhari Hospital Bansilal stated that injuries were sustained on account of the bike having slipped. The appellant further contends that although, Bansilal was taken to the Suncity Hospital in the same Bolero Camper but the driver of the said vehicle fled away from the Suncity Hospital and thus, it can safely be presumed that Bagaram and Jagdish rightly identified the vehicle in question as well as its driver. He further argues that delay in lodging the F.I.R. cannot be a ground to reject the claim petition. Moreover, the delay in lodging the F.I.R. has been very well explained and therefore, the Tribunal erred while recording the findings on Issue Nos. 1 & 2 against the appellants-claimants. The appellant submits that as per the M.T.O. report of the Bolero Camper, it is mentioned that there was dent on the front and right side of the bumper with clear marks of scratches on the front and right side of the rare bumper. 1 & 2 against the appellants-claimants. The appellant submits that as per the M.T.O. report of the Bolero Camper, it is mentioned that there was dent on the front and right side of the bumper with clear marks of scratches on the front and right side of the rare bumper. He further submits that even as per the reply to the notice received under Section 133 of the Motor Vehicle Act, the owner of the vehicle i.e. respondent No. 2 Bagaram stated that on 07.05.2014, his Balero Camper No.RJ-19-GD-1527 was driven by his driver - Paburam, which met with the accident in front of Euro Kids School on Uchiyarda Road which clearly establishes that the subject vehicle was involved in the accident and thus, the findings recorded on Issue Nos. 1 & 2 are incorrect. The appellant contends that even as per the testimony of AW-2 Jagdish, he categorically stated that when they were traveling on their motorcycle with the motorcycle of Bansilal, the accident took place with the Bolero Camper and thereafter, they took him to the hospital. The testimony of Jagdish, therefore, is a clinching evidence and nothing contrary has been mentioned in his cross-examination. But the Tribunal has not appreciated the same while deciding the Issue Nos. 1 & 2. The Tribunal has decided the Issue Nos. 1 & 2 only on the ground of suspicion and doubt in spite of clear evidence brought on record showing the involvement of the Bolero Camper No.RJ-19-GD-1527 in the accident in the present case. Thus, he prays that the findings on Issue Nos. 1 & 2 may be quashed and set-aside and the claim petition of the appellants-claimants may be allowed by awarding suitable amount of compensation in the present case. 6. Per contra, learned counsels for the respondents submit that the findings recorded by the Tribunal on Issue Nos. 1 & 2 are just, proper and correct. They further submit that since the F.I.R. was registered after a long delay of 13 days only with an intention to falsely implicate the present vehicle, which was insured with the respondent No.3, to get the compensation in this case. They further submit that the Tribunal after appreciation of evidence on record rightly concluded that the Bolero Camper No.RJ-19-GD-1527 was not involved in the accident. They further submit that the Tribunal after appreciation of evidence on record rightly concluded that the Bolero Camper No.RJ-19-GD-1527 was not involved in the accident. Learned counsel further submits that no interference in the well reasoned judgment passed by the Tribunal in the present case is warranted and the appeal is prayed to be dismissed. 7. I have considered the rival submissions made at the Bar and gone through the impugned judgment as well as other relevant record of the case. 8. The fact that the accident in the present case occurred on 07.05.2014 is established from the medical documents which shows that Bansilal sustained serious injuries on the head. It is of common prudence that if a person suffers grievous injuries like acute massive subdural hematoma in left temporoparietal occipital and frontal region & midline shift, left temporoparietal Haemorrhagic contusions along with fracture of right temporal and parietal bones then, he certainly will not be in a position to give his statement or speak. Therefore, recording of the fact by the Tribunal that Bansilal himself told the doctors at Manidhari Hospital that injuries were sustained on account of the motorcycle having been slipped, is unbelievable. A person with such a grievous injury cannot speak and therefore, the contention of the appellant that Bansilal had become unconscious and could not have spoken to the doctors at Manidhari Hospital, inspires confidence. 9. The fact that in reply to the notice under Section 133 of the Motor Vehicle Act received by the owner of the subject vehicle, it is admitted by the owner of the vehicle himself that subject Vehicle No. RJ-19-GD-1527 was being driven by Paburam which met with accident on 07.05.2014 in front of Euro Kids School also establish the fact that said Bolero vehicle was involved in the accident and thus, there is no question of raising doubt on this issue. 10. The testimony of eye-witness- Jagdish is also worth believable and merely because he is a close relative of Bansilal would not be sufficient to disbelieve his testimony, much less nothing contrary has been stated during his cross-examination before the Tribunal. Therefore, his testimony was required to be taken into consideration by the Tribunal as a cogent piece of evidence while deciding the Issue Nos. 1 & 2. 11. Therefore, his testimony was required to be taken into consideration by the Tribunal as a cogent piece of evidence while deciding the Issue Nos. 1 & 2. 11. The delay in lodging the F.I.R. is also satisfactorily explained as the accident took place at around 08:30 P.M. on 07.05.2014 and Jagdish and Bagaram took the injured Bansilal to the Suncity Hospital, from where he was referred to Manidhari Hospital and thereafter, he was shifted to Sterling Hospital at Ahmedabad. Thus, within no time, the emergency treatment was extended to injured (Bansilal) and Bagaram and Jagdish also accompanied him throughout the treatment. Of-course, the first priority was to take care and provide best medical treatment to the injured- Bansilal, therefore, the F.I.R. was registered only after Bagaram came back from Ahmedabad. Thus, the delay in lodging the F.I.R. is reasonably explained and that cannot be a ground to disbelieve the involvement of the vehicle in question in the accident. 12. The statements of Bagaram and Jagdish recorded by the Police under Section 161 of Cr.P.C. also show the involvement of Bolero Camper insured with the respondent No.3 in the accident. Thus, the findings recorded by the Tribunal on Issue Nos. 1 & 2 suffer from gross and palpable errors and the same are required to be quashed and set-aside. Since, the findings on Issue Nos. 1 & 2 were recorded by the Tribunal against the appellant, therefore, Issue Nos. 3, 4 & 5 were not adjudicated in this case. 13. In view of the discussions made above, the findings on Issue Nos. 1 & 2 are quashed and it is held that the Bolero Camper No.RJ-19-GD-1527 was involved in the accident in the present case and therefore, the matter is remanded back to the Tribunal for deciding the Issue Nos. 3, 4 & 5 afresh after giving reasonable opportunities to all the parties by leading their evidence and arguments strictly in accordance with law. 14. Since the accident is of 2014, the Tribunal is requested to decide the claim petition at its earliest convenience. The parties shall appear before the Tribunal on 22.03.2021 and thereafter, as and when ordered by the Tribunal. 15. The civil misc. appeal is disposed of in the above terms. 16. Record of the Tribunal be sent back forthwith.