Allowed

Vinod v. Nathu Lal

Rajasthan HC14 Dec 2023CMA/404/2001

Case brief

AI extract

What is this about?

Three appeals challenging a Motor Accident Claims Tribunal award wherein 90% contributory negligence was attributed to the claimants based primarily on a sketch report. The High Court found the reliance on the report unsubstantiated without eyewitness evidence or proper adhearing.

What did the court decide?

Impugned award dated 14.02.2001 quashed; case remanded to Tribunal for fresh decision after recording evidence.

Vinod Vs Nathu Lal — Motor Accident Claims | Rajasthan HC (2023)

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[2023:RJ-JD:43784]

[CMA-405/2001]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Civil Misc. Appeal No. 405/2001

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Riyanchi D/o Late Dilip Kumar, Aged 27 years, Through Power of Attorney Holder Shakshi D/o Dilip Kumar, aged 25 years.

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Sakshi D/o Late Dilip Kumar, Aged 25 years,

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Both R/o Bhudan, Tehsil & District Rajsamand.

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----Appellant

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Versus

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Shri Nathulal S/o Bherulal Teli, R/o Shivrati, Tehsil Sahara, District Bhilwara.

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Shri Rajesh Kumar S/o Ram Kishan Ojha, R/o Gangapur, District Bhilwara.

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The Oriental Insurance Company Limited, Bapu Bazar, Udaipur.

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Shri Sharda Metal Corporation 4-101, Aanadhra Shoping Center, Malad- West, Mumbai-64.

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United India Insurance Company Limited, outside Delhi Gate, Udaipur.

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----Respondents

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Connected With

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S.B. Civil Misc. Appeal No. 404/2001

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Shri Vinod S/o Buralal, R/o Bhudan, Tehsil and District Rajsamand.

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----Appellant

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Versus

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Shri Nahtulal S/o Bherulal Tali R/o Shivrati, Tehsil-Sahara, District Bhilwara.

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Shri Rajesh Kumar S/o Ram Kishan Ojha R/o Gangapur, District Bhilwara.

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The Oriental Insurance Company Limited, Bapu Bazar, Udaipur.

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Shri Sharada Metal Corporation, 6-Dayabai Chal, Jakeria Road, Opposite Jalan, Malad-West, Mumbai-64.

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United India Insurance Company Limited, Outside Delhi Gate, Udaipur.

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[2023:RJ-JD:43784]

[CMA-405/2001]

----Respondents

S.B. Civil Misc. Appeal No. 454/2001

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Riyanchi D/o Late Dilip Kumar, Aged 27 years, Through Power of Attorney Holder Shakshi D/o Dilip Kumar, aged 25 years.

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Sakshi D/o Late Dilip Kumar, Aged 25 years,

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Both R/o Bhudan, Tehsil & District Rajsamand.

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----Appellant

¶36

Versus

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Shri Nathulal S/o Bherulal Tali, R/o Shivrati, Tehsil Sahara, District Bhilwara.

¶38

Shri Rajesh Kumar S/o Ram Kishan Ojha, R/o Gangapur, District Bhilwara.

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The Oriental Insurance Company Limited, Bapu Bazar, Udaipur.

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Shri Sharda Metal Corporation 4-101, Aanadhra Shoping Center, Malad- West, Mumbai-64.

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United India Insurance Company Limited, outside Delhi Gate, Udaipur.

¶42

----Respondents

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For Appellant(s) : Mr. Nikhil Ajmera for Mr. Sandeep Saruparia For Respondent(s) :

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HON'BLE MR. JUSTICE MADAN GOPAL VYAS

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Judgment

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Date of Judgment 14/12/2023

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The present civil miscellaneous appeals under Section 173 of the Motor Vehicles Act, 1988 are directed against the judgment and award dated 14.02.2001 passed by the learned Motor Accident Claims Tribunal-Rajsamand (the Tribunal, for short) whereby the learned Tribunal partly allowed the claim petition and

[2023:RJ-JD:43784]

[CMA-405/2001]

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awarded compensation to the claimants. Since all the three appeals pertain to same incident and involve connected issues, they are being decided by this common judgment.

¶52

Vide order dated 26.09.2023, it was recorded that on 03.07.2019, 26.07.2019 and 07.05.2022, nobody appeared on behalf of the respondents and the appeal is pending consideration since 2001, therefore, if on the next date of hearing, nobody appears on behalf of respondents, the appeals shall be decided after hearing arguments of learned counsel for the appellant.

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The arguments were heard and concluded and the judgment was reserved.

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Briefly stated, facts of the case are that on 12.12.1994, claimants Vinod and his brother Dilip Kumar and sister-in-law Smt. Pawan were going from their village Bhudan to Mumbai at about 2 A.M. When they reached Kailashpuri, Dilip Kumar tried to overtake his car bearing No. MH 02/6859, when a truck bearing No. RSE 7091 (hereinafter referred to as the offending vehicle) without giving any signal/light came and hit the car resulting into death of Smt. Pawan and injuries to Dilip Kumar and Vinod. Later Dilip Kumar also died. Three claim petitions were preferred by the claimants against the driver and owner of the offending vehicle as well as against the insurance company.

¶55

The driver and owner submitted their reply to the claim petition and stated that there was no negligence of the truck driver and the negligence was of the driver of the car.

