Rajasthan High Court - Jodhpur
National Insurance Company Limited vs Ghanshyam & Ors on 18 July, 2013
Author: Arun Bhansali
Bench: Arun Bhansali
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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
:JUDGMENT:
S.B. CIVIL MISC. APPEAL NO.194/1999
National Insurance Co. Ltd., Jodhpur
vs.
Ghanshyam & Ors.
Date of Judgment 18th July, 2013
PRESENT
HON'BLE MR. JUSTICE ARUN BHANSALI
Mr. Jagdish Vyas, for the appellant.
Mr. Kailash Trivedi, for respondent No.1.
Mr. Manoj Pareek for
Mr. Sanjay Mathur, for the respondent No.2 & 5.
Mr. K.K. Bhati, for respondent Nos.3 & 6.
Mr. Dhanpat Choudhary for
Mr. B.P. Rajpurohit, for respondent No.4.
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BY THE COURT:
This appeal is directed against the judgment and award dated 11.01.1999 passed by the Motor Accident Claims Tribunal, Udaipur ('Tribunal'), whereby, the claimant has been awarded a sum of Rs.73,000/- as compensation for the injuries suffered by him and it has further been ordered that the claimant would be entitled to interest @ 12% per annum from the date of filing application for compensation ('application') and if the amount of compensation was not paid within a period of one month, then 'in default' interest @ 15% per annum would be required to be paid.
Brief facts which need to be noticed are that the claimant filed an application with the following averments:- 2
"(अ) क द न 27.9.92 प त: 5 बज प र मण व स
ववपक स. 2 व हन म सव र ह ट ल!य रव न ह#आ
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व*ण क जय-ह. व हन स.ज .ए.कय1. 1981 ट व! पर
र आग बढ. 4 स मन स व हन स. ज ब .कय1. 4755 जजस
ववपक न. 5 च! रह न- व हन तजरफत र व ! परव ह.
स च! रह त आपस म ल7 गय मख # य रप स ववपक
न. 5 4 ! परव ह. रह. टक र स प र न च रगर पड व
व हन- व रगरन स उस स न, पट, मर, ह , प व लसर स7
जगह च ट आय व बह श ह न स ट असपत ! व क=र
उ यप#र ! र इनटनस व यर म रख गय । र # ट
B न स प
=4 च ट आ कतत ह#ई।"
From the averments made in the application, the case of the claimant was that at the instance of driver of the vehicle, he was sitting at the driver's side in the jeep. The said averment is fortified in his cross-examination where he stated that he was travelling outside the vehicle at the driver's side and was in fact hanging out.
The Tribunal after considering the evidence on record has held the vehicle coming from the opposite direction insured with the appellant Insurance Company liable for rash and negligent driving.
It is submitted by learned counsel for the appellant that the averment in the application and re-enforced by the statement of the claimant is sufficient to deny any compensation to the said claimant and in any case the claimant was as much negligent. It was further submitted that there is no warrant in law for awarding interest at the higher rate 'in default' as awarded by the Tribunal. Reliance was placed on the judgment of Hon'ble Supreme Court in National Insurance Co. Ltd. v. Keshav Bahadur & Ors. : AIR 2004 SC 1581.
Learned counsel for the claimant supported the award impugned passed by the Tribunal.
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The act of the claimant in sitting on the driver's side and that also hanging out side the jeep for whatever reasons cannot be said to be a act of prudence on his part and the Tribunal has committed error in not considering the said aspect of the matter. The claimant has contributed to the accident by his negligence. This aspect is fortified from the fact that there were other passengers also in the jeep, however, it is only the claimant, who suffered injuries apparently on account of the fact that he was hanging outside the jeep while travelling. The contributory negligence of the claimant in the present case is, therefore, assessed at 50%.
So far as the enhanced interest in default is concerned, in view of the judgment of Hon'ble Supreme Court cited by learned counsel for the appellant (supra), the said direction is against the law.
In that view of the matter, the award impugned passed by the Tribunal is modified to the extent that the claimant would be entitled to compensation to the tune of Rs.36,500/- from non- claimant Nos.1, 3 and 5 jointly and severally and would be entitled to interest @ 12% per annum from the date of filing application i.e. 01.03.1995. The amount due to the claimant, if any, alongwith the interest be paid in cash.
The appeal is accordingly disposed of with the above directions. The amount be paid by the appellant Insurance Company within a period of two months.
(ARUN BHANSALI), J.
A.K.Chouhan/-
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