-1- CMA No.1998/2010 B.A.G.I.Co.Ltd. Vs. Smt.Rajkumari Rastogi & Ors. IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR J U D G M E N T S.B. Civil Miscellaneous Appeal No.1998 of 2010. Bajaj Allianz General Insurance Company Limited, Jaipur V E R S U S Smt. Rajkumari Rastogi wife of late Shri Jaiprakash Rastogi & Others Date of Judgment :::: 13/08/2010 Hon'ble Mr.Justice Dalip Singh Mr. Virendra Agarwal, Counsel for the appellant *** By the Court : Heard learned counsel for appellant-company. This is an appeal, under Section 173 of the Motor Vehicles Act, 1988, filed by the insurance- company-appellant against the award passed by the learned Motor Accident Claims Tribunal (Additional District Judge) Fast Track No.6, Jaipur City, Jaipur dated 13.05.2010 in claim case No.421/2008. A claim came to be filed by the respondent No.1, who is the widow, and the respondent Nos.2 and 3, who are the children of deceased Jai Prakash, who met with an accident on 12.05.2006 on or about 11:30 A.M. and died as a result of the injuries suffered in the said accident on 31.05.2006. Learned counsel for the appellant-company submitted that the appellant-company had moved an application before the learned Tribunal under Section 170 of the Motor Vehicles Act, 1988 with a view to defend the claim in terms of Section 170 of the Motor Vehicles Act, 1988, which was allowed vide order dated -2- CMA No.1998/2010 B.A.G.I.Co.Ltd. Vs. Smt.Rajkumari Rastogi & Ors. 28.04.2008. Submission of the learned counsel for the appellant-company is that the findings of the learned Tribunal with regard to the accident under Issue No.1 are an erroneous. He submits that while the accident had occurred on 12.05.2006 an F.I.R. for the said accident was lodged as late as on 31.05.2006. He, therefore, submits that the F.I.R. has been lodged as an after thought involving use of motor vehicle, in question. I have considered the aforesaid submissions made by the learned counsel for the appellant-company. The learned Tribunal after having taken into account the explanation submitted by the claimant No.1 that on account of the fact that the deceased met with an accident on 12.05.2006, he was admitted to the hospital on the same day and after a prolonged treatment died on 31.05.2006. It is submitted that soon after the death an F.I.R. came to be lodged on the very same day. The learned Tribunal after having gone through the said explanation given by the respondent No.1 claimant, who had been cross-examined by the appellants on the said statement, the learned Tribunal has accepted the explanation given by the claimants and I find no reason to disbelieve the statement of the respondent No.1 on that account so as to disturb the said findings merely on the ground of delay in -3- CMA No.1998/2010 B.A.G.I.Co.Ltd. Vs. Smt.Rajkumari Rastogi & Ors. lodging of the F.I.R., though that is a valid circumstances, which can be taken into account to deny a claim, if not explained. The learned counsel for the appellant-company again sought to contend that the vehicle which was insured with the appellant-company had in fact was not involved in the accident. I have considered the aforesaid submissions and the award of the learned Tribunal in this behalf. The learned Tribunal has taken into consideration the evidence by way of Exhibit-4, the seizure memo of the vehicle as well as Exhibit-5, the mechanical report and Exhibit-6, the copy of the notice served under Section 133 of the Motor Vehicles Act, 1988 upon the owner of the vehicle. Learned counsel was fair enough to place before the Court for perusal the copies of the aforesaid documents. A look at the Exhibit-6, the notice issued by the Police under Section 133 of the Motor Vehicles Act, 1988 to the owner of the vehicle Krishan Murari Gupta shows that on the receipt of the notice Krishan Murari Gupta, the owner of the vehicle had made the following endorsements by way of reply : महोदय, िनवेदन है Ǒक मɇ कृंण मुरारȣ गुƯा वाहन कार नं. RJ- 14-8C-3350 का पंजीकृत ःवामी हं । Ǒदनांक ू 12-05-2006 को वƠ दघ[टना उƠ कार को मɇ ःवयं चला रहा था। ु एस डȣ/- पी एस दघ[टना दǔ¢ण ु -4- CMA No.1998/2010 B.A.G.I.Co.Ltd. Vs. Smt.Rajkumari Rastogi & Ors. जयपुर शहर Ǒदनंक 13.06.06 एस डȣ/- 13/06/2006 कृंण मुरारȣ गुƯा S/o ःव.