Dismissed

United India Insurance Company Limited v. Kamla Devi Alias Kmaa

Rajasthan HC2 Feb 2023CMA/1471/2022

Case brief

AI extract

What is this about?

In this Special Civil Misc. Appeal, the High Court of Rajasthan dismissed the insurance company's appeal against a Motor Accident Claims Tribunal award of Rs. 16,05,800/- with interest. The court held there was no ground to interfere with the Tribunal's finding that the driver was negligent and the accident involved the vehicle, rejecting arguments regarding the site report and the manner of FIR l

What did the court decide?

Appeal against the award dated 16.05.2022 dismissed; pending stay application disposed of.

United India Insurance Company Limited Vs… — Contract and Commercial Disputes | Rajasthan HC (2023)

¶1

[2023/RJJD/003549]

¶2

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Civil Misc. Appeal No. 1471/2022

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United India Insurance Company Limited, Through Its Manager, Having Its Office At Devipura, Jaipur Road, Sikar- Raj. (Insurance Company Of Vehicle No. Rj 10 Ga 5217)

¶5

----Appellant

¶6

Versus

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1. Kamla Devi Alias Kmaa W/o Sh. Mula Ram, Aged About 48 Years, R/o Village Karejda, Tehsil Sujangarh, Distt. Churu-Raj.

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Mularam Meel S/o Kananram Meel, Aged About 25 Years, R/o Karejda, Tehsil Sujangarh, Distt. Churu-Raj.

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Smt. Jashoda W/o Late Sh. Manoj Meel, Aged About 22 Years, D/o Tejaram, R/o Karejda, Tehsil Sujangarh, Distt. Churu-Raj.

¶10

Ankita D/o Late Shri Manoj Meel, R/o Karejda, Tehsil Sujangarh, Distt. Churu-Raj. Minor Through Its Natural Guardian Mother Smt. Jashoda W/o Late Manoj Meel, R/o Karejda, Tehsil Sujangarh, Distt. Churu-Raj.

¶11

Rampal S/o Late Sh. Manoj Meel, Aged About 4 Years, R/ o Karejda, Tehsil Sujangarh, Distt. Churu-Raj. Minor Through Its Natural Guardian Mother Smt. Jashoda W/o Late Manoj R/o Karejda, Tehsil Sujangarh, Distt. ChuruRaj.

¶12

Revantram Gadhwal S/o Sh. Pema Ram, R/o Gadhwal Ki Dhani, Gram Panchayat Kalera Ki Dhani, Tehsil Bidaasar Distt. Churu-Raj. (Registered Owner Of Insured Vehicle No. Rj 10 Ga 5217)

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Narayanram Puniya S/o Sh. Hajariram, R/o Village Aabsar, P.s. Chhapar, Tehsil Sujangarh, Distt. Churu-Raj. (Driver Of The Insured Vehicle No. Rj 10 Ga 5217)

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----Respondents

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For Appellant(s)	: Mr. Pradeep Singh Khichi for
	Mr. VinayKothari
For Respondent(s)	: Mr. Sumer Singh Gour

¶16

HON'BLE MS. JUSTICE REKHA BORANA Order

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02/02/2023

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The present appeal has been preferred by the appellantInsurance company against the award dated 16.05.2022 passed by Motor Accident Claims Tribunal, Sujangarh, Churu whereby a

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claim of Rs.16,05,800/- with interest @6% has been awarded in favour of the claimants.

¶23

Three grounds have been raised by learned counsel for the appellant. Firstly , that a bare perusal of the site report as prepared by the investigating officer makes it clear that the incident as reported could not have happened. Learned counsel submitted that as per the site report, the truck was filled with 'Bajri' and therefore, a person who is reported to be dressing the 'Bajri', could not have in normal circumstances, had any electrocution by the wires running overhead which were almost five and a half feet above the body of the truck. Secondly , the incident happened because of electrocution therefore, the claim ought to have been filed under the Fatal Accidents Act and not in terms of the Motor Vehicles Act. It was not a case wherein an accident had happened by user of a motor vehicle and therefore, the claim petition before the Motor Accident Claims Tribunal was not maintainable. Thirdly , it is admitted on record that the name of the driver was informed by Bhola Ram, the eye witness to the brother of the deceased but still, the FIR had been lodged qua an unnamed driver which clearly means that some other driver has been implicated subsequently.

¶24

Heard learned counsel for the parties and perused the material available on record.

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A perusal of the record makes it clear that it was the specifically admitted case of the Insurance Company itself that the deceased was dressing the 'Bajri' in the truck when he suffered an electrocution from electric line running overhead and because of

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the said electrocution, the deceased fell down. The specific version of the Insurance Company in its reply was as under:

¶30

“chek dEiuh dks tgk¡ rd nq?kZVuk dh tkudkjh feyh gS dh nq?kZVuk okgu Vªd MEij uEcj la[;k RJ-10-GA-5217 ds Åij erd eukst dqekj ctjh dh Msªflax dj jgk FkkA Åij fo|qr ykbZu Fkh rc erd eukst dqekj ds djaV yxus ls Vªd ds uhps fxj x;kA”

¶31

Further, it is, the uncontroverted version of the eye witness Bhola Ram (AW-2) that the deceased suffered an electrocution while he was dressing the 'Bajri' in the vehicle in question which happened because of the negligence of the truck driver who ignored the electric wire lines overhead. So far as the truck being half filled with 'Bajri' is concerned, eye witness AW-2 Bhola Ram has specifically stated in his statement that the truck was filled to the rim. No suggestion regarding the said fact being incorrect was put to him in his cross examination. Therefore, solely on the basis of the site report, it cannot be held that the truck was not filled to the rim. Above all, the factum of incident in the mode as stated by the claimants has rather been accepted by the Insurance Company before the Tribunal and therefore, this Court has no reason to disbelieve the story of the incident as put forward by the claimants.

¶32

In view of the admitted case of the Insurance Company itself, the involvement of the vehicle in question and the factum of the incident/accident having happened cannot be disputed. So far as the ground that the FIR was lodged against an unnamed driver and some other driver had subsequently been implicated is concerned, the same was never raised by the Insurance Company before the learned Tribunal neither in its pleadings nor its

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arguments. Therefore, it cannot be permitted to raise this ground at this appellate stage.

¶37

A perusal of the award shows that the issue regarding negligence of the driver of the vehicle has specifically been dealt with and considered by the learned Tribunal and a specific finding has been recorded that the Driver was negligent.

¶38

At this stage, learned counsel for the appellant submitted that the issue of contributory negligence also ought to have been considered by the Tribunal. A perusal of the record shows that it was never the case of the company that the deceased was equally, or even to some extent, negligent for the said accident. When no such ground was raised, the Tribunal could not have been supposed to consider the same and therefore, this Court also cannot take into consideration the ground which was not raised or argued before the Tribunal.

¶39

Besides the above grounds, no other ground has been raised by learned counsel for the appellant.

¶40

In view of the above observations, this Court does not find any ground to interfere with the impugned award dated 16.05.2022 and the appeal is therefore, dismissed .

¶41

Stay application and all other pending applications also stand disposed of.

¶42

(REKHA BORANA),J

¶43

31-AbhishekS/-

United India Insurance Company Limited v. Kamla Devi Alias Kmaa

Case brief

What is this about?

What did the court decide?

United India Insurance Company Limited v. Kamla Devi Alias Kmaa

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

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