Rajasthan High Court - Jodhpur
Babu Lal vs Ibrahim And Ors on 16 February, 2021
Author: Vinit Kumar Mathur
Bench: Vinit Kumar Mathur
HIGH COURT OF JUDICATURE FOR RAJASTHAN
JODHPUR
S.B. Civil Misc. Appeal No. 1050/2001
1. Tulsa Ram S/o Ananda Ram
2. Radha Devi W/o Tulsa Ram
3. Rukmani Devi Wd/o Hadmana Ram
4. Babulal S/o late Hadmana Ram
5. Sona Ram S/o late Hadmana Ram
All residents of Village and post Shahr via Sawaoo Padam
Singh, Tehsil Bayatoo, District Barmer.
----Appellants
Versus
1. Ibrahim S/o Babu Khan by caste Musalman R/o Kalukekin,
Tehsil Jaitaran, District Pali. At present resident of Rajeev
Gandhi Colony, Pal Road, Jodhpur.
2. Mohaseen Khan S/o Abdul Hameer by caste Musalman R/o B-
82, Shastri Nagar, Jodhpur.
3. National Insurance Company Limited, Middletone Street,
Calcutta through its Divisional Manager, Chopasni Third Road,
Jodhpur.
----Respondents
Connected With
S.B. Civil Misc. Appeal No. 231/2002
Babulal S/o Makji by caste Mali R/o Jasol, Tehsil Pachpadara,
District Barmer.
----Appellant
Versus
1. Ibrahim S/o Babu Khan by caste Musalman R/o Kalukekin,
Tehsil Jaitaran, District Pali. At present resident of Rajeev
Gandhi Colony, Pal Road, Jodhpur.
2. Mohaseen Khan S/o Abdul Hameer by caste Musalman R/o B-
82, Shastri Nagar, Jodhpur.
3. National Insurance Company Limited, Middletone Street,
Calcutta through its Divisional Manager, Chopasni Third Road,
Jodhpur.
----Respondents
S.B. Civ.cros.obj.miscapp No. 27/2003
1. Ibrahim,
2. Mohasen
3. National Insurance Company Ltd.
Cross-Objector :
Respondent No.3.
National Insurance Company Limited, registered office 3,
Midiltan Street, Calcutta, Branch Office Chopasni Third Road,
Jodhpur through Divisional Manager, National Insurance
Company Limited, Residency Road, Jdhpur..
----Appellant
Versus
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(2 of 12) [CMA-1050/2001]
1. Babulal S/o Makji by caste Mali R/o Jasol, Tehsil Pachpadara,
District Barmer.
2. Ibrahim S/o Babu Khan by caste Musalman R/o Kalukekin,
Tehsil Jaitaran, District Pali.
3. Mohaseen Khan S/o Abdul Hameer by caste Musalman R/o B-
82, Shastri Nagar, Jodhpur.
----Respondent
S.B. Civil Misc. Appeal No. 98/2003
1. Man Singh S/o Manchhaji Rajpurohit R/o Balotra, Tehsil
Pachpadara, District Barmer.
2. Smt. Pappu Devi W/o Man Singh Rajpurohit R/o Balotra,
Tehsil Pachpadara, District Barmer.
----Appellants
Versus
1. Ibrahim S/o Babu Khan by caste Musalman R/o Kalukekin,
Tehsil Jaitaran, District Pali. At present resident of Rajeev
Gandhi Colony, Pal Road, Jodhpur.
2. Mohaseen Khan S/o Abdul Hameer by caste Musalman R/o B-
82, Shastri Nagar, Jodhpur.
3. National Insurance Company Limited, Middletone Street,
Calcutta through its Divisional Manager, Chopasni Third Road,
Jodhpur.
