Rajasthan High Court - Jaipur
National Insurance Co Ltd vs Gajraj Singh And Others on 27 September, 2022
Author: Anoop Kumar Dhand
Bench: Anoop Kumar Dhand
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Miscellaneous Appeal No. 1924/2016
National Insurance Company Ltd. Through Regional Manager,
Regional Office, Jeevan Nidhi, Ambedkar Circle, Jaipur
----Non-claimant No.3-Appellant
Versus
1. Gajrajsingh S/o Madan Singh, R/o Dhani Teli Wali Tan
Rajnota, Tehsil Kotputli, District Jaipur Raj.
---Claimant/Respondent
2. Sitaram S/o Jai Singh, R/o Karoli, P.s. Pragpura, Tehsil Kotputli, District Jaipur Raj. Driver Of Vehicle No. RJ-32- UA-2004
3. Ram Karan S/o Shri Birjaram Yadav, R/o Karoli Dhani Yadvo Ki, P.S. Pragpura, Tehsil Kotputli, District Jaipur Raj. Registered Owner Of Vehicle No. RJ-32-UA-2004
----Non-claimant-Respondents Connected With S.B. Civil Miscellaneous Appeal No. 1925/2016 National Insurance Company Ltd. Through Regional Manager, Regional Office, Jeevan Nidhi, Ambedkar Circle, Jaipur
----Non-claimant No.3-Appellant Versus
1. Mahipal Singh @ Manpal S/o Ram Singh, R/o Dhani Teli Wali, Tan Rajnota, Tehsil Kotputli, District Jaipur Raj.
---Claimant/Respondent
2. Sitaram S/o Jai Singh, R/o Karoli, P.s. Pragpura, Tehsil Kotputli, District Jaipur Raj. Driver Of Vehicle No. RJ-32- UA-2004
3. Ram Karan S/o Shri Bijraram Yadav, R/o Karoli Dhani Yadvo Ki, P.S. Pragpura, Tehsil Kotputli, District Jaipur Raj. Registered Owner Of Vehicle No. RJ-32-UA-2004
----Non-claimant-Respondents S.B. Civil Miscellaneous Appeal No. 3574/2016 Mahipal Singh Alias Manpal S./o Sh. Ram Singh, Age 39 years, (Downloaded on 25/12/2022 at 09:35:53 AM) (2 of 11) [CMA-1924/2016] R/o Dhani Telwali, Tan Rajnota, Tehsil Kotputli, District Jaipur (Raj.)
----Claimant/Appellant Versus
1. Sita Ram S/o Jai Singh, R/o Karoli, PS Pragpura, Tehsil Kotputli, District Jaipur (Raj.) (Driver Vehicle No.RJ-32-UA- 2004)
2. Ram Karan S/o Shri Beeja Ram Yadav, R/o Karoli, Dhani Yadavo Ki, PS Pragpura, Tehsil Kotputli, District Jaipur (Raj.) (Owner Vehicle No.RJ-32-UA-2004)
3. National Insurance Company Ltd. Through Regional Manager, Regional Office, MI Road, Jaipur, (Insurer Vehicle No. RJ-32-UA-2004 Valid From 1.6.11 To 31.5.12
----Non-claimant-Respondents S.B. Civil Miscellaneous Appeal No. 3946/2016 Gajraj Singh S/o Sh. Madan Singh, R/o Dhani Telwani, Tan Rajnota, Tehsil- Kotputli, Distt. Jaipur Raj.
----Claimant/Appellant Versus
1. Seeta Ram S/o Jai Singh, R/o Karoli, P.s. Pragpura, Tehsil Kotputli, Distt. Jaipur Raj. (Driver Vehicle No. RJ-32-UA- 2004)
2. Ram Karan S/o Shri Beeja Ram Yadav, R/o Karoli, Dhani Yadavo Ki, P.s. Pragpura, Tehsil Kotputli, Distt. Jaipur Raj. (Owner Vehicle No. RJ-32-UA-2004)
3. National Insurance Company Ltd, Through Regional Manager, Regional Office, M.I. Road, Jaipur Raj. Insurer Vehicle No. RJ-32-UA-2004 Valid From 1.6.11 To 31.5.12
----Non-claimant-Respondents For Appellant(s) : Ms. Neelu Sharma on behalf of Mr. Bhuvnesh Sharma For Respondent(s) : Mr. Atul Sharma Mr. Ritwick Dave Mr. Ganesh Joshi (Downloaded on 25/12/2022 at 09:35:53 AM) (3 of 11) [CMA-1924/2016] HON'BLE MR. JUSTICE ANOOP KUMAR DHAND Order 27/09/2022 All these miscellaneous appeals arise out of common judgment and award dated 25.03.2016 passed by the Court of Motor Accident Claims Tribunal, Kotputli (for short 'the Tribunal') in MAC Case Nos. 366/2012 and 367/2012, hence the same are being decided together.
