1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T Mangi alias Pusi & Ors. vs. Dariyav Singh & Ors. S.B. CIVIL MISC. APPEAL NO. 45/1999 against the judgment and award dated 17.10.1998 passed by the learned Judge, Motor Accident Claims Tribunal Sojat (Pali) in MACT Claim Case No.135/1995. DATE OF JUDGMENT :: 17.09.2008 PRESENT HON'BLE MR.JUSTICE MANAK MOHTA Mr. Rajesh Panwar for the appellants. Mr. UCS Singhvi for the respondent No.3. BY THE COURT : The instant appeal has been preferred by the claimants against the judgment and award dated 17.10.1998 passed by the Judge, Motor Accident Claims Tribunal , Sojat, (Pali), in MACT Claim Case No.135/1995 whereby the learned 2 Tribunal has dismissed the claim petition filed by the appellants. The facts of the case in brief are that Beeram (deceased) was a labour on the truck bearing No.RJ 01/G 0436 and during the course of employment as labour on the aforesaid truck. On 19.05.1995 when he was traveling in the truck, the truck was being driven by its driver Dariyav Singh at about 01.30AM, while the aforesaid truck was passing near Naharpur, due to the rash and negligent driving of the truck by its driver, Beeram (deceased) fell down from the truck and he was crushed under the rear wheel of the aforesaid truck and he succumbed to injuries instantaneously. A report of the incident was lodged at Police Station , Sendhara (Pali) and after usual investigation the Investigating Officer came to the finding that the accident took place due to rash and negligent driving of truck by its driver Dariyav Singh, respondent -non-claimant No.1. As such a challan was filed against him for the offences under section 279, and 304-A IPC before the court of Judicial Magistrate, Bar, (Pali). It was also stated in the claim petition that the truck was owned by non-claimant No.2 and was 3 insured with non-claimants No.3 Oriental Insurance Company. It was submitted in the claim petition that at the time of accident Beeram was of 30 years and was earning Rs.2,000/- per month. The claimants are widow and minor children of deceased, it is stated that they were fully dependent on his income. Thus, due to his untimely death in motor accident, they suffered monitory loss as well mental shock and agony. They filed claim petition under section 166 M.V.Act for awarding compensation for a sum of Rs.11,34,000/- on various heads. Notice of claim petition was issued to non- claimants. Dariyav Singh, respondent-non-petitioner No.1, driver and Pushkar Narain , respondent non-petitioner No. 2, owner of the vehicle , did not file any reply. However, the Oriental Insurance Company Ltd.,respondent non-claimant No.3, filed its reply denying the averments made in claim petition but admitted the fact that the said vehicle RJ 01/G 0436 was insured with it w.e.f. 12.01.1995 to 11.01.1996. In reply, it was further stated that the driver of the truck was not having a valid and effective licence, therefore, that was a breach of terms of 4 policy , hence insurer was not responsible to pay compensation. It was also stated that deceased was stated to be labour on truck, thus claim under the provisions of M.V.Act was not maintainable and prayed that the claim petition is liable to be dismissed. On the basis of pleading of the parties, relevant issues were framed with regard to responsibility of causing accident and for determination of quantum of compensation. During the course of trial, claimant Smt. Mangi (widow of the deceased) AW/1 herself appeared as a witness and her statement was recorded. The claimants also got examined AW/2 Heera who lodged the first information report (Ex.1), as a witness and certain relevant documents were got exhibited. No evidence was led in defence by either of the respondents. The learned Tribunal, after hearing both the sides, vide its judgment and award dated 17.10.1998, held that claimants have not been able to prove that accident was caused by rash and negligent driving by the driver of the truck . Thus, on the basis of the finding arrived on issue No.1, dismissed the 5 claim petition filed by the claimants, with out deciding other issues. Against said judgment and award the claimant-appellants have preferred this appeal, assailing the validity and legality of the said judgment and award. Notices of appeal were issued to respondents, the record of claim case was called and parties heard. During the course of arguments, learned counsel for the appellants submitted that the learned Tribunal has not properly considered and appreciated the material available on record in its right perspective and has wrongly concluded issue No.1 against the claimant and on that basis, committed grave error in dismissing the claim petition. Learned counsel for the appellants further contended that before the learned tribunal, from the side of claimant an important witness AW/2 Heera was produced. He was the person who lodged the report at the Police Station and police also, after thorough investigation, came to the same finding that accident occurred due to rash and negligent driving by the driver of the offending truck Dariyav Singh. This witness has further stated that the driver of the 6 truck, Dariyav Singh himself has admitted before him that when he was taking back the truck, at that time all of a sudden Beeram fell down from the truck and the wheel of the truck crushed his head. No cross- examination has been made by the non-claimants in this respect. Further, the fact is stated by AW/2 Heera and fortified by post-mortem report Ex.4, in which, while conducting post mortem of the dead body of Beeram, doctor has opined that the cause of death of Beeram was head injury, resulting in fracture of temporal and frontal bones, It was urged that learned trial court appreciated the evidence in a style to conclude criminal liability of the driver but the proceeding in the Motor Accident Claim cases are of quasi civil nature, where on the basis of probabilities, the conclusions are to be drawn . From this angle, if the learned tribunal