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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
JUDGMENT
Gaurav Kachhawaha vs. Rajendra Singh Rajawat & Ors.
S.B. CIVIL MISC. APPEAL NO. 2419/2007
under section 173 of the Motor Vehicle
Act, 1988 against the judgment and
award dated 24.08.2007 passed by the
Addl. District & Sessions Judge (Fast
Track) No.4, Jodhpur in claim case No.
99/2005.
DATE OF JUDGMENT :: 04.11.2008
PRESENT
HON'BLE MR.JUSTICE MANAK MOHTA
Mr.A.K.Rajvanshi for the appellants.
Mr.A.K.Dadhich for respondent No.3.
BY THE COURT :
The above mentioned appeal has been filed by the
claimant appellant against the judgment and award dated
24.08.07 passed by the Addl.District and Sessions Judge (Fast
Tract) No.4, -cum- Judge, MACT , Jodhpur in claim case
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No.99/2005 by which the learned Judge has dismissed the
claim petition filed by the claimant appellant.
Briefly stated, for the disposal of this appeal factual
aspect of this case are that from the perusal of record it
reveals that on 14.07.01 the present appellant was coming on
his bicycle along with two others Girish Mathur and Sumit
Tripathi. It is said that when they reached at Paota B Road, at
that time a jeep bearing No.RJ19-IC-4848 came from the front
side in a rash and negligent manner and hit the appellant. He
fell down and then the wheel of the jeep passed over the back
of the claimant. Due to this accident, claimant received serious
spine injuries and it is said that his ½ portion of the lower part
of the body lost complete sensation and he got paralised. It is
stated that he also sustained head injury in the said accident.
It is further stated that at the time of accident, appellant was of
21 years old and he was studying in 12th Class. Along with his
studies, he used to take tuition and by this job, he used to earn
Rs.3,000/- per month. It is stated that due to serious injuries
caused in accident, he remained under treatment for a pretty
long time and he visited different hospitals. Even during
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treatment, as per advice of the doctor, he approached
hospital at Beijing , China. He has stated that a huge amount
was spent over the treatment and still he is under treatment .
He has stated in the claim petition that at the time of accident,
jeep was driven by respondent No.1 Rajendra Singh Rajawat
and it was owned by respondent No.2 Sumer Singh. At that
time the jeep was insured with respondent No.3, United India
Insurance Company. As the accident was caused by the
driver of the jeep, therefore, driver , owner, as well as the
insurer of the jeep are stated to be responsible for the payment
of compensation. Due to the gravity of the injuries , he became
totally handicapped of working , he used to take permanent
assistance of others to perform his daily and routine work. On
that basis, doctor has certified his disability upto 100% vide
Ex.8. In claim petition he has mentioned the details of
compensation and on that basis, a total claim of
Rs.1,08,63,000/- was claimed. It was also stated in the claim
petition that a report of this incident was lodged at the
concerned police station and ultimately the police, after
thorough investigation, filed challan against the driver of the
offending jeep, with the allegation of rash and negligent driving
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of the said jeep and causing injuries to appellant. A prayer
was made to award adequate compensation in the claim
petition.
Notice of claim petition was issued. The respondent
No.1 and 2, the alleged driver and owner of the jeep, filed joint
reply denying the allegations made in the claim petition.
Further it is stated that the jeep was never indulged in said
accident and a false case was lodged against them and in
that case jeep was seized wrongly and in the last a prayer was
made to dismiss the claim petition.
The Insurance Company , respondent No. 3 also filed
separate reply and denied the facts stated in the claim petition.
It further stated that accident was caused by one scooter as
stated by the claimant himself. Thereafter to procure
compensation, the involvement of concerned jeep has been
shown. Therefore, Insurance Company cannot be made liable
for compensation. In the alternative, it was also submitted that
it is a case of contributory negligence. Further it is stated that
at the time of alleged accident, the jeep driver was not having
valid driving licence. Thus, that was a violation of breach of the
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terms of the policy. Therefore, Insurance Company cannot be
made responsible for the payment of compensation and prayer
was made to dismiss the claim petition.
On the basis of the pleading of the parties, the learned
tribunal framed relevant issues with regard to factum of
accident and with regard to quantum of compensation.
