Partly allowed

Sukhvindra Kaur and Anr. v. National Insurance Comp and Ors.

Rajasthan HC13 Mar 2008CMA/467/1998

Case brief

AI extract

What is this about?

Two appeals were filed against the dismissal of motor accident claims by the Tribunal. The High Court found the Tribunal's conclusion that the accident resulted solely from the deceased driver's negligence was perverse given witness testimonies and police challan evidence pointing to the other driver's negligence. The finding was set aside and the case remanded for a fresh hearing to determine lia

What did the court decide?

Finding on issue No.1 quashed; matter remanded to the Tribunal for afresh hearing on all issues and quantum of compensation.

Sukhvindra Kaur and Anr. Vs National Insurance Comp… — Motor Accident Claims | Rajasthan HC (2008)

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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT

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JODHPUR

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J U D G M E N T

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[1] S.B. CIVIL MISC. APPEAL NO.467/1998 Sukhbinder Kaur & Anr. Vs. National Insurance Co. Limited & Ors.

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[2] S.B. CIVIL MISC. APPEAL NO.468/1998 Nishan Singh Vs. National Insurance Co. Limited & Ors.

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against the judgment and Award dated 24.1.1998 passed by learned Judge, Motor Accident Claims Tribunal, Sojat, District Pali in Claim Case No.17/94 and 16/94 respectively.

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DATE OF JUDGMENT :: 13^th MARCH, 2008

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PRESENT

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HON'BLE MR.JUSTICE MANAK MOHTA

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Mr. O.P. Rajpurohit, for the appellants Mr. R.K. Mehta ] for the respondents. Mr. Sanjeev Johari ]

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BY THE COURT :

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These two appeals have been filed by the claimant-

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appellants against the common judgment and Award dated 24.1.1998 passed by the learned Motor Accident Claims Tribunal,

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Sojat (in short 'the Tribunal') in claim petition No.17/94 filed by legal representatives of deceased-Kulwant Singh and claim petition No.16/94 filed by injured-claimant Nishan Singh himself, by which both the claim petitions were dismissed.

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In short the facts of case as revealed from the record are that in the night intervening between 31.12.93 and 01.01.1994 deceased-Kulwant Singh while driving truck No.PB-11B-4926 was going from Jhariya to Porbandar via Pali. He was also accompanied by his second driver i.e. injured-Nishan Singh and one 'khalashi' Amarjeet Singh. The said truck was loaded with coal. It is further stated that at that time one another truck bearing No.RNG-1149, which was coming from the opposite direction and was being driven by Shiv Ram met with an accident at the outskirts of village Peepaliya (1 Km ahead of Pali) thereby causing serious injuries to Kulwant Singh, the driver of truck No.PB-11B-4926. It was further stated that Kulwant Singh died in the said accident and Nishan Singh-the second driver got injured, who was later shifted to hospital for treatment. A report of the accident was lodged with the concerned Police Station and a criminal case No.1/94 was registered. It is also revealed from the

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record that the police after investigation filed challan against Shiv Ram (driver of truck No.RNG-1149). It is also borne out from record that mother and widow of Kulwant Singh i.e. Sukhbinder Kaur and her children filed claim petition, which was registered as Claim Petition No.17/1994 and claimed compensation to the tune of Rs.5,72,000/- on various heads for the untimely death of Kulwant Singh in the accident. Likewise the injured-Nishan Singh also filed a Claim Petition No.16/1994 for awarding compensation on the basis of the injuries sustained by him in the said accident. In both the claim petitions it was stated that the accident was caused due to rash and negligent driving by Shiv Ram (driver of truck No.RNG-1149). The owner of the said truck No.RNG-1149 was stated to be M/s. Vishal Goods Carriers and the said truck was stated to be insured with New India Insurance Company. The truck which was being driven by deceased-Kulwant Singh was stated to be under the ownership of M/s. Subash Rice Mills and was insured with National Insurance Co. Limited.

