1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T 1] SOHAN LAL Vs. SMT.DAMAYANTI & ORS. S.B. CIVIL MISC. APPEAL NO.190/1996 against the judgment and award dated 30.09.1995 passed by the learned Judge, Motor Accident Claims Tribunal, Jalore in MACT Claim Case No.58/1989. 2] SOHAN LAL Vs. SMT.HEMLATA & ORS. S.B. CIVIL MISC. APPEAL NO.408/1996 against the judgment and award dated 30.09.1995 passed by the learned Judge, Motor Accident Claims Tribunal, Jalore in MACT Claim Case No.59/1989. 3] SOHAN LAL Vs. SATTAR KHAN & ORS. S.B. CIVIL MISC. APPEAL NO.409/1996 against the judgment and Award dated 30.09.1995 passed by the learned Judge, Motor Accident Claims Tribunal, Jalore in MACT Claim Case No.60/1989. DATE OF JUDGMENT :: 14th JULY, 2008. 2 PRESENT HON'BLE MR.JUSTICE MANAK MOHTA Mr.Mohd.Sabir for Mr.Pradeep Shah for the appellant. Mr.R.K.Mehta ] for the respondents. Mr.UCS Singhvi ] Mr.M.L.Khatri ] BY THE COURT : These three appeals have been filed by the owner of the vehicle under Section 173 of the Motor Vehicles Act, 1988 for setting aside the judgment and award passed by the learned Judge, Motor Accident Claims Tribunal, Jalore (in short 'the Tribunal') dated 30.09.1995 whereby the learned Tribunal has awarded compensation of Rs.80,000/- in Claim Case No.58/1989, and Rs.1,06,000/- in Claim Case No.59/1989 plus interest @ 12% per annum in both claim cases from the date of filing of the claim petitions i.e. 12.10.1989. The learned Tribunal further held joint and several liability for the payment of compensation to the extent of 50% of car driver and owner and for 3 rest 50% held joint and several responsibility of truck driver, owner and the Insurance Company of the said truck. The owner of the car has also challenged the judgment and award passed in MACT Case No.60/1989 by which the learned Judge of the Tribunal has dismissed the claim petition filed by himself for the damages caused to the car in the said accident. The brief facts of case, which are relevant for the disposal of the appeals are that on 13.05.89 Kamlesh (deceased) and Jethmal (deceased) with others were going towards village Siyana while travelling in car bearing No. RJN-4210 which was being driven by its driver Ranjeet Singh (non-petitioner No.2), to distribute marriage Invitation Cards to their relatives. On the way between Jalore and Bangra, a truck bearing No.GRN-3724, which was being driven rashly and negligently at high speed by its driver Sattar Khan (non-petitioner No.1), collided with the car and in this way an accident took place in which 4 Jethmal aged 53 years and Kamlesh aged 13 years lost their lives and the others got injured. A report of the accident (Exh.1) was lodged at Police Station, Jalore. It was statedby the claimants that while they were being shifted to the hospital, Jethmal died on the way and Kamlesh, who was admitted in the hospital at Jalore from where he was referred to Mahatma Gandhi Hospital, Jodhpur but he also died during treatment. It was further stated that the non-claimant No.1, 3 and 6 respectively are driver, owner, and insurer of said truck No. No.GRN-3724. It was also submitted that the said car was owned by non-petitioner No.4 (appellant) and driven by non-petitioner No.2 and was insured with non-petitioner No. 7 i.e. New India Insurance Company. The parents of Kamlesh (deceased) filed claim petition which was registered as claim case No.58/1989, for compensation of Rs.17,10,000/- as compensation under various heads. It was stated that 5 Kamlesh was of 13 years and he was studying and having a bright future and if he had not died, he would have become the breadwinner of claimant i.e. his mother. Thus, she has been deprived of income as well as she suffered mental shock and agony due to death of her son in accident. Smt.Hemlata W/o Jethmal (deceased) also filed claim case on account of death of her husband Jethmal in the said motor accident , which was registered as claim case No.59/1989, for awarding compensation of Rs.4,77,000/- under various heads. It was stated that Jethmal was of 53 years and he was engaged in trade and he used to earn Rs.3000/- per month and out of that he used to spare Rs.2000/- per month for the maintenance of claimants, who were dependent on his income. Thus, due to his death in accident, the claimants suffered loss of income as well as suffered mental agony. 6 In both the above cases, the claimants have made Sattar Khan (driver of truck), non-petitioner No.1 Bhairaji Bainaji Choudhary (owner of the truck), non- petitioner No.3 and insurer of the said truck-Oriental Insurance Company non- petitioner No.5 and further have made parties, driver of car Ranjeet Singh, Non- petitioner No.2, Sohan Lal owner of the car,non- petitioner No.4 and the New India Insurance Company, non-petitioner No.7, with whom the car was insured, as (non-claimants). The third claim case was filed by Sohanlal owner of the car, which was registered as claim case No.60/1989, claiming as sum of Rs.60,000/- as compensation for the damages caused to the car in said accident, against Bhairaji Bainaji Choudhary (owner of the truck), Sattar Khan (driver of the truck) and the Oriental Insurance Company, with whom the truck was insured making them non-petitioners, with the allegation that the accident was caused by rash and 7 negligent driving of the said truck by its driver Sattar Khan resulting in damaging his car, therefore, the non- petitioners were responsible for the payment of compensation. After issuance of notice, the non-claimant No.1 and 3 contested the claim petition and filed their joint reply in both the claim cases No.58/1989 and 59/1989 and in claim