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Rajasthan High Court - Jodhpur

U.I.Ins.Co.Ltd vs Smt.Sugni Devi & Ors on 24 August, 2012

                                     1                       CMA 1431/2012




61   IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR.
                               JUDGMENT.
           S. B. Civil Misc. Appeal No. 1431/2012
             United India Insurance Company Ltd.
                               v.
                  Smt. Sugni Devi & Others.


     DATE OF JUDGMENT                       :::                 24.08.2012


             HON'BLE MS. JUSTICE NIRMALJIT KAUR


     Mr.   Manoj Bhandari, for Appellant (s).
     Mr.   R.Panwar     )
     Mr.   G.S.Rathore ) for Respondents.
     Mr.   M.R.Chauhan )

     BY THE COURT:

This is an appeal under Section 173 of the Motor Vehicles Act against the judgment and award dated 12.04.2012 passed by the Judge, Motor Accident Claims Tribunal (I), Jodhpur vide which, an award of Rs.24,44,798/- was granted.

The facts, in short, are that on 11.08.2010, one Shri Babu Lal Choudhary was travelling from his Motorcycle No. RJ 19-19M-0323 towards his resident at Bera Poliyawas. At that time, he met with an accident with another Motorcycle bearing No. RJ19-SH-3846 which was driven by one Shri Suresh Nath. On account of the said accident, the driver who was driving the Motorcycle No. RJ 19-19M-0323 i.e. Shri Babu Lal sustained severe injuries and finally succumbed to the injuries received in the accident.

The claimants of the deceased Babulal Choudhary filed a claim petition before the MACT (First), Jodhpur and also 2 CMA 1431/2012 got registered FIR. The matter was investigated and the charge-sheet was filed against the driver Suresh Nath. The deceased was a Senior Teacher in Khariya Mithapur Government School. Accordingly, the claimants raised claim of Rs.50,50,000/-. After taking into consideration the salary of the deceased and by applying the deduction of 1/3rd, the total compensation, after applying multiplier of 11, was granted to tune of Rs.24,44,798/-.

While challenging the impugned award, learned counsel for the appellant raised two-fold arguments. The first argument raised was that it was not the sole negligence of the driver Shri Suresh Nath but was a case of contributory negligence. It was submitted that the Tribunal did not consider the site plan (Exhibit-4) prepared by the police in which it is clearly shown that the accident took place on the centre of the road and neither the learned Tribunal has properly considered the statement of eye witness Shri Sumer Singh, AW 2 Shri Chander Prakash and AW 4 Ashok. In the reply filed by the Insurance Company, the specific plea was raised by the company that the accident took place on the centre of the road and deceased was also liable for contributory negligence but on this point, the learned Tribunal has not framed any issue. The claimants have not produced eye witness Shri Mangi Lal and Shri Chena Ram in the witness-box as they were present on the spot at the time of accident as per the FIR dated 11.08.2010 lodged by AW 1 Suresh Singh. There is a clear cut case of contributory negligence as per the FIR and site plan prepared by the Police. The learned Tribunal has wrongly decided the issue No.1 only on the ground that the challan was filed against the respondent No.5 Shri Suresh Nath.

Secondly, the Insurance Company of the vehicle No RJ 19-SH-3846 was not impleaded as a party to the litigation.

Lastly, the income of the deceased assessed Rs.29,160/- per month was wrongly assessed as the pensionary benefits which shall be available to the claimants in spite of the death of the deceased Babu Lal Choudhary have not been deducted.

Learned counsel for the respondents-caveator, however, pointed out that the site plan was prepared after many days of the occurrence. The witnesses who signed the document, i.e., Suresh and Ashok deposed that their signatures were taken on blank paper. As such, the said site plan cannot be relied upon. Moreover, AW 1 Shri Sumer Singh appeared as eye witness. No other eye witness was produced by the respondents. There is no rebuttal evidence. The Insurance Company, therefore, could not prove any contributory negligence. Reliance was placed on the judgment rendered by the Division Bench of the Karnataka High Court in Karnataka State Road Transport Corporation v. Kumudavalli and Others, reported in 2005 ACJ 1598 to state that in the absence of any material on record, no deduction with respect to the receipt of the family pension, if any, can be made. Judgment rendered by the Apex Court in Helen C. Rebello (Mrs.) & Others v. Maharashtra State Road Transport Corporation and Another, reported in (1999) 1 SCC 90, was quoted to rebut the argument of the learned counsel for the appellant that the family pension to be received by the claimants on account of death of Babu Lal Choudhary should have been considered while calculating the income.

Heard.

In order to prove their case, the claimants produced AW 1 Shri Sumer Singh. Sumer Singh specifically stated in his statement that on 11.08.2010, at 12.30 p.m., when he was going on his motorcycle from Bilara to Jaipur, near Poliyawas, he saw that one motorcycle was coming from the opposite side and when he reached the gate after crossing the road, a Motorcycle No. RJ 19-SH-3846 came from its behind and by over taking him, hit the motorcycle coming from the opposite side. The motorcycle that was coming from behind, was being driven by Suresh Nath. He hit into the motorcycle being driven by Babu Lal, who died while being rushed to the hospital. Chandra Prakash was another witness. He specifically stated that A to B are his signatures over Ex.A/4. However, the said signatures were taken by the police on blank papers. Another witness Ashok too stated that Ex.4, which is the site plan, was not prepared in his presence. The statements made by the witnesses Suresh and Ashok that signatures on the site plan were obtained by the police on blank paper, are in itself sufficient to render the site plan doubtful. No reliance can be placed on such site plan. The Tribunal, therefore, rightly ignored the same. Even otherwise, it has not been disputed that the site plan was prepared much later. A site plan which is prepared subsequent to the accident, cannot be relied upon to conclude that the accident took place on account of the contributory negligence of the deceased. Moreover, in the present case, the matter was investigated and charge-sheet was submitted against Suresh Nath the driver of Motorcycle No RJ 19-SH-3846. Although, the filing of the charge-sheet is not a conclusive proof but in the facts of the present 5 CMA 1431/2012 case, the oral evidence submitted by the witnesses coupled with the fact that there is no rebuttal evidence to the contrary proves that the accident took place on account of rash and negligence driving of the driver Suresh Nath.

