Rajasthan High Court - Jodhpur
Reliance General Ins. Co. Ltd vs Naanu @ Naanu Ram & Ors on 28 November, 2017
Author: P.K. Lohra
Bench: P.K. Lohra
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Misc. Appeal No. 2920 / 2017
Reliance General Insurance Co. Ltd., New Fatehpura, Saheli Marg,
Udaipur, District Udaipur.
----Appellant
Versus
1. Naanu @ Naanu Ram S/o Ganesh Gameti, Aged About 44
Years, R/o Jeeva Khera Tehsil Nathdwara, District
Rajsamand.
2. Smt. Kamla W/o Naanu Ram Gameti, Aged About 42 Years,
R/o Jeeva Khera Tehsil Nathdwara, District Rajsamand.
(Wrongly Shown Inaward Wife of Ganesh Gameti)
3. Mohan Singh @ Mool Singh S/o Gulab Singh Rajput, R/o
Dagwara Police Station, Nathdwara, District Rajsamand.
4. Lalit Singh S/o Ganpat Singh Chouhan Rajput, R/o Dagwara
Police Station, Nathdwara, District Rajsamand.
----Respondents
_____________________________________________________
For Appellant(s) : Mr. Vishal Singhal.
_____________________________________________________
HON'BLE MR. JUSTICE P.K. LOHRA
Order 28/11/2017 Appellant-insurer has preferred this appeal under Section 173 of the Motor Vehicles Act, 1988 (for short, 'Act of 1988') to assail impugned judgment and award dated 14 th of July 2017 passed by Motor Accident Claims Tribunal, Nathdwara (for short, 'learned Tribunal'). The learned Tribunal, by the impugned judgment and award, has though exonerated the appellant-insurer from payment of compensation, but, in the backdrop of facts and circumstances of the case, has directed it to first pay the compensation amount and then recover the same from insured.
(2 of 5) [CMA-2920/2017] Bare necessary facts for the purpose of this appeal are that on 17th of November, 2015 deceased Suresh - a labourer, after completing his work, when returning back in tractor bearing No.RJ-30-RA-2274, it turned turtle due to rash and negligent driving by its driver and crushed to death. The respondent- claimants, thereupon, laid a claim petition under Section 166 of the Act of 1988 for claiming compensation, inter alia, on the ground that at the time of death deceased Suresh was 19 years old and was earning Rs.6,000/- per month. A specific plea was raised in the claim petition that the accident occurred due to rash and negligent driving of tractor by its driver-third respondent, Mohan Singh, The claim petition is contested by driver and owner of the tractor as well as appellant-insurer.
Denying all the averments made in the petition, Insurance Company raised a plea that the driver of tractor was not having a valid driving licence and there was flagrant violation of the terms of Insurance Policy. Insurance Company pleaded that deceased Suresh was an unauthorised/gratuitous passenger and liability to pay compensation could not be fastened on it.
Learned Tribunal on the basis of pleadings of rival parties, settled three issues for determination. With a view to substantiate their claim, the respondent-claimants examined three witnesses and exhibited nine documents. E.converso, appellant-insurer produced one witness and exhibited one document, i.e., the insurance policy.
(3 of 5) [CMA-2920/2017] Learned Tribunal, upon appreciation of evidence available on record, decided Issue No.1 regarding rash and negligent driving in favour of respondent-claimants and against the appellant as well as other non-claimants. Adverting to Issue No.2, the learned Tribunal found that it was a case of violation of the terms of insurance policy and accordingly decided the same in favour of appellant-insurer. While coming to Issue No.3 in relation to quantum of compensation, the learned Tribunal found that at the time of death deceased was 21 years old and, in absence of requisite proof about his income, notionally quantified his income at Rs.5,642/- per mensem. Accordingly, the learned Tribunal determined the compensation amount by applying multiplier of eighteen after deducting one-third amount towards personal expenses of deceased, finally, the learned Tribunal determined the compensation amount payable to respondent-claimants for loss of dependency to the tune of Rs.8,12,448/-. Besides that, for funeral expenses learned Tribunal awarded a sum of Rs.25,000/- and for loss of love & affection Rs.20,000/- to the respondent- claimants .
It is argued by learned counsel for the appellant that learned Tribunal has seriously erred in directing the appellant-insurer to first pay compensation and then recover it from the insured. It is also argued by learned counsel that deduction of one-third income for personal expenses by the learned Tribunal is improper inasmuch as deceased was a bachelor. It is submitted by learned counsel for the appellant that learned Tribunal has erroneously relied on a decision of Supreme Court and asked the insurer to (4 of 5) [CMA-2920/2017] first make payment of compensation and then recover the same from insured. In support of his contention, learned counsel has relied upon a judgment of Apex Court in case of Susheelabai & Ors. V/s. Basavaraj & Anr. [AIR 2012 SC (Civil) 115] and the judgment of Punjab and Haryana High Court in case of HDFC ERGO General Insurance Company Ltd. V/s. Rahila & Ors. [FAO No.7886 of 2014 (O&M), decided on 12th March, 2015].
I have considered the submissions made by learned counsel for the appellant and perused the impugned judgment and award.
It is true that the learned Tribunal has not taken care of the fact that deceased was a bachelor and deducted one-third amount of his income against personal expenses instead of half the amount of his income, but then it is also borne out from the award that learned Tribunal has not awarded any compensation for future prospects. As regards the contention of learned counsel for the appellant that deceased was an unauthorized passenger, I am at loss to say that learned Tribunal has taken note of the fact that even if it is assumed that he was a gratuitous passenger, then too, insurer can be asked to first pay the compensation and then recover the same from insured. For arriving at this conclusion, learned Tribunal has placed reliance on a decision of Supreme Court in case of Manuara Khatun & Ors. V/s. Rajesh Kr. Singh & Ors. [2017 DNJ (SC) 184], wherein it has been held :
21) It is for all these reasons, we find no good ground to take a different view than the one consistently being taken by this Court in all previous decisions, which are referred supra, in this regard.
22) In view of the foregoing discussion, we are of the view that the direction to United India Insurance Company (respondent No. 3) - they being the insurer (5 of 5) [CMA-2920/2017] of the offending vehicle which was found involved in causing accident due to negligence of its driver needs to be issued directing them (United India Insurance Company-respondent No.3) to first pay the awarded sum to the appellants (claimants) and then to recover the paid awarded sum from the owner of the offending vehicle (Tata Sumo)-respondent No.1 in execution proceedings arising in this very case as per the law laid down in Para 26 of Saju P. Paul's case quoted supra.
A very significant fact that the learned Tribunal has passed a very innocuous judgment and award exonerating the insurer from liability with a direction to first pay the compensation amount and then recover the same by relying on some judgments of the Supreme Court has dissuaded me to interfere in the matter.
Consequently, the appeal fails and same is hereby, dismissed.
(P.K. LOHRA), J.
a.asopa/-18