case No.60/1989 non-claimant No.1 Bhairaraji filed his reply. No reply was filed on behalf of non-claimant No.2. The non-claimants have admitted the factum of the commission of the accident but have stated that non-claimant No.1 Sattar Khan (driver of the truck) was not at fault and further stated that the accident took place as a result of the rash and negligent driving of the car by its driver Ranjeet Singh. It was further stated that the claimant is not liable to claim any compensation. Since Sohanlal (non-claimant No.4 , owner of the car) and Ranjeet Singh (non-claimant No.2 , driver of the car ) did not 8 file any reply in claim case No.58/1989 and 59/1989, so exparte proceedings were initiated against them. Non-claimant No.5,6 and 7 The Oriental Insurance Company, New Delhi, The Oriental Insurance Company, Jalore and the New India Assurance Company, Jodhpur filed their replies separately and stated that they were not aware of the said accident and the claimants have wrongly claimed for a high amount of compensation and the liability of non- claimant No.5,6 and 7 is limited . It was submitted that since the terms and conditions of the Insurance Policy have been violated by the owner of the vehicle , therefore, the Insurance Company could not be held liable to pay any compensation and prayed for dismissing the claim petition. On the basis of pleadings of parties, the learned Tribunal framed the relevant issues. During trial in claim case No.58/1989, from 9 the side of the claimants, AW/1 Smt.Damayanti, and AW/2 Girwar Singh were got examined and Ex.1,2 and 3 were produced and from the side of non-claimants, NAW/1 Daulat Chand Mehta was got examined. Similarly in claim case No.59/1989 , AW/1 Hemlata and AW/2 Girwar Singh were got examined and Ex. 1 and 2 were produced. In rebuttal non-claimants got examined NAW/ 1 Daulat Chand Mehta. In claim case No.60/1989 Sohanlal non-claimant No.4 (present appellant) got himself examined as AW/1 and produced Ex.1 to 7. However, no evidence was led on behalf of non-claimants. The learned Tribunal, after hearing both the sides, vide its judgment and award dated 30.09.1995 awarded compensation of Rs.80,000/- in Claim Case No.58/1989, and Rs.1,06,000/- in Claim Case No.59/1989 plus interest @ 12% per annum from the date of filing of the claim petitions i.e. 11.10.1989 and dismissed claim case No.60/1989. 10 The non-claimant-Sohan Lal owner of the maruti car appellant feeling aggrieved by the award passed by the learned Tribunal has preferred these appeals for quashing and setting aside the award. Notices of appeals were given to the respondents and the record of the case was called and the parties were heard. During the course of arguments learned counsel for the claimant-appellant submitted that the learned Tribunal has not properly considered and appreciated the material available on record and has given erroneous finding with regard to the issues, therefore, the judgment and awards are liable to be quashed and set aside. Learned counsel for the appellant, with special reference to Civil Misc. Appeal No.408/1996, filed with regard to compensation awarded in respect of 11 deceased Jethmal submitted that in this case there was no eye witness to the accident and from a perusal of the record it is seen that the accident occurred due to gross negligence of the driver of the truck. The driver of the truck was driving the truck at a high speed and caused accident. But the learned tribunal wrongly decided the issue that accident was caused by the truck as well as by the negligence on the part of both the drivers, i.e. the driver of the truck as well as the driver of the car. It was also contended that the learned tribunal has given undue importance to the statement of AW/2 Girwar Singh and treated him as eye witness. But in fact, he could not be treated as a reliable witness as he was sitting in the jeep in the rear seat, which was coming behind the truck. Therefore, practically it was impossible for him to see the occurrence. But the tribunal has found proved the negligence of the car driver, on the basis of the statement of this witness. Thus, the finding on issue No.1 is not sustainable. It was also contended that the 12 deceased Jethmal was of 53 years and the average age in this country is near about 60 years. Thus the awarded compensation by the tribunal is on higher side, that deserves to be quashed. On the basis of these submissions, it was urged that the responsibility for paying 50% of the awarded amount on the driver and owner of the car, be quashed and set aside. Learned counsel for the appellant also reiterated the submissions made with reference to appeal No.408/1996. In addition to those submissions it was submitted that the deceased was only 13 years old. He was not an earning member. But the learned tribunal has given an erroneous finding on the responsibility for causing accident of the driver of the car and further held up to 50% of the awarded compensation to the appellant. It was urged that the finding given by the learned tribunal, on the relevant issues, are not sustainable and the appellant could not be held responsible for the payment of compensation. 