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[2023:RJ-JD:43784]

[CMA-405/2001]

The insurance company of the truck also submitted its reply to the claim petitions and stated that on the basis of the Naksha Mauka and Parcha Mauka , it is clear that there was negligence of the driver of the car and in case, the learned Tribunal comes to the conclusion that the claimants are entitled for the amount of compensation, then on the basis of principle of contributory negligence, the award may be passed.

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The insurance company of the car i.e. United India Insurance Company Limited has also submitted its reply and stated that there was negligence on the part of the driver of the offending vehicle.

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On the basis of the pleadings of the parties, the learned Tribunal framed four issues. The claimants examined as many as three witnesses and also exhibited certain documents. No evidence was led on behalf of the respondents.

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The learned Tribunal after conclusion of the trial, decided issue no. 1 and held that there was 90% negligence on the part of driver of the car and 10% negligence on the part of driver of the truck.

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In so far as aforesaid three appeals are concerned, they have been preferred by the claimants-appellants for enhancement of the award amount.

¶64

Learned counsel for the appellants-claimants submits that there was no negligence on part of the driver of the car and the learned Tribunal has wrongly assessed that there was 90% contributory negligence on his part. It is submitted that the

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[CMA-405/2001]

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learned tribunal only considered the Naksha Mauka from which it is not clear that whether there was any negligence on part of the driver of the car or not. It is further submitted that even the said Naksha Mauka was prepared after 12 hours of the accident. It is also submitted that the learned Tribunal has not properly considered the statements of the two eye witnesses produced by the claimants. Further, if the charge-sheet is seen, then it is clear that the investigating agency has come to the conclusion that there was negligence on the part of driver of the truck. It is submitted that the driver and owner failed to adduce any evidence to prove that there was negligence on the part of the driver of the car. It is further submitted that in claim cases, the strict provisions of Civil Procedure Code are not applicable and the learned Tribunal on the basis of the preponderance of probabilities has passed the impugned judgment & award.

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Learned counsel for the appellants further submitted that burden to prove contributory negligence was upon the nonclaimants, which they failed to proved. Thus, it is submitted that the learned Tribunal has committed grave illegality while holding that there was contributory negligence on part of the driver of the car to the extent of 90%.

¶70

No one appeared on behalf of the respondents. Heard learned counsel for the appellants and perused the material available on record.

¶71

The learned Tribunal quoted the operative portion of Ex. NA.1 Naksha Mauka , which reads as under:

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[2023:RJ-JD:43784]

[CMA-405/2001]

Þ?kVukLFky ekdZ Þ,ß LFkku ij gS tgk¡ ij uEcj 1 LFkku ij [kMs Vzd vkj ,l bZ 7091 us fQ;sV dkj ua0 ,e ,p 02@6859 ds VDdj ekjus ls fQ;sV dkj 10 QhV ihNs ekdZ 2 LFkku ij [kMh gS] nksuksa okgu vkeus lkeus HkhM+s gq, [kMs+ gSaA fQ;sV dkj ,e ,p 02@ ds 6859 jksax lkbZM es vkdj Vzd ls VdjkbZ gSA Vzd ds jkbZV lkbZM es jksM 16 QhV o ys¶V lkbZM esa 2 QhV [kkyh gSA us'kuy gkbZos dh dqy pkSMkbZ 26 QhV gSA ns[kus ?kVukLFky ls mDr ,DlhMsUV fQ;sV dkj o Vzd MzkbZoj dh xQyr ,oa ykijokgh ls gksuk izrhr gksrk gSAÞ

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On a bare perusal of the said operative part of the Naksha Mauka report, it is clear that even the author of the Naksha Mauka report was not firm and has stated that “ns[kus ?kVukLFky ls mDr ,DlhMsUV fQ;sV dkj o Vz~d MzkbZoj dh xQyr ,oa ykijokgh ls gksuk izrhr gksrk gSA” Thus, it is clear that there was no determination of extent of contributory negligence. The burden of proof was on the non claimant to show that he was not at fault. However, no evidence has been led by him. Further, the learned Tribunal has failed to consider that the investigating agency has held that there was negligence on the part of the driver of the truck. Moreover, learned trial Court failed to appreciate the evidence of the eye witnesses in its correct perspective. Therefore, only on the basis of the Naksha Mauka report, holding the driver of the car negligent to the extent of 90% is not tenable in the eyes of law.

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In view of the above, this Court finds it to be a fit case for remand so as to decide the claim petition afresh.

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Accordingly, all the three civil misc. appeals are hereby allowed. The impugned judgment and award dated 14.02.2001 is quashed and set aside. The learned Tribunal is directed to decide the claim petition afresh after providing opportunity of hearing to all the parties.

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(7 of 7) [CMA-405/2001]

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[2023:RJ-JD:43784]

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However, it is made clear that the amount of compensation, which the claimants-appellants have already received shall be subject to the decision of the learned Tribunal after deciding claim petitions afresh and in case the learned Tribunal grants higher amount of compensation than what is already awarded, the already paid award amount shall be adjusted accordingly.

¶82

The stay applications also stand disposed of accordingly.

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No order as to costs.

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Parties are directed to appear before the learned Tribunal on 19.01.2024.

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Office is directed to send back the record of the case to the learned Tribunal immediately.

¶86

(MADAN GOPAL VYAS),J

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4-Dinesh/-

Vinod v. Nathu Lal

Case brief

What is this about?

What did the court decide?

Vinod v. Nathu Lal

Case brief

What is this about?

What did the court decide?

What the court decided

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