Rajasthan High Court - Jodhpur
Shankar vs Pushkar Lal & Ors on 17 August, 2017
Author: Arun Bhansali
Bench: Arun Bhansali
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Misc. Appeal No. 814 / 2015
1. Pushkar Lal S/o Sh. Banshi Lal, B/c Choudhary, Aged about
37 years, R/o Village Itali, Tehsil-Mawali, District Udaipur,
Rajasthan.
2. Dilip Kumar Choudhary S/o Sh. Lal Chand Choudhary, aged
about 30 years, B/c Choudhary, R/o Village Banasi, Tehsil Bari
Sadari, District Chittorgarh, Rajasthan.
----Appellants
Versus
1. Ramesh S/o Hakar Ji @ Sakara Ji Asari, R/o Village Padaliya,
Post Bawalwara, District Udaipur, Rajasthan.
2. Smt. Amari W/o Hakar Ji @ Sakara Ji Asari, R/o Village
Padaliya, Post Bawalwara, District Udaipur, Rajasthan.
3. The Oriental Insurance Company Ltd. Divisional Manager,
Delhi Gate, Nayay Marg, Udaipur.
----Respondents
Connected With
S.B. Civil Misc. Appeal No. 818 / 2015
1. Pushkar Lal S/o Sh. Banshi Lal, B/c Choudhary, Aged about
37 years, R/o Village Itali, Tehsil-Mawali, District Udaipur,
Rajasthan.
2. Dilip Kumar Choudhary S/o Sh. Lal Chand Choudhary, aged
about 30 years, B/c Choudhary, R/o Village Banasi, Tehsil Bari
Sadari, District Chittorgarh, Rajasthan.
----Appellants
Versus
1. Manna Bhai S/o Nanji Bhai Asari, R/o Village Pdaliya, Post
bawalwara, District Udaipur, Rajasthan.
2. Smt. Jamana W/o Sh. Manna Bhai Asari, R/o Village Pdaliya,
Post Bawalwara, District Udaipur, Rajasthan.
3. The Oriental Insurance Company Ltd. Divisional Manager,
Delhi Gate, Nyay Marg, Udaipur.
----Respondents
S.B. Civil Misc. Appeal No. 1071 / 2014
Shankar S/o Sh. Ramesh Kharadi aged 24 years, R/o Palpadar,
Tehsil & District Dungarpur, Rajasthan.
----Appellant
Versus
1. Pushkar Lal S/o Sh. Banshi Lal, B/c Choudhary, R/o Village
Itali, Tehsil-Mawali, District Udaipur, Rajasthan.
(2 of 11)
[ CMA-814/2015]
2. Dilip Kumar Choudhary S/o Sh. Lal Chand Choudhary, B/c
Choudhary, R/o Village Banasi, Tehsil Bari Sadari, District
Chittorgarh, Rajasthan.
3. The Oriental Insurance Company Ltd. Divisional Manager,
Delhi Gate, Nayay Marg, Udaipur.
----Respondents
S.B. Civil Misc. Appeal No. 1072 / 2014
1. Smt. Gali Ben W/o Lt. Sh. Amritlal, aged 34 years,
2. Vishram S/o Lt. Sh. Amritlal, aged 17 years.
3. Dileep S/o Lt. Sh. Amritlal, aged 15 years,
4. Jayanti D/o Lt. Sh. Amritlal, aged 13 years.
5. Smt. Nani W/o Badaji, aged 63 years.
6. Bada S/o Mangla, aged 66 years.
Appellants No. 2, 3 & 4 minors through their natural
guardian mother Smt. Gali Devi Wd/o Lt. Sh. Amritlal, Baranda
Meena, All B/c Baranda Meena, R/o Anela, Tehsil Khairwada,
District Udaipur, at present R/o Bichhiwada, Tehsil & District
Dungarpur.
----Appellants
Versus
1. Pushkar Lal S/o Sh. Banshi Lal, B/c Choudhary, R/o Village
Itali, Tehsil-Mawali, District Udaipur, Rajasthan.
2. Dilip Kumar Choudhary S/o Sh. Lal Chand Choudhary, B/c
Choudhary, R/o Village Banasi, Tehsil Bari Sadari, District
Chittorgarh, Rajasthan.
