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2024 DIGILAW 1536 (RAJ)

Dalu Teli S/o Kanna Teli v. Vinod Lohar

2024-11-08

NUPUR BHATI

body2024
JUDGMENT : NUPUR BHATI, J. 1. The S.B. CMA No. 1933/2016 has been preferred by the appellants (Owner and Driver) under Section 173 of the Motor Vehicles Act, 1988 (hereinafter as ‘the Act’) against the judgment and award dated 27.05.2016 passed by learned Judge, Motor Accident Claims Tribunal No. 1, Udaipur (hereinafter as ‘the learned Tribunal’) in MAC Case No. 1142/2010, whereby the learned tribunal has awarded Rs. 2,25,000/- along with interest @ 9% p.a. to the claimants and held the owner liable to pay the compensation and also the insurance company has been exonerated and given liberty to recover the amount already paid by it from the owner of the vehicle. The S.B. Cross Objection (Civil) No. 83/2021 has been filed by the claimants, seeking enhancement by way of filing an application under Order 41 Rule 22 of the Code of Civil Procedure, 1908. For the sake of convenience facts of the appeal (S.B. CMA No. 1933/2016) are being taken illustratively and the appellant No. 1 will be referred to as appellant/driver, the appellant No. 2 will be referred to as the appellant/owner, the claimants would be referred to as respondents/claimants when referred to as collectively (and as respondent No. 1/claimant and respondent No. 2/claimant, when referred to in their individual capacity) and the insurance company would be referred to as the respondent/insurance company. 2. Brief facts of the case are that on 18.06.2009, Seema went to Nayon-Ka-Kuan for drinking water, which is situated at main road Khartana village. And at around 12:30 PM the car bearing registration No. RJ-27-CB-1736 (herienafter as ‘the offending vehicle’) allegedly being driven by the appellant No. 1/driver in rash and negligent manner came from the direction of Sanwad and hit Seema, and as a result of the accident Seema (hereinafter as ‘the deceased-child’) died in the accident. The FIR No. 98/2009 (Ex.6) was lodged by the respondents/claimants on 18.06.2009 at around 03:20 PM. However, the police after investigation submitted Final Report (Ex.5) on 14.08.2009 against unknown vehicle. Aggrieved by this, a protest petition was preferred before the Judicial Magistrate (First Class), Maavli, Udaipur, and the Magistrate vide order dated 03.05.2010 (Ex.1, hereinafter as ‘the cognizance order’) quashed the Final Report (Ex.5) and while taking cognizance, the Magistrate issued bailable warrant against the appellants herein. Aggrieved by this, a protest petition was preferred before the Judicial Magistrate (First Class), Maavli, Udaipur, and the Magistrate vide order dated 03.05.2010 (Ex.1, hereinafter as ‘the cognizance order’) quashed the Final Report (Ex.5) and while taking cognizance, the Magistrate issued bailable warrant against the appellants herein. Aggrieved by the same, the appellants herein preferred Criminal revision petition No. 21/2010 against the cognizance order (Ex.1) on 01.06.2010 before the Additional Sessions Judge(III), Udaipur and the learned Sessions Judge vide order dated 15.06.2011 (Ex. NA8) set aside the Cognizance order. Meanwhile, the respondents/claimants on 03.10.2010 filed MAC Case No. 1142/2010 before MACT, Udaipur against the appellants and the respondent/insurance company claiming compensation on account of death of the deceased-child. In the said claim petition, despite due service, the appellants failed to appear before the MACT, Udaipur. Therefore, ex-parte proceedings were initiated against them & the MACT, Udaipur vide judgment and award dated 06.11.2012 (hereinafter as ‘the ex-parte award’) awarded compensation of Rs. 1,50,000/- along with interest @9% from the filing of the claim petition (i.e. 03.10.2010) to the respondents/claimants and held appellants liable to pay the compensation and also gave a direction of pay and recover to the respondent/insurance company to satisfy the award with liberty to respondent/insurance company to recover the same from the appellants. Thereafter, an application (Case No. 2/2013) under Order 9 Rule 13, Code of Civil Procedure, 1908 (hereinafter as ‘CPC’) was filed by the appellants against the ex-parte award before MACT-I, Udaipur, whereby the learned MACT-I, Udaipur vide order dated 24.04.2014 allowed the application filed by the appellants under Order 9 Rule 13 and set aside the ex-parte award and also directed to decide the MAC Case No. 1142/2010 on its own merit after hearing the appellants. 