{ 1 } IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR O R D E R S.B. CIVIL MISC. APPEAL NO.295/1997 (MANGI LAL VS. BHANWAR SINGH & ANR.) Date of order : 15.3.2010 HON'BLE MR.JUSTICE A.M.SAPRE None present for the appellant. Mr. Anil Bachhawat, for the respondent. 1. This is a misc. appeal filed by claimant under Section 173 of Motor Vehicles Act (for short hereinafter called “the Act”) against an award dt. 10.10.19996 passed by MACT, Jalore in Claim Case No.103/93, whereby the Claims Tribunal dismissed the claim petition of claimant filed under Section 166 of the Act claiming compensation for the injuries sustained in vehicular accident. 2. So the question that arises for consideration in this appeal is whether Claims Tribunal was justified in dismissing the claim petition of appellant? 3. Facts of the case are these: 4. It is the case of claimant (appellant) that on 15.5.97, around 8 a.m., when he was going on his Motor Cycle bearing No.RPA-9333 on a road called “Bakra- Dakatara”, one Jeep bearing No.RRT-04877 owned and driven by NA-1 (R-1) and insured with NA-2 (R-2) came { 2 } from opposite direction and hit claimant's scooter. It is due to this dash, the claimant fell down from his Scooter and sustained several injuries on his body. According to claimant, it is this accident, which gave rise to filing of claim petition by him out of which this appeal arises under Section 166 of the Motor Vehicles Act against the owner/driver of Jeep (offending vehicle) NA-1 and Insurance Company (NA-2) of the Jeep claiming compensation for the injuries sustained by him and its resultant loss. It was alleged that accident in question occurred solely due to negligence of driver of Jeep, who was driving his Jeep rashly and negligently. The claimant claimed a total compensation of Rs.3,08,121 from the non- applicants because on the date of accident, the offending vehicle was insured with the NA-2 and hence both were sued jointly and severally being liable to indemnity the liability arising out of accident on the strength of policy, issued by NA-2 in favour of NA-1. 5. The non-applicants filed separate written statements and in substance denied the claim of claimant. Though both in their written statements, admitted the factum of accident so also the date and its timing of occurance but according to them, the accident occurred due to sole negligence of claimant himself, who on his own came and dashed to a stationary Jeep on the road. It was, thus, alleged that since the accident in question occurred due to sole negligence of claimant and hence { 3 } non-applicant No.1 was not liable to pay any compensation to the claimant even if he may have suffered any injury in such accident. Parties adduced evidence. 6. By impugned award, the Tribunal held that claimant was negligent in driving his Motor Cycle because it was he, who dashed to the stationary vehicle in question. As a consequence of recording this finding against the claimant, the Tribunal dismissed the claim petition, which has given rise to filing of this appeal by the claimant. 7. So the question that arises for consideration in this appeal is whether Tribunal was justified in holding that accident in question occurred due to sole negligence of claimant. In other words, the question that arises for consideration is how the accident in question occurred and who was responsible for causing the accident – claimant or NA-1 i.e. driver of Jeep. 8. None appeared for the appellant whereas the respondents were represented by Mr. Anil Bachhawat, Advocate. On perusal of record of the case and hearing arguments of learned counsel for the respondent, I have come to a conclusion that this appeal deserves to be allowed on merits and hence instead of dismissing the appeal in default for appellants non appearance, I proceed to allow the appeal and while setting aside of the impugned award, allow the claim petition of claimant and { 4 } in consequence award to claimant reasonable compensation for the injuries sustained by him in the accident as detailed infra. 9. The claimant has entered into the witness box and has deposed as to how the accident occurred, whereas the respondent No.1 (NA-1) too has entered into the witness box and has deposed the manner in which the accident occurred. It is, therefore, essentially a case of oath against oath on the question of occurrence of accident because both being eye witnesses to the incident have adduced oral evidence in support of their respective stand. 10. Having perused the evidence, I prefer to place reliance on the evidence of claimant (AW-1) as against the version of NA-1. In my view, the statement of AW-1 is more reliable and acceptable as compared to the version of NA-1. It is for the reason that firstly perusal of map (Ex11), along with the evidence of claimant and that of PW-2 (Parbat Singh) another eye witness examined by claiment for proving accident, shows that Jeep was running on the road when it dashed to Motor Cycle of claimant. Secondly, the accident occurred on the plain road and in the morning hours (8 A.M.) and hence it looks unnatural that Motor Cyclist would not be able to see even the stationed vehicle on road. Thirdly, it seems natural that Jeep was being driven fast on plain road and on seeing the Scooterist coming on the narrow road could not { 5 } control on the spur of moment. Fourthly, it being a small State highway, the Jeep driver could not negotiate on the site because the Jeep was in moving condition and lastly the evidence of eye-witness (AW-2) examined by claimant does support the case of claimant and being natural in sequence deserve to be accepted. 11. In my view, the evidence of NA-1 and that of his eye witness is not reliable. It seems clear that they wanted to avoid the liability arising out of accident and hence did not speak the correct version. 12. In my view, when it is a case of oath against oath and where court has to appreciate the evidence by applying the principal of preponderance of probabilities and the natural surroundings of the incident brought on record by means of oral evidence and human conduct for finding out the truth, then I find that the claimants version is more reliable as against the non-applicants. 13. In the light of foregoing discussion and having undertaken the appreciation of oral evidence in my appellate jurisdiction, I am unable to concur with the view taken by Tribunal. In this view of the matter, I reverse the finding of Tribunal and hold that accident occurred due to rash and negligent driving of Jeep (NA-1) which caused injuries to claimant. { 6 } 14. This takes me to the next question as to what should be the reasonable compensation that can be awarded to claimant for the injuries sustained by her. 15. I have gone through the evidence adduced by the claimant on the issue of injury sustained by her (Ex.P- 1 to Ex.P-20). In my opinion, taking into consideration the nature of injury, the extent of damage caused in her legs and partial disability occurred in her body as a result of which she claims to be not as fit as she was prior to accident in her day today work, the expenditure incurred in receiving medical treatment in actual and mental pain / suffering suffered due to her involvement in accident and disability occurred, I consider it proper to award in lump sum the compensation of Rs.50,000/-. In other words, in my view, the claimant is held entitled for a total sum of Rs.50,000/- by way of compensation for the injuries sustained by her as also the expenses incurred in treatment. 16. The compensation awarded to the claimant (appellant) is just, reasonable and proper looking to the facts and circumstances of the case and taking into account the law laid down by the Supreme Court in these types of cases in relation to several heads taken note of supra with reference to evidence brought on record by the parties. Indeed in such cases, no fixed and any static formula as such is provided for determining the { 7 } compensation and the same is required to be determined on the basis of totality of evidence adduced and the relevant factors which are required to be taken into consideration as mentioned supra. It is on this basis, the courts have to work out award of reasonable compensation to the claimant for the injuries sustained. 17. So far as liability of non-applicants is concerned, there is enough evidence to hld that vehicle in question was owned by NA-1 and insured with NA-2 at the relevant time. In this view of the matter, both non- applicants are held liable to shelter the liability arising out of accident. 18. In this view of the matter, the appeal succeeds and is allowed in part. Impugned award is set aside and an award is passed against both the non-applicants jointly and severally for Rs.50,000/-. The awarded sum will carry interest at the rate of 6% p.a. from the date of application till realization. All other findings are upheld being not under challenge. 19. A copy of this order be sent to appellant as also it be sent to concerned Tribunal for its enforcement as per law for payment to appellant. No cost. (A.M.SAPRE ),J. /Anil/