{"id":200130,"date":"2010-07-29T00:00:00","date_gmt":"2010-07-28T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/roop-chand-vs-smt-leela-devi-ors-on-29-july-2010"},"modified":"2015-02-12T06:43:52","modified_gmt":"2015-02-12T01:13:52","slug":"roop-chand-vs-smt-leela-devi-ors-on-29-july-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/roop-chand-vs-smt-leela-devi-ors-on-29-july-2010","title":{"rendered":"Roop Chand vs Smt. Leela Devi & Ors on 29 July, 2010"},"content":{"rendered":"
Rajasthan High Court – Jodhpur<\/div>\n
Roop Chand vs Smt. Leela Devi & Ors on 29 July, 2010<\/div>\n
1                                    (1) S.B.Civil Misc.Appeal No.356\/99\n                                      (2) S. B. Civil Misc. Appeal No.506\/99\n\n    IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.\n\n                            JUDGMENT\n\n\n(1) SMT. LILA DEVI & OTHERS. V. BOBBY @ BALWINDER SINGH &ORS\n\n\n(2) ROOP CHAND                   V. SMT. LEELA DEVI & OTHERS.\n\n\n             S. B. CIVIL MISC. APPEALS NO. 356\/1999\n             & 506\/1999, against the award dated\n             15.02.1999, passed by Shri Rajendra Singh,\n             RHJS, Judge, Motor Accidents Claims Tribunal,\n             Sri Ganganagar in MAC No.14\/89\n\n\n\nDATE OF JUDGMENT                                JULY 29, 2010\n\n                              PRESENT\n\n                 HON'BLE MR. JUSTICE C. M. TOTLA\n\n\n\nMr.R.K.Singhal & Mr. G.R.Goyal , for Appellant (s).\nMr. V.K.Agrawal and Mr. A.K.Dadhich, for Respondent (s).\n\n\nBY THE COURT:<\/pre>\n
              Above two appeals, first by claimants for        also holding<\/p>\n
insurer liable and quashing order to pay part of compensation to father<\/p>\n
and brothers of deceased l and other by owner for holding insurer liable to<\/p>\n
pay, arise out of the same judgment, so are being decided together.<\/p>\n
              On 31.10.88, at about 10.45 p.m., Shri Madan Gopal, on a
\n 2                                      (1) S.B.Civil Misc.Appeal No.356\/99
\n                                        (2) S. B. Civil Misc. Appeal No.506\/99<\/p>\n
public way, was hit by car No. RSK 2700, resulting death due to injuries<\/p>\n
sustained compensation claim by         wife, two minor sons, two minor<\/p>\n
daughters, parents of two brothers. Allowed and awarded, accepted by<\/p>\n
the tribunal for Rs.2,86,680\/- and interest and in relation to award are the<\/p>\n
appeals.\n<\/p>\n
                Relevant brief facts, per claimants, are that Shri Madan<\/p>\n
Gopal, 30 years, at the relevant time, was employed in government<\/p>\n
hospital as ward boy – was getting salary about Rs.750\/-            who also<\/p>\n
employed as home guard, used to get allowance Rs.15\/- per day. On that<\/p>\n
day, deceased, along with three other home guards, reporting at police<\/p>\n
station     and than riding on cycle, was going to       duty place at food<\/p>\n
corporation. Then, on Suratgarh road, a car fastly and negligently driven,<\/p>\n
came and struck cycle, made Madan Gopal fell down, than car speedily<\/p>\n
escaped and injured admitted to hospital, where succumbed in evening<\/p>\n
on 1.11.88. Averred that FIR No.178\/88 was registered on 1.11.88 on<\/p>\n
complaint of Chandi Prasad and that the vehicle owned by Roop Chand,<\/p>\n
was given for repairs at workshop of mistry Babulal and one Shri Bobby @<\/p>\n
Balvinder Singh as such and worker employee of mistry on his behest<\/p>\n
was driving the vehicle. For earning Rs.1230\/- per month, estimating loss<\/p>\n
for 30 years, Rs.10,42,800\/- and deducting Rs.42,800\/- for own expenses<\/p>\n
of deceased,       Rs.75,000\/- for pain, agony,     deprivation of love and<\/p>\n
affection    and    Rs.5,000\/-   for   expenses,    claimed     compensation<\/p>\n
Rs.10,80,000\/-.\n<\/p>\n
 3                                        (1) S.B.Civil Misc.Appeal No.356\/99
\n                                          (2) S. B. Civil Misc. Appeal No.506\/99<\/p>\n
               Owner Shri Roop Chand asserted that the vehicle for<\/p>\n
substantial repair and body work given to and was with Babulal and he did<\/p>\n
not know of any accident and also when driven by whom. The owner,<\/p>\n
accepting    the deceased to be employed as above, asserted that the<\/p>\n
deceased fast moving cycle on, was chasing the car and cycle striking, he<\/p>\n
fell down.\n<\/p>\n