----Respondents
For Appellant(s) : Mr. Prashant Panwar on behalf of
Mr. Rajesh Panwar
For Respondent(s) : Mr. Lalit Parihar &
Mr.Sanjeev Johari
Mr. Shokat Ali
HON'BLE MR. JUSTICE VINIT KUMAR MATHUR
Order 16/02/2021 The present appeals have been preferred by the appellants challenging the judgment and award dated 28/08/2001 passed by Motor Accident Claims Tribunal, Balotra in Motor Accident Claims Case Nos. 60/99, 62/99 and 96/99. The Insurance Company has also preferred civil cross-objection in the appeal preferred by Babulal (CMA No.231/2002). The claim petitions were disposed of by a common judgment as they arose out of the same accident which occurred on 12/01/1999. Thus, the present appeals as well (Downloaded on 18/02/2021 at 08:44:52 PM) (3 of 12) [CMA-1050/2001] as cross-objection are also being disposed of by this common judgment.
Brief facts of the case are that while Hadmana Ram, Vashudev and Babulal were travelling on motorcycle to Jasol, a tanker insured with the respondent/Insurance Company being driven rashly and negligently by its driver hit the motorcycle from the opposite direction. In the said accident, Vashudev and Hadmana Ram died and Babulal sustained several injuries. Thus, the claim petitions were preferred.
Learned Tribunal after framing the issues, evaluating the evidence and hearing the learned counsel for the parties, decided the claim petitions of the appellants-claimants and awarded compensation as mentioned in the judgment and award impugned.
Heard learned counsel for the parties and perused the material available on record.
Learned counsel for the appellants submits that findings of the Tribunal on issue No.1 is incorrect to the extent that the claimants have been found negligent to the tune of 20% as three persons were travelling on the motorcycle instead of two persons. He submits that there is a categorical finding on issue No.1 to the effect that the motorcycle was being driven on the correct side of the road i.e. left side and the driver of the tanker was coming from the opposite direction and the tanker was being driven rashly and negligently causing the accident. He submits that once the finding of rash and negligent driving is recorded by the Tribunal attributing the driver of the tanker responsible for causing accident then merely because three persons were riding on the motorcycle should not automatically be viewed as a rash and (Downloaded on 18/02/2021 at 08:44:52 PM) (4 of 12) [CMA-1050/2001] negligent act on their part and, therefore, fastening of 20% liability in the present case on the claimants is uncalled for. In support of his contention, learned counsel for the appellant relies upon the judgment of the Coordinate Bench of this Court in the case of United India Insurance Company Ltd.,Jodhpur vs. Smt. Santosh Devi & Ors (S.B. Civil Misc. Appeal No.324/2010) decided on 15/04/2013.
Per contra, learned counsel for the respondent/Insurance Company submits that the finding on issue No.1 does not suffer from any infirmity as three persons were riding on the motorcycle instead of two, which is not permissible as per Section 128 of the Motor Vehicles Act. Therefore, the Insurance Company cannot be held liable to pay the compensation amount in this case. Learned counsel submits that the attribution of the liability to the tune of 20% by the Tribunal on the motorcycle riders was just and proper. Thus, the finding on issue No.1 is not required to be interfered with.
S.B. Civil Misc. Appeal No.98/2003 Learned counsel for the appellant submits that on account of the death of Vashu Dev, the Tribunal has not taken into consideration the amount towards the future prospects in the light of the Judgment of Hon'ble Supreme Court in the case of National Insurance Company Limited V/s Pranay Sethi & Ors. reported in 2017/ACJ/2700, 2017(4)J.L.J.R. 275, 2017(4)P.L.J.R. Therefore, the same is required to be added and awarded. He further submits that although the deceased Vashu Dev was a bachelor, the Tribunal erred while deducting 1/3 of the income towards his personal expenditure. Therefore, only 1/2 was required to be deducted.
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(5 of 12) [CMA-1050/2001] Learned counsel for the appellant submits that the proprietor of Bhagwat General Store deposed before the Tribunal that Vashu Dev was being paid Rs.3,500/- per month as salary and the income certificate to this effect was also produced before the Tribunal. Thus, there was no occasion for the Tribunal to compute the income of the deceased Vashu Dev as Rs. 3,000/- per month instead of Rs.3,500/- per month.
