Hdfc Ergo General Insurance Co. Ltd. vs Jubeda And Ors

The present appeal has been preferred by the appellants against the Judgment and Award dated 21.11.2020 passed by the Motor Accident Claims Tribunal, Parbatsar, Nagaur (Raj.) in M.A.C. Case No. 78/2013 (CIS No. 512/2014), whereby an amount of Rs. 6,82,580/- was awarded as compensation in favour of the claimants/respondents.

Learned Tribunal after framing the issues, evaluating the evidence on record and hearing the counsel for the parties, decided the claim petition of the claimants awarding the compensation to the tune of Rs. 6,82,580/- under various heads in favour of the claimants/respondents.

Learned counsel for the appellant submits that the Tribunal committed an error while recording the findings on Issue Nos. 1 and 3. He further submits that the eye-witness Amba Lal, who specifically gave the number of the Commander Jeep involved in the accident, was not produced before the Tribunal to prove the fact of accident with the insured vehicle. He further contends that AD-2 Umang Soni, who has given the statement to the police under Section 161 of Cr.P.C., has also not specifically given the number of the jeep involved in the accident. However, he improved his version and in his testimony before the Tribunal he specifically gave the number of the jeep involved in the accident. He further submits that the statement of the child witness Umang Soni is tutored and therefore, the Tribunal committed an error while deciding Issue Nos. 1 and 3 relying upon his testimony. He further submits that as per the site plan prepared by the police during the course of investigation, the accident occurred in the center of the road. Thus, the responsibility cannot be fastened solely on the insured jeep and a perusal of the site plan reveals that the rider of the motor-cycle i.e. deceased Shahid was equally responsible for rash and negligent driving at the time of accident. He, therefore, submits that the factor of the contributory negligence should be applied and the amount awarded by the Tribunal should be appropriately reduced on account of the contributory negligence of the motor-cycle rider Shahid.

Per contra, learned counsel for the respondents/claimants submits that the finding of fact recorded by the Tribunal on issue Nos. 1 and 3 does not suffer from any infirmity. He further submits that the Tribunal has taken note of evidence produced before it and rightly recorded the fact that the Commander Jeep No. RJ-32-UA-1134 was involved in the present accident and since the same was insured with the appellant, the award was rightly passed by the Tribunal. He further submits that even as per the site plan, the accident site is in the center of the road and since the motor-cycle was being driven on the correct side, the commander jeep which came from the opposite direction, hit the vehicle in the center of the road. Therefore, a close look of site plan does not reveal that Shahid who was driving the motor-cycle was at any fault and therefore, there is no question of contributory negligence of the motor-cycle rider i.e. deceased Shahid. He further submits that the findings recorded by the Tribunal does not suffer from any infirmity and hence, no interference is required by this Court in the award passed by the Tribunal.

I have considered the submissions made at the Bar and gone through the Judgment and Award dated 21.11.2020 as well as other relevant record of the case.

A close look at the findings of the Tribunal recorded on Issue Nos. 1 and 3 reveals that the testimony of AD-2 Umang Soni is clear and specific and shows that the commander jeep No. RJ-32- UA-1134 was involved in the accident. Even, in his cross- examination the witness Umang Soni remained credible. The Tribunal, in addition to the evidence brought on record, also taken note of the reply filed by the owner of the vehicle to the notice received under Section 133 of the M.V. Act. As per the said reply, the owner of the Commander Jeep No. RJ-32-UA-1134, which was being driven by its driver at the time of the accident, admitted the fact of accident. Therefore, in addition to the testimony of Umang Soni, (statement of Amba Lal's was recorded under Section 161 of Cr.P.C. by the police during the course of investigation) the fact of involvement of the commander jeep was proved beyond doubt and therefore, the Tribunal has not committed any error while deciding Issue Nos. 1 and 3 in the present case.

As far as the submissions of learned counsels on the point of contributory negligence are concerned, it is noted that as per the site plan prepared by the police, the accident has taken place in the center of the road and therefore, the same was rightly attributed to the driver of the jeep and not to the motor-cycle rider. Thus, the finding of fact recorded by the Tribunal that the Commander Jeep No. RJ-32-UA-1134 was solely responsible for the accident in this case is correct.

In view of the discussions made above, the finding recorded by the Tribunal does not warrant any interference by this Court.

The appeal is therefore, dismissed being devoid of any merit.