Rajasthan High Court - Jodhpur
O.I.C.Ltd vs Rampal And Ors on 1 February, 2024
Author: Birendra Kumar
Bench: Birendra Kumar
[2024:RJ-JD:5173]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Misc. Appeal No. 4129/2011
Oriental Insurance Company Ltd., Branch Office Anand Bhawan,
Sansarchand Road, Jaipur.
----Appellant
Versus
1. Rampal S/o. Juglal.
2. Silochana W/o. Rampal.
By caste Jat, resident of Hasiyanwas, Tehsil Rajgarh (Churu).
3. Munsiram S/o. Pemaram, caste Jat, residnet of Khemana,
Tehsil Rajgarh, District Churu - Driver Truck No.RJ10G-0638
(died, Name deleted on 09.09.2021).
4. Mukesh Kumar S/o. Atma Ram, caste Bishnoi, resident of
Chenpura Bada, Tehsil Rajgarh, District Churu - Owner Truck RJ-
10G-0638.
5. Praveen Kumar S/o. Satyanarayan, caste Mahajan, resident of
Ward No.9, Baghwas, Tehsil Rajgarh. Mukhtyar Aam Truck RJ 10-
G-0638.
----Respondents
For Appellant(s) : Mr. P.S. Khichi for Mr. Vinay Kothari
For Respondent(s) : None
HON'BLE MR. JUSTICE BIRENDRA KUMAR
Judgment Judgment Reserved on : 18.01.2024 Judgment Pronounced on : 01.02.2024
1. Oriental Insurance Company, the Insurer of offending truck bearing Regn. No.RJ10G-0638 has challenged the judgment and award dated 16.01.2010 made by the Motor Accident Claims Tribunal, Rajgarh, District Churu in MACT Claim Case N0.80/2006, whereby an award of Rs.4,71,000/- alongwith 6% interest from the date of application was made in favour of respondents no.1 and 2, who are the parents of victim of accident i.e. Ashok Kumar. (Downloaded on 01/02/2024 at 08:35:19 PM)
[2024:RJ-JD:5173] (2 of 5) [CMA-4129/2011]
2. The owner and driver of the offending truck did not contest the claim case, hence, the appellant took permission of the court under Section 170 of the Motor Vehicle Act to have all the defences available to the owner/driver and accordingly defended the claim case.
3. Brief facts of this case is that on 19.9.2006 deceased Ashok Kumar alongwith Om Prakash were going on a motor-cycle bearing Regn. No.RJ-10SA-3434 to Rajgarh. Near Bathod mode, truck bearing Regn. No.RJ10GA-0638 came in rash and negligent manner and dashed against the motor-cycle causing death of Ashok Kumar in the hospital. For the incident, FIR No.90/2006 was registered against the driver of the offending truck Munshi Ram and after investigation of the case, the police submitted charge-sheet.
4. Learned counsel for the appellant contends that since the driver of the truck had no driving licence on the date of accident, the Tribunal has wrongly fixed the liability against the appellant. His next contention is that father of deceased has deposed as claimant witness no.1 that the deceased was aged about 20 years at the time of his death, whereas the post-mortem report show that the doctor has recorded age of the deceased as 19 years. Learned counsel next contends that since the deceased was a bachelor, the Tribunal should have deducted 50% of his income, which has wrongly been deducted as 1/3rd. Learned counsel contends that since the deceased was not a trained Teacher having a degree of B.Ed., it is unbelievable that the deceased would have been appointed as a Teacher in a school, therefore, (Downloaded on 01/02/2024 at 08:35:19 PM) [2024:RJ-JD:5173] (3 of 5) [CMA-4129/2011] the Tribunal should have not accepted income of the deceased as claimed.
5. No one appears for the respondents, though, the respondents have already been served with notice.
6. Only one witness NAW-1 Mohan Lal Meena on behalf of the appellant and Certificate of Insurance of the offending truck was produced, which is marked as Exhibit-A1.
7. During investigation driving licence of the driver Munshi Ram was seized by the police and is marked as Exhibit-7. Exhibit-7 reveals that the driving licence was issued for the first time in the year 1985 for driving Transport Vehicles. Exhibit-7 further reveals that the licence was renewed from 20.9.2006 to 19.9.2009. The accident took place on 19.9.2006. No other evidence has been brought by the Insurer to substantiate that on the date of accident, the driver had no valid licence as it was not renewed after initial issuance nor Exhibit-7 shows that for what period the initial licence was granted. Therefore, the appellant failed to discharge its burden to prove the defence, which was available for the owner or driver or to the appellant itself. A third party cannot be expected to know about the status of the driving licence. The best witnesses did not appear nor the Insurer-appellant produced any documentary evidence to establish that the licence was not effective on the date of accident. Therefore the finding of the Tribunal stands affirmed that the appellant is liable to pay compensation to the victim of motor-vehicle accident, who is the third party.
8. The claimants produced the matriculation mark-sheet of the deceased issued by the Board of Secondary Education, Rajasthan, (Downloaded on 01/02/2024 at 08:35:19 PM) [2024:RJ-JD:5173] (4 of 5) [CMA-4129/2011] which shows that the deceased has passed Class Xth examination. The said document is marked as Exhibit-11. The deceased was a Teacher in Kishan Public Primary School, Hasiyanwas. Exhibit-15 is a certificate issued by the Principal of the said School, which shows that the deceased was a Teacher in the school till 18.9.2006 and he was getting Rs.3000/- per month. The testimony of AW-1 Ram Pal and AW-2 Richpal reveals that besides teaching students in school, the deceased was imparting tuition to 10-15 students and was getting Rs.2000/- to Rs.3000/- per month. No contrary evidence has been brought on the record. Hence, there was no reason to assume income of the deceased consistent with the material on records. The educational qualification of the deceased was enough to teach students of a primary school and there was no need for any special degree which might have been required for employment in a Government school. The Tribunal has made error in calculation of the income and compensation on the settled principles, which can be corrected without looking into any other material, by the appellate court. It is evident that the deceased was earning Rs.5000/- per month; 50% of the same is deductible for personal expenses of the deceased as he was a bachelor. Thus, Rs.2500/- is multiplied with 12 to get yearly income and with 18, which is the multiplier applicable to the age upto 25 years. The calculation comes to Rs.5,40,000/-. The claimants were entitled for 40% increase for future prospects of deceased, which comes to Rs.2,16,000/-. Besides the aforesaid, Rs.40,000/- is payable to each of the parents/claimants for loss of consortium and Rs.30,000/- for (Downloaded on 01/02/2024 at 08:35:19 PM) [2024:RJ-JD:5173] (5 of 5) [CMA-4129/2011] funeral expenses and loss to the estate. The total payable compensation comes to Rs.8,66,000/-.
9. The Tribunal has awarded lesser amount for loss of consortium and funeral expenses and has not awarded anything for future prospects of the deceased. Further the Tribunal has assumed the income of the deceased contrary to the available evidence on the record. Hence, all these findings of the Tribunal stands hereby set aside and only on the basis of the material available, the error in calculation of compensation is made straight.
10. The Insurance Company is directed to make payment of compensation of Rs.8,66,000/- alongwith 6% interest minus already paid amount to the respondents no.1 and 2. It is made clear that in the event of death of any of the respondent no.1 and 2, the compensation shall be paid to the survivor.
11. In view of the conclusions aforesaid, this appeal stands dismissed with modification in the award.
(BIRENDRA KUMAR),J 12-Sanjay/-
(Downloaded on 01/02/2024 at 08:35:19 PM) Powered by TCPDF (www.tcpdf.org)