3. Subsequently, the appellants filed their reply to the claim petition and denied the averments made therein and averred that the offending vehicle was not involved in the accident and that in the FIR (Ex.6) lodged by the respondents/claimants, vehicle registration number has not been mentioned and also the cognizance order passed against the appellants has already been set aside by the court. 4. The respondent/insurance company in its reply to claim petition denied the averments made therein and averred that the accident did occur due to the offending vehicle. 4. The respondent/insurance company in its reply to claim petition denied the averments made therein and averred that the accident did occur due to the offending vehicle. However, the respondent/insurance company in its reply also stated that the said accident occurred due to the negligence of the deceased-child herself. It was also stated in its reply that at the time of the accident the appellant/driver did not have valid and effective license, thus, there was a breach of policy conditions, on account of which the respondent/insurance company is not liable to pay the compensation. 5. On the basis of the pleadings of the parties, the learned tribunal framed four issues. 6. The respondents/claimants examined Dalu (AW1) and Dhanraj (AW2) and produced documentary evidences (Ex.1 to Ex.16). On the other hand, the non-claimants examined Pranshu Daad (NAW1), Devkishan (NAW2) and Vinod Luhar (NAW3) and produced documentary evidences (Ex. A/1 to Ex. A/8). 7. After hearing both the parties, the learned tribunal vide judgment and award dated 27.05.2016 (hereinafter as ‘the impugned award’) partly allowed MAC case No. 1142/2010 and awarded compensation to the tune of Rs. 2,25,000/- along with interest @ 9% from the date of the filing of the claim petition (03.09.2010) to the respondents/claimants and fastened the liability on the appellant/owner to pay the compensation and also exonerated the respondent insurance company while granting it liberty to recover the amount already paid by it from the appellant/owner. 8. Aggrieved by the same, the instant civil misc. appeal has been preferred by the appellants and the instant cross objection (civil) has been filed by the respondents/ claimants. 9. The learned counsel appearing on behalf of the appellant/owner submitted that the offending vehicle has been falsely implicated. He further submitted that the in the FIR (Ex.6) as lodged by the respondents/claimants, the registration number of the offending vehicle was not mentioned and only the description that accident occurred from a White Maruti-1000 was mentioned and the police after investigation submitted Final Report (Ex.5) against the unknown vehicle. Further, he submits the cognizance order against the appellants herein was also set aside by the learned Sessions court vide order dated 15.06.2011 (Ex. NA8, hereinafter as ‘the revision order’) thus, the same proves that the offending vehicle was not involved in the accident. Further, he submits the cognizance order against the appellants herein was also set aside by the learned Sessions court vide order dated 15.06.2011 (Ex. NA8, hereinafter as ‘the revision order’) thus, the same proves that the offending vehicle was not involved in the accident. He further submitted that it is not a case where subsequent to the filing of chargesheet the trial court has exonerated the driver of the offending vehicle as his guilt was not proved beyond reasonable doubt, however he submitted that inasmuch as it is case where the proceedings against the appellant/driver was exonerated at the initial stage itself, thus, the revision order ought to have been considered. He further submitted that the learned tribunal has fastened liability on appellant/owner on the ground that the appellant/driver of the offending vehicle has accepted that the accident occurred from the offending vehicle during his cross examination as AW-2, however in the statement given by appellant/driver he was intending to say “sahi nahi hai” however, inadvertently said “sahi hai.” 10. The learned counsel appearing on behalf of the appellant/owner further submitted that the learned tribunal has erred in exonerating the respondent/insurance company merely on the ground that the driving license was not produced by the appellant/driver as the burden was upon the respondent/insurance company to prove that there was no driving license. Moreover, the appellant/driver in his statement as NAW-3 stated that he had a valid driving license and can produce the same, but the respondent/insurance company failed to prove otherwise. And for this submission he placed reliance on the judgment of a coordinate bench of this court in National Insurance Co. Ltd. vs. Yogesh and Others, D.B. Civil Special Appeal No. 10/2003. 