IN THE HIGH COURT OF JUDICATURE FOR

RAJASTHAN BENCH AT JAIPUR

S.B. CIVIL MISC. APPEAL /2018

1. Samodra Wife of Shivjiram, Age- 39 Years.

2. Mahaveer Son of Shivjiram, Age- 22 Years
3. Dolya Aliaz Laxminarayan Shivjiram, Age- 20 Years.
4. Basanti D/o. Shivjiram, Age- 18 Years
5. Onkar Son of Kesarlal, Age- 81 Years
6. Phoola Wife of Onkar, Age-64
All by Caste- Jat, Resident of Village Arniyakedar, Tehsil
& District- Tonk.

.................. Appellant / Claimant

VERSUS

1. Devlal Son of Surajmal, by caste Gurjar, Resident of

Bhojpura, Post- Phooleta, Tehsil- Uniyara, Distt- Tonk.

2. Hansraj Son of Bhanwarlal Gurjar, R/o. Arniyakedar,

Tehsil & District- Tonk.

3. Tata AIG General Insurance Company Ltd. Branch

Office- Jaipur.

............... Non-Claimants/
Respondents

S.B. Civil Misc. Appeal under section 173 of

Motor Vehicle Act, 1988 against the
judgment and award dated 05-12-2017
passed by Tanveer Choudhary, District
Judge, Judge Motor Accident Claim Tribunal,
Tonk in CIS No. 1450/2014 (268/2013),
 whereby the claim petition filed by the
appellants has been dismissed.

Valuation of Appeal 53, 60,000/- Rs.

Court Fees 10/- Rs.

To,

The Hon’ble Chief Justice and his other companion

Judges of the Rajasthan High Court Bench at Jaipur.

MAY IT PLEASE YOUR LORDSHIPS,

The humble appellants most respectfully submits as under :-

1. That the brief facts giving rise to this Appeal is that

the Claimant-Appellants filed an application for
compensation under Section 140 and 166 Motor
Vehicles Act. It was stated that at about 7 AM,
Shivjiram i.e the husband of the Claimant-Appellant
No. 1 and the father of Claimant-Appellant No. 2 to 4
and son of Claimant-Appellant No. 5 to 6 was coming
towards Arniya Kedar from Jhopdo on 01.07.2013 and
when he reached near to Khal Ka Dhabe then he was
hit by a motorcycle bearing no. RJ-26-SJ- 3209 coming
from the back side in wrong side. The driver of the said
motorcycle was driving rashly and negligently.
Shivjiram received serious injuries and due to which he
was expired during the treatment. Therefore, the non-
claimants were jointly and severally responsible for
compensation.
2. That a FIR bearing no. 114/2013 was lodged at
Police Station Sadar, Tonk against the driver of the
truck under section 279 ,304A IPC.
3. That the Application was filed by the Claimant-
Appellant on the ground that the driver of motorcycle
was driving rashly and negligently and thereby the
deceased Shivjiram received serious injuries and same
has resulted into his death.
4. That it was pleaded in the claim Application that at
the time of accident the deceased was 45 years of age
and he was very intelligent and healthy person. The
deceased was a mechanic and earning Rs.15,000/- per
month and maintain himself and the family members.
He was the sole bread earner in his family and total
claim of Rs. 53, 60,000/- with the interest @ 18%
from the date of filing the claim Petition was filed
against the Non-Claimant-Respondents on the grounds
as mentioned in the claim Application.
5. That the Non-Claimant No. 1 and 2 filed the joint
reply and denied the facts stated in the claim petition
and further stated that the said vehicle is insured with
the non-claimant no. 3 and if any liability is prove then
the insurance company will be liable to pay the
compensation to the claimants –appellants.
6. That the Non-Claimant No.3 filed their separate
reply and denied the most of the facts stated in the
claim petition in absence of knowledge and further
stated that the owner of vehicle did not inform to the
company immediately to the insurance company and
the vehicle was not insured with company at the time
of accident. It was also stated that the vehicle was not
driving by the owner therefore the company was not
responsible. It was also stated that the alleged vehicle
was not involved in the accident and deceased injured
with other vehicle in other manner. The FIR was
registered after delay of 7 days and challan was filed in
 connivance with police and the owner of vehicle.
Therefore the insurance company is not liable to pay
the compensation to the claimant –appellant.
7. That on the pleadings of the parties, the learned
court below framed as many as four issues, which are
at the page no. 3 of the impugned judgment.
8. That in the evidence, claimants-appellants examined
as A.W. 1 Samodra , A.W.2- Kamlesh Choudhary and in
the documentary evidence produced and exhibited as
Ex.-1 to Ex.-17. The non-claimant no.1 and 2 did not
produce any oral and documentary evidence and non
applicant no. 3 examined as N.A.W. 1 Digvijay Singh
and in the documentary evidence produced exhibited
as Ex.A-1 and Ex.A-2.
9. That from the pleadings, statements of witnesses
and documents on record the learned court below vide
impugned judgment/award dated 05.12.2017 decided
issue no.1,to 4 against the claimants-appellants and
dismissed the claim petition.
10. That being aggrieved with the judgment dated
05.12.2017, the claimants-appellants file this Misc.
appeal for on the following grounds:-

