Rajasthan High Court - Jodhpur
National Insurance Co. Ltd vs Smt. Sunita And Ors. ... on 20 August, 2024
Author: Nupur Bhati
Bench: Nupur Bhati
[2024:RJ-JD:34352]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
S.B. Civil Misc. Appeal No. 1770/2015
National Insurance Co. Ltd. Divisional Office National Highway
No.15, Suratgarh Road, Sri Ganganagar through its Regional
Manager, National insurance Co. Ltd., Pal Road, Jodhpur.
----Appellant
Versus
1. Smt. Sunita w/o late Shravan Kumar aged about 22 years,
resident of Village 1 KSR, Tehsil Suratgarh District Sri
Ganganagar.
Respondent/Claimant
2. Pawan Kumar S/o Shri Pat Ram, aged 23 years, r/o
Narsinghpura, P.S. Ghamoorwali, Tehsil Padampur, District
Sri Ganganagar.
[Driver of Tractor and Trolley no. RJ-31RA-1746]
3. Rakesh Kumar s/o Shri Bhagirath aged about 35 years r/o
Khotawali, Tehsil Pilibanga District Hanumangarh.
[Owner of Tractor and Trolley no. RJ-31RA-1746]
----Respondents/Non-claimants
Connected With
S.B. Civil Misc. Appeal No. 1840/2015
National Insurance Co. Ltd. Divisional Office National Highway
No.15, Suratgarh Road, Sri Ganganagar through its Regional
Manager, National insurance Co. Ltd., Pal Road, Jodhpur.
----Appellant
Versus
1. Smt. Sunita w/o late Shravan Kumar aged about 22 years,
2. Het Ram s/o Shri Dungar Ram, aged 43 years,
3. Smt. Santosh @ Shanti w/o shri Het Ram, aged 40 years,
All r/o Village 1 KSR, Tehsil Suratgarh District Sri
Ganganagar.
----Respondent/Claimants
4. Pawan Kumar s/o Shri Pat Ram aged 23 years, r/o
Narsinghpura, P.S. Ghamoorwali, Tehsil Padampur, District
Sri Ganganagar.
[Driver of Tractor and Trolley no. RJ-31RA-1746]
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[2024:RJ-JD:34352] (2 of 10) [CMA-1770/2015]
5. Rakesh Kumar s/o Shri Bhagirath aged about 35 years r/o
Khotawali, Tehsil Pilibanga District Hanumangarh.
[Owner of Tractor and Trolley no. RJ-31RA-1746]
----Respondents/Non-claimants
S.B. Civil Misc. Appeal No. 1948/2015
1. Sunita w/o Shri Shrawan Kumar, aged 26 years,
2. Hetram s/o Shri Dungar Ram aged about 47 years,
3. Santosh @ Shanti w/o shri Hetram, aged around 44 years,
All r/o Village 1 KSR, Tehsil Suratgarh District Sri
Ganganagar.
----Appellants
Versus
1. Pawan Kumar s/o Shri Pat Ram aged 23 years, r/o
Narsinghpura, P.S. Ghamoorwali, Tehsil Padampur, District
Sri Ganganagar.
[Driver]
2. Rakesh Kumar s/o Shri Bhagirath aged about 35 years r/o
Khotawali, Tehsil Pilibanga District Hanumangarh.
[Owner]
3. National Insurance Company through Divisional office
National Highway No.15, Suratgarh Road, Sri Ganganagar.
[Insurer]
----Respondents
For Appellant(s) : Mr. Anil Kaushik
For Respondent(s) : Mr. Pankaj Sharma
Mr. Vikash Bishnoi
Ms. Tamanna Trivedi
HON'BLE DR. JUSTICE NUPUR BHATI
Judgment 20/08/2024 [Civil Misc. Appeal No. 1770/2015 & 1840/2015]
1. These misc. appeals have been filed by the appellant/non- claimant No.3 Insurance Company under Section 173 of the M.V. Act, 1988 challenging the validity of the judgment and award (Downloaded on 21/08/2024 at 08:39:43 PM) [2024:RJ-JD:34352] (3 of 10) [CMA-1770/2015] dated 01.07.2015 passed by learned Judge, Motor Accident Claims Tribunal, Suratgarh, District Sri Ganganagar in MAC Case Nos.120/2014 (39/2011) : Smt. Sunita vs. Pawan Kumar & Ors. and 119/2014(37/2011) : Smt. Sunita and Ors. Vs. Pawan Kumar & Ors., whereby the learned Tribunal partly allowed the claim petitions filed by the claimants and awarded compensation in favour of respective claimants to tune of Rs.51,642/- and Rs.10,97,000/- along with interest @ 8% per annum while holding all the non-claimants to satisfy the award.
