Rajasthan High Court - Jodhpur
United India Insurance Co. Ltd vs Sumitra on 27 July, 2020
Author: Arun Bhansali
Bench: Arun Bhansali
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Misc. Appeal No. 1231/2020
United India Insurance Co. Ltd., Through Branch Manager , Near
Rathi Petrol Pump , Nokha , Distt. Bikaner Through Tp Hub
Incharge , 74-A Bhati 'n' Plaza , Pal Road, Jodhpur (Raj.)
(Insurer Vehicle No Rj-07-Gb-1645)
----Appellant
Versus
1. Sumitra W/o Late Sh. Gorkharam, Aged About 47 Years,
R/o Aabser Tehsil Sujangarh Distt. Churu Presently R/o
4/52 R.c.p. Colony , Bikaner (Raj.)
2. Monika D/o Late Sh. Gorkharam, Aged About 27 Years,
R/o Aabser Tehsil Sujangarh Distt. Churu Presently R/o
4/52 R.c.p. Colony , Bikaner (Raj.)
3. Jaswant S/o Late Sh. Gorkharam, Aged About 25 Years,
R/o Aabser Tehsil Sujangarh Distt. Churu Presently R/o
4/52 R.c.p. Colony , Bikaner (Raj.)
4. Arti D/o Late Sh. Gorkharam, Aged About 23 Years, R/o
Aabser Tehsil Sujangarh Distt. Churu Presently R/o 4/52
R.c.p. Colony , Bikaner (Raj.)
5. Sanju D/o Late Sh. Gorkharam, Aged About 21 Years,
R/o Aabser Tehsil Sujangarh Distt. Churu Presently R/o
4/52 R.c.p. Colony , Bikaner (Raj.)
6. Ankit S/o Late Sh. Gorkharam, Aged About 17 Years,
Minor Through Natural Guardian Mother Smt. Sumitra
W/o Late Sh. Gorkharam. R/o Aabser Tehsil Sujangarh
Distt. Churu Presently R/o 4/52 R.c.p. Colony , Bikaner
(Raj.)
7. Hemaram S/o Kumbha Ram, B/c Bishnoi , R/o Rooda
Tehsil Nokha Distt. Bikaner (Raj.) (Registered Owner
Driver Vehicle No Rj-07-Gb-1645)
----Respondents
For Appellant(s) : Mr. Anil Bachhawat.
For Respondent(s) : Mr. Yuvraj Sonel.
HON'BLE MR. JUSTICE ARUN BHANSALI
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Judgment
27/07/2020
This appeal under Section 173 of the Motor Vehicles Act, 1988 ('the Act, 1988') is directed against the judgment and award dated 12/2/2020 passed by the Motor Accident Claims Tribunal, Bikaner ('Tribunal'), whereby, the Tribunal has awarded a sum of Rs.36,43,658/- as compensation along with interest @ 7% p.a. from the date of application i.e. 28/10/2017.
The application for compensation was filed by the claimants, who are wife and children of the deceased Gorkha Ram with the averments that the deceased Gorkha Ram along with his grandson in relation was going on foot when on 25/6/2017 the offending Truck Trailer struck them which resulted in grievous injury to both of them to which Gorkha Ram succumbed. It is claimed that the accident occurred on account of rash and negligent driving by the driver of the truck trailer and it was also indicated that the deceased was aged 50 years and was working as Beldar in the Indira Gandhi Nahar Priyojna (IGNP) and was getting salary of Rs.32,000/-. Based on the above averments, compensation was sought.
The application for compensation was resisted by the owner- driver of the vehicle and the Insurance Company.
Based on the averments, the Tribunal framed 05 issues. On behalf of the claimants, 3 witnesses were examined and 20 documents were exhibited. On behalf of the non-claimants, no witness was examined and no documentary evidence was produced.
The Tribunal after considering the evidence available on record came to the conclusion that the accident occurred on (Downloaded on 31/07/2020 at 08:25:25 PM) (3 of 6) [CMA-1231/2020] account of rash and negligent driving by the driver of the truck trailer, resulting in death of Gorkha Ram. The plea raised by the Insurance Company seeking to dispute its liability was negated based on the documentary evidence pertaining to Driving Licence, fitness certificate of the vehicle and insurance policy. While assessing the quantum of compensation, the Tribunal, based on the documentary evidence i.e. pay slip, appointment order and the fact that the deceased was a government servant, came to the conclusion that the monthly salary of the deceased was Rs.36,099/- and after deducting the amount of Income Tax of Rs.9434/- per year assessed the compensation by applying the multiplier of 11 based on the age of the deceased, 15% was added towards future prospects and after deducting 1/3 amount towards personal expenses, compensation of Rs.35,73,658/- was awarded. Further a sum of Rs. 40,000/- towards loss of consortium and Rs.15,000/- each towards loss of estate and funeral expenses was awarded.