3. The Oriental Insurance Company Ltd. Divisional Manager,
Delhi Gate, Nayay Marg, Udaipur.
----Respondents
_____________________________________________________
For Appellant(s) : Mr. R.S. Mankad for Driver and Owner.
For Respondent(s) : Mr. G.S. Rathore for the Claimants.
Mr. Mukul Singhvi for Insurance Company.
_____________________________________________________
HON'BLE MR. JUSTICE ARUN BHANSALI
JUDGMENT
(3 of 11) [ CMA-814/2015] 17/08/2017 These appeals are directed against the judgment and award dated 20.3.2014 passed by the Motor Accident Claims Tribunal, Dungarpur ('the Tribunal at Dungarpur') and judgment and award dated 3.2.2015 passed by the Motor Accident Claims Tribunal (I), Udaipur ('the Tribunal at Udaipur').
While the appeals being S.B. Civil Misc. Appeal Nos. 814/2015 and 818/2015 have been filed by the driver and owner against judgment and award dated 3.2.2015, appeals being S.B. Civil Misc. Appeal Nos. 1071/2014 and 1072/2014 have been filed by the claimants against the judgment and award dated 20.3.2014.
Both the awards pertain to an accident, which took place on 18.3.2011 when claimant- Shankar alongwith Amritlal, Govind Kumar and Sanjay were traveling in bus RJ-09/PA-2566 from Broda to their village.
It was claimed that as the bus did not have sufficient seats, the driver and conductor of the bus after charging fare from the said passengers, asked them to sit on the roof top of the bus and while on the way when the bus was being driven rashly and negligently, at about 11:00 p.m., the passengers sitting on the roof top, struck a overbridge when the bus was crossing the said overbridge resulting in grievous injuries to the claimant - Shankar and Amritlal, Govind Kumar and Sanjay, to which Amritlal, Govind Kumar and Sanjay succumbed.
While applications for compensation were filed by the injured (4 of 11) [ CMA-814/2015] Shankar and legal representatives of deceased - Amritlal before the Tribunal at Dungarpur, the legal representatives of deceased - Govind Kumar and Sanjay filed applications for compensation before the Tribunal at Udaipur.
Before both the Tribunals, replies were filed by the owner of the bus as well as the Insurance Company, denying their liability.
The Tribunal at Dungarpur by its award impugned dated 20.3.2014 came to the conclusion that the Insurance Company was liable to make payment of amount of compensation; the passengers by traveling on the roof top were guilty of contributory negligence to the extent of 25%, the claimants were not entitled for award of amount under the head of future prospects and applied multiplier as per the age of the deceased.
The Tribunal at Udaipur decided the applications on 3.2.2015 and though the award pertaining to the same accident was already in existence since 20.3.2014, inter alia, came to the conclusion that on account of violation of policy conditions, the Insurance Company was entitled to be exonerated.
The Insurance Company did not challenge the awards dated 20.3.2014, wherein, it was held responsible for payment of compensation. While the driver - Pushkar Lal and owner - Dilip Kumar Choudhary have filed the appeals aggrieved against the award dated 3.2.2015 principally aggrieved against the exoneration of the Insurance Company. The claimants have filed appeals aggrieved against the quantum of compensation questioning the finding of contributory negligence and denial of (5 of 11) [ CMA-814/2015] amount towards future prospects.
It is submitted by learned counsel for the appellants - owner & driver that the Tribunal was not justified in exonerating the Insurance Company from payment of compensation; pertaining to the same accident between the same parties i.e. the driver/owner and the Insurance Company, already award dated 20.3.2014 passed by the Tribunal at Dungarpur was in existence and as the said award was not challenged by the Insurance Company, the Insurance Company could not be exonerated from its liability.
Besides the above, it was submitted that this Court in United India Insurance Co. Ltd. v. Salma & Ors.: 2017(1) R.A.R. 250 (Raj.) has laid down that once the passengers have paid fare and as per instructions of the driver and conductor, were traveling on the roof top, the Insurance Company cannot shirk from its liability to pay compensation and, therefore, the exoneration of the Insurance Company by the Tribunal at Udaipur, deserves to be set aside.
Learned counsel appearing for the claimants supported the plea taken by the appellants- owner/driver pertaining to exoneration of the Insurance Company and further submitted that the Tribunal at Dungarpur was not justified in holding the claimants/deceased guilty of contributory negligence and in denying compensation towards future prospects.