2. Briefly stated, the facts of the case are that the claimants filed their claim petitions under Section 166 of the M.V. Act before the learned Tribunal claiming compensation. In the claim petitions, it was inter-alia alleged that on 26.06.2011, Sunita along with her husband Shravan Kumar was going on Motor Cycle No. RJ-135G- 5994 from his village 1 KSR to Sri Ganganagar. When they reached near Bhagwangarh Bus Stand, a tractor attached with trolley came from the opposite side in a rash and negligent manner and hit the motor cycle which was on the right side of the road. In the accident, Shravan Kumar and Smt. Sunita sustained simple and grievous injuries. Due to the grievous injuries sustained by Shravan Kumar, he succumbed to death while being carried to hospital. An FIR was lodged for the said incident bearing No. 145/2011 in P.S. Suratgarh. The police after investigation filed the challan against the driver of the tractor Pawan Kumar under section 279, 337, 338, 304A IPC. That the claimant averred in the claim petition that at the time of accident, injured Sunita was going with her husband Shravan Kumar. Another claim petition bearing No. 119/2014 (37/2011) was filed by the respondent No.1 (Downloaded on 21/08/2024 at 08:39:43 PM) [2024:RJ-JD:34352] (4 of 10) [CMA-1770/2015] on account of death of Shravan Kumar in the same accident. Both the claim petitions were tagged by the learned Tribunal and was decided by the common judgment dated 01.07.2015. The claimants filed claim petition claiming compensation of Rs. 52,72,000/- under various heads.
3. On receiving the notice of the claim petition on behalf of the owner and driver of the tractor, reply to the claim petition was filed in which factum of negligence was denied. It was averred that the accident occurred due to negligence of the deceased Shravan Kumar. On behalf of the appellant-insurance company, reply to the claim petition was filed, in which, a specific plea was taken that at the time of accident the tractor was attached with the trolley and it was used as a transport vehicle but the driver was possessing the Light Motor Vehicle Licence. Apart from this, appellant-insurance company took a plea that claimants has not produced any documentary evidence in regard to income of the deceased and the claim filed by the claimants is on very high side.
4. On the basis of pleadings of the parties, the learned Tribunal framed three issues, including relief, which inter-alia reads as under:
"1. आया पवनकुमार पत्र ु श्री पतराम ने दिनांक 26.06.2011 को ट्रे क्टर संख्या आरजे 31 आरए 1746 को तेज गति एवं लापरवाही से चलाकर दर्घ ु टना कारित की जिसमें श्रवणकुमार पुत्र श्री हे तराम की मत्ृ यु कारित हुई व सन ु ीता पत्नी श्रवणकुमार के चोटें कारित हुई ?
याचीगण
2. आया याचीगण, अयाधौगण से मत ृ क श्रवणकुमार की मत्ृ यु के प्रतिकर स्वरूप 52,72,000/- रूपये एवंम आहता सुनीता के आयी चोटों के प्रतिकरस्वरूप 5,90,000/- रूपये बतौर क्षतिपूर्ति प्राप्त करने के अधिकारी अधिकारी हैं?
3. आया अयाचीगण संख्या 3 बीमा कम्पनी का जवाब क्लेम याचिका की आरम्भिक आपत्तियां एवं अतिरिक्त आपत्तियां के अनस ु ार बीमा (Downloaded on 21/08/2024 at 08:39:43 PM) [2024:RJ-JD:34352] (5 of 10) [CMA-1770/2015] कम्पनी अयाचीगण संख्या 3 किसी प्रकार से क्षतिपूर्ति की अदायगी हे तु जिम्मेवार नहीं है ?
-अयाची संख्या 3."
5. In support of their claims, the claimants examined three witnesses and 34 documents were exhibited and on behalf of non- claimants No.1 and 2 no evidence was led and on behalf of non- claimant No.3, one witness was examined, however, no documents were exhibited.