S.B. CMA Nos.1924/2016 & 1925/2016- Learned counsel for the appellant-Insurance Company submits that the Tribunal has committed an error in allowing the claim petition filed by the claimants as there was a delay of four days in lodging of the FIR and this delay itself is sufficient to reject the claim petition because no explanation has been given by the claimants. Counsel submits that the driver of the vehicle was not having any valid licence to drive the vehicle, even then the Tribunal has awarded compensation to the claimants. Counsel further submits that under these circumstances, interference of this Court is warranted.
Per contra, learned counsel for the respondents opposed the arguments raised by counsel for the appellants. Counsel submits that while deciding the issue No.4, the Tribunal has taken into consideration the fact that the driver of the vehicle was having a valid licence to drive the vehicle, hence the impugned judgment passed by the Tribunal needs no interference of this Court. (Downloaded on 25/12/2022 at 09:35:53 AM)
(4 of 11) [CMA-1924/2016]
Learned counsel submits that after the accident the
claimants remained under the treatment so a slight delay of four days has occurred in lodging of the FIR. Learned counsel submits that Hon'ble Apex Court in the case of Ravi Vs. Badrinarayan & Ors. reported in 2011 (4) SCC 693, has held that the claim petition cannot be rejected only on the ground of delay in lodging the FIR. Learned counsel further submits that in these circumstances, the Tribunal has not committed any error in allowing the claim petition.
Heard learned counsel for both the parties and gone through the judgment and award dated 25.03.2016 passed by the Tribunal as well as the material available on record.
The appellant-Insurance Company has preferred these appeals only on the basis of two grounds i.e. the delay of four days in lodging the FIR and also the fact that the Driver of the offending vehicle was not having any valid licence to drive the vehicle.
So far as the second objection raised by the learned counsel for the appellant-Insurance Company is concerned, that has already been taken into consideration while deciding issue No.4. At the time of accident, the driver of the vehicle was having a valid licence, hence, the Tribunal was not at fault in deciding issue No.4, so far as the contention of learned counsel for the Insurance Company with regard to delay of four days in lodging of the FIR is concerned, the same is not tenable in the light of the judgment delivered by the Hon'ble Apex Court in the case of Ravi (supra). (Downloaded on 25/12/2022 at 09:35:53 AM)
(5 of 11) [CMA-1924/2016] The Hon'ble Apex Court has dealt with this issue in Para No.20 and 21 as under:-
"20. It is well-settled that delay in lodging FIR cannot be a ground to doubt the claimant's case. Knowing the Indian conditions as they are, we cannot expect a common man to first rush to the Police Station immediately after an accident. Human nature and family responsibilities occupy the mind of kith and kin to such an extent that they give more importance to get the victim treated rather than to rush to the Police Station. Under such circumstances, they are not expected to act mechanically with promptitude in lodging the FIR with the Police. Delay in lodging the FIR thus, cannot be the ground to deny justice to the victim. In cases of delay, the courts are required to examine the evidence with a closer scrutiny and in doing so; the contents C.A. @ S.L.P.(C)No.11974/08 .... (contd.) -9- -9- of the FIR should also be scrutinized more carefully. If court finds that there is no indication of fabrication or it has not been concocted or engineered to implicate innocent persons then, even if there is a delay in lodging the FIR, the claim case cannot be dismissed merely on that ground.
21. The purpose of lodging the FIR in such type of cases is primarily to intimate the police to initiate investigation of criminal offences. Lodging of FIR certainly proves factum of accident so that the victim is able to lodge a case for compensation but delay in doing so cannot be the main ground for rejecting the claim petition. In other words, although lodging of FIR is vital in deciding motor accident claim cases, delay in lodging the same should not be treated as fatal for such proceedings, if claimant has been able to demonstrate satisfactory and cogent reasons for it. There could be variety of reasons in genuine cases for delayed lodgment of FIR. Unless kith and kin of the victim are able to regain a certain level of tranquility of mind and are composed to lodge it, even if, there is delay, the same deserves to be condoned. In such circumstances, the authenticity of the FIR assumes much more significance than delay in lodging thereof supported by cogent reasons."