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A reply to the claim petitions was filed by the National Insurance Company Limited denying its liability for paying compensation. Likewise reply was also filed by the New India

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Insurance Company Limited stating therein that the accident was caused by the rash and negligent driving of deceased-Kulwant Singh. Afterwards it was stated that the deceased was also responsible for the contributory negligence. In reply the Company denied the liability for the payment of compensation.

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The learned Tribunal jointly tried both the claim cases on the basis of pleadings of parties, framed the relevant issues and after due enquiry, came to the conclusion that the accident occurred solely due to the rash and negligent driving of Truck No.PB-11B-4926 being driven by Kulwant Singh and without determining quantum of compensation, only on the basis of the finding arrived at on issue No.1, dismissed both the claim petitions filed by the claimants, against which, the claimants have preferred appeals assailing the validity and legality of the judgment and Award dated 24.1.1998. The notices of these appeals were issued to the respondents.

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During the course of arguments learned counsel for the claimant-appellants submitted that the finding of learned Tribunal on issue No.1 is totally perverse and is against the

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material available on the record. It was contended that the truck being driven by Kulwant Singh was going on in low speed and in its correct side but the truck being driven by Shiv Ram all of a sudden took turn and remained standing on wrong side of road and due to that the accident occurred. Thus, it was contended that the accident occurred due to this negligent driving of truck driver Shiv Ram.

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It also contended that during enquiry, Nishan Singhsecond driver of Truck No.PB-11B-4926 appeared as AW-1 in the witness-box and had narrated minutely each and every detail as to how the accident occurred. It was contended that there is no ground for disbelieving his testimony. The concerned Police Authority also after investigation of the report of accident filed challan against Shiv Ram for causing accident, that supports the contention of the appellants.

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It was contended that Shiv Ram (driver of truck No. RNG-1149) also appeared in the witness-box as NAW-1 and admitted that he was coming from opposite direction and his truck turned towards wrong side and he remained standing on the

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road and during that time the accident occurred. He has taken a plea that there was oil spilled over the road and due to that he lost control over his truck but the defence taken by the respondent's side is not tenable. It was further contended that the driver of the offending truck was aware of the fact that oil was spilled over the road much earlier, therefore, he should have taken due care and proper precaution and if he would have taken due care, then the accident would not have taken place but due to the rash and negligent driving of offending truck by its driver Shiv Ram, Kulwant Singh lost his life and and Nishan Singh suffered severe injuries but the learned Tribunal has not properly appreciated the material available on record and has wrongly concluded issue No.1 that the accident occurred solely due to the rash and negligent driving of truck by Kulwant Singh. It was contended that separate issue No.3 was framed with regard to contributory negligence but the learned Tribunal has not dealt with that issue. thus, it was contended that the finding on issue No.1 be set aside and it may be held that the accident occurred due to rash and negligent act of the truck of Shiv Ram. It was further contended that the learned Tribunal has not decided the quantum of compensation, therefore, it was requested that adequate

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compensation may be awarded to the claimants and the appeals filed by the claimants may be allowed.

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On the contrary learned counsel for the respondent refuted the contentions and supported judgment and Award given by the learned Tribunal. It was contended from the side of respondents that the claimants have improved their stand time and again, therefore, their statements are not believable and the learned Tribunal has considered in detail all the facts and has rightly concluded issue No.1 against the claimants, that should be maintained, thus, it was prayed that the appeals may be rejected.

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I have considered the rival submissions and have perused the finding on issue No.1 arrived at by the learned Tribunal and have carefully gone through the material available on record. The main question which now arises for consideration in appeals is that “whether the finding given on issue No.1 by the learned Tribunal is sustainable or it requires interference ?”

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Before adverting to the contentions raised by the appellants, I have gone through the statements of Nishan Singh

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and Shiv Ram Singh as they both are the eye-witnesses of the accident.

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AW-1 Nishan Singh has stated that he was the second driver of truck No.PB-11B-4926 which was coming from Jhariya to Porbandar via Pali. His truck was being driven in its correct side, however, the truck driven by Shiv Ram was coming from the opposite side and suddenly turned into opposite direction and due to that, the accident occurred. He has further stated that the accident occurred due to rash and negligent driving of truck by Shiv Ram resulting in death of Kulwant Singh and causing injuries to him.