From the side of claimant, AW/1 Gaurav Kachhawaha ,
AW/2 Bhuvneshwar Bhati, AW/3 Anand Singh Kachhawaha,
AW/4 Dr. Sumnesh Mathur, and AW/5 Dr.Kishore Raichandani
were produced and also got exhibited certain documents Ex.1
to Ex. 160 in support of his claim. In rebuttal, the respondents
got examined NAW/1 Devi Singh, NAW/2 Rajendra Singh and
NAW/3 Ravi Mehta and also got exhibited Ex. A-1 to A-10.
After hearing both the side, the learned tribunal did not
find involvement of the driver of the jeep in accident and while
deciding issue No.1, held that accident occurred not due to
rash and negligent driving of the driver of the vehicle. Thus,
issue No.1 was decided against the appellant. The learned
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tribunal, over ruled the other contentions raised by the
Insurance Company and under the quantum of compensation
on the basis of material available on record, determined the
amount of compensation as Rs.8,37,869/-. But considering
the finding on issue No.1 ultimately rejected the claim petition
vide its judgment and award dated 27.08.07. Being felt
aggrieved and dissatisfied with the finding on the issues held
against the claimant, the claimant appellant has filed this
appeal challenging the validity , legality and propriety of the
learned tribunal in passing the judgment. Looking to the facts of
the case, notice for disposal of the case at the admission
stage was issued to the respondents. Despite service,
respondent No.1 and 2 driver and owner of the vehicle did not
appear. Counsel for Insurance Company appeared. Arguments
were heard.
During the course of arguments learned counsel for the
claimant appellant submitted that learned tribunal has not
properly considered and appreciated the material available on
record and erroneously passed judgment while rejecting the
claim petition. It was contended that the learned Judge was
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highly influenced by the fact that the police after investigation
filed a final report in court and drew an inference that a false
case was registered against the driver of the jeep. But that was
totally against the record. It was submitted that the police filed
the final report on account of the fact that the concerned
offending vehicle was not available but later on, on the
protest of the claimant appellant, the matter was re-investigated
and challan was filed against the driver of the offending
vehicle,but the learned tribunal has over looked the important
material in this respect. Likewise learned tribunal was highly
impressed by the fact that in a report made by the father of the
claimant injured, number of the vehicle has not been narrated.
Thereafter, the said jeep was wrongly connected. It was said
that such sort of finding is also against the record. In fact ,
report was lodged by the father of the injured Anand Singh
who was not an eye witness of occurrence. First time he
visited his son in serious condition in hospital. Due to that
he became disturbed. He has specifically mentioned in the
report Ex.2 that his son sustained injuries in motor accident.
He has further stated that his son is hospitalized but he is
unconscious and he has further stated in his report that the
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particulars of the vehicle involved in accident are within the
knowledge of his friend Girish and that will be supplied later
on. But the learned tribunal did not appreciate the facts in
totality and took the injuries in isolation and wrongly interfered
that the said vehicle was not involved in accident and
concluded the issue.
It was also contended that from the very beginning on
behalf of the claimant it was stated that police was under the
influence of respondent No.1 and 2, therefore, they did not
make fair and proper investigation and recorded wrong
statement and concluded accordingly. The witnesses who
appeared before the learned tribunal has made clear the
position. Before the tribunal, on behalf of the claimant,
injured himself has appeared and he has specifically stated
how the incident occurred. His statement is trustworthy. It was
urged that only on his statement issue was found well proved.
His statement is further corroborated by other evidence
also . In this respect, learned counsel for the appellant drew
my attention towards the statement of witnesses and on the
basis of material available on record , it was stated that in
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rebuttal, only driver of the offending vehicle has appeared but
he is highly interested witness , his statement cannot be
believed. It was also urged that during investigation, notice
Ex.5 under section 133 of the M.V.Act was given to owner of
the vehicle Sumer Singh. That has been received by him,
despite that neither he has replied to notice nor he has
appeared before the tribunal in evidence. Thus, the evidence
produced by the claimant has remained unrebutted.
Learned counsel for the appellant submitted that as to prove
issue No.1 the sole witness in this case is injured himself . His
statement was sufficient and the tribunal should have relied on
his statement. There was no need to produce other witnesses.