6. After considering the arguments of the counsel for the parties and considering the evidence led, the learned Tribunal awarded Rs. 51,642.42/- and Rs.10,97,000/- in favour of the respective claimants alongwith interest @ 8% p.a. and the liability was fastened upon all the non-claimants jointly and severally.
7. Being aggrieved of the judgment and award dated 01.07.2015 passed by learned Motor Accident Claims Tribunal, Suratgarh, District Sri Ganganagar in MAC Case Nos.120/2014 (39/2011) : Smt. Sunita vs. Pawan Kumar & Ors. and 119/2014(37/2011) : Smt. Sunita and Ors. Vs. Pawan Kumar & Ors., the appellant/non-claimant No.3 has filed the present appeals.
8. Learned counsel for the appellant-insurance company vehemently submits that the vehicle in question was a transport vehicle, however, the driver of the vehicle was having the licence to ply LMV only. Thus, there was breach of conditions of the policy and the learned Tribunal has thus erred in fastening the liability upon the appellant.
9. On the other hands, learned counsel for the respondents submits that in view of judgment passed by Hon'ble Apex Court in the case of Mukund Dewangan v. Oriental Insurance Company (Downloaded on 21/08/2024 at 08:39:43 PM) [2024:RJ-JD:34352] (6 of 10) [CMA-1770/2015] Ltd. & Ors. : Civil Appeal No.5826/2011 decided on 03.07.2017, the driver holding the licence to ply LMV could ply a light transport vehicle and, therefore, the instant appeals deserve to be dismissed.
10. I have considered the submissions made by counsel for the parties and have perused the material available on record.
11. The controversy which is raised by the Insurance Company in this appeal is no longer res integra and rests in view of the law laid down by Hon'ble the Supreme Court in the case of Mukund Dewangan vs. Oriental Insurance Company Ltd. reported in (2017) 14 SCC 663wherein, it has been held as below:-
"60.2. A transport vehicle and omnibus, the gross vehicle weight of either of which does not exceed 7500 kg. would be a light motor vehicle and also motor car or tractor or a road roller, 'unladen weight' of which does not exceed 7500 kg. and holder of a driving licence to drive class of "light motor vehicle" as provided in section 10(2)(d) is competent to drive a transport vehicle or omnibus,the gross vehicle weight of which does not exceed 7500kg. or a motor car or tractor or road- roller, the "unladen weight" of which does not exceed 7500 kg. That is to say,no separate endorsement on the licence is required to drive a transport vehicle of light motor vehicle class as enumerated above. A licence issued under section 10(2)(d) continues to be valid after Amendment Act 54 of 1994and 28-3-2001 in the form."
12. This Court is conscious of the fact that the Larger Bench of the Hon'ble Supreme Court in the case of M/s Bajaj Allianz General Insurance Co. Ltd. Vs. Rambha Devi & Ors. :[(2017) 14 SCC 663], has held that "During the pendency of this reference, the judgment of the three Judge Bench in the case of Mukund Dewangan (supra), shall continue to hold the field and all courts, tribunals and authorities shall, therefore, act on that basis." (Downloaded on 21/08/2024 at 08:39:43 PM) [2024:RJ-JD:34352] (7 of 10) [CMA-1770/2015]
13. Hence, in wake of the discussion made herein above, and applying the ratio of the judgment rendered by the Hon'ble Supreme Court in the case of Mukund Dewangan (supra) and also looking to the observation made by the Larger Bench of the Hon'ble Supreme Court in the case of M/s Bajaj Allianz (supra); that the judgment of the three Judge Bench in the case of Mukund Dewangan (supra) shall continue to hold the field till the issue involved in M/s Bajaj Allianz (supra) is not adjudicated upon, the instant misc. appeals stand dismissed as being devoid of any merit. No order as to costs. Record be returned to the learned Tribunal forthwith.
[Civil Misc. Appeal No. 1948/2015]
1. The appellants claimants have preferred this appeal under Section 173 of the Motor Vehicles Act being aggrieved of the judgment-cum-award dated 01.07.2015 passed by the learned Judge, Motor Accident Claims Tribunal, Suratgarh, District Sri Ganganagar in MAC No.119/2014 (37/2011) whereby, the appellants being the dependents of late Sh. Shrawan Kumar, were awarded an amount of Rs.10,97,000/- alongwith interest @ 8% per annum towards compensation owing to the death of Sh. Shrawan Kumar in a road accident which took place on 26.06.2011.
