BHAGWANI Vs. POORAN AND OTHERS

JUDGEMENT

(1.) Since all these misc. appeals relate to common award dated 15.7.2005 passed ay Judge, Motor Accident Claims Tribunal Shahpura, Jaipur (in short MACT) in MACT cases No. 568/2001, 569/2001, 570/2001, 572 to 585/2001, 587/2001 and 588/2001 (in all 19 cases), they are being disposed by this common judgment.

(2.) The facts have been set out in the impugned award and hence I am not repeating the same here except wherever necessary. 3-4. The facts in brief are that on 12.12.2000 the injured claimants and deceased were traveling in Tractor Trolley and they were going from village Kanwarpura to Shahpura, a Truck bearing No. RJ 32 G 0864 came rashly and negligently hit the Tractor Trolley and accident took place. In the said accident due to rash and negligent driving of the driver of the truck they received injuries and some persons received fatal injuries. For the wrong committed by the driver of the truck a criminal case No. 268/2000 was registered against him and after investigation the police submitted charge sheet against the driver of the truck for the offence under sections 279, 338, 304 A IPC. The injured claimants and the legal heirs of deceased filed claim petitions before the MACT. After service of notice, the respondents 1 and 2 filed their written statement came with the plea that the accident took place due to the negligence of the driver of the tractor, as such they are not at all liable to pay any compensation and even if there is any liability only the Insurance Company is liable to pay the amount of compensation to the claimant. The respondent No.3 Insurance Company in their written statement came with the contention that the accident took place only due to the fact that the driver of the tractor was driving the vehicle on a slope and only due to the fact that on the slope the tractor trolley turned down and the accident took place. It is contended that no accident with the truck No. RJ 32 G 0864 took place and the said truck never remained involved in the said accident. Neither the tractor driver nor the owner of (or) Insurance Company were impleaded as party not the driver of the tractor was having valid license at the time of driving of the tractor and even there Is a non-compliance of section of the Act. The insurance company has stated that since there is violation of the policy, the claim petitions are likely to be rejected. Since so many persons received injuries in the said accident and some received fatal injuries, as such as many as twenty three claim petitions were filed by different claimants regarding the same accident. The MACT clubbed all the claim petitions and on the basis of the pleadings framed as many as four Issues. Issue No.1 was with regard to the fact whether the driver of the vehicle bearing No. RJ 32 G 0864 by driving the vehicle rashly and negligently committed the accident and due to the same Muralidhar, Smt. Nanchi and Ganesh died and others received Injuries and other issues were with regard to the fact that whether the respondent No.1 was the driver and was In the employment of the respondent No.2 and during the course of his employment, he caused the accident and another Issue was with regard to the compensation. Lastly, the Issue framed by the Tribunal was whether on the basis of the preliminary objections and additional pleas, the respondents are not liable to pay any compensation. During the trial the statements of as many as twenty seven witnesses were recorded whereas in defence the statements of two witnesses viz. Ram Swaroop and Bhagwan Das were recorded by the MACT. Out of twenty seven witnesses produced from the claimants side, all were the eye witnesses except AW 1 Surajmal. After hearing the parties the MACT while deciding issues 1 and 2 rejected the claim petition filed by the claimants on the ground that since Suraj Mal first lodged a first information report at Police Station with some different contents wherein the involvement of the alleged truck was not mentioned, as such the contents mentioned in the claim petitions as well as the contents mentioned In the complaint on the basis of which the charge sheet was filed against the driver of the truck were not relied upon by the MACT and MACT decided the claim petitions against the appellants and the same were rejected solely on this count vide judgment dated 15.7.2005. 5. The learned counsel for the appellants has contended that the MACT in deciding the claim petitions vide common award dated 15.7.2005 committed a serious error of law, ignored the material and evidence available on record, ignored the provisions contained in the Motor Vehicles Act as well as the same is against the Evidence Act. The MACT has failed to appreciate this important aspect that except Suraj Mal who was neither present at the place of accident nor was having knowledge of the same, found that the entire story narrated by the claimants is false and baseless. It is submitted by the learned counsel for the appellants that in the statements the injured persons specifically stated the manner in which the accident took place, the involvement of the vehicle with which the accident took place and it is pertinent to note that such statement of eye witnesses as well as injured persons remained uncontroverted rather there cannot be any doubt on their statement. The MACT only on the basis of surmises and conjectures decided the issues 1 and 2 against the claimants. The MACT has failed to appreciate this important aspect that even on the basis of statement