1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T SMT.SUNI & ORS. Vs. SHRI NARAYAN LAL & ORS. S.B. CIVIL MISC.APPEALNO.01/2008 against the judgment and award dated 05.09.2007 passed by the learned Addl.District & Sessions Judge -cum- Judge, Motor Accident Claims Tribunal (Fast Track) No.6, Udaipur in Claim Case No.187/2005 (905/2004). DATE OF JUDGMENT :: 13.08.2008 PRESENT HON'BLE MR.JUSTICE MANAK MOHTA Mr.Dilip Kawadia for the appellants. Mr.Manoj Bhandari for the respondents. BY THE COURT : The present appeal has been filed by the claimant -appellants against the judgment and award dated 05.09.2007 2 passed by the learned Addl.District & Sessions Judge -cum- Judge, Motor Accident Claims Tribunal (Fast Track) No.6, Udaipur in Claim Case No.187/2005 (905/2004) whereby the learned Tribunal has dismissed the claim petition. The facts of the case in brief are that on 08.03.02 at about 05.00 PM , Deeta (deceased) who was a pedestrian, was going from Mahuvara towards Saklal, was hit from behind by a motorcycle bearing No.RJ27-10M-6227, which was being driven by Narayan Lal, non claimant No.1 as a result of which he sustained several grievous injuries, he was undergoing treatment for several months but finally he succumbed to his injuries. One Gautam Lal Patel , ex- Sarpanch, who was sitting at the rear seat of the motor cycle, also sustained several injuries and the motor cycle was also damaged. It was averred that the accident took place due to the rash and negligent driving of the motor cycle by its driver Narayan Lal, non- claimant No.1. The report of the incident was lodged at Police Station, Pahara,District Udaipur, which was registered as FIR No.44/2002 against non-claimant No.1 under section 279,337 3 and 338 IPC and after investigation ,a challan was filed against non claimant No.1 . It was averred that the claimants are the widow daugher-in-law and the minor grand sons of deceased Deeta. They submitted a claim petition before the Motor Accident Claims Tribunal, Fast Track No.6 on 03.08.04 under Section 166 of the M.V. Act for awarding adequate compensation for the death of Deeta in motor accident. Deeta , who lost his life in the accident, was stated to be aged 70 years and was earning Rs.3,000/- per month by doing agriculture labour and other work. Claimants were getting benefits of the income , they were dependent on his income. In the claim petition, it was submitted that if he had not died in accident, claimants would not have been deprived from his income and his good guidance. It was further averred that at the time of accident, Narayan lal ,non-claimant No.1, was the driver of the motor cycle and Gautam Lal , non-claimant No.2, was the owner of the said motor cycle, and the said Motor cycle was insured with the United India Insurance Company, Ltd., non-claimant No.3. Thus, all the three respondents were stated to be jointly and severally responsible for making payment of compensation. A total sum of Rs.18,50,000/- was claimed as compensation under various heads. 4 During the course of trial, proceeding against non- claimant No.1 was dropped and exparte proceedings against non-claimant No.2 was drawn as he did not appear despite service of notice. The Insurance Company, non-claimant No.3, in its reply has denied all the averments made in the claim petition and averred that the cause of death was not the injuries sustained in the alleged accident. It was also averred that at the time of accident, the driver of the motor cycle was not having a valid and effective licence. Since the terms and conditions of the Insurance Policy have been violated, therefore, the Insurance Company could not be held liable to pay any compensation. The learned Tribunal, on the basis of pleadings of the parties, framed relevant issues. The claimants got examined AW/1 Smt. Suni (the claimant) and AW/2 Hoormal and their statements were recorded and certain documents (Ex.1 to Ex.15) were got exhibited in support of their claim petition. In rebuttal, the respondents have failed to produce any oral and documentary evidence . 5 The learned Tribunal, after hearing both the sides, vide its judgment and award dated 05.09.2007 held that claimants have not been able to prove that Deeta, died due to the injuries sustained by him in the said accident. Thus, on the basis of the finding arrived on issue No.1, dismissed the claim petition filed by the claimants, against which the claimant-appellants have preferred this appeal, assailing the validity and legality of the said judgment and award. The notices of appeal were issued to respondents and the record of claim case was called. 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 issues and on that basis, committed grave error in dismissing the claim petition. It was further contended by the learned counsel for the appellants that before the learned tribunal, from the side of claimant- appellants, AW/1 Smt.Suni has appeared and she 6 has stated that her father in-law got injured in motor accident and he remained hospitalized for a long period. Thereafter doctor opined that there was no chances of recovery, therefore, injured was taken to his village. There again he remained bed ridden for near about 3 months and she has stated that due to injuries sustained by him , he expired. From the side of appellants the documents prepared by the police, during investigation, were produced and accepted. It was also contended that in the same reference AW/2 Hoormal has been produced. He has also stated that the deceased Deeta sustained injuries in motor accident and he died later onout of the injuries sustained by him. Learned counsel for the appellants, during the course of arguments, drew my attention towards Ex.13, the certificate issued by the Sarpanch, Gram Panchayat, Kherwada and on the basis of this certificate, it was stressed that the Sarpanch has certified that the death of Deeta was caused due to injuries sustained in accident. Thus, before the learned tribunal, it was clearly established that the deceased Deeta sustained injuries in motor accident and out of those injuries, he expired later on. It was also submitted that there was no rebuttal from the other side, to counter the allegation. But the learned tribunal has not appreciated the 7 statements of these witnesses, and wrongly held that the death of Deeta was not found proved due to rash and negligent driving of motor cycle driven by respondent No.1. Narayan Lal. It was also submitted that the police, after investigation, had filed