               Said repairer respondent mistry Babulal replied that he<\/p>\n
since a day earlier, was away to Delhi and not in know of any accident<\/p>\n
and the vehicle when driven by whom, and that named person Bobby at<\/p>\n
that time or ever was not in his employment. Stated vehicle if driven by<\/p>\n
anyone, was not under instructions.\n<\/p>\n
               Bobby @ Balwinder Singh replied denying all – stated that<\/p>\n
he neither driving, nor involved in accident and falsely implicating him, is<\/p>\n
chargesheet against him for the offence.\n<\/p>\n
               Appellant insurance company, denying claim petition<\/p>\n
averments, stated that per claimants themselves, the vehicle was not<\/p>\n
driven by a person in control or supervision of employer and that even if<\/p>\n
the vehicle was for repair at workshop during which any accident<\/p>\n
occurred, still insurer not responsible. Also asserted that insurer was never<\/p>\n
informed of such accident which is mandatory and that so stated driver<\/p>\n
did not possess valid driving license.\n<\/p>\n
               Compensation was claimed from owner, repairer mistry,<\/p>\n
said driver and the insurer.\n<\/p>\n
 4                                      (1) S.B.Civil Misc.Appeal No.356\/99
\n                                        (2) S. B. Civil Misc. Appeal No.506\/99<\/p>\n
                  Issues seven were framed relate to questions if incident<\/p>\n
occurred due to negligence of the said driver and caused is death in<\/p>\n
accident – dependency of claimants and necessity of succession certificate<\/p>\n
– relation of said repairer and compensation quantum. Issue No.6             is<\/p>\n
regarding whether vehicle owner did not inform insurer and if so, to what<\/p>\n
effect. Issue No.7 is whether vehicle driver had a valid license – if not,<\/p>\n
effect thereto.\n<\/p>\n
                  On behalf of the claimants, evidence is wife of deceased,<\/p>\n
father, police officer Sandeep Prasad, and Chandi Prasad who, per him,<\/p>\n
was with the deceased and lodged first information report.         In defence<\/p>\n
are statements of owner Roop Chand and              said driver     Bobby @<\/p>\n
Balwinder. For insurance company are statements of administrative<\/p>\n
officer. Placed on record and exhibited are certain copies of FIR, post-<\/p>\n
mortem report etc.<\/p>\n
                  Vide judgment of 19.11.96, learned Judge arriving at<\/p>\n
conclusions of accident – due to negligence of Bobby @ Balvinder Singh<\/p>\n
who driving – g injuries to Madan Gopal-who died of injuries – claimants<\/p>\n
dependent on him, estimating       Rs.2,65,680\/- as earning     loss applying<\/p>\n
multiplier for annual income Rs.14,707\/- and Rs.21,000\/- for other heads,<\/p>\n
awarded total compensation        Rs.2,86,680\/-. Learned Judge      arrived at<\/p>\n
conclusion that vehicle was not liable as was handed over to and with<\/p>\n
mistry for repairs. Responsibility for payment was held of owner, repairer,<\/p>\n
and drivers and also insurer challenging above award appeal No.11\/97,
\n 5                                    (1) S.B.Civil Misc.Appeal No.356\/99
\n                                      (2) S. B. Civil Misc. Appeal No.506\/99<\/p>\n
preferred by insurer, was disposed of by judgment dated 13.5.98,<\/p>\n
directing “in this view of the matter, the findings on issues No. 6 and 7<\/p>\n
are set aside, the matter is    remitted back to the Tribunal for fresh<\/p>\n
adjudication on issues No. 6 and 7 and then decide the case and<\/p>\n
adjudicate upon the liability of the insurance Company.”<\/p>\n
              Learned tribunal than vide judgment dated 15.2.99 held<\/p>\n
(for issue No.6) that for accident, owner did not intimate insurer but this<\/p>\n
of no consequence and for issue No.7, held that driver Bobby              @<\/p>\n
Balvinder Singh did not have driving license – to whom vehicle given by<\/p>\n
insurer, so    owner responsible for paying compensation,           but not<\/p>\n
insurance company – consequently, awarded compensation Rs.2,71,680\/-<\/p>\n
with interest, payable by owner, driver, repairer & not insurer.<\/p>\n
              Claimants, preferring appeal, request that award also be<\/p>\n
against insurer and insurer ordered to pay – also request that order of a<\/p>\n
part of compensation in favour of father brothers deceased be set aside.<\/p>\n