of AW 1 Suraj Mal the claim petitions were not likely to be rejected. AW 1 Suraj Mal gave his explanation in his cross examination and he clearly stated the fact that the report was not written by him and neither he was aware about the facts mentioned in the report nor he is an eye witness of the incident and he merely signed the report. It is submitted that the MACT has failed to appreciate this important aspect that since just after the accident even if a report was registered by some person who did not remain involved in the accident, the facts narrated in the report are having not much relevance more particularly when the other persons those who are the eye witnesses and injured were stating the facts first before the investigating officer who investigated the entire case and thereafter before the MACT. The MACT has also ignored this important fact that when the subsequent report which was sent to the investigating officer under section 156 (3) Crimial P.C. was thoroughly investigated by the investigating agency and the investigating agency after thorough Investigation found the Involvement of the truck in the accident and filed charge sheet against the driver who committed the offence and truly speaking this was only for the Investigating officer to conduct Investigation of such facts. The MACT has committed jurisdictional error In recording such findings that too on the basis of surmises and conjectures. The learned counsel has argued that on a perusal of the findings recorded by the MACT will show that the MACT gave more weightage to the report lodged by AW 1 Suraj Mal In comparison to the subsequent report as well as statements of the Injured persons and eye witnesses whereas it was obligatory on the part of the MACT to ignore the statement of AW 1 who was merely a stranger and neither he was the beneficiary nor a sufferer. Not only the injured and beneficiaries but the other eye witnesses like AW 25 Arjun Lal and AW 26 Bhagwan Sahay have also supported the claim cases and both these eye witnesses clearly stated the fact that the accident took place due to rash and negligent driving of the truck but MACT merely for the reason that the series number was not disclosed by one witness and the another witness who was not resident of that place, his presence is doubtful. It is pertinent to note that merely for the reason that the series of the truck was not disclosed in the statement, does not mean that the person is not the eye witness. So far as another witness who was belonging to the other village Shahpura is concerned it was for the respondent Insurance company to establish that at the time of accident he was not present at the spot. The MACT while deciding the claim petitions decided the matter as if the MACT is having personal knowledge about all the facts. It is further submitted by the counsel that without any material evidence available on record and even without any cross examination on such issue, the MACT wrongly came to this conclusion that the witness was not the eye witness. The MACT has failed to appreciate this important aspect that the owner as well as the driver of the truck admitted the accident and in reply to the notice under section 133 M.V. Act, the owner of the truck disclosed the fact that the respondent No.1 Pooran was driving the vehicle at the time of accident. The learned counsel for the appellant has contended that the MACT though relied upon the statement of the enquiry said to have been conducted by the investigators of the insurance company but completely ignored the fact that the investigation conducted by the Police was just and proper rather was a fair investigation and therefore the charge sheet was also filed against the culprit i.e. driver of the truck. The learned counsel has argued that in these circumstances the comments mentioned in the finding that the claimants with the help of persons of their own community falsely involved the truck In the accident. The MACT has committed an error in ignoring the fact that the defence witnesses were not the eye witnesses rather they were merely the investigators Interested in the Insurance company as they were appointed by the Insurance company and even otherwise in their statement they merely supported their opinion which was recorded after their investigation. Merely on the basis of such opinion, no conclusion what so ever was likely to be drawn by the MACT. The learned counsel for the appellants placed reliance on Mannulal Vs. Surendra Pal Singh and others, 2001 (1) TAC 418 (MP) . 6. The learned counsel for the respondent Insurance Company and the counsel for the respondents 1 and 2, have opposed the arguments raised by the learned counsel for the claimants and argued that the common award dated 15.7.2005 passed by the MACT Is just and proper based on the basis of the reasonings and material on record. 7. I have heard the learned counsel for the parties and considered the rival contentions and the award passed by the MACT and also gone through the record. 8. It Is an admitted fact that Surajmal lodged a report at Police Station Manoharpur on 12.12.2000 that he and his wife and 30-35 persons were travelling in tractor and trolley for going to village Sheosinghpura from his village Kanwarpura. At 11 on account of applying gear In the tractor the same overturned and on account of which accident took place and in that accident his wife died and he received injuries. The Police Station Manoharpur registered the report bearing FIR No. 264/2000. The report lodged by Surajmal reads as under: