Rajasthan High Court - Jaipur
Smt Jubeda & Ors vs New India Insurance Co Ltd on 13 October, 2011
Author: Mohammad Rafiq
Bench: Mohammad Rafiq
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. O R D E R S.B. CIVIL MISC.APPEAL NO.993/2001. Smt.Jubeda & Ors. Vs. New India Assurance Co.Ltd. & Anr. Date of Order :- October 13, 2011. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri Sanjay Mehrishi for the appellants. Shri R.P. Vijay for the respondents. ****** BY THE COURT:-
This appeal is directed against the award of the Motor Accident Claims Tribunal, Kota dated 7/4/2001 by which, claim petition of the appellants has been dismissed holding that the incident took place due to own negligence of deceased-Shafi Mohammad and that the appellants could maintain their claim under the Workmen's Compensation Act, 1923 (for short, the Act of 1923) to the extent of limited liability of the insurance company.
Contention of the learned counsel for the appellants is that the incident took place due to mechanical defect in the vehicle and that the evidence of witness of appellants i.e. AW-2 Shabbir, has been wrongly disbelieved by the learned Tribunal. As per the contents of the FIR lodged by the khallasi and the final report given by the police therein, the evidence of the claimants cannot be disbelieved. Learned counsel argued that insurance company having charged extra premium for the driver, cannot be absolved of its liability to make payment of compensation even if it is presumed that the accident took place due to own negligence of the deceased. Learned counsel in support of his argument relied on the judgment of Madhya Pradesh High Court in Ramji Porte and others Vs. Premabai Patel and others : 2000 ACJ 1359.
Per contra, learned counsel for the insurance company argued that liability of the insurance company would be confined only to what is permissible under the Act of 1923 because it is for that purpose alone that no extra premium so far charged to cover the liability against the driver. Learned counsel submitted that khallasi when he lodged the first information report immediately after the incident took place in his statement clearly stated that the incident took place because the truck was being driven in a very high speed by the deceased and on turn, suddenly he lost control of the vehicle, which turned turtle. He took out the driver from the window of the gate of the vehicle but deceased driver lost his life. Learned counsel argued that according to Section 4(1A) of the Act of 1923 at the relevant time when the accident took place, appellants would be entitled to 40% amount of the monthly wages of the deceased i.e. the multiplier of 11 factor would become payable and not more than that.
Having heard learned counsel for the parties and perused the impugned award, I find that the claim set up by the appellants that the accident took place due to mechanical defect in the vehicle was rightly disbelieved by the Tribunal because such a plea for the first time was raised before the Tribunal. Khallasi in the first information report had given the first version, which did not suggest any such mechanical defect. It could not be proved by the appellants that any extra premium over and above normal charges for the liability under the Act of 1923 was paid by the appellants. At this stage, when this appeal has remained pending before this court for last more than a decade, it would not be appropriate to require the appellants to now approach the Workmen Compensation Commissioner. Applying provisions of Section 4(1A) of the Act of 1923, it is found that appellants should be entitled to 40% of the monthly wages of the deceased according to Explanation 2 thereof. According to the said clause, monthly wages exceeding to Rs.4,000/- for class A shall be deemed to be Rs.1000/- only and therefore if Rs.1000/- is taken as the outer limit for the purpose of monthly wages, 40% would be to Rs.400/-. Applying relevant factor of 184.17 as per schedule to the said Act for the age of 40 years, which was age of the deceased, payable sum would come to Rs.73,668/-. Now, that this matter remained pending before this court for a decade, it is deemed appropriate to direct the respondent insurance company to pay to the appellant Rs.1,00,000/- in lump sum, which shall be paid to the appellants within a period of one month from the date copy of this order is produced before the insurance company, failing which, appellants shall be entitled to interest @7.5%.
With the above direction, the appeal is partly allowed. Record be sent back forthwith.
(MOHAMMAD RAFIQ), J.
anil