              Owner     requests that quashing the finding on issue No.7<\/p>\n
and holding insurer also responsible they be ordered for payment.<\/p>\n
              Learned counsel for the claimants vehemently argued that<\/p>\n
(i) vehicle was statutorily insured, (ii) deceased was a third party in<\/p>\n
relation to this vehicle, (iii) irrespective of the fact who and in what<\/p>\n
capacity driving, dependents of deceased entitled to receive amount from<\/p>\n
the owner and consequently by the insurer, (iv) brothers of the deceased<\/p>\n
neither dependent on deceased, nor can be heirs particular when
\n 6                                     (1) S.B.Civil Misc.Appeal No.356\/99
\n                                       (2) S. B. Civil Misc. Appeal No.506\/99<\/p>\n
deceased survived by wife, children and mother; (v) appeal of insurer<\/p>\n
decided vide order dated 13.5.98 and only issues No. 6 and 7 remain<\/p>\n
open. In support of contentions, cited are National Insurance v. Swaran<\/p>\n
Singh, WLC (SC) 2004 Vol.1 p.270; Sohan Lal Passi v. P.Sesh Reddy, AIR<\/a><\/p>\n
1996 SC 2627; & Guru Govebar v. Filomena.\n<\/p>\n
               Learned counsel for owner contends that the vehicle was<\/p>\n
rightly insured as provided by the provisions – he delivered it for repairs<\/p>\n
at a workshop – as he subsequently came to know Bobby @ Balwinder<\/p>\n
Singh mistry while driving under instructions of workshop owner met with<\/p>\n
an accident – either Bobby or any driving was not             under owner’s<\/p>\n
instruction or control – owner     control only upto he handed over        for<\/p>\n
repair and only insurer liable.\n<\/p>\n
               On behalf of the insurer, thrustly     argued that (i) entire<\/p>\n
version of handing over for repair and driven while under repairs and<\/p>\n
control of repairer, completely concocted and after thought only to obtain<\/p>\n
compensation from insurer, (ii) vehicle, per owner Roop Chand, was in a<\/p>\n
hopelessly dilated condition, so cannot be accepted for hand over for<\/p>\n
repair, more so when owner does not know when handed over and how<\/p>\n
many days for repairs need – owner cannot be allowed to be over-smart<\/p>\n
and that owner creating version ending is his liability – learned tribunal<\/p>\n
not properly appreciated evidence. Argued that earlier appeal decided,<\/p>\n
set aside the award and entire mater and all issues remain open.<\/p>\n
Submitted that if the insurer is held liable, then non-lialbility clause stand
\n 7                                       (1) S.B.Civil Misc.Appeal No.356\/99
\n                                         (2) S. B. Civil Misc. Appeal No.506\/99<\/p>\n
circumvented and encouraged          other    grounds like with repairs etc.<\/p>\n
Argued that when vehicle driven in violation of policy conditions as here<\/p>\n
without a valid license, then insurer not at all liable.<\/p>\n
               Thoughtfully considering arguments, gone through the<\/p>\n
record. Deciding earlier appeal, vide order dated 13.5.98 passed award<\/p>\n
dt 15.11.07   set aside and directing for fresh adjudication on issues No. 6<\/p>\n
and 7, and then decide the case and adjudicate upon the liability of the<\/p>\n
insurance company.\n<\/p>\n
               The vehicle is alleged to have been driven by Bobby @<\/p>\n
Balwinder Singh and for the registered FIR of the incident, against him is<\/p>\n
filed a charge sheet for the offences. Certified copy of charge-sheet is on<\/p>\n
record and Bobby @ Balwinder Singh appearing in evidence, has accepted<\/p>\n
of criminal case against him pending. Owner Roop Chand NAW 1 in his<\/p>\n
evidence states that he soon after purchasing, handed over the vehicle for<\/p>\n
repairs at workshop of Bobby @ Balwinder Singh, where Babu Lal mistry<\/p>\n
also worked and joint owner of workshop with Bobby.          Per owner, when<\/p>\n
he went to take back vehicle from Bobby, he was informed of the<\/p>\n
accident and the vehicle being with police. Bobby @ Balwinder Singh NAW<\/p>\n
2 states that his is not any car, jeep or workshop and not ever was.<\/p>\n
According to this witness, he does not know driving any vehicle, not even<\/p>\n
scooter. The witness denies of ever any vehicle by Roop Chand given to<\/p>\n
him. As above, just opposite to each other is the evidence of the owner<\/p>\n
and the said driver. No other evidence to show who driving or not.\n<\/p>\n
