Madan Lal Sharma and Others vs Teja Ram and Others

J.K. Ranka, J.�Heard the appeal finally with the consent of

The instant civil misc. appeal under Section 173 of the Motor Vehicles Act is directed against order of the mact, Jaipur City, Jaipur dated 15.6.2001 passed in claim petition No. 1335/1999.

The brief facts as has been gathered on the basis of arguments advanced by the learned counsel for the parties as also the impugned order is that on 27.6.1982 at about 11.30 A.M. when deceased Kumari Santosh was walking outside her house on Kuchcha road then at that time a Tractor bearing No. U.P.P.7173 along with trolley, which was being driven by the driver in a rash and negligent manner came and hit the deceased as a result of which she died. On report received of the incident, a case No. 127/1982 was registered at Police Station, Gandhi Nagar and after investigation, a challan was filed against the non-petitioner No. 1 (Tractor driver) in the competent court for offence under sections 279, 304A IPC. The claimants alleged in the claim petition that non-petitioner No. 1 is the driver of the said tractor and non-petitioners Nos. 2 & 3 are the owners and vehicle was insured with non-petitioner No. 4 Insurance Company, therefore, all the four non-petitioners are responsible for payment of compensation jointly or severally. On 27.11.1999 no one appeared on behalf of non-petitioners Nos. 1, 2 & 3 Teja Ram, Shyam Singh and Smt. Saroj, therefore, ex parte proceedings were drawn against them

Non-petitioner No. 4 Insurance Company filed their reply to the claim petition stating therein that the so called accident was of 27.6.1982. It was pleaded that on the day of accident, as per section 110-A(3) of the Motor Vehicles Act, 1939, limitation for filing a claim arising out of an accident was 6 months of the accident, which provision remained in force till 30th June, 1989 and the claimants did not file their claim within aforesaid limitation or filed after abnormal delay. It was further pleaded that the legislation had not repelled Section 116(3) of the Motor Vehicle Act, 1988 but this amendment can be implemented from 14.11.1994 thereafter in respect of the accident otherwise not. It was also pleaded that looking to the averments made and circumstances, there was no reason for the claimants to file their present claim after 17 years of the incident happened on 27.6.1982, which cannot be held maintainable for any good reason and, therefore, the claim petition is not maintainable and is liable to be dismissed. It was also contended that as per Section 209(4A) of the Companies Act, 1956 the accounts are maintained for 8 years and after a period of 8 years, it is not necessary of the companies to maintain the record of the accounts and as per rule 147 of the Central Motor Vehicles Rules, 1989 the Insurance Companies are bound to keep the insurance record only upto 5 years and it is not possible for the Insurance Company to trace the record in respect of the accidents, therefore, the claim petition is liable to be dismissed. The non-petitioner No. 4 Insurance Company also alleged that there was breach of conditions of insurance policy and prayed for dismissal of the claim petition. In alternate, it submitted that if there is any liability for payment of compensation then it may be decided on the basis of contributory negligency.

The learned Tribunal after hearing the arguments of both the parties framed as many as five issues including the issue of relief. The learned Tribunal while deciding Issue No. 1 observed that witness A.D. 1 Madan Lal stated that on 27.6.1982 at about 11.30 A.M. when- deceased Kumari Santosh was walking outside her house on Kuchcha road then at that time a Tractor bearing No. U.P.P.7173 along with trolley, which was being driven by the driver in a rash and negligent manner came and hit the deceased as a result of which she died in a hospital at 4 O'' Clock. He also stated that after the accident the tractor stopped ahead 15-20 ft. The witness alleged that the accident occurred due to rash and negligent driving by the driver of the tractor and on account of the accident Kumari Santosh died. It was further observed by the learned Tribunal that there is contradictory evidence regarding vehicle number and as per post-mortem report (Ex. 2) the deceased died due to injuries which resulted into loss of blood and shock. The learned Tribunal on finding contradictory evidence disbelieved the version of the claimants and decided Issue No. 1 against the claimants. The learned Tribunal after perusing the documentary evidence held that non-petitioner No. 1 Teja Ram at the time of accident was driving the tractor No. U.P.P.7173 under the employment and for the benefit of non-petitioners Nos. 2 & 3 Shyam Singh and Smt. Saroj and accordingly decided this issue. In so far as Issue No. 3 is concerned, the learned Tribunal after considering the material available on record and the judgments cited before it held that the claim petition has been filed with inordinate delay and no proper and reasonable explanation has been mentioned in the claim petition and decided this issue exonerating the Insurance Company from its liability. In so far as Issue No. 4 is concerned, the learned Tribunal after perusing the statement of A.D. 1, post-mortem report (Ex. 2) has come to the conclusion that on 27.6.1982 at about 11 a.m. on account of rash and negligent driving of tractor No. U.P.P. 7173 by non-petitioner No. 1 Teja Ram no accident was taken place and, therefore, the claimants are not entitled to get any compensation.