2. Learned counsel for the appellants/claimants submits that the learned Tribunal has awarded meager amount of compensation as against the amount actually claimed and, therefore, the compensation deserves to be enhanced. Learned counsel for the appellant submits that deceased was working as (Downloaded on 21/08/2024 at 08:39:43 PM) [2024:RJ-JD:34352] (8 of 10) [CMA-1770/2015] TR FMS Engineer in CMS Info System Private Ltd. and he was getting salary of Rs.16,000/- per month, which was amply proved by the claimants by adducing plausible documentary evidence, which remained unrebutted, however, the learned Tribunal has assessed the monthly income at Rs.4500/-, which was the minimum wages at the relevant time. Learned counsel for the appellants-claimants further submits that towards the loss of consortium and love & affection, the compensation deserves to be enhanced. Leaned counsel for the appellants further submits that towards the loss of estate, no compensation has been awarded, therefore, under the said head, compensation deserves to be awarded.
3. On the other hand, learned counsel appearing for the respondent No.3/non-claimant opposes the submissions made by counsel for the appellants/claimants. He further submits that no case is made out for enhancement of the compensation.
4. I have considered the submissions advanced at bar and have gone through the impugned award and the original record.
5. Having regard to the submissions made by counsel for the parties, this Court is of the opinion that the compensation deserves to be enhanced in light of judgment passed by Hon'ble the Supreme Court in the cases of National Insurance Company Limited vs. Pranay Sethi & Ors. reported in (2017)16 SCC 680 and Sarla Verma Vs. Delhi Transport Corporation reported in AIR 2009 SC 3104. The learned counsel for the parties were directed to submit calculation of compensation to be awarded to the claimants afresh. Accordingly, this Court deems it appropriate to modify the judgment and award (Downloaded on 21/08/2024 at 08:39:43 PM) [2024:RJ-JD:34352] (9 of 10) [CMA-1770/2015] passed by the learned Tribunal while taking into consideration the monthly income at Rs.7520/- of the deceased, inasmuch as he was working as TR FMS Engineer. The claimants are held entitled to receive compensation under the heads of consortium @48000/- each, Rs.18,000/- under the head of loss of estate and Rs.18,000/- under the head of funeral expenses. The the compensation is, accordingly, re-quantified as under:
Monthly Salary Rs.7520/-
Future Prospects 50% of Rs.7520/- = 3760/- Yearly salary after the multiplier of 18, 11280 x 12 x 18 = Rs.24,36,480/-
Personal deduction @ 1/3rd i.e. 24,36,480 / 3 =Rs. 8,12,160/-
Income now: 24,36,480 - 8,12,160 = 16,24,320/-
Loss of Income/Dependency Rs.16,24,320/-
Consortium (48,000 x 3) Rs.1,44,000/-
Loss of Estate Rs.18,000/-
Funeral Expenses Rs.18,000/-
Total Rs.18,04,320/-
Less: Amount awarded by the Tribunal Rs.10,97,000/-
Amount enhanced: Rs.7,07,320/-
6. In view of above discussion, the appeal is partly allowed and the amount of compensation payable to the appellant-claimants is further enhanced by Rs.7,07,320/- in the terms stated above. The enhanced amount shall carry interest as awarded by the learned Tribunal i.e. @ 8% per annum from the date of filing of claim petition till the date of deposit. The enhanced amount shall be deposited by the respondent Insurance Company with the Tribunal within a period of two months from today failing which, the interest shall stand enhanced @ 9% per annum from the date of this order till actual realization.(Downloaded on 21/08/2024 at 08:39:43 PM)
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7. This Court also observes that since the amount awarded under consortium, funeral expenses and loss of estates already carries an increase of 10% every 3 years, therefore, the said headings shall not carry interest amount in accordance with the judgment passed by the Coordinate Bench of this Court in the case of Rasal Kanwar Vs. Harish Chand (SBCMA No.1099/2019) decided on 20.03.2024.
8. The award judgment-cum-award dated 01.07.2015 passed by the learned Judge, Motor Accident Claims Tribunal, Suratgarh, District Sri Ganganagar in MAC No.119/2014 (37/2011) is modified accordingly. No order as to costs. Record be returned to the Tribunal forthwith.
(DR. NUPUR BHATI),J 12, 13 & 14 Ajay Singh/-
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