 8                                    (1) S.B.Civil Misc.Appeal No.356\/99
\n                                      (2) S. B. Civil Misc. Appeal No.506\/99<\/p>\n
However, the position remains that police challan presented for the<\/p>\n
accident against the said driver and the FIR lodger Chandi Prasad AW 3<\/p>\n
states of accident having occurred in his presence as above, so only<\/p>\n
inference, though evidence weak can be that accident occurred of and<\/p>\n
involving   this vehicle owed by Roop Chand who had given for repairs<\/p>\n
and at the time, was being driven under instructions and control of person<\/p>\n
other than owner who appears to be repairer to whom given for repairs.<\/p>\n
             Looking from other perspective, as far as deceased and his<\/p>\n
legal representatives are concerned, when involving the vehicle, the<\/p>\n
accident is proved to have happened here in given facts and situations,<\/p>\n
for them hardly     is very relevant as to who and why was driving.<\/p>\n
Deceased Madan Gopal in night at about 10.30 p.m., going on a bicycle<\/p>\n
when he was struck by the vehicle. As far as Madan Gopal is concerned,<\/p>\n
he is completely a third party in relation to the vehicle and insurer. Given<\/p>\n
these facts, as deceased neither owner nor driver and in no way seems<\/p>\n
to have any connection with any is a third party so insurer becomes liable<\/p>\n
to pay – other matters being in domain between insurer and owner so<\/p>\n
insurer may be at liberty to recover from owner if held to be so.<\/p>\n
              In the instant case, above being the position, argument<\/p>\n
that insurer under non-liability cannot be accepted. Hon’ble the Supreme<\/p>\n
Court, while dealing with , AIR 2008 SC–, NIC v. Geeta Bai. 2006 ACJ<\/p>\n
1224 has also held on the same lines.\n<\/p>\n
 9                                     (1) S.B.Civil Misc.Appeal No.356\/99\n                                       (2) S. B. Civil Misc. Appeal No.506\/99\n\n                Similarly, the factum that the said driver         Bobby @\n\n<\/pre>\n
Balwinder Singh did not possess any license and also that insurer was<\/p>\n
never informed of accident by owner, is immaterial             for awarding<\/p>\n
compensation to claimants.\n<\/p>\n
                Now, thinking for question of of the owner, it appears that<\/p>\n
in the present case the vehicle was handed over for repair at a workshop.<\/p>\n
This being so, for appellant not possible to      control vehicle minute to<\/p>\n
minute, including also for     who drives and how. After much time of<\/p>\n
handing over for repairs at workshop, if the vehicle is driven by a person,<\/p>\n
not authorized, then the same very hardly can be said to be in knowledge<\/p>\n
or instruction of the owner. As observed on        evidence and facts only<\/p>\n
conclusion, as above, is of vehicle being at workshop for repair, so in<\/p>\n
absence of his knowledge or connivance, evidence and reasons and on<\/p>\n
evidence disclosing facts and circumstances, the owner cannot be held<\/p>\n
liable. Admittedly, effective insurance as necessary under Section 147<\/p>\n
was in force.\n<\/p>\n
                Therefore, appeals of owner and partially of claimants<\/p>\n
succeed.\n<\/p>\n
                Now, coming to second part of claimants, appeal that<\/p>\n
father and brothers are not entitled to any compensation. Indisputably,<\/p>\n
brothers being second class of heirs in relation to other claimants so<\/p>\n
cannot claim any legal representations and\/or inheritance but dependency<\/p>\n
not necessarily always equitable to succession. However, this is to be
\n 10                                      (1) S.B.Civil Misc.Appeal No.356\/99
\n                                        (2) S. B. Civil Misc. Appeal No.506\/99<\/p>\n
borne in mind for love and affection, dependency etc. compensation can<\/p>\n
be to parents. Question whether or not brother can ask for compensation<\/p>\n
apart, parents can always claim compensation that               and if their<\/p>\n
dependency on deceased or injured is\/was higher because of reasons of<\/p>\n
high family liability and dependency (of children) on them. Acceptable or<\/p>\n
not, is a entire different matter. In the instance case, claimants happened<\/p>\n
to be wife, four children, parents and two brothers of deceased.<\/p>\n