13 Learned counsel for the appellant also made submissions with regard to C.M.appeal No.409/1996 and submitted that in accident, his car was also badly damaged. Therefore, he also filed petition for awarding compensation for the damages caused to the car but the learned tribunal first held contributory negligence of the driver of the car and gave erroneous finding on issue No.1. It was again contended that the learned tribunal has given undue reliance on the statement of AW/2 Girwar Singh and it was contended that AW/2 Girwar Singh , cannot be taken as a reliable witness. Thus, the car driver could not be held responsible for causing the accident. It was the truck driver, who drove the truck in a rash and negligent manner and caused the accident. He could only be held responsible for causing accident and causing damages to car. It was also submitted that before the learned Tribunal, appellant placed material to prove damages, sustained to the car but the learned tribunal has wrongly decided the issue against the appellant. 14 On these submissions, it was urged that the judgment and award passed on the claim application of the appellant, be quashed and the claim for damages to car may kindly be allowed. On the contrary learned counsel for the respondents, refuted the contentions and supported the judgment and award passed by the tribunal. During the course of argument in case No.190/1996 and 408/1996, the learned counsel appearing on behalf of the driver of the truck , Sattar Khan also relied on the cross objection filed by him and on the basis of cross- objection, it was further stated that the accident was caused solely due to the negligence of the driver of the car and submitted that the driver of the truck has wrongly been made responsible for causing accident. It was urged that the finding against him for causing accident be quashed and cross objection be allowed. The learned counsel for the claimant respondent also submitted that the learned tribunal 15 awarded the compensation amount on the lower side they should be maintained and no interference is legally required and urged that the appeals may be dismissed. It was also contended by the learned counsel for the respondents that the appellant, the owner of the car, as well as the driver of the car, have neither filed any reply, nor have appeared before the tribunal and, therefore, for the first time the ground raised in the appeals are not sustainable at all and urged that the appeals may be dismissed. It was also contended that claim filed by the appellant with regard to the damages to car, has not been found proved. Therefore, the learned tribunal has rightly dismissed the claim and no interference is required. I have considered the rival submissions submitted by the learned counsel for the parties and have perused the record. The main question for consideration in appeal 16 No.190/1996 and 408/1996 arise for consideration is whether the learned tribunal has wrongly held responsible the driver of the car in causing the accident and further wrongly has held responsible the owner of the car, for payment of 50% of the awarded amount. The question also arise for consideration in appeal No.409/1996, whether the learned tribunal has wrongly rejected the application filed by the appellant for awarding compensation for damages to car. I have perused the statement of the claimants' eye witness A/W2 Girwar Singh. He has specifically stated that he was sitting in the car which was going behind the truck and he has stated that he has seen the occurrence. The contention of the learned counsel for the appellant is that he could not be said to be reliable witness, is not sustainable, as there is no rebuttal from the respondent's side. His presence is found genuine. It is also pertinent to note that the police authorities have also investigated the matter. It is also notable that the appellant , owner of the car as 17 well as the driver of the car, had not filed their submissions before the tribunal nor they appeared in evidence in rebuttal. In this respect, the driver of the car, was an important witness in rebuttal. But he has not appeared. Thus, the contention of the appellant's side with regard to appeal Nos. 190/1996 and 408/1996 are not sustainable. I have also considered the contentions raised by way of cross objection filed by Sattar Mohammed. But looking to the material available on record, AW/2 Girwar Singh has specifically stated that the truck was in a high speed and there was a collusion between the two vehicles. Sattar Mohd. has not been able to rebut the situation. Therefore, the submission made by Sattar Mohammed are not sustainable and cross objection is liable to be dismissed. I have also considered the contentions with regard to the quantum of compensation. I have seen 18 the material available on record and the finding given by the learned tribunal. In case of death of Jethmal and Kamlesh the learned tribunal , after considering the age and status of the deceased persons, has determined the compensation and that is not on excessive side, they deserve to be maintained. I have also considered the submissions placed by the learned counsel for the appellant with regard to appeal No.409/1996. From the perusal of the judgment of the learned tribunal, the appellant has not been able to prove the damages sustained to the car, in accident. It is also pertinent to note that the car driver was also found contributorily negligent in causing the accident. The finding and the conclusion drawn by the learned tribunal, does not suffer from any infirmity or illegality. The contentions raised by the learned counsel for the appellant, are not sustainable and the appeal is liable to be dismissed. On the basis of the aforesaid discussion, all the 19 above mentioned appeals filed by the owner of the car, and the cross objection filed by the driver of the truck, Sattar Mohammed, deserve to be dismissed and they are hereby dismissed. The judgment of the learned tribunal is maintained. Considering the facts of the case, no order is passed with regard to costs. (MANAK MOHTA), J. l.george