1. IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T [1] S.B. CIVIL MISC. APPEAL NO.656/1994 Jai Kumar Vs. Smt. Kamla & Ors. [2] S.B. CIVIL CROSS-OBJECTION NO.3/2002 Smt. Kamla & Ors. Vs. Jai Kumar & Ors. against the judgment and Award dated 03.9.1994 passed by learned Judge, Motor Accident Claims Tribunal, Merta in Claim Case No.32/87 (Kamla & Ors.Vs. Malla Ram & Ors.) DATE OF JUDGMENT :: 28th MARCH, 2008 PRESENT HON'BLE MR.JUSTICE MANAK MOHTA Mr. Ranjeet Joshi, for the appellant. Mr. Amit Dave for Mr. P.P. Choudhary, for respondents No.1 to 3 Mr. M.R. Singhvi, for the respondent No.6 Mr. Sanjeev Johari, for the respondent No.7 Mr. Sunil Bishnoi for Mr. Manoj Bhandari, for the respondent No.8 BY THE COURT : This appeal under Section 173 of the Motor Vehicles Act, 1988 has been filed by non-claimant No.2 appellant-Jai 2. Kumar (who is the registered owner of the truck) and a cross- objection has been filed by the claimants-Smt. Kamla widow of Rajveer Singh (who lost his life in an accident) and others against the judgment and Award dated 3.9.1994 passed by the learned Motor Accident Claims Tribunal, Merta (in short 'the Tribunal') in claim petition No.32/87 whereby the learned Judge has partly allowed the claim in favour of applicant-claimants and against non-applicants No.2 to 6 and has dismissed the same against the non-applicants No.1 and 7. The claimants were further held entitled to receive compensation of Rs.83,000/- from non-applicants No.2 and 3 (i.e. owner and driver of truck) and Rs.30,000/- from non-claimants No.4, 5 and 6 (i.e. jeep driver, owner of the jeep-cum-employer of deceased-Rajveer Singh and Insurance Co. of jeep) with interest @ 12% per annum from the date of filing of claim i.e.17.3.1987. Further the amount paid as interim award was directed to be adjusted from the final award. In short the facts of the case are that on 21.9.1986 in the evening at about 7-30 p.m. deceased-Rajveer Singh and his daughter-Nerupama (deceased), son-Laxminarayan and his wife- Smt. Vimla alongwith their children were going in jeep bearing No. 3. RSG-6581 driven by its driver non-claimant No.4 Jabbar Singh from Merta City to Gotan. It was also alleged that at that time, truck bearing No.RJT-2297 which was coming from opposite side and was being driven rashly and negligently by its driver-Mangej Singh (non-claimant No.3) dashed with the aforesaid jeep, as a result whereof, all the persons sitting inside the jeep received simple and grievous injuries. Rajveer Singh who was one of the occupants of the jeep received several injuries and later on died on 25.9.1986 at S.M.S. Hospital, Jaipur during treatment. Kum. Nerupama daughter of Rajveer Singh also sustained and succumbed to the injuries during treatment. It was alleged that at the time of death, Rajveer Singh was aged 30 years and was working as Mining Engineer with Rajasthan State Mines & Minerals Development Corporation Limited and was drawing salary of Rs.3088/- per month. The accident was stated to have been caused due to rash and negligent driving by the drivers of both the vehicles i.e. truck and jeep. It is further submitted that the said truck was owned by Jai Kumar as its registered owner. It was further stated that the said truck was purchased by Mangej Singh (non-claimant No.3) and the said tuck was stated to be insured with non-claimant No.7 (United India Insurance Co. Ltd.). 4. Likewise it was also stated that the jeep was owned by the Rajasthan State Mines & Mineral Development Corporation (non- claimant No.5) and that was insured with National Insurance Co. Limited (non-claimant No.6) at the relevant time. It is submitted that due to untimely death of Rajveer Singh in the accident, the claimants suffered monetary loss and it is stated that they were all dependent on the income of deceased, therefore, a total of Rs.20 lacs was claimed as compensation by the claimants. A reply to the claim petition was submitted on behalf of non-applicants No.1 to 3 driver and owner of the said truck wherein it was stated that the non-applicant No.1 has got no concern with the said truck. Non-applicant No.2 and 3 were stated to be owner and driver respectively of the truck. It was stated that at the time of accident, the truck was being driven on its correct side and in fact, it was the said jeep which was coming at a high speed and in wrong side, which dashed with the truck, whilst the truck driver turned the truck was on the extreme 'kachha' side of the road. In reply to the claim submitted by the truck owner (i.e. Non-applicant No.2), he stated that on 27.4.1984 he had sold the said truck to non-applicant No.3 (driver of the 5. truck at the relevant time) vide an Agreement and the driver was having the possession over the truck as its owner. At the time of sale, it was agreed between the parties that the responsibility with regard to accident/ and filing of challan, if any, by the police etc., would be of responsibility of respondent No.3. The non-applicant No.2 admitted that he was the registered owner of the truck but since as per the agreement, the installments of the truck were not paid to him, therefore, the ownership of the truck was not got transferred in the name of non-applicant No.3. The non-applicant No.2 further also stated that the accident took place on account of the jeep driver having lost control over his jeep, therefore, they are not responsible for any compensation. Finally it was prayed that the claim petition may be