challan against the driver of the motor cycle for rash and negligent driving of motor cycle and causing accident. Thus, the finding on issue No.1 deserves to be set aside. The learned tribunal has also not properly considered the material with regard to determination of the quantum of compensation. On the contrary, it has come on record that Deeta was the sole bread earner of the family. It has come on record that his only son had died earlier and the claimants were the widow -daughter-inlaw and minor grand sons. They were fully dependent upon the deceased. It has also come on record that Deeta was having agricultural land and he used to labour to earn and maintained the family. Even at the old age, he used to work. But the learned tribunal, discarded the material available on record only on the basis that at the time of accident, his age shown as 70 years. It was stated that looking to the peculiar circumstances of the family, the deceased was under compulsion to work, to maintain the 8 family. This was not unnatural . Thus, on the basis of these submissions it was prayed that the finding given on the concerned issues be quashed and reasonable compensation may be awarded. On the contrary, learned counsel for the respondent Insurance Company, refuted the contentions and further contended that the death of Deeta has not been established, arising out of the injuries sustained by him in accident. It was also contended that looking to his age, it was not possible to work and earn. Therefore, the learned tribunal has rightly dismissed the claim application. Therefore, the finding should be maintained and the appeal may be dismissed. I have considered the rival submissions and perused the finding given on each issue and the conclusion drawn thereon. From the perusal of the record, it seems that the report of this incident was lodged at police station and police has also investigated the matter and after investigation they have filed challan against the respondent No.1, driver of the motor cycle. The witnesses appeared from the side of claimant have 9 stated that Deeta sustained injury during motor accident and their contention finds corroboration from the papers prepared by the police during investigation. It is also pertinent to note that there was no rebuttal from the other side . Thus, from the available material on the record, it is established that Deeta sustained injuries in said accident. AW/1 Smt.Suni has further stated that looking to the age of the injured, doctor opined that there was no chances of recovery. Thus, they took the injured to their village. His death has been certified by the Sanpanch of the Gram Pancyayat, vide Ex.13, in which it has been certified that death was the outcome of the injuries sustained by him. Death of Deeta has been proved by producing Ex.12 also. Thus, from the material available on record, it is proved that due to rash and negligent driving of motor cycle by respondent No.1 , the deceased sustained severe injuries and later on he succumbed to his injuries. The conclusion drawn by the learned tribunal, on issue No.1, is not sustainable. On the contrary, it is held that the deceased sustained injuries in the said accident and out of those injuries, he expired. Merely on the basis that the report of the incident was not immediately lodged at Police station, and post-mortem was not 10 conducted , I am of the opinion that looking to the circumstances of the case, they cannot be causes for discarding the statement of witnesses, stated on oath. Specially in a position that in rebuttal there was no iota of evidence . It is also notable that on the report of the incident, the police, after investigation, has filed challan against the driver of the motor cycle. Thus, in my opinion, in this case, injury was the proximate cause of death of the deceased Deeta, and his death has been certified by the Sarpanch of the Gram Panchayat. Thus, for causing the accident, resulting in death of Deeta, the driver of the motor cycle is fully responsible. The learned tribunal , while discussing issue No.4, with regard to quantum of compensation, has not properly appreciated the material available on record. From the side of claimant, it has been placed on record that in the family of the deceased, he was the only person looking after the agricultural land and was maintaining his family. AW/2 Hoormal has stated that, his son expired long back . Claimant was the widow-daughter-inlaw and other claimants were the minor grand sons. It has also come on record that they have 11 agricultural land. Taking the peculiar facts and circumstances of the case, merely on the basis of old age, it cannot be inferred that he was incapable of doing work for earning. Taking into consideration all the facts and circumstances of the case, as deceased has expired , though it is stated that at the time of death he was 70 years, thus, the claimants have been deprived from his proper supervision, guidance and from his income. On the basis of over all assessment, a compensation of lump sum of Rs.1,00,000/- is determined and it is held that due to death in accident, the claimants have been deprived from his income. As respondent No.1 was held responsible for causing the accident and the said motor cycle was insured with the respondent No.3, thus, both the respondents are jointly and severally held responsible for paying the compensation to the claimants. Thus, on the basis of aforesaid discussion, the appeal is partly allowed, the judgment and award passed by the learned tribunal, is quashed and set aside and it is held that accident occurred due to rash and negligent driving of the motorcycle by respondent No.1, in which Deeta sustained severe injuries and later on, he died out of those injuries. For 12 that, a compensation of Rs.1,00,000/- is determined and the respondents, owner and insurer, are held jointly and severally responsible for the payment of the same. Issue No. 3 and 4 have not been proved by the insurer, before the tribunal. As motor cycle is insured with respondent No.3, therefore, respondent No.3, insurer of the motor cycle , is further directed to deposit Rs.1,00,000/-,within two months from the date of order, in the tribunal and claimants will be entitled to receive the same. If the amount is not deposited within the given time, then the claimants will be entitled to recover the aforesaid amount, along with interest @ 6% per annum from the date of order, till realization . No order as to costs. ( MANAK MOHTA ), J. l.george