ौी गोपाल लाल जी 873,राम नगर, शाƸी नगर, जयपुर A look at the aforesaid endorsements made by the owner of the vehicle, he has clearly admitted the fact that at the time of the accident on 12.05.2006 he was driving the vehicle. The specific use of the word "वƠ दघ[टना ु " clearly indicates that the owner of the vehicle has admitted the fact of the accident and the involvement of Car bearing No.RJ-14-8C-3350 in the said accident. It is this vehicle, which was insured under the policy issued by the appellant-company. The aforesaid endorsement made on 13.06.2006 in response to the notice under Section 133 of the Motor Vehicles Act, 1988 and other evidence, as discussed in the award has rightly been taken into consideration by the learned Tribunal to hold that the vehicle in question which was insured with the appellant-company was involved in the accident in which the deceased received the injuries and died as a result thereof. Apart from the above, the learned Tribunal has also taken into consideration the fact that the Police after investigation of the case has filed the challan against the owner of the vehicle Krishan Murari Gupta. The copy of the charge-sheet has been filed as Exhibit-2, which can not be disputed. -5- CMA No.1998/2010 B.A.G.I.Co.Ltd. Vs. Smt.Rajkumari Rastogi & Ors. In the face of the aforesaid documentary evidence, which has been taken into account coupled with the corroborative piece of evidence of witnesses it cannot be said that the findings of the learned Tribunal on Issue No.1 calls for any interference in this appeal. Aforesaid submission of the learned counsel for the appellant-company is without substance and is accordingly rejected. The learned counsel for the appellant-company next contended that the learned Tribunal has committed an error in arriving at the finding on Issue No.4 with regard to the income of the deceased. He submits that the learned Tribunal itself rejected the evidence led by the claimants in the form of the certificate, Exhibit-10 issued by the employer showing the monthly income of the deceased to be Rs.13000/- per month. While it is true that the learned Tribunal has rejected the aforesaid piece of evidence, which was produced namely Exhibit-10 the salary certificate while deciding Issue No.4 with regard to the income of the deceased, however, I find from the record produced by the learned counsel for the appellant and perusal of the award passed by the learned Tribunal that the learned Tribunal has taken into account the Income Tax Return, Exhibit-11 of the deceased for the year 2004- 2005 which was filed on 17th October 2005 much prior to the accident which took place on 12.05.2006. In the -6- CMA No.1998/2010 B.A.G.I.Co.Ltd. Vs. Smt.Rajkumari Rastogi & Ors. said Income Tax Return the annual income of the deceased had been shown to be Rs.1,01,360/- on which the deceased had paid Rs.200 towards tax. There is no reason to disbelieve the aforesaid return filed by the deceased as the same had been filed much prior to the accident which took place on 12.05.2006. On the date of filing of the return i.e. 17th October 2005, there was no occasion for the deceased to have filed a false Income Tax Return showing an exaggerated income hoping that some day his legal representatives may have to rely upon the same as evidence of the income of the deceased. There is no evidence led by the insurance company, which took upon itself the burden to contest the claim by filing the application under Section 170 of the Motor Vehicles Act, 1988 to negative the aforesaid evidence led by the claimants. In the face of the above, it cannot be said that the learned Tribunal has committed an error in assessing the income of the deceased on the basis of the aforesaid piece of evidence Exhibit-11, the Income Tax Return of the deceased, which has not been disputed. No other plea has been raised. Accordingly, the miscellaneous appeal fails and is, hereby, dismissed. The stay application also stands dismissed. Ashok/ (Dalip Singh),J.