Per contra, learned counsel for the Insurance Company submits that the amount of income was not proved beyond doubt as no certificate of prior to date of accident was produced. He further submits that all the persons including the deceased and the proprietor of Bhagwat General Store are related to each other. Therefore, it can be presumed that the said document was prepared only to get the compensation in this case. Learned counsel for the Insurance Company is not in a position to controvert the fact of recomputation of the award in the light of the judgment of Hon'ble Supreme Court in the case of National Insurance Company Limited V/s Pranay Sethi & Ors. (supra). S.B. Civil Misc. Appeal No.1050/2001 As far as the award on account of death of Hadmana Ram is concerned, learned counsel submits that deduction of 1/3 is wrongly made in this case. Since there are four dependents, deduction of 1/4 of income is required to be made.
He further submits that despite the fact that deceased Hadmana Ram was earning 3,500/- per month, the Tribunal has only taken into consideration Rs.3,000/- although the proprietor of Bhagwat General Store deposed before Tribunal that Hadmana Ram was paid Rs.3,500/- per month as salary. The income certificate of the same was also produced before the Tribunal. (Downloaded on 18/02/2021 at 08:44:52 PM)
(6 of 12) [CMA-1050/2001] He further submits that future prospects in the light of judgment of the Hon'ble Supreme Court in the case of (National Insurance Company Limited V/s Pranay Sethi & Ors.) reported in 2017/ACJ/2700, 2017(4)J.L.J.R. 275, 2017(4)P.L.J.R. is also required to be taken into consideration while recomputing the award.
Per contra learned counsel for the Insurance Company submits that the amount of income was not proved beyond doubt as no certificate of prior to date of accident was produced. He further submits that all the persons including the deceased and the proprietor of Bhagwat General Store are related to each other. Therefore, it can be presumed that the said document was prepared only to get the compensation in this case. However, learned counsel for the Insurance Company is not in a position to controvert the fact of recomputation of the award in the light of the judgment of Hon'ble Supreme Court in the case of National Insurance Company Limited V/s Pranay Sethi & Ors. (supra). S.B. Civil Misc. Appeal No.231/2002 Learned counsel for the appellant submits that no amount towards the loss of matrimonial aspects was awarded by the Tribunal in the present case though the appellant suffered permanent disability to the extent of 28%. He further submits that amount awarded towards the pain and suffering is also very less and the same is also required to be enhanced.
Learned counsel for the Insurance Company has vehemently opposed the arguments of the appellant and submitted that the Tribunal had already awarded an adequate sum in the present case and, therefore, no addition on account of the loss of matrimonial aspect and pain and suffering is required to be added. (Downloaded on 18/02/2021 at 08:44:52 PM)
(7 of 12) [CMA-1050/2001] S.B. Civ.cros.obj.miscapp No. 27/2003 :
While pressing the contention raised in the cross-objection, learned counsel for the Insurance Company has reiterated the submissions made before this Court on issue No.1. He further submits that the driver of the tanker was not holding the driving licence for heavy motor vehicle and, therefore, the Insurance company was not under the obligation to compensate the amount awarded in the present case.
I have considered the submissions made at the bar and have gone through the impugned judgment and other relevant records of the case.