dismissed. A reply was also filed by non-applicant No.4 Jabbar Singh (jeep driver). He stated in the reply that he was driving the jeep at a slow speed. In fact, the truck No.RJT-2297 was being driven rashly and negligent at a high speed by its driver and despite blowing of horn by him, truck collided with his jeep. In reply it was further stated that the truck was not having proper indicating light. The jeep driver admitted the factum of initiation of 6. criminal case against him and the truck driver but at the same time submitted that the accident was caused solely by the truck driver and he was not at all responsible for causing accident. It was further stated that the Department has sanctioned Rs.20,000/- in favour of deceased family because of untimely death of deceased-Rajveer Singh. Thus, it was stated that the claim petition deserves to be dismissed. The non-applicant No.5 (owner of the jeep) in his reply accepted most of the averments made in the claim petition and further submitted that the liability of payment of compensation lies with the truck owner and the Insurance Co. The non-applicant No.6 (Insurance Co. of Jeep) in its reply stated that since in the claim petition the truck driver was stated to be guilty, therefore, the owner, driver and Insurance Company of truck are also responsible to pay the compensation amount. It was further stated in the reply that the said jeep was not meant for carrying passengers, therefore, the Insurance Company is not responsible to pay compensation for the passengers being carried in the jeep, as such, it was prayed that 7. the claim petition may be dismissed. The non-applicant No.7 (Insurance Co. of Truck) stated in its reply that truck was not insured with them on the day of occurrence and it has un-necessarily been made party in the claim petition, as such, the claim petition may be rejected. The learned Tribunal on the basis of the pleadings of either side framed relevant issues and after giving opportunities to the parties to prove their contentions, decided the case and while deciding the case, the learned Tribunal came to the conclusion that the accident occurred solely due to the rash and negligent driving of jeep by its driver but contrary to this finding, the learned Tribunal also held the truck driver-Mangej Singh (non- claimant No.3) contributory negligent upto to the extent of 20% and also held him responsible for causing accident. On that basis, the learned Tribunal further held the truck driver and owner of truck (the present appellant) for payment of compensation to the tune of Rs.83,000/-, which is equal to 20% of the compensation amount determined by the learned Tribunal. The learned Tribunal further held responsible for payment of 8. compensation to the owner and driver of the jeep and to the Insurance Company of the said jeep to the extent of Rs.30,000/- vide his judgment and award dated 3.9.2004, as stated aforesaid. Thus, being aggrieved and dis-satisfied by the said judgment and award, the appellant, who is the registered owner of the truck has preferred appeal assailing the validity and legality of the impugned judgment and Award. Notice of the appeal was issued to the respondents. Likewise, the judgment and Award was also challenged by the claimants (legal representatives of deceased-Ranveer Singh) by way of cross-objection. The record of the case was called for and arguments were heard. During the course of arguments it was submitted by the learned counsel for the appellant that the learned Tribunal has not properly considered and appreciated the material available on record and has given a contradictory finding on the issues, which are not sustainable and are liable to be quashed. Before the learned Tribunal ample evidence was available and on that basis a clear-cut conclusion could have been drawn that the said truck driver was not at all at negligent and the accident has not occurred 9. due to his rash and negligent driving or his carelessness. Learned counsel for the appellant further states that the driver of the truck did his best efforts to avoid accident and turned his truck towards the extreme 'kachha' side of the road but as the jeep was being driven rashly and negligently, the accident occurred, for that the truck driver cannot be blamed for causing accident. It was further contended that the learned Tribunal itself while discussing issue No.1 on the testimony of NAW-4 Mangu Singh has relied and held that the accident has occurred due to rash and negligent driving by the jeep driver but while concluding issue No.1, without any basis the learned Tribunal further held that if the driver of truck would have taken extra care, then the accident would not have been taken place and thus, the truck driver has been held contributory negligent to the extent of 20% for causing accident. It was urged that this finding is totally perverse and is contrary to the material available on record and without any basis. The learned counsel for the appellant drew my attention towards the statements and the papers prepared by the police authority during investigation with regard to the report of the said accident especially towards the site-plan (Ex.9) and the 10. inspection note (Ex.10) and further stated that the truck driver could not be held responsible for causing accident, therefore, the finding of the learned Tribunal is not sustainable and is liable to be set aside and the truck driver and the owner cannot be held responsible