Allowed

Smt. Rajwade v. Kuldeep Singh Chouhan

Chhattisgarh HC12 Nov 2024MAC/873/2015

Case brief

AI extract

What is this about?

Claimants' appeal against dismissal of motor accident claim for non-joinder of necessary parties. Court allowed additional documents under Order 41 Rule 27 CPC, held unrebutted evidence of accident ought to have been considered, and that the Tribunal should have afforded opportunities to implead insurers and lead evidence.

What the court decided

AI extract

Smt. Rajwade Vs Kuldeep Singh Chouhan — Motor Accident Claims | Chhattisgarh HC (2024)

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2024:CGHC:44336

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Digitally signed by ANJANI KUMAR ALLENA Date: 2024.11.18 17:42:44 +0530 NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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MAC No. 873 of 2015

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1 - Smt. Rajwade, W/o late Shri Keshwar Prasad Rajwade Aged About 20 Years,

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2 - Roshni Rajwade D/o Late Keshwar Prasad Rajwade Aged About 8 months, Minor Through Mother Smt. Rajwade

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3 - Shri Jawahar Lal Rajwade, S/o Ramlal Rajwade Aged About 44 Years,

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4 - Smt. Kaushalya Devi Rajwade W/o Shri Jawahar Lal Rajwade

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All R/o Village Orangai, Post-Sonhat, Kailashpur, District Koriya Chhattisgarh.

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Recent Address, New Sarvodaya Nagar Pachpedi Naka, Tahsil And District Raipur Chhattisgarh

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... Appellants/Claimants

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versus

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1 - Kuldeep Singh Chouhan, S/o Arun Singh Chauhan, owner of the Truck bearing registration No. CG-10-C-5551, R/o Qtr. No. 1/284, Ward No. 1, 27 Kholi, Vikas Nagar Bilaspur District Bilaspur Chhattisgarh, Chhattisgarh

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2 – Jaswinder Singh Saini, S/o Shri H.S. Saini, Driver of the Truck bearing registration No. CG-10-C-5551, R/o Virdi Colony, Tahsil & District Raipur (CG)

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... Respondents

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For Appellants/Claimants : Shri Prashant Singh appears on behalf of Shri Prateek Sharma, Advocate. For Respondent 1 : Shri Devesh Chandra Verma and Shri B.N.Nande, Advocates.

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(HON’BLE SHRI JUSTICE RADHAKISHAN AGRAWAL)

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Judgment on Board

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13/11/2024

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This is claimants’ appeal filed under Section 173 of the Motor Vehicles Act, 1988 (for short, 'MV Act') against the award dated 25.04.2015 passed by the learned 6^th Additional Motor Accident Claims Tribunal, Raipur (for short, the learned Tribunal) in Claim Case No.32/2012 whereby the learned Tribunal has dismissed the claim petition

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The claimants filed a claim application under Section 166 of the MV Act, inter alia, pleading that on 19,.01.2012 the deceased Keshwar Prasad Rajwade was driving Bus bearing registration No.CG-04-E-2283 (for short, the ‘Bus’) and was coming from Raipur to Ambikapur and as soon as he reached Tifra, at the same time, driver of the tipper/dumper bearing registration No.CG-10C-5551 (for short, the offending Tipper/dumper’), which was coming from Bilaspur, dashed the Bus and caused the accident, due to which, Keshwar Prasad Rajwade (hereinafter referred to as the ‘deceased’) died on the spot. Further, as per the averments, the deceased, who was 26 years at the time of accident, was earning Rs.6,000/- per month and sought total compensation of Rs.45,40,000/- on various heads.

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Respondents did not file any written statements and remained ex parte.

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The Tribunal, vide impugned award dated 25.04.2015, after considering the evidence led by the claimants, has held that the claimants failed to prove the accident that took place on 19.01.2012 and that they did not implead the necessary parties and due to non-joinder of such necessary parties, the Tribunal has dismissed the claim petition in toto.

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Shri Prashant Singh, learned counsel for the appellants/claimants submits that the award passed by the learned Claims Tribunal, without considering the evidence and material available on record, is erroneous. As per evidence of A.W.1 Smt. Rajwade and A.W.3 Hublal, it is clear that driver of Tipper/Dumper was negligent in driving its vehicle rashly and in dashing the Bus and their evidence has not been rebutted as Non-applicant No.1 did not

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file any written statement nor has been examined himself and even the pleadings of claim petition have also not been rebutted. He further submits that the learned Tribunal has afforded eight opportunities to Non-applicant No.1 to file its written statement whereas the Non-applicant No.2 remained ex parte. Even the Police did not make fair investigation and without investigating the matter, closure report has been filed by the Police. He submits further that Non-applicant No.1 did not even disclose the fact that the driver of tipper/dumper has not filed any document relating to insurance policy of the dumper. He next contends that an application (I.A.No.1/2024) under Order 41 Rule 27 of CPC has been filed on behalf of Non-applicant No.1 for taking documents, i.e., copies of insurance policy and other documents of the tipper/dumper at the stage of appeal, which he ought not to have filed and should have been filed before the Tribunal. Lastly, he submits that if the Court is of the opinion that the matter needs remand, then the Tribunal may be directed to afford him sufficient opportunity to implead necessary parties in claim petition and also to give proper opportunity to other parties to lead their evidence for decision afresh.

