Bhanwarlal and Others vs Ramchandra and Others

This is an appeal filed by the claimants u/s 173 of Motor Vehicles Act against an award dated 17.7.1997, passed by M.A.C.T., Biaora (Rajgarh) in Claim Case No. 243 of 1997 whereby the claim filed by the appellants was rejected in toto. Facts in brief are these.

On 2.11.1992 at about 10 a.m. one Nand Ram a resident of Bakhtawarpura was going on his cycle to Biaora for purchasing diesel. It is at that time, he was dashed by the offending vehicle (Tractor MP 08 1065) from rear. It was driven by respondent No. 2. Due to impact. Nand Lal suffered bodily injury. He was then taken in the same tractor to Biaora and admitted in hospital. He succumbed to injury the same day. This led to filing of the claim petition out of which this appeal arises claiming compensation for the untimely death of Nand Lai. It was inter alia alleged that the offending vehicle was insured with the respondent No. 3 (N.A. No. 3) at the relevant time and the accident in question was due to rash and negligent driving of the driver who was driving the vehicle. In support of the allegations the claimants also filed copy of F.I.R. (Exhibit P-1), Seizure Memo (Exhibit P-3) and the policy (Exhibit P-5). The N.A. No. 1/N.A. No. 2 were ex parte and did not contest the claim. The respondent No. 3/non-applicant i.e., Insurance Company alone contested by filing the written statement. The claimants examined two witnesses in support of their case. As stated supra, no evidence was tendered by any of the non-applicants. By impugned award, the learned member of the Tribunal dismissed the claim petition holding that they failed to prove the accident in question. It is against this award, the claimants are in appeal.

None for the appellant. Heard Mr. S.V. Dandwate, learned Counsel for the respondent No. 3.

Having heard learned Counsel for the parties and having perused record of the case, we are of the considered view that on the facts pleaded and proved by evidence, the claim petition should have been allowed.

It is not in dispute that there is no rebuttal evidence led by any of the non-applicants in this case. Indeed, so far as N.A. No. 1 and N.A. No. 2 are concerned they remained ex parte since inception and hence, there was no contest on their behalf. So far as N.A. No. 3/Insurance Company is concerned, no evidence was led on their behalf. In view of this admitted position i.e., in the absence of any rebuttal evidence, the only question that was required to be considered on evaluation of evidence led by the claimants was whether they were able to prove and substantiate their case as pleaded by them in the claim petition.

As taken note of supra, the claimant in support of their case filed copy of F.I.R. (Exhibit P-1) and Seizure Memo (Exhibit P-3) prepared by police. These two documents which were duly proved in evidence by the claimants (appellants herein), clearly proved that the offending vehicle was the only vehicle that was involved in the accident. It clearly mentions the number of vehicle as also the name of owner. This fact was duly proved in oral evidence of P.W. No. 1-Bharfwarlal as also P.W. No. 2 Bhan Singh. So far as P.W. No. 2 is concerned, he was an eye-witness and he clearly stated in his evidence that he saw the accident and rushed to the spot and then took the deceased to hospital.

In our opinion, the aforesaid evidence of two witnesses coupled with the documentary evidence (Ex. P-1/P-3) referred supra, clearly establishes the case of the claimants thereby entitling the Court to hold that Nandaram died due to rash and negligent driving of respondent No. 2. In other words there was enough evidence to conclude and establish the identity of the vehicle, and person driving. It became more so when there was nothing in rebuttal led by the respondents.

So far as insurance coverage to the offending vehicle is concerned the same is also established by the claimant when they filed and proved the copy of policy (Ex. P-5). There was nothing in rebuttal led by the respondent No. 3.

Coming to the question of compensation, the learned Tribunal did not consider it proper to give any finding on this issue in view of the finding recorded by him that claimant failed to prove the accident. Since now, we have reversed this finding and have held that claimants were able to prove not only the accident but also the fact that it was due to rash and negligent driving of respondent No. 2 of the offending vehicle there arises a need to examine the question of grant of compensation. It has come on record that deceased was 45 years of age at the time of accident. He was an agriculturist. There is, however, no evidence led by the claimant as to how much land was owned by the deceased and how much was its income. In the absence of any evidence, it is difficult to hold the exact extent of land held by the deceased. The claimants could have filed the copy of Khasra to show the holding held by the deceased.

Taking into account all facts and circumstances of the case and age of the deceased, we consider it proper to award a sum of Rs. 50,000/- as a total compensation to the claimants/appellants. The awarded sum shall carry interest at the rate of 6% from the date of claim petition till its recovery. The awarded sum shall be payable jointly and severally by all the respondents/non-applicants.

In view of aforesaid discussion, the appeal succeeds and is allowed in part. Impugned award is set aside and instead, claim petition is allowed in part. As held supra, an award for Rs. 50,000/- together with 6% interest per annum from the date of claim petition till recovery is passed against all the respondents/non-applicants.

No costs.