The finding of fact with respect to the contributory negligence to the tune of 80% of the driver of the tanker and 20% of the driver of the motorcycle recorded by the Tribunal while deciding the issue No.1 is not correct, more particularly in view of the fact that Tribunal has held that the tanker was being driven rashly and negligently by its driver causing the accident. Thus, merely three persons were travelling on motorcycle will not attribute negligence to the driver of the motorcycle in this case because the motorcycle was driven on the correct side and it was the fault of the tanker driver who collided his tanker with the motorcycle causing the accident. The cause of accident was not the three persons travellong on motorcycle instead of two. Thus, it is held that merely three persons were travelling on the motorcycle will itself not constitute the fact that the motorcycle was being driven rashly and negligently. The coordinate bench of this Court in the case of United India Insurance Company (Downloaded on 18/02/2021 at 08:44:52 PM) (8 of 12) [CMA-1050/2001] Ltd.,Jodhpur vs. Smt. Santosh Devi & Ors (S.B. Civil Misc. Appeal No.324/2010) (supra) has also held as under :-
"It is an admitted fact that the accident had occurred on 23.03.2008 when the deceased was riding motor cycle with two persons Rameshwar and Suman as pillion riders and was proceeding from Deh to Nagaur National Highway 65 and when he reached near Bhadana Fhata, the driver of Tata Sumo drove the vehicle very fast in a rash and negligent manner and hit the motor cycle when the said motor cycle was moving on its correct side of the road and due to the said impact the deceased sustained fatal injuries and the pillion riders also got injured.
The finding of the Tribunal in this regard based on Exhibit- 3, which is the site plan prepared by the police, clearly indicates that the Tata Sumo driver struck the motor cycle by going on the extreme right and dragged him for about 20 ft. A bare look at the said site plan leaves no manner of doubt that the accident occurred on account of the negligence on the part of the driver of Tata Sumo, which resulted in the accident and in absence of any evidence to the contrary, it was rightly held by the Tribunal that accident was caused due to rash and negligent driving of the driver of Tata Sumo.
So far as the submissions of learned counsel for the appellant that the deceased has contributed to the accident is concerned, merely because there is violation of the provisions of the Act or Rules or the policy conditions, it is not automatic that in every case the principle of contributory negligence is to be applied mechanically unless there is evidence to prove that the accident also took place because of such act i.e. taking/travelling more persons in a motor cycle, which resulted in the accident. If the driver/owner or Insurance Company is able to prove that it is because of the addition of one more person the accident occurred, the position would be different, otherwise, the Insurance Company/owner would be liable to make good the loss/compensation.
As noticed hereinbefore, it is the Tata Sumo driver, who had gone to the other side of the road and hit the motor cycle causing accident and there is no evidence to show that the accident occurred because of travelling of three persons in the motor cycle.
It is trite law that negligence of the plaintiff, which can be described as contributory negligence, must have casual connection with the damage suffered by him".
Thus in view of the discussions made above, the driver of the tanker is 100% responsible for accident in this case and, therefore, it is held that it was the driver of the tanker who was (Downloaded on 18/02/2021 at 08:44:52 PM) (9 of 12) [CMA-1050/2001] solely responsible for rash and negligent driving causing accident in the present case.
It has come on record that deceased Vashu Dev and Hadmana Ram were being paid Rs.3,500/- per month each as salary by the proprietor of Bhagwat General Store. Merely because deceased and proprietor were relatives, the evidence brought on record cannot be disbelieved. The proof of income is also verified by the statement of Girdhari Lal who appeared before the Tribunal as AW.6. Therefore, there is no reason to disbelieve the testimony of Girdhari Lal (AW.6) and, therefore, it is held that the income of deceased Vashu Dev & Hadmana Ram was Rs.3,500/- per month each and not Rs.3,000/- per month as assessed by the Tribunal.
Keeping in mind the non-inclusion of the amount towards the future prospects in the light of the Hon'ble Supreme Court in the case of National Insurance Company Limited V/s Pranay Sethi & Ors. reported in 2017/ACJ/2700m the computation of the award on account of the death of Vashudev is as under :-
For future 40% of Rs.3,500/- Rs. 1,400/-
prospects :- (Income of
deceased)
Rs. 3,500/-+ Rs. 1,400/- Rs. 4,900/-
Amount to be deducted as Rs. 4,900/- / 1/2= Rs.
spent on himself. 2,450/-
Dependence Amount Rs. 4,900 - Rs. 2,450=
Rs. 2,450/-
The age of deceased was 22 years, therefore, a multiplier of 18 will be applied.