In view of the above discussions and also in view of the judgment delivered by the Hon'ble Apex Court in the case of Ravi (supra), the issues raised by counsel for the appellant-Insurance Company, in the appeals, have no substance. (Downloaded on 25/12/2022 at 09:35:53 AM)
(6 of 11) [CMA-1924/2016] This Court does not find any merit in both the appeals filed by Insurance Company, hence, the same are hereby dismissed.
Stay application and all pending application(s), if any, also stand dismissed.
S.B. CMA No.3574/2016- Learned counsel for the claimant submitted that the claimant-Mahipal Singh was a Conductor in Rajasthan State Road Transport Corporation (for short 'RSRTC' ) and at the time of the accident, he was 35 years of age and getting the salary of Rs.10,844/- per month. Learned counsel also submitted that he has sustained 44.21% permanent disability in the said accident and remained under medical treatment for about two years. Hence, he has suffered loss of income. The Tribunal has committed an error in awarding a very petty amount of compensation to the appellant, which needs suitable enhancement by this Court.
Per contra, learned counsel for the respondent-Insurance Company opposed the arguments made by counsel for the appellant and submitted that the appellant has not suffered any loss of income because of injuries/disability suffered by him in the aforesaid accident as the appellant is still continuing his services. Learned counsel submits that even the Tribunal has taken into consideration the fact of loss of income and has already awarded sufficient amount of compensation to the tune of Rs.14,78,685/-. Learned counsel submits that the amount so determined by the Tribunal is just and proper, which needs no interference by this Court.
(Downloaded on 25/12/2022 at 09:35:53 AM)
(7 of 11) [CMA-1924/2016] Heard learned counsel for both the parties and gone through the judgment and award dated 25.03.2016 passed by the Tribunal as well as the material available on record.
Admittedly, this fact is not in dispute that the appellant was a bus conductor in RSRTC. Another fact which is that the appellant had suffered 44.21% permanent disability and also remained under medical treatment for about two years, is also not in dispute.
The Tribunal while assessing the amount of compensation has taken into consideration all these aspects of the case and considering these facts, awarded an amount of Rs.14,78,685/- as compensation. The amount of compensation has been awarded under the head of physical, mental pain and suffering and loss of income, along with interest @ 7.5%.
The quantum of compensation has been assessed and awarded by the Tribunal for the aforesaid injuries of the appellant, appears to be just and reasonable and the same cannot be treated as inadequate.
In the totality of facts and circumstances of the case, this Court is not inclined to entertain the present miscellaneous appeal filed by the appellant.
In this view of the matter, the present miscellaneous appeal filed by the claimant, is without any merit and accordingly stands dismissed.
S.B. CMA No.3946/2016- (Downloaded on 25/12/2022 at 09:35:53 AM)
(8 of 11) [CMA-1924/2016] Learned counsel for the appellant-claimant submits that in the aforesaid accident, the appellant Gajraj Singh has sustained 72.22% permanent disability. At the time of the accident, the appellant was doing the job of the driver and was having licence to drive Heavy Motor Vehicle but while assessing his income, the Tribunal has determined his income as Rs.4500/- only without any basis. Counsel further submits that while determining the age of the appellant, his driving licence for Heavy Transport Vehicle was taken into consideration on which his date of birth was mentioned as 17.08.1985 and on the basis of the same, the Tribunal determined his age as 24 years. Counsel further submits that as per the circulars issued by Department of Labour, Government, Rajasthan, the persons having the driving licence of Heavy Transport Vehicles are considered as skilled labours, but, these facts were overlooked by the Tribunal while assessing the income of the appellant. Counsel submits that no amount towards future prospects has been awarded to the claimant in the light of the judgment of the Hon'ble Apex Court delivered in the case of National Insurance Company Ltd. v. Pranay Sethi & Ors. :
reported in AIR 2017 SC 5157. Counsel submits that even under the head of future prospects a very petty amount of Rs.1,00,000/- has been awarded, which needs to be suitably enhanced by this Court.