It is submitted by learned counsel for the appellant that the Tribunal committed error in coming to the conclusion that the accident occurred on account of rash and negligent driving by the driver of the truck trailer.
Learned counsel for the appellant attempted to make submissions based on certain photocopies of Rojnamcha that there is contradiction in entries of the Rojnamcha, which puts the fact of accident on account of rash and negligent driving by driver of the truck trailer in doubt and, therefore, the award impugned deserves interference.
Submissions were made that as it has come on record that after the death of Gorkha Ram, wife of the deceased was getting (Downloaded on 31/07/2020 at 08:25:25 PM) (4 of 6) [CMA-1231/2020] pension and his son has been given compassionate appointment, for the purpose of awarding just compensation said aspects should have been taken into consideration, which the Tribunal has failed and, therefore, the compensation awarded is excessive and deserves interference by this Court. It was prayed that the appeal be allowed.
Learned counsel appearing for the claimants on caveat made submissions that the appeal has no substance inasmuch as the documents sought to be produced before this Court were not produced before the Tribunal and the Tribunal, based on the material available on record, has rightly come to the conclusion that the accident occurred on account of rash and negligent driving by the driver of truck trailer.
Learned counsel for the claimants with reference to the site map as prepared by the police submitted that the site map clearly brings out that the accident occurred on account of rash and negligent driving inasmuch as the deceased was walking on the extreme end of the road and, therefore, the submissions made in this regard deserve to be ignored.
Further submissions were made that the Tribunal has awarded compensation based on the settled legal position by Hon'ble Supreme Court, wherein, the amount of pension and the fact that the family member has been granted compassionate appointment cannot be taken into consideration while awarding compensation and, therefore, the appeal deserves to be dismissed.
I have considered the submissions made by learned counsel for the parties and have perused the material available on record. (Downloaded on 31/07/2020 at 08:25:25 PM)
(5 of 6) [CMA-1231/2020] The case of the claimants was very specific that the deceased was going on foot on the side of the road when the offending truck trailer struck him.
The submissions attempted to be made by learned counsel for the appellant based on certain photocopies of Rojnamcha cannot be countenanced inasmuch as neither the documents were produced before the Tribunal nor they were marked as exhibits and even before this Court, no application under Order XLI Rule 27 CPC has been filed and even otherwise the documents are mere photocopies, which cannot be taken into consideration under any known procedure.
A bare look at the site map (Ex.4) clearly brings out that the accident occurred at the location marked 'X', which is at extreme left side i.e. towards the footpath of the road and, therefore, it cannot be said that the deceased himself was negligent while walking on the road, which resulted in the accident and, therefore, the plea raised pertaining to the driver of the offending vehicle being not rash and negligent in driving the vehicle cannot be accepted.
So far as the plea pertaining to the quantum of compensation is concerned, the Tribunal has relied on the judgment of Hon'ble Supreme Court in National Insurance Company Ltd. v. Pranay Sethi & Ors.: AIR 2017 SC 5157 in assessing the amount of compensation and as the deceased was a government servant, basis of assessment has been his last salary drawn, and future prospects on account of his age has been taken into consideration while awarding the compensation, which quantum cannot be faulted.
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(6 of 6) [CMA-1231/2020] So far as the plea raised based on the fact that the family member of the deceased has been granted compassionate appointment and the wife of the deceased would be getting family pension is concerned, the said aspect has no bearing on the quantum of compensation to be awarded by the Tribunal.
Hon'ble Supreme Court in Reliance General Insurance Co. Ltd. vs. Shashi Sharma and Ors. : (2016) 9 SCC 627, while dealing with the said aspect, has laid down that the benefits extended to the dependents of the deceased government employee including family pension, life insurance, provident fund etc. would remain unaffected and cannot be allowed to be deducted.
Similarly in Vimal Kanwar vs. Kishore Dan & Ors. : AIR 2013 SC 3830 it has been laid down that the fact that a family member has been accorded compassionate appointment cannot affect the quantum of compensation.
In view of the above law laid down by Hon'ble Supreme Court, the challenge laid to the quantum of compensation by the appellant Insurance Company also has no substance.
No other point was argued.
In view of the above discussion, no case for interference in the award impugned is made out. There is no substance in the appeal and the same is, therefore, dismissed.
(ARUN BHANSALI),J 3-baweja/-
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