Reliance was placed on judgment of Hon'ble Supreme Court in the case of Munna Lal Jain & Anr. v. Vipin Kumar Sharma & Ors.: 2015(1) R.A.R. 157 (SC).
(6 of 11) [ CMA-814/2015] Learned counsel appearing for the Insurance Company, while supported the award passed by the Tribunal at Udaipur, wherein, the Insurance Company has been exonerated, submitted that as the award passed by the Tribunal at Dungapur was not brought to the notice of the Tribunal at Udaipur, the Tribunal at Udaipur was justified in arriving at an independent finding and exonerating the Insurance Company.
Further submissions were made that the finding pertaining to contributory negligence recorded by the Tribunal at Dungarpur is justified in the circumstances of the case as laid down by this Court in Chief Manager, RSRTC, Kotputli & Anr. v. Smt. Manphooli & Ors.: S.B. Civil Misc. Appeal No.759/2007, decided on 17.9.2013 at Jaipur Bench and denial of amount towards future prospects is justified.
I have considered the submissions made by learned counsel for the parties and have perused the material available on record.
As already noticed herein before, the accident occurred involving three deaths and one injury. While injured and legal representatives of one deceased - Amritlal approached the Tribunal at Dungarpur, the legal representatives i.e. parents of deceased - Govind Kumar and Sanjay approached the Tribunal at Udaipur.
The Insurance Company was represented at both the Tribunals and the owner and driver were also party before the Tribunal at both the places.
The Insurance Company took a common plea at both the (7 of 11) [ CMA-814/2015] Tribunals denying its liability to pay compensation on account of violation of policy conditions as the injured/deceased were traveling on the roof top. The said plea raised by the Insurance Company was not accepted by the Tribunal at Dungarpur, which passed the award on 20.3.2014. The Insurance Company neither challenged the said award dated 20.3.2014 nor filed cross- objections in the present appeals, which have been filed by the claimants and in that view of the matter, the finding of the Tribunal at Dungapur pertaining to the liability of the Insurance Company became final qua the award passed by the Tribunal at Dungarpur between the owner/driver and the Insurance Company.
Once the award dated 20.3.2014 passed by the Tribunal at Dungarpur was not questioned by the Insurance Company and it accepted the award, the said finding, which pertains to the same accident among the appellants - Pushkar lal and Dilip Kumar Choudhary and the respondent - Insurance Company would operate as res judicata.
Insofar as, the claim cases filed before the Tribunal at Udaipur are concerned, the owner/driver though represented before the Tribunal at Udaipur, chose not to bring to the notice of the Tribunal the award dated 20.3.2014 passed by the Tribunal at Dungarpur and the Insurance Company also did not bring the same to the notice of the Tribunal at Udaipur and the Tribunal based on the material available before it, came to the conclusion that Insurance Company was liable to be exonerated on account of violation of policy conditions. However, as the award dated (8 of 11) [ CMA-814/2015] 20.3.2014 passed by the Tribunal at Dungapur remained unchallenged, the finding regarding same would operate as res judicata against the respondent - Insurance Company and in that view of the matter the finding recorded by the Tribunal at Udaipur exonerating the Insurance Company deserves to be set aside.
Besides the above, this Court in case of Salma (supra) relying on judgment in Inja Venkatrao v. Sundara Barik & Anr.:
1991 ACJ 581 laid down that as the deceased was permitted by the conductor to travel on the roof top of the bus, it cannot be denied that the deceased was a passenger in the said bus and, therefore, the Insurance Company could not shirk from its liability.
In view thereof, the finding recorded by the Tribunal at Udaipur, exonerating the Insurance Company, cannot be sustained, the same is, therefore, set aside.
So far as the aspect of contributory negligence is concerned, the law in this regard was laid down by a Division Bench of this Court in R.S.R.T.C. v. Shashi Kala & Ors.: D.B. Special Appeal Civil No.53/1996, decided on 12.12.2002 and R.S.R.T.C. v. Hussain & Ors. : 2007 WLC (UC) 15 and was followed in the case of Smt. Manphooli (supra), wherein, it was laid down that the contributory negligence of the passengers, who travel on the roof top irrespective of the fact whether he had obtain a ticket or was a gratituous passenger, is to be taken at 25%.