In support of his contentions, he also cited a judgment given in
Chako vs. State of Kerala (AIR 2004 SC 2688) and drew my
attention towards the observation made in para No.7 of the
judgment, which is as under:-
“Coming to the question whether
on the basis of a solitary evidence
conviction can be maintained. A bare
reference of Section 134 of the Indian
Evidence Act, 1872 (in short ‘the
Evidence Act’) would suffice. The
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provision clearly states that no particular
number of witnesses is required to
establish the case. Conviction can be
based on the testimony of single witness
if he is wholly reliable. Corroboration may
be necessary when he is only partially
reliable.”
Learned counsel for the appellant further stated that the
learned tribunal has also committed a grave error in computing
the quantum of compensation. In this respect learned counsel
drew my attention towards the statements of witnesses
specially the statement of AW/5 Dr.Kishore Raichandani and
AW/4 Dr.Sumnesh Mathur respectively. He also drew my
attention towards the statement of the father of the claimant
and on that basis, it was stated that huge amount has been
incurred and further expenditure on treatment is going on . The
learned tribunal should have considered these important
aspect of the case, but it has not considered in right way and
has not awarded adequate compensation. The learned tribunal
has wrongly discarded some evidence and documents. On
the basis of these submissions, it was urged that the finding
on the concerned issue be quashed and it may be held that
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accident occurred due to the sole rash and negligent driving of
the driver of the jeep and adequate compensation may be
determined and awarded and appeal may be allowed.
On the contrary, learned counsel for the the Insurance
Company refuted the contentions and submitted that the
claimant appellant has not been able to establish before the
tribunal that the concerned jeep was involved in accident. It
was contended that from the record it is reveled that father of
the claimant has lodged the report after getting information
from the person who is stated to be an eye witness of the
incident. Even he has not mentioned the particulars of the
vehicle. Later on they have, with some ulterior motive to
procure compensation, has indulged the concerned jeep. The
tribunal has rightly concluded issued No.1 and there is no
scope for interference and it was urged that the judgment may
be maintained and the appeal may be dismissed.
I have considered the rival submissions and perused the
finding on each issue and the conclusion drawn thereon. I
have perused the authority cited by the learned counsel for the
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appellant and the material available on record. The main
question arises for consideration in this appeal is whether the
finding on issue No.1 given by the learned tribunal is not in
accordance with the record of the case and does it require
interference ?.
Keeping in mind the contention raised by the learned
counsel for the parties, first of all it is proper to scan the
evidence, in brief, produced by the parties.
From the side of claimant AW/1 Gaurav Kachhawaha,
injured himself has appeared. He has stated that on 14.07.01
he himself along with his friends Sumit and Girish were going
on bicycles. At that time, a jeep bearing No.RJ 19-IC-4848
came in his wrong side. That jeep was in a high speed and it
hit his bicycle and he fell down. He has further stated that the
tyre of the jeep passed over his body. He has stated that his
friend Girish has seen the occurrence. He informed about the
accident to his family members. He has also stated that he
remained unconscious for 3 days he was admitted in MDM
Hospital, Jodhpur and gained conscious thereafter. He has
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further stated that at that time police came to the hospital but
his statement was not taken by the police. In his statement he
has denied the statement Ex.A/1 suggested in cross
examination. He has also narrated in details about the
treatment and exhibited the concerned documents. AW/2
Bhuvnesh Bhati is said to be the attendant attached to the
injured for his assistance. He has stated that he was attending
the injured and he used to get Rs.7,000/- per month . He has
also proved the relevant papers of payment,. AW/3 Anand
Singh Kachhawaha is the father of the appellant. He has stated
that he got the information of accident from Girish but at that
time his son was not conscious. He has further stated that he
made a report to the police, Ex.2, he has further stated that his
son was unconscious at the time of lodging report. He has
stated that Girish met him after 10 days and has told the full
particulars of accident, but he has denied the police statement
Ex.A/4, suggested in cross examination. He has also narrated
the facts with regard to treatment given by the doctors to his
son. AW/4 Dr.Sumnesh Mathur is the Physiotherapist. He has
stated that he used to attend the injured as per requirement.