Laxminarain PW 2, father after six years of the incident, stated his age to<\/p>\n
be 65. Per claim, youngest of the son was 14 years. This being so, other<\/p>\n
brothers claimant perhaps not below 21 years particularly when eldest<\/p>\n
child of deceased was 9 years. Brothers are not strict legal representatives<\/p>\n
and even if some dependency of the brothers even then, learned tribunal<\/p>\n
for father and mother seems to have inferred of parents to that extent,<\/p>\n
including other sons. If the amount is not disbursed, then considering<\/p>\n
wife and four minor children of deceased and now belatedly appropriate<\/p>\n
shall be to order 1\/4th for parents and 2\/3rd to wife and four children.<\/p>\n
               On behalf of the appellants, argued that post judgment<\/p>\n
19.11.96, tendered Rs.5,40,543\/-, trial Court directed Rs.2,36,111\/-<\/p>\n
(excluding earlier interim paid) to wife and four children and rest equal to<\/p>\n
parents and brothers which abnormally disproportionate. The argument<\/p>\n
has merit. On perusal of file, it appears that no specific division, except of<\/p>\n
some FDs in favour of minor is in judgment and, thereafter, of 1.3.97<\/p>\n
order of disbursement as above is. Consequently, subsequent payment
\n 11                                     (1) S.B.Civil Misc.Appeal No.356\/99
\n                                       (2) S. B. Civil Misc. Appeal No.506\/99<\/p>\n
made or not, clearly so emerges from the record and directions given by<\/p>\n
the tribunal. Per order-sheet dated 4.4.97, learned Tribunal directed to<\/p>\n
call back refund bill. Though the apportionment as above, is not justified<\/p>\n
but as they are parents and brothers of the deceased, so now, after 14<\/p>\n
years of disbursement (if payment actually made), shall not be in the<\/p>\n
interest and conducive of close relationship, if now directed, is recovery.<\/p>\n
               However, if amount is not disbursed, then considering wife<\/p>\n
and four minor children of deceased and as while assessing dependency,<\/p>\n
multiplier of 18 is used and period elapsed so for, 1\/4th for parents and<\/p>\n
2\/3rd for wife and four children of deceased shall be appropriate. However,<\/p>\n
the disbursement in excess to it, if already made, then not to be effected<\/p>\n
recovery. However, if disbursement not made consequential to order<\/p>\n
dated 1.3.97 or made only in part, then only, 25% of the compensation<\/p>\n
amount shall be payable to respondent parents, i.e. R4 & R5 and           this<\/p>\n
25% shall include all amount paid so far.\n<\/p>\n
               Per findings, as above, both the appeals are to be decided.<\/p>\n
               Partly allowing appeal No.356\/99, is ordered that insurance<\/p>\n
company respondent No.3 is also liable to make payment of the<\/p>\n
compensation. Disbursement, out of compensation amount to respondents<\/p>\n
No. 6 and 7, is set aside. Respondents No.4 and 5 (parents) are entitled<\/p>\n
for 1\/4th of the total compensation amount, including earlier paid. Amount<\/p>\n
already paid, if any, to any of R4, 5, 6 and 7, not to be recovered now.<\/p>\n
Accepting appeal No.506\/99 of owner, is ordered that insurer respondent
\n 12                                    (1) S.B.Civil Misc.Appeal No.356\/99
\n                                      (2) S. B. Civil Misc. Appeal No.506\/99<\/p>\n
shall be liable to pay and satisfy award of compensation. However,<\/p>\n
Rs.25,000\/- deposited or      paid by owner to be set off against<\/p>\n
compensation and shall be payable to claimants.\n<\/p>\n
              No order as to costs.\n<\/p>\n
              Order as above in two appeals.\n<\/p>\n<\/p>\n
                                                     (C. M. TOTLA), J.\n<\/p>\n
scd\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Rajasthan High Court – Jodhpur Roop Chand vs Smt. Leela Devi & Ors on 29 July, 2010 1 (1) S.B.Civil Misc.Appeal No.356\/99 (2) S. B. Civil Misc. Appeal No.506\/99 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. JUDGMENT (1) SMT. LILA DEVI & OTHERS. V. BOBBY @ BALWINDER SINGH &ORS (2) ROOP CHAND […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,19],"tags":[],"class_list":["post-200130","post","type-post","status-publish","format-standard","hentry","category-high-court","category-rajasthan-high-court-jodhpur"],"yoast_head":"\nRoop Chand vs Smt. 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