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NAW-1 Shivraj (name as stated by Shiv Ram) in his statement has stated that he was coming from Sumerpur and was going to Delhi and in the night when he reached near Pipalia Kalla, there was oil spilled over the road. His truck turned all of a sudden and the face of truck turned towards Pali side. He further stated that he felt wonder and could not reconcile that how it has turned. He further stated that he remained stay for some time on the road, at that time, another truck came and dashed and the

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accident occurred. The relevant portion of his statement is quoted as under :

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“ म� स�म�रप�र स� आय� थ� म�र� ग�ड� म� म � ग भर� ह�ए थ�। म� द�ल�� ज� रह� थ�। र�त क� कर�ब एक ड�ढ बज� म� पपपल�य� क�� क� प�स एक दक��म�टर क� पह�� पह��च� त� र�ड पर ऑय� लगर� ह�आ ह�न� स� म�र� ग�ड� एक�म घ�म गई व ग�ड� क� म � ह प�� क, तरफ ह� गय�। म�र� ग�ड� क, गलत उस समय 45 दक��म�टर पलतधणट� क� कर�ब थ�। म� डर क� म�र� अफस�स करक� सट�रर�ग पर ब5ठ� थ� दक यह क5 स� ह� गय�। दफर �� त�न लमनट ब�� ह� प�ज�ब क, ग�ड� आई जजसक� नमबर प�.ब�. 11/ 4926 थ�। आकर प�छ� म�र� खड� ग�ड� क� टककर म�र�। उस समय म�र� ग�ड� घ�मकर खड� ह�ई थ� तब प�छ� स� टककर म�र�।"

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He has also stated in his statement that there was oil

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spilled over the road and has admitted in his statement that he was aware about it from earlier as he stated that oil was spilled

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from Chandawal to Pipalia Kalla from where he passed. He has further stated that after turning of the truck, his truck remained standing on the road for some time. Thus, from the statement of Shiv Ram himself it can be inferred that due to sudden turn, his truck came on wrong side and during that period the accident occurred. It is also stated by Nishan Singh that there was no indicator light of the offending truck and the accident took place in late night hours.

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It is also revealed that the report of this accident was lodged with police and the police after investigation filed challan against Shiv Ram for causing accident. Shiv Ram has admitted in his statement that challan has been filed against him. Thus, on the basis of the overall discussion, the finding on issue No.1 of the learned Tribunal to the extent that the accident occurred solely due to the rash and negligent driving by Kulwant Singh is not sustainable and is liable to be set aside. The learned Tribunal has not properly appreciated the material in this respect. A separate issue No.3 was also framed in the same reference but that was not properly determined and on the basis of the finding on issue No.1 the matter was concluded. This finding requires

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reconsideration and reappreciation of evidence in the light of the material available on record. Thus, I think it proper to remand the case for afresh hearing to the learned Motor Accident Claims Tribunal, Sojat, District Pali. It is also pertinent to note here that the learned Tribunal has not properly decided the other issues with regard to the quantum of compensation etc., and merely on the basis of finding on issue No.1 has dismissed both the claim petitions.

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On the basis of the aforesaid discussion, the finding on issue No.1 is quashed and set aside and the matter is remanded back for afresh hearing. Further, it is made clear that if either of the parties requests to produce any additional evidence, the learned Tribunal will consider the same sympathetically and allow the party to produce evidence.

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In the result, the appeals 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 Motor Accident Claims

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Tribunal, Sojat (Pali) on 03.4.2008. The learned Tribunal will conclude the matter expeditiously and shall will not be influenced by any observation made hereinabove. There shall be no order

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as to costs.

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( MANAK MOHTA ), J.

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Sanjay/-

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Sukhvindra Kaur and Anr. v. National Insurance Comp and Ors.

Case brief

What is this about?

What did the court decide?

Sukhvindra Kaur and Anr. v. National Insurance Comp and Ors.

Case brief

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What did the court decide?

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