Rajasthan High Court - Jodhpur
The New India Assurance Company Ltd vs Smt. Kamla Devi And Ors on 29 April, 2021
Author: Devendra Kachhawaha
Bench: Devendra Kachhawaha
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR.
..
S.B. Civil Misc. Appeal No. 36/2001.
The New India Assurance Company Ltd., Through - its legally constituted authority, Divisional Manager, Divisional Office-I, Abhay Chambers, Jalori Gate, Jodhpur.
----Appellant Versus
1. Smt. Kamla Devi W/o Late Shri Lala