would have appreciated and concluded the issue, certainly it would have been found that accident occurred due to sole responsibility of the driver of the truck. It was submitted that soon after the incident the report has been lodged by AW/2 Heera and on his report, police has made thorough investigation and during investigation, they prepared site plan and 'halat moka' . From the claimants' side those papers have been produced and on the perusal of those papers, which are proved by the claimants ' side it can safely be inferred that it was the truck driver who committed accident and due to his fault, accident occurred. But the learned tribunal brushed aside these materials 7 and merely on the basis that two persons who informed about the accident to AW/2 Heera, have not been produced and on that basis, erroneously concluded issue No.1. It was also contended that learned tribunal has also committed error in not deciding other issues. On the basis of these submissions, it was submitted that the judgment passed by the learned tribunal be quashed and appeal may be allowed and claim petition be accepted and adequate compensation may be awarded. On the contrary, learned counsel for the respondents refuted the contentions and supported the judgment passed by the learned tribunal. It was further contended that in this case, no eye witness of the occurrence has been produced. In that situation, the tribunal was not in a position to conclude issue No.1 that accident occurred due to rash and negligent driving of the driver of the said truck. It was contended that merely on the production of the investigation papers, conclusion of rash and negligent driving could not be inferred. The learned counsel for the respondent in support of his contentions also cited judgment rendered in Minu B.Mehta vs. Balakrishna [AIR 1977 SC 1248] and Oriental Insurance Co.Ltd. vs. Premlata Shukla [2007 ACJ (SC) 1928] and on the basis of these submissions it was prayed that the appeal may be dismissed. 8 I have considered the rival submissions and perused the finding and the conclusions drawn thereon. The main question arise for consideration in appeal is whether the finding given by the learned tribunal on issue No.1, with regard to factum of accident is sustainable or not ?. Keeping in mind the contentions placed by the learned counsel for the parties, I have perused the material on record. From the side of claimants, AW/1 Mangi, widow of the deceased has appeared. She has stated in her statement that her husband was working on the truck of Dariyav Singh and he expired in motor accident. She has also produced the copy of the FIR and other papers prepared and collected by the police during investigation, Ex.1 to Ex.7. AW/2 Heera has further stated that Beeram died in the truck accident. He has stated that he was working as a labour on Dariyav's truck, who expired in truck accident driven by Dariyav Singh . From the side of claimants, it has also been stated that soon after the incident , report was lodged by AW/2 Heera and police prepared site plan and 'Halat Moka' and post mortem of Beeram was conducted and these documents have also been produced from the claimants' side and from the perusal of these documents it 9 could be inferred that death of Beeram who was occupant of truck occurred due to rash and negligent driving of truck by its driver. Therefore, the contention placed by respondents' side and the judgments relied on in that reference, are not having force. It is pertinent to note that against the oral evidence stated by the claimants' side and material produced in support thereof, there was no rebuttal from the other side. Even the driver of the truck has not appeared before the learned tribunal to rebut the same. On the basis of material available on record, where the witnesses are stating that death of Beeram was caused in motor accident that is fortified by the post mortem report and it has also come on record that Beeram was working on the said truck , thus he was occupant of that truck and his death was not natural. In these circumstances, events speak itself that the accident took place due to rash and negligent driving of the truck by its driver. The statement of witnesses are corroborated by the documentary evidence also. In these circumstances, the conclusion drawn by the learned tribunal, that the two eye witnesses of the occurrence Kachru and Babu who have informed about accident to AW/2 Heera, have not been produced by the claimants' side, therefore, the accident occurred due to rash and negligent driving of the truck driver, was not found proved, is not correct. In Motor Accident 10 Claim Cases, the evidence are to be appreciated on the basis of probabilities and the conclusions are to be drawn. Thus, on the basis of aforesaid discussion, the finding on issue No.1, arrived by the learned tribunal, is not sustainable and it requires reconsideration. For that, case is required to be remitted back. The finding on issue No.1 is liable to be quashed. The learned tribunal has not decided the other issues with regard to quantum etc. In these circumstances, the matter is required to be remanded for fresh hearing. On the basis of aforesaid discussion. The appeal is partly allowed. The judgment passed by the learned tribunal is quashed and set aside. The case is remanded back to the learned Motor Accident Claims Tribunal, Sojat for afresh hearing and deciding the case as per provisions of law. It is made clear that before the learned tribunal, if any party makes request for producing additional evidence, learned tribunal will sympathetically consider the same. But the learned tribunal will conclude the hearing expeditiously. It is also made clear that the learned tribunal will not be influenced by any observation made in this judgment. Coast is made easy. The next date of hearing before the learned tribunal is 11 fixed as 15.10.08. If any party remain absent on that day, notice may be issued to them by the learned tribunal. ( MANAK MOHTA ), J. l.george