Aggrieved by the aforesaid impugned order of the learned Tribunal, the claimants have preferred this appeal.

Learned counsel for the appellants submitted that the order of the Tribunal is perverse, unjust and the claim has wrongly been disallowed. He submitted that the learned Tribunal has erred in disbelieving that due to the accident Ku. Santosh died on 27.6.1982. He submitted that so far as negligence of respondent No. 1 is concerned, although no eye witness was examined by the appellant even then it was a fact on record that immediately after the accident an fir was lodged and challan was filed against respondent No. 1 in the concerned court for offence under section 279 & 304A IPC and site-plan also show that the tractor hit the girl on the footpath and reply to notice under section 88 of the MV Act, 1939 proves that respondents Nos. 2 & 3 were owners of the tractor in question. He pleaded that it was a case of "RES IPSA LOQUITOR" in which there is no requirement of production of any eye witness and only on the basis of circumstances the evidence can be presumed to be proved, therefore, decision of issue No. 1 by the learned Tribunal is not correct and deserves to be quashed and set aside. He further submitted that in absence of reply on behalf of respondents Nos. 1 to 3 and in such circumstances, the documentary evidence was totally against the respondents and adverse inference should have been drawn against them and Issue No. 1 ought to have been decided against them. He further submitted that the learned Tribunal has erred while holding that respondent No. 1 was not having a valid driving licence to drive tractor with trolley and as per provisions of the MV Act, a person having a driving licence can drive a tractor is authorised to drive tractor with trolley and no other requirement is needed and Insurance Company ought to have been held liable for the payment of compensation. He further submitted that the learned Tribunal has erred in deciding all the issues framed by it and the order of the Tribunal requires to be reversed and claim of the claimants deserves to be allowed in toto. He has placed reliance on the judgments of the Hon''ble Apex Court in the case of Nagashetty Vs. United India Insurance Co. Ltd. and Others, as also of this Court Rugga Singh and Others Vs. Prem Singh and Others, and Mst. Rajanti & Ors. v. Nihal Singh & Anr. reported in 2001 (1) tac 708 (Raj.).

Per contra, learned counsel for the respondents has vehemently opposed to the arguments of the learned counsel for the appellant and submitted that the claim petition has been filed in the year 1999 whereas the incident took place in the year 1982 with an inordinate delay of 17 years and there was no proper explanation available on record on behalf of the claimants and only on this count, the claim petition was not maintainable and the learned Tribunal has rightly passed the impugned order. He further submitted that there was contradictory evidence on record and the learned Tribunal has rightly disbelieved the version of the claimants, therefore, no interference is required for interference in the impugned order of the Tribunal by this Court.

I have considered the arguments advanced by the learned counsel for both the parties and have perused the impugned order.

In my view, the learned Tribunal has rightly decided all the issues on merits after considering and analysing each and every aspect of the matter with elaborate discussion. It is true that there was an inordinate delay of about 17 years in filing the claim petition and no proper explanation has come on record. Furthermore, there was contradictory evidence which has come on record. In my view, the Tribunal has rightly scanned and rejected the claim petition as the claimants failed to establish their claim by producing cogent and reliable evidence and whatever evidence was led gave contradictory version. Therefore, in my view, the learned Tribunal has committed no infirmity, perversity or illegality in passing the impugned order, which may call for any interference by this Court.

Consequently, the appeal being devoid of merit stands dismissed.