The learned counsel for the respondents relied upon the judgment rendered by the Single Bench of Punjab & Haryana High Court in the case of Gurdeep Kaur & Others v. Tarsem Singh & Others, reported in 2009 ACJ 314, in which the High Court set aside the finding of the Tribunal as the same was based on the site plan. While doing so, the learned Single Bench held that, "the Tribunal also took into consideration the photographs and the site plan, Exh.PM, while coming to the conclusion that the accident took place on account of rash and negligent driving of the driver of the tractor-trolley. It may be stated here that no significance could be attached to the photographs, as it is a matter of common knowledge that after the accident, the vehicles do not remain in the same position in which the same was at the time of accident. Exh.PM, is only a rough site plan."

Moreover, the strict principle of Civil Procedure Code and the Evidence Act are not applicable to the inquiries required to be made in the motor accidental claim cases. The Tribunal is required to evolve its own procedure which may be in consonance with the broad principles of natural justice. Thus, no fault can be found with the order and judgment passed by the Tribunal holding Suresh Nath as negligent. In view of the above, the argument of the learned counsel for the appellant that the site plan should be referred for concluding that there was contributory negligence cannot be sustained.

The second argument of the learned counsel for the appellant that income assessed is on the higher side, too has no merit. The date of birth of the deceased was 13.07.1959. Thus, the deceased was 51 years of age. As per the salary book Ex.10, the deceased was having salary of Rs.29,160/- in July, 2010. The Tribunal calculated the income as under :-

29,160 x 12 = Rs.3,49,920/-. In the year 2010-11 on the income of Rs.1,60,000/- there is no tax and after that, tax is 10%. So, Rs.3,49,920 - 1,60,000 = Rs.1,89,920 its 10% i.e. Rs.18,992/-, deducting Rs.18,992 from gross income Rs.3,49,920/- actual income with tax is calculated Rs.3,30,928/-. Reducing 1/3rd of Rs.3,30,928/-, i.e., Rs.1,10,310/- the family dependency emerging comes to Rs.2,20,618/- and applying the multiplier of 11, Rs.2,20,618 x 11 it comes to Rs.24,26,798/-. Another Rs.18,000/- was given under different heads. The total comensation was assessed as Rs.24,44,798/-. Thus, the deceased being 51 years of age, the multiplier of 11 is just and fair. Even though the deceased was survived by his wife, two sons and one daughter, the deduction at the rate of 1/3rd as the expenditure incurred by him on himself was added. Thus, no fault can be found with the calculation which in accordance with law.

The argument that the family pension has not been considered, is not justified, inasmuch as, there is no evidence as to whether the family is in receipt of the pension or not. Even otherwise, the Apex Court in the case of Helen C. Rebello (Mrs.) & Others v. Maharashtra State Road Transport Corporation & Another (Supra), while holding that the life insurance amount received by them 7 CMA 1431/2012 was not deductible from the compensation computed under the Motor Vehicles Act, 1988, held that there was no relation between family pension and the accidental death. Para 35 of the said judgment reads as under :-

"35. Broadly, we may examine the receipt of the provident fund which is a deferred payment out of the contribution made by an employee during the tenure of his service. Such employee or his heirs are entitled to receive this amount irrespective of the accidental death. This amount is secured, is certain to be received, while the amount under the Motor Vehicles Act is uncertain and is receivable only on the happening of the event, viz., accident, which may not take place at all. Similarly, family pension is also earned by an employee for the benefit of his family in the form of his contribution in the service in terms of the service conditions receivable by the heirs after his death. The heirs receive family pension even otherwise than the accidental death. No corelation between the two. Similarly, life insurance policy is received either by the insured or the heirs of the insured on account of the contract with the insurer, for which the insured contributes in the form of premium. It is receivable even by the insured if he lives till maturity after paying all the premiums. In the case of death, the insurer indemnifies to pay the sum to the heirs, again in terms of the contract for the premium paid. Again, this amount is receivable by the claimant not on account of any accidental death but otherwise on the insured's death. Death is only a step or contingency in terms of the contract, to receive the amount. Similarly any cash, bank balance, shares, fixed deposits, etc. though are all a pecuniary advantage receivable by the heirs on account of one's death but all these have no corelation with the amount receivable under a statute occasioned only on account of accidental death. How could such an amount come within the periphery of the 8 CMA 1431/2012 Motor Vehicles Act to be termed as "pecuniary advantage" liable for deduction. When we seek the principle of loss and gain, it has to be on a similar and same plane having nexus, inter se, between them and not to which there is no semblance of any corelation. The insured (deceased) contributes his own money for which he receives the amount which has no corelation to the compensation computed as against the tortfeasor for his negligence on account of the accident. As aforesaid, the amount receivable as compensation under the Act is on account of the injury or death without making any contribution towards it, then how can the fruits of an amount received through contributions of the insured be deducted out of the amount receivable under the Motor Vehicles Act. The amount under this Act he receives without any contribution. As we have said, the compensation payable under the Motor Vehicles Act is statutory while the amount receivable under the life insurance policy is contractual."

Thus, the issue that the family pension should have been taken into consideration stands settled by the Apex Court in the above mentioned judgment.

In view of the above, there is no merit in this appeal. The same is dismissed.

(NIRMALJIT KAUR),J.

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