11. Learned counsel for the cross-objector claimants submitted that the judgment of the learned Tribunal calls for no interference by this Court to the extent of involvement of the vehicle, however, he submitted that the learned Tribunal has erred in awarding a meagre compensation towards the death of a child aged 8 years and thus, prays for enhancement of the same. 12. Learned counsel for the respondent-Insurance Company submitted that the order passed by the learned is just and calls for no interference by this Court. 13. Heard learned counsel for the parties, perused material available on record. 14. 12. Learned counsel for the respondent-Insurance Company submitted that the order passed by the learned is just and calls for no interference by this Court. 13. Heard learned counsel for the parties, perused material available on record. 14. This Court finds that the learned Tribinal has taken into account the deposition of AW-1 who has clearly stated that the offending vehicle had hit the deceased child on account of which she sustained injuries and died. However, it is pertinent to note that the First Information Report (‘FIR’) (Ex.7) does not mention the vehicle number and therefore, the precise question before this Court is that whether the offending vehicle can be said to be involved in the motor vehicle accident even when the number is not mentioned in the FIR (Ex.7) while the other evidence leads to the conclusion that the vehicle had been involved. 15. Upon perusal of the record, this Court finds that AW-1, in his statement, has clearly deposed that the accident has been caused due to the rash and negligent driving of the vehicle bearing number RJ-27-CB-1736 and it is also seen that no evidence, contrary to the same has been produced by the respondent-Insurance Company and respondent-non-claimants. The relevant part of the statement of AW-1, is reproduced as under: Therefore, in the given circumstances, this Court takes into consideration the judgment passed by the Hon’ble Apex Court in the case Kusum Lata and Others vs. Satbir and Others, AIR 2011 SC 1234 , wherein the Hon’ble Apex Court has categorically held that in a case relating to motor accident claims, the case has to be established on the preponderance of probability and a strict standard of proof is not required. The relevant Para of the judgment is reproduced as under: “9. There is no reason why the Tribunal and the High Court would ignore the otherwise reliable evidence of Dheeraj Kumar. In fact, no cogent reason has been assigned either by the Tribunal or by the High Court for discarding the evidence of Dheeraj Kumar. The so-called reason that as the name of Dheeraj Kumar was not mentioned in the FIR, so it was not possible for Dheeraj Kumar to see the incident, is not a proper assessment of the fact-situation in this case. The so-called reason that as the name of Dheeraj Kumar was not mentioned in the FIR, so it was not possible for Dheeraj Kumar to see the incident, is not a proper assessment of the fact-situation in this case. It is well known that in a case relating to motor accident claims, the claimants are not required to prove the case as it is required to be done in a criminal trial. The Court must keep this distinction in mind. 10. Reference in this connection may be made to the decision of this Court in Bimla Devi and Others v. Himachal Road Transport Corporation and Others, (2009) 13 SCC 530 , in which the relevant observation on this point has been made and which is very pertinent and is quoted below: “In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was necessary to be borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied.” Thus, in the present, case the learned Tribunal has rightly taken into account the statement of AW-1 where although the number of the vehicle has not been mentioned, however a strict standard of proof cannot be applied and the case has to be decided on the basis of preponderance of probabilities. 