In view thereof, the finding recorded by the Tribunal at Dungapur, pertaining to the contributory negligence of 25% of the injured and deceased does not require any interference.
(9 of 11) [ CMA-814/2015] So far as the award of grant of future prospects is concerned, the claimants at Dungarpur i.e. the legal representatives of deceased - Amritlal claimed that the deceased was working as mason and used to earn Rs.300/- per day and was involved in agricultural operations and earning Rs.4,000/- p.m. from the said agricultural operations and in all earning Rs.13,000/- p.m., the age of the deceased was 34 years, the Tribunal assessed the income of the deceased as an unskilled workman based on the minimum wages at Rs.3,500/- p.m. and after deducting 1/4th towards personal expenses, applied multiplier of 16.
In view of the evidence, which has been led by the claimants, it cannot be said that the deceased was in some stable employment and used to earn any amount monthly as it was claimed that he used to earn Rs.300/- per day. In that view of the matter and the principles laid down in the case of Sarla Verma & Ors. v. Delhi Transport Corporation & Anr. (2009) 6 SCC 121 the denial of future prospects by the Tribunal cannot be faulted. However, looking to the fact that the deceased was working at Baroda (Gujarat), even if as a mason, the income of Rs.3,500/- p.m. assumed by the Tribunal based on the minimum wages, appears to be on the lower side in view of the fact that deceased though resident of Dungapur was working at Baroda and to assume the said person to earn same amount, which he could have earned at the place of his residence, is not justified and, therefore, the income of deceased - Amritlal instead of Rs.3,500/-
(10 of 11) [ CMA-814/2015] p.m. is taken at Rs.5,000/- p.m. and after deducting 1/4th towards personal expenses and applying multiplier of 16, the claimants would be entitled to a sum of Rs.7,20,000/-. The rest of the amount as awarded by the Tribunal under various heads to the tune of Rs.42,000/- does not call for any interference, therefore, the claimants would be entitled to a total sum of Rs.7,62,000/- as compensation.
Similarly, for the same reason in the case of injured Shankar, who has suffered permanent disablement to the extent of 20%, his income also deserves to be enhanced from Rs.3,500/- p.m. to Rs.5,000/- p.m. and after applying the multiplier of 18 on account of his age, he would be entitled to a sum of Rs.2,16,000/- towards loss of income, the rest of the amount awarded by the Tribunal to Shankar under various heads does not require any interference, therefore, the claimant - Shankar would now be entitled to a total sum of Rs.2,68,000/-.
Whereafter on deducting 25% towards contributory negligence, the claimants Gali Ben & Ors. would be entitled to compensation to the tune of Rs.5,71,500/- and claimant - Shankar would be entitled to compensation to the tune of Rs.2,01,000/-.
Consequently, S.B. Civil Misc. Appeal No.814/2015 and 818/2015 filed by Pushkar Lal, Dilip Kumar Choudhary against the judgment and award dated 3.2.2015 passed by the Tribunal at Udaipur, are allowed. The finding on issue No.3 is set aside, it is held that alongwith the appellants, the Insurance Company would (11 of 11) [ CMA-814/2015] also be liable for making payment of amount of compensation to the claimants.
The appeals Nos. 1071/2014 and 1072/2014 filed by Shankar and Smt. Gali Ben, are partly allowed. The Judgement and award dated 20.3.2014 passed by the Tribunal at Dungarpur is modified to the extent that the claimant - Shankar would be entitled to a compensation of Rs.2,01,000/- instead of Rs. 1,52,400/- alongwith interest @ 7% p.a. from the date of application i.e. 12.7.2011. The amount be paid in the saving bank account of the claimant - Shankar.
The claimants - Gali Ben & Ors. would be entitled to compensation to the tune of Rs.5,71,500/- instead of Rs. 4,09,500/- alongwith interest @ 7% p.a. from the date of application i.e. 12.7.2011 to the date of actual payment. The enhanced amount of compensation alongwith interest be paid in the saving bank account of the appellant No.1 - Smt. Gali Ben only.
The Insurance Company is directed to make payment of amount of compensation to the claimants within a period of six weeks from the date of this judgment.
(ARUN BHANSALI)J. Sumit-140-145-141-142