for payment of any part of compensation. It was further contended by the appellant that the said truck had been sold to non-applicant No.3 Mangej Singh much earlier and its possession was handed over to the purchaser and at the time of accident he was found driving the truck, therefore, the appellant could not be held responsible for the payment of compensation on the basis of vicarious liability but the learned Tribunal has not considered these aspects of the case and has held the appellant responsible for payment of part-compensation. On these submissions, it was urged that the judgment and award of the learned Tribunal be quashed and set aside and the appeal may be admitted. During the course of arguments from the claimants' side with regard to cross-objection, it was contended by the learned counsel for the claimants that the learned Tribunal has not properly considered and appreciated the material available on the 11. record and has given erroneous findings on issues. It was urged that proper calculation of compensation has not been made and a meager amount of Rs.4,00,000/- has been determined and further a sum of Rs.15,000/- has been awarded for the loss of Nerupama in the said accident. The learned Tribunal further committed grave error in holding the non-applicants No.4, 5 and 6 responsible for the payment of compensation to the extent of Rs.30,000/- and thus held total recoverable compensation Rs.1,13,000/- only to the claimants. It was also contended that the compensation awarded by the learned Tribunal is also not just and adequate and the same deserves to be re-determined and enhanced. On these submissions it was contended that the cross-objection may be allowed and adequate compensation may be allowed. On the other hand learned counsel for the respondent refuted the contentions placed by the learned counsel for the appellants. The learned counsel for the Insurance Co. of the jeep further contended that the learned Tribunal on the one hand has accepted their contentions that the Insurance Co. is not responsible for the risk of passengers being carried in jeep but contrary to that, the learned Tribunal has held the Insurance Co. 12. responsible for the payment to the extent of Rs.30,000/- on the basis of 'no fault liability'. It was urged that the finding of the learned Tribunal is totally against the record and the settled principles of law. It was urged that the Insurance Co. of the jeep cannot be held responsible for the payment of compensation. I have considered the rival submissions made by the learned counsel for the parties and have gone through the findings given by the learned Tribunal. The main point which arises for consideration in this appeal is whether the finding given by the learned Tribunal on the issues are sustainable or they require interference. I have also perused the statements of the witnesses of both the sides and have gone through the material available on record. While deciding issue No.1, the learned Tribunal on the basis of the material available on record, held that the accident occurred due to the rash and negligent driving of the jeep and the learned Tribunal has given its conclusive finding in that respect but the learned Tribunal has given a finding that the truck driver was also contributory negligent, to my mind without much 13. expressing on the facts of the case, the finding of the learned Tribunal on issue No.1 is contradictory. The learned Tribunal has not properly appreciated and considered the material available on record, therefore, in the fitness of things the matter is required to be remanded back for re-consideration for afresh hearing. I have also considered the other contentions placed by the learned counsel for the claimants but without expressing any observation on the merits of the case, the learned Tribunal has committed further error in holding quantum of compensation and liability to pay thereof the responsibility of the concern persons for the payment of compensation on the basis of the finding on issue No.1, to that extent also the matter requires afresh reconsideration and afresh hearing. On the basis of the aforesaid discussion, the judgment and award dated 03.9.1994 passed by the Motor Accident Claims Tribunal, Merta is set aside and the matter is remanded back for afresh hearing. Since the matter is being remitted back, therefore, detailed discussion on facts and points involved in the matter is 14. not being made in the interest of justice. It is made clear that if either of the parties request to produce any additional evidence the learned Tribunal, the learned Tribunal will consider the same sympathetically and allow the party to produce evidence without delay. In the result, the appeal and the cross-objection are partly allowed and the judgment and Award passed by the learned Tribunal is set aside. The case is remanded back with a direction to the learned Tribunal to conduct afresh hearing on all the issues. The parties are directed to appear before the Motor Accident Claims Tribunal, Merta on 15.4.2008. It is also made clear that if any amount has been paid by any respondent against the award, that will not be recoverable at this stage and will be subject to final decision. The learned Tribunal will conclude the matter expeditiously preferably within a period of four months and shall will not be influenced by any observation made hereinabove. There shall be no order as to costs. ( MANAK MOHTA ), J. Sanjay/- 15. 16.