16. This Court also takes into consideration the judgment rendered by the Hon’ble Apex Court in the case of Sunita and Others v. Rajasthan State Road Transport Corporation and Others in Civil Appeal No. 1665 of 2019, wherein the Hon’ble Apex Court has emphasized upon the standard to be followed in order to decide motor accident claims, i.e. preponderance of probabilities and not strict standard of proof beyond reasonable doubt which is applicable in criminal cases. The relevant Para of the judgment reads as under: “It is thus well settled that in motor accident claim cases, once the foundational fact, namely, the actual occurrence of the accident, has been established, then the Tribunal’s role would be to calculate the quantum of just compensation if the accident had taken place by reason of negligence of the driver of a motor vehicle and, while doing so, the Tribunal would not be strictly bound by the pleadings of the parties. Notably, while deciding cases arising out of motor vehicle accidents, the standard of proof to be borne in mind must be of preponderance of probability and not the strict standard of proof beyond all reasonable doubt which is followed in criminal cases.” Thus, in the instant case, this Court does not deem it fit to apply the strict standard of proof beyond reasonable doubt and dismiss the statements of AW-1, for the reason that the vehicle number is not mentioned in the FIR (Ex.7). It is also seen from the record that the Final Report (Ex.5) though does not mention the vehicle number, however, it is seen that in the FR, the description of the offending vehicle has been clearly provided, which reads as ^^,d lQsn jax dh ek:rh 1000 dkj** and thus, this Court finds no force in the submission made by the learned counsel for the appellant-Owner that the offending vehicle was not involved in the said accident, as the vehicle involved bearing number RJ-27-CB-1736 is also a white color Maruti Car as deposed by AW-1 in his statements. 17. Also, this Court finds that the learned Tribunal has categorically observed that even when NAW-2, Devkishan, who is the father of the driver of the offending vehicle and NAW-3, Vinod, who is the driver of the offending vehicle, had disputed the involvement of vehicle in their respective statements, however, no evidence had been led by them to demonstrate that the offending vehicle was not involved in the accident. Furthermore, learned Tribunal has also taken into consideration the cross-examination of NAW-3, Vinod, where he clearly states that on 18.06.2009, this car had caused the accident and therefore, in the light of evidence produced, the learned Tribunal has rightly decided the issue pertaining to the involvement of vehicle in favour of the claimants. 18. Furthermore, learned Tribunal has also taken into consideration the cross-examination of NAW-3, Vinod, where he clearly states that on 18.06.2009, this car had caused the accident and therefore, in the light of evidence produced, the learned Tribunal has rightly decided the issue pertaining to the involvement of vehicle in favour of the claimants. 18. Moreover, this Court finds that the learned Tribunal has rightly observed that the offending vehicle was being driven by NAW-3, Vinod, inasmuch as the claimants have stated this fact in their claim, which has been accepted by the respondent-Insurance Company in its reply (Ex.12), the postal and acknowledgment receipts of which have been presented as Ex.13 and Ex.14, are also not disputed by the NAW-3, Vinod and thus, the learned Tribunal has rightly observed that respondent/driver, Vinod was driving the offending vehicle at the time of the accident. 19. Furthermore, this Court finds that the Coordinate Bench of this Court in the case of National Insurance Co. Ltd. vs. Yogesh and Others in D.B. Civil Special Appeal No. 10/2003, has observed that the Insurance Company cannot absolve itself from its liability under the contract of insurance on mere failure of the insured to produce the driving license, rather the burden is upon the Insurance Company to get the evidence in order to substantiate its allegation, and therefore, in the present case too, the learned Tribunal has erred in exonerating the Insurance Company solely on the ground that the driving license had not been produced by the appellant-driver and that, it was the respondent-Insurance Company which was required to prove otherwise. The relevant Para of the judgment passed by the Coordinate Bench of this Court in Yogesh (supra) reads as under: “Upon appeal filed by the claimants, while relying upon the judgment of the Supreme Court in the case of Narcinva V. Kamat and Another vs. Alfredo Antonio Doe Martins and Others, (1985) 2 SCC 574 , learned Single Judge of this Court held that insurance company has not established by legal evidence that the driver