Grounds:-

(A) Because, the impugned award dated 5.12.2017 is

against the law, facts and material on record.
(B) Because, the judgment of the learned lower court
is based on conjecture and surmise.
(C) Because, the learned court below has not
appreciated the statement of A.W. Kamlesh Choudhary,
who was eye witness of the accident and whose
statement remained uncontroverted. It is respectfully
 submitted that the said witness has clearly stated that
he was coming along with deceased Shivjiram towards
Arniyakedar and when they reached near to Khal Ka
Dhabe then Shivjiram was hit by a motorcycle bearing
no. RJ-26-SJ- 3209,coming from the back side, in
wrong side. The driver of the said motorcycle was
driving rashly and negligently and the motorcycle fall
on Shivjiram due to which his intestine got burst.
(D) Because, the learned tribunal erred in not
considering the charge sheet submitted by the police
against the Driver non claimant. It is respectfully
submitted that the police after recording the
statements of Kamlesh Jat, Mojiram Gurjar, Rajendra,
Hansraj, Kamlesh, Onkar Mal, Rameshwar and Hansraj
Gurjar found the offence and submitted charge sheet
for the offences under Section 279, 304A against the
Driver Devlal.
(E) Because, the learned tribunal also committed
grave error in doubting the claim petition on the
ground of delay in lodging FIR. It is submitted that
from the perusal of the documents, it is clearly evident
that after the accident, the family members got busy in
treatment of the deceased and the same was lodged
soon after the death.
(F) Because, the learned tribunal only on the basis of
the bed head ticket of Agarwal Hosital has dismissed
the claim petition. It is submitted that without
examining the doctor of the Agarwal Hospital the
alleged report was relied that deceased was fall from
motorcycle. It is respectfully submitted that if a doctor
has mentioned the wrong detail then that cannot be
considered sole evidence for deciding claim petition. It
is pertinent to submit here that the word fall from was
 wrongly mentioned and interpreted. It is also evident
from medical report of Mahatma Gandhi Hospital where
the word “fall on” is mentioned. which means the motor
cycle fall on the deceased.
(G) Because, the owner of the vehicle in his
statement recorded under Section 161 of CrPC has
admitted that Devlal was driving his motorcycle and
cause accident and the death of Shivjiram was caused
due to accident with his motorcycle.
(H) That all the witnesses and the documents on
record proves that appellant was 45 years old and his
income was 15000/- Rs per month and claim petition
was liable to be allowed.
(I) Because, the learned tribunal has not considered
that it is a beneficial legislation for benefit of the
victims and members of their family therefore such
provisions are required to be liberally construed.
(J) Because, it is well settled that Motor Vehicles Act,
1988 is a beneficial legislation. Reference can be made
to a decision of the Apex Court in Smt.Rita Devi and
others v. New India Assurance Co. Ltd., reported in AIR
2000 SC 1930, wherein, while construing the provisions
of the Act, the Supreme Court held that it is to advance
the beneficial purpose underlying the enactment in
preference to a construction, which tends to deviate
the purpose.
(K) Because, in Shivaji Dayanu Patil and another v.
Vatchala Utham More reported in 1991 ACJ 177, the
Apex Court reiterated that in the matter of
interpretation of a beneficial legislation, the approach
of the Courts should be to advance the beneficent
purpose.
(L) That the other grounds will be submitted at the
time of arguments.

It is, therefore, prayed that your Lordships will be

pleased to accept this Miscellaneous Appeal and set aside the
impugned judgment/ award dated 05.12.2017 passed by the
learned Motor Accident Claim Tribunal, Tonk in CIS No.
1450/2014 (268/2013), and please to allow the claim
petition filed by the claimant-appellant and award the
compensation of Rs. 53, 60,000/- from the date of
application with interest @ 18%. Or

Any other order as this Hon’ble Court thinks fit and proper in
the facts and circumstances of the case and pass other and
further orders as may be deemed just and proper in the facts
and circumstances of the present case.

HUMBLE APPELLANT

THROUGH COUNSEL

(Manish K Sharma/Aniket Sharma)

Foot Notes:

1. No such Misc. Appeal has been filed by the claimant-

appellant.

2. That this Misc. Appeal has not been typed by any of

the High Court staff members.

3. That this Misc.appeal has been typed by private steno

on stout papers, as pie-papers were not readily
available.

4. The matter pertains to the jurisdiction of the Hon’ble

High Court, Jaipur Bench, Jaipur.

COUNSEL FOR THE APPELLANT

 IN THE HIGH COURT OF JUDICATURE FOR
RAJASTHAN BENCH AT JAIPUR

S.B. CIVIL MISC. APPEAL /2018

Samodra & Ors. Versus Devlal & Ors

INDEX

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Sr. No. Particular

Page No.

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1. Memo of Misc. Appeal 1-

2. Certified Copy of Judgment dated 05.12.2017

–

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COUNSEL FOR THE APPELLANT

 IN THE HIGH COURT OF JUDICATURE FOR
RAJASTHAN BENCH AT JAIPUR

S.B. CIVIL MISC. APPEAL /2018

Samodra & Ors. Versus Devlal & Ors

SYNOPSIS

Injury Case

On 01.07.2013:- At about 7 AM, Shivjiram was coming

towards Arniya Kedar from Jhopdo and when he reached
near to Khal Ka Dhabe then he was hit by a motorcycle
bearing no. RJ-26-SJ- 3209 coming from the back side in
wrong side. The driver of the said motorcycle was driving
rashly and negligently. Shivjiram received serious injuries
and admitted to hospital.

On 07.07.2013:- Shivjiram expired during the course of

medical treatment.

On 07.07.2013:- FIR bearing no. 114/2013 was lodged at

Police Station Sadar, Tonk against the driver of the truck
under Section 279, 304A IPC.

On 26.08.2013:- Claim petition was filed under section 166

M.V.Act.

On 5.12.2017: Claim petition dismissed by the learned MACT

Court, Tonk.

Hence this Misc. appeal.

COUNSEL FOR THE APPELLANT