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On the other hand, Shri Devesh Chandra Verma and Shri B.N.Nande, learned counsel appearing for respondent No.1 submit that an application (I.A.No.1/2024) has been filed on behalf of respondent No.1/owner of the tipper/dumper for taking additional documents, i.e., copies of insurance policy of the tipper/dumper, certificate of fitness, driving licence, R.C.book and permit of tipper/dumper on record. They further submit that at the time of accident, the offending tipper/dumper was insured with Cholamandalam MS General Insurance Company Limited and having permit, fitness certificate and that the driver was also possessing driving licence, but despite that the claimants/appellants did not bring any such documents on record before the Tribunal and nor did even implead any party in their claim petition and thus they failed to prove their case, therefore, the learned Tribunal has rightly

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dismissed the claim petition.

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I have heard learned counsel for the parties and perused the record of the Tribunal including the evidence adduced by the claimants minutely.

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Before proceeding further, this Court is inclined to allow the I.A.No.1/2024, an application filed under Order 41 Rule 27 of CPC for taking documents annexed with the application. Motor Vehicles Act is a beneficial and welfare legislation aimed at providing relief to the victims or their families, in cases of genuine claims. The Tribunals must bear in mind the object of the Act in awarding just and fair compensation to the victim or motor accident cases and it is also the bounden duty of the Court/Tribunals to see that the victim or injured of the motor accident to get just compensation and in assessing, what has been described as a just compensation under the Act, all factors including possibilities have to be kept in mind. Accordingly, I.A.No.1/2024 is allowed and the documents annexed with the application, being relevant for just decision of the claim petition, are taken on record.

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It is pertinent to mention here that the claimants are wife, child and parents of the deceased. As per the pleadings and evidence of A.W.1 Smt. Rajwade, driver of offending tipper/dumper was negligence in dashing the Bus, being driven by her husband at the time of accident, however, the driver of the offending tipper/dumper has not been impleaded as Non-applicant in their claim petition. As per the order sheets of the learned Claims Tribunal, even after service of notice upon Non-applicant No.1/respondent No.1, owner of the offending tipper/dumper, he appeared before the Tribunal but remained ex parte. It is also clear from the order sheets that on 17.10.2012 and thereafter, eight opportunities were given to him to file written statement, but he did not file any written statement. It is also to be noticed that though FIR was lodged against the driver of the Bus and the Police has filed closure report, but Non-applicants have not been examined themselves nor examined any witness and did not file any written statement. Therefore,

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pleadings of the claim petition and statement of A.W.1 Smt. Rajwade remained unrebutted. Further, as per the statement of A.W.3 Hublal, conductor of the Bus, has specifically stated that Bus was being driven by its deceased driver towards Surajpur and while the Bus reached near Tifra, Non-applicant No.2 Jasvinder Singh, driver of offending tipper/dumper dashed the Bus in a rash and negligent manner and thereby caused the accident and his statement also remained unrebutted. Therefore, the learned Claims Tribunal ought to have taken into consideration the statements of A.W.1 Smt. Rajwade and A.W.3 Hublal with respect to accident.

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By way of I.A.No.1/2024, the Non-applicant No.1/respondent No.1 herein brought the documents with respect to offending tipper/dumper on record. On perusal of such documents, it is clear that at the time of accident, the offending tipper/dumper was insured from 08.10.2011 till 07.10.2012 and was having relevant documents. The appellants/claimants ought to have brought those documents before the Claims Tribunal and ought to have impleaded the insurance companies as necessary parties in claim petition and due to non-joinder of necessary parties, the claim was dismissed by the Tribunal. A perusal of record would also show that the Tribunal did not afford any opportunity to the claimants/appellant to bring necessary documents on record nor did afford them any opportunity to implead necessary parties in claim petition. I am of the considered opinion that the Tribunal ought to have given opportunities to the claimants as well to lead evidence, to implead necessary parties in claim petition and to file additional documents, if any.

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Considering the every aspect of the matter, in my opinion, the award dated 25.04.2015 passed by the Tribunal is not sustainable in law and matter needs remand.

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Accordingly, the appeal is allowed, the award impugned is set aside and the matter is remitted back to the concerned Tribunal to pass award afresh,

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without influencing the observations made hereinabove, after affording full opportunity of hearing to the claimants to implead necessary parties and to lead evidence and likewise, the Tribunal shall also give an opportunity to the other side to lead evidence and to file additional documents, if any. After impleading necessary parties in the cause title of claim petition, notice be issued to such parties and also afford them an opportunity to file written statements.

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Needless to mention the Tribunal shall provide proper and sufficient opportunity to all the parties to implead necessary parties, to adduce evidence and to file additional documents, if any. It is made clear that after filing of written statements, recording evidence of the parties and that after hearing the parties, the Tribunal shall decide the claim petition as early as possible preferably within a period of 6 months from today.

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Record of the Tribunal be sent back forthwith. Parties are directed to appear before the concerned Claims Tribunal on 3^rd December, 2024.

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Sd/-

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(Radhakishan Agrawal) JUDGE

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Anjani

Smt. Rajwade v. Kuldeep Singh Chouhan

Case brief

What is this about?

What the court decided

Smt. Rajwade v. Kuldeep Singh Chouhan

Case brief

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