of the offending vehicle was not holding valid driving licence on the relevant date of the accident. Learned Single Judge has observed in the judgment that the learned Tribunal has committed error in arriving at the finding that the insurance company has sufficiently discharged its onus to prove that the driver Hanif Khan was not having a valid driving licence at the time of the accident; but, this finding is based upon wrong appreciation of material on record and deserves to be set aside. The issuance of notices to the owner and driver of the offending vehicle by the insurance company to produce the driving licence would neither enable the insurance company to prove its objections nor any adverse inference can be drawn against the insured. The driving licence is issued by the State authority i.e. the concerning Transport authority and it is the onus of the insurance company to prove its case of the insured committing breach of the terms and conditions of the insurance policy by allowing the vehicle to be driven by a person not having a valid driving licence by leading relevant evidence by way of production of authoritative documents duly testified by examination of some official of the department. But, these facts are not in existence in the present case.” Thus, in the light of the judgment cited hereinabove, this Court finds merit in the contention of the learned counsel for the appellant-non-claimants that merely because the owner-driver of the offending vehicle had failed to produce the license, the respondent-Insurance Company cannot be exonerated from its liability, unless it proves otherwise. Thus, looking into the peculiar facts and circumstances of the case in hand, the learned Tribunal has erred in exonerating the respondent-Insurance Company solely on the ground that owner-driver had failed to produce the driving license when the onus was indeed upon the respondent-Insurance Company to prove the breach, when in fact the appellant/driver (NAW3) had clearly deposed in his statement that he had a valid driving license and can produce the same, but the respondent-Company failed to prove the contrary. 20. Furthermore, this Court also finds that the submission of the learned counsel for the appellant-driver and owner that the cognizance order against the appellants herein was also set aside by the learned Sessions court vide order dated 15.06.2011 (Ex. 20. Furthermore, this Court also finds that the submission of the learned counsel for the appellant-driver and owner that the cognizance order against the appellants herein was also set aside by the learned Sessions court vide order dated 15.06.2011 (Ex. NA8), which proves that the offending vehicle was not involved in the accident, is devoid of merit inasmuch this Court takes into consideration the judgment passed by the Hon’ble Apex Court in the case of Mangla Ram v Oriental Insurance Company, AIR 2018 SC 1900 wherein the Hon’ble Apex Court has categorically observed that the result of the criminal trial would not affect the decision of a Motor Accident Claim Tribunal while deciding a claim. The relevant Para of the judgment passed by the Hon’ble Apex Court in the case of Mangla Ram (supra) is reproduced as under: “21. Another reason which weighed with the High Court to interfere in the First Appeal filed by respondent Nos. 2 & 3, was absence of finding by the Tribunal about the factum of negligence of the driver of the subject jeep. Factually, this view is untenable. Our understanding of the analysis done by the Tribunal is to hold that Jeep No. RST-4701 was driven rashly and negligently by respondent No. 2 when it collided with the motorcycle of the appellant leading to the accident. This can be discerned from the evidence of witnesses and the contents of the charge-sheet filed by the police, naming respondent No. 2. This Court in a recent decision in Dulcina Fernandes (supra), noted that the key of negligence on the part of the driver of the offending vehicle as set up by the claimants was required to be decided by the Tribunal on the touchstone of preponderance of probability and certainly not by standard of proof beyond reasonable doubt. Suffice it to observe that the exposition in the judgments already adverted to by us, filing of charge-sheet against respondent No. 2 prima facie points towards his complicity in driving the vehicle negligently and rashly. Further, even when the accused were to be acquitted in the criminal case, this Court opined that the same may be of no effect on the assessment of the