He has also stated that the injured claimant will require
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physiotreatment through out his life and for that he has to incur
Rs.2,000/- per month. AW/5 Dr.Kishore Raichandani is the
doctor who has issued disability certificate Ex.8. He has stated
in detail the injuries sustained by the claimant and has further
stated that there was no improvement in the condition even
after passing of five years.
From the side of respondent, NAW/1 Devi Singh has
been produced he was the investigating officer on the report.
He has stated that due to the non-traceability of the concerned
vehicle, final report Ex.A/8 was given in the Court. NAW/2
Rajendra Singh has been produced and he has denied in his
statement the involvement of the concerned vehicle but he has
admitted that police had filed challan against him in court.
NAW/3 Ravi Mehta has been produced on behalf of the
Insurance Company. He has simply stated that information of
the accident was not given. The learned tribunal while deciding
issue No.1, has only considered the statement of AW/1
Gaurav Kachhawaha. Admittedly, this witness has stated that
along with him, his friend Sumit and Girish were there and
Girish saw the incident. The learned tribunal found that from
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the side of claimant, no eye witness was produced for
corroboration. Therefore, the statement of AW/1 Gaurav was
not found reliable and has given much emphasis on the
statement of driver of the offending vehicle. NAW/2 Rajendra
Singh who has denied the involvement of the concerned
vehicle. The learned tribunal further drew inference from the
factum that the police, after investigation, has filed final report
Ex. A/8 before the tribunal. Thus, on the basis of the reasons
assigned while discussing issue No.1 did not find proved
issued No.1 in favour of the claimant.
But to my mind, the learned tribunal has not properly
appreciated the evidence and material placed on record by the
claimant’s side. It is admitted fact that the claimant AW/1
Gaurav Kachhawaha has sustained severe injuries and he
became unconscious. The report was made by his father on
mere information of the accident. Specifically it has been
mentioned by his father in the report that the number of the
vehicle will be suppled, after getting specific information from
Girish . Before the learned tribunal the claimant himself has
stated the number of the vehicle and has given the details as
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to how the accident occurred and on that material, there was
no cross by the opposite side. In that position, his statement
cannot be discarded. Further, his contention is corroborated by
the fact that soon after the incident, report was lodged to the
police and the police ultimately, after thorough investigation,
has challaned against the driver of the offending vehicle.
Therefore, merely on the non-production of Girish or any other
eye witness, the version stated by AW/1 Gaurav Kachhawaya
cannot be discarded. To find out the truth, tribunal was free to
call the alleged eye witnesses at its accord. During the course
of argument, a contention was also raised by the learned
counsel for the appellant that proper opportunity to produce
evidence was not afforded by the tribunal and in this respect
an application under order 41 rule 27 CPC has been moved to
produce Girish in evidence.
I have considered the contentions . In this case the
learned tribunal has not properly enquired into the matter and
without considering the material available on record, concluded
issue No.1 against the defendant. Thus, on the basis of
aforesaid discussion, the finding on issue No.1 is not
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sustainable and is liable to be quashed.
I have also considered the contentions raised by the
learned counsel for the appellant with regard to quantum of
compensation. Though the learned tribunal has granted a
compensation of Rs. 8,37,869/- but in this respect also
evidence has not been appreciated properly. A huge amount
has been spent under treatment and documents have been
produced and exhibited but the learned tribunal has discarded
some documents on baseless grounds.
On the basis of aforesaid discussion, the finding on issue
No.1 as well as on issue No.3, are not found sustainable, they
deserved to be quashed. As the case is required to be afresh
reconsidered and re-appreciated of material available on record
and for that it is found just and proper to remit back the case to
the concerned tribunal.
On the basis of aforesaid discussion, the appeal is partly
allowed and the impugned judgment and award is quashed and
the matter is remanded back for afresh hearing. If any of the
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party move for additional evidence, the learned tribunal will
sympathetically consider the application and will afford chance
for producing evidence, without delaying the matter, will
conclude the hearing expeditely.
For appearance of the parties, next date before the
learned tribunal is fixed as 17.11.08 .Notice will be issued to
driver and owner of the jeep alone. No order as to costs.
(MANAK MOHTA), J.
l.george