(I) Compensation due to 2,450 x12x 18 Rs. 5,29,200/-
death (II) Other Conventional Heads Rs. 70,000/- (Downloaded on 18/02/2021 at 08:44:52 PM)
(10 of 12) [CMA-1050/2001]
Total Rs. 5,99,200/-
Amount awarded by the Tribunal vide Rs. 1,67,200/-
award dated 28.08.2019
Enhanced amount Rs. 4,32,000/-
Keeping in mind the non-inclusion of the amount towards the future prospects in the light of the Hon'ble Supreme Court in the case of National Insurance Company Limited V/s Pranay Sethi & Ors. reported in 2017/ACJ/2700, the computation of the award on account of the death of Hadmana Ram is as under :-
For future 40% of Rs.3,500/- Rs. 1,400/-
prospects :- (Income of
deceased)
Rs. 3,500/-+ Rs. 1,400/- Rs. 4,900/-
Amount to be deducted as Rs. 4,900/- / 1/4= Rs.
spent on himself. 1,225/-
Dependence Amount Rs. 4,900 - Rs. 1,225/-
= Rs. 3,675/-
The age of deceased was 27 years, therefore, a multiplier of 17 will be applied.
(I) Compensation due to 3,675 x12x 17 Rs. 7,49,700/-
death (II) Other Conventional Heads Rs. 70,000/-
Total Rs. 8,19,700/-
Amount awarded by the Tribunal vide Rs. 3,72,800/-
award dated 28.08.2019
Enhanced amount Rs. 4,46,900/-
So far as the case of injured Babulal is concerned, it is observed that Tribunal awarded a sum of Rs.25,000/- towards the pain and suffering on account of the injuries suffered by him in the accident and the permanent disability to the extent of 28%. No (Downloaded on 18/02/2021 at 08:44:52 PM) (11 of 12) [CMA-1050/2001] amount was awarded towards the loss of matrimonial aspect in this case. It is a fact that on account of the injuries suffered by the injured Babulal, his right leg had shortened to 7 cm. The same will definitely cause hindrances in the day to day affairs.
In the light of the injuries suffered and the computation of the award done by the Tribunal in this case, I am of the considered opinion that if an amount of Rs. 50,000/- (Rupees :
Fifty Thousand Only) is awarded as a lump sum amount towards the loss of matrimonial aspects and towards the pain and suffering caused to the injured Babulal in the present case, the ends of justice would be met and constitute a 'just compensation' in the present case.
As far as the cross-objection in Appeal No.231/2002 of the Insurance Company is concerned, finding on issue No.1 is decided against the Insurance Company in view of the discussions made above in the preceding para.
The finding of fact recorded by the Tribunal on issue No.4 also requires no interference as the driver of the tanker was holding the driving licence for driving the light motor vehicle, however, the transport authorities made an endorsement on the driving licence to the extent that the driver was eligible to drive heavy motor vehicle also. The endorsement was done prior to the date of accident. Therefore, the contention of the Insurance Company that the driver of the tanker was not holding the requisite licence is bereft of merit.
In view of the discussions made above, the cross-objection filed by the Insurance Company in Appeal No. 231/2002 is dismissed.
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(12 of 12) [CMA-1050/2001] In view of the calculations made above, the Appeals bearing Nos.S.B. Civil Misc. Appeal Nos.1050/2001, 98/2003 & 231/2002 are partly allowed. The Insurance Company is liable to pay an amount of Rs.4,32,000/-(Rupees : Four Lakh Thirty Two Thousand Only) [in CMA No.98/2003] & Rs.4,46,900/- (Rupees : Four Lakh Forty Six Thousand Nine Hundred Only) [in CMA No.1050/2001] & Rs.50,000/- (Rupees : Fifty Thousand Only) [in CMA No.231/2002] to the appellants-claimants in addition to the amount already awarded by the Tribunal vide its judgment and award dated 28/08/2001 within a period of eight weeks from today. The enhanced amount will carry the interest @ 6% per annum from the date of filing the claim petition till the same is paid.
Record of the Tribunal be sent back immediately.
(VINIT KUMAR MATHUR),J 7-SanjayS/-
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