liability required in respect of motor accident cases by the Tribunal. Further, even when the accused were to be acquitted in the criminal case, this Court opined that the same may be of no effect on the assessment of the liability required in respect of motor accident cases by the Tribunal. Reliance placed upon the decisions in Minu B Mehta (supra) and Meena Variyal (supra), by the respondents, in our opinion, is of no avail. The dictum in these cases is on the matter in issue in the concerned case. Similarly, even the dictum in the case of Surender Kumar Arora (supra) will be of no avail. In the present case, considering the entirety of the pleadings, evidence and circumstances on record and in particular the finding recorded by the Tribunal on the factum of negligence of the respondent No. 2, the driver of the offending jeep, the High Court committed manifest error in taking a contrary view which, in our opinion, is an error apparent on the face of record and manifestly wrong.” Thus, in the present case, the setting aside of cognizance order against the appellant-owner and driver would not have any effect on the liability as determined by the learned Tribunal, and that, the learned Tribunal is required to decide the same on the touchstone of preponderance of probability and certainly not by standard of proof beyond reasonable doubt. 21. Also, this Court finds that the learned Tribunal has erred in awarding a meagre sum of Rs. 2,25,000/- towards the death of the deceased, Seema, aged 6 years and thus, deems it fit to assess a just compensation which is reasonable according to the underlying facts and circumstances of the case along with the evidence placed on record, in the light of judgment passed by the Hon’ble Apex Court in the case of Meena Devi vs. Nunu Chand Mahto @ Nemchand Mahto and Others in Civil Appeal No. 7255 of 2022 decided on 13.10.2022 and Kurvan Ansari @ Kurvan Ali and Another vs. Shyam Kishore Murmu and Another in Civil Appeal No. 6902 of 2021 decided on 16.11.2021. 22. This Court also deems it just to take the notional income of the deceased as Rs. 25,000/- while computing the loss of dependency, looking at the age of the deceased, i.e. six years. Moreover, while taking into consideration the judgments cited herein above, this Court also deems it just to award Rs. 22. This Court also deems it just to take the notional income of the deceased as Rs. 25,000/- while computing the loss of dependency, looking at the age of the deceased, i.e. six years. Moreover, while taking into consideration the judgments cited herein above, this Court also deems it just to award Rs. 1,15,000/- towards the conventional heads to the appellant/claimants. 23. Thus, after arriving at the conclusion that the amount awarded by the learned Tribunal deserves to be enhanced in MAC Case No. 1142/2010, this Court enhances the compensation awarded to the respondent/claimants, afresh in light of the guidelines laid down by Hon’ble the Supreme Court in the case of Meena Devi (supra) and Kurvan Ansari (supra) which is demonstrated in a tabular form as below: Particulars Awarded by Tribunal Awarded by the Court Loss of dependency (i.e. 25,000 x 15) [A] Rs. 2,25,000/- (lump-sum awarded) Rs. 3,75,000/- Conventional Heads [B] Rs. 1,15,000/- Total [A+B] Rs. 2,25,000/- [C] Rs. 4,90,000/- [D] Amount enhanced [D - C] Rs. 2,65,000/- 23.1 Accordingly and in view of above discussion, the misc. appeal filed by the appellant/owner and driver is partly allowed to the extent of liability being fastened upon the respondent-Insurance Company, inasmuch as the respondent-Insurance Company had not discharged its burden in order to prove that the appellant/driver was not having a valid driving license at the time of accident and that, the offending vehicle had been insured with the respondent-Insurance Company, and the cross-objection filed by the appellant-claimants is also partly allowed. The claimants are thus held entitled to get compensation of Rs. 4,90,000/- instead of Rs. 2,25,000/- from the respondent-Insurance Company. The amount of compensation is thus enhanced by Rs. 2,65,000/-.The judgment and award dated 27.05.2016 passed by the learned MACT No. 1, Udaipur, in MAC Case No. 1142/2010 is partially modified. The compensation re-determined by this judgment, shall carry interest as awarded by the learned Tribunal from the date of filing of claim petition. The amount of compensation, if any disbursed to the claimants, shall be adjusted accordingly. 24. Record be sent back forthwith. No order as to costs.