Per contra, learned counsel for the respondent-Insurance Company opposed the arguments made by counsel for the appellant and submitted that the Tribunal while deciding the claim petition of the appellant-claimant has correctly taken into consideration all the factors while calculating the award in this case on the anvil of evidence produced before it. Counsel further (Downloaded on 25/12/2022 at 09:35:53 AM) (9 of 11) [CMA-1924/2016] submits that as per the provisions of Workmen's Compensation Act, if the injury sustained by the injured, is below the knee then the permanent disability should be considered as 60% for the purpose of loss of income. But in the instant case the Tribunal has assessed the permanent disability of the appellant as 72%. Under the head of providing Attendant, the Tribunal has granted compensation to the appellant as if the services of the attendant were required to the appellant for a period of 36 years. Thus the amount, so awarded by the Tribunal is already on the higher side and the same does not call for any interference of this Court.
I have considered the submissions made at the Bar and gone through the judgment and award dated 25.03.2016 passed by the Tribunal as well as the material available on record.
This fact is not in dispute that in the accident occurred on 20.06.2011 and the appellant had suffered 72.22% permanent disability and the Medical Board of Doctors of the Hospital have issued certificate in this regard which indicates that the appellant's right leg was amputated and his left toe was also amputated. The Tribunal has assessed the monthly income of the injured as Rs.4,500/- without any basis. The Tribunal has determined the age of the deceased as 24 years on the basis of his driving licence by recording a finding that the driving licence is a public document issued by the Authority and the driving licence of the appellant was led in evidence for the purpose of determining his age, then certainly the same should have been taken into consideration for the purpose of determining the income of the injured. The driving licence of the appellant indicates that he was in possession of licence to drive a heavy transport vehicle. As per the circulars and the notifications issued by the Labour Department, Government of (Downloaded on 25/12/2022 at 09:35:53 AM) (10 of 11) [CMA-1924/2016] Rajasthan, a person having a valid driving licence of heavy transport vehicle is treated as a skilled labour and in the instant case, the alleged accident occurred in the year 2011 and at the relevant time the minimum wages of the skilled labour was Rs.155/- per day.
This Court finds no force in the arguments of the counsel for the Insurance Company that the 72% permanent disability of the claimant should have been treated as 60% because there were two amputations in both limbs of the injured and the service of the attendant are required for rest of his life.
Further, amount to the extent of 40% is required to be added towards future prospects in the light of the judgment of the Hon'ble Apex Court delivered in the case of Pranay Sethi (supra), which has not been awarded to the appellant by the Tribunal. Looking to the 72.22% permanent disability of the appellant, the Tribunal has granted a very inadequate amount of Rs.1,00,000/- under the head of loss of future amenities and pain and suffering which is required to be enhanced to further Rs.3,00,000/- by this Court.
Thus, the award is re-computated as under:
Monthly income Rs. 155/- x 30 x 72/100=Rs.3348/- Annual income Rs. 3348/- x 12 = Rs.40,176/- per annum Multiplier to be applied 18 40,176/- x 18 = Rs.7,23,168/-
Add 40 per cent towards Rs.7,23,168 /- + Rs. 2,89,267/-
future prospects = Rs. 1,012,435/-
Add towards loss of Future Rs. 1,012,435 + Rs. 3,00,000/- amenities, pain & suffering =Rs. 1,312,435 Total compensation Rs.1,312,435/-
awardable Less amount awarded by the Rs.1,312,435 - Rs. 7,99,840/-
Tribunal = Rs. 5,12,595/-
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(11 of 11) [CMA-1924/2016]
Enhanced amount of Rs.5,12,595 /-
compensation
Thus, an amount of Rs. 5,12,595/- is enhanced in the present case. The respondent - Insurance Company is directed to pay the enhanced amount of compensation of Rs. 5,12,595/- in addition to the amount already awarded by the Tribunal vide its judgment dated 25.03.2016 within a period of two months from the date of receipt of a certified copy of this order. The enhanced amount shall carry interest @ 6% per annum from the date of filing of the claim petition till the actual payment is made.
The learned Tribunal shall disburse Rs. 50,000/- in the Saving Bank Account of the appellant-claimant and the balance amount of the enhanced compensation be invested in FDRs in any Nationalised Bank for a period of three years and interest accrued on the deposit shall be paid to the appellant-claimant on monthly basis.
With the above observations, the appeal stands disposed of. All pending application(s), if any, also stand disposed of. Record of the Tribunal be sent back forthwith. Copy of this order be placed in all the connected files.
(ANOOP KUMAR DHAND),J AARZOO ARORA /35-38 (Downloaded on 25/12/2022 at 09:35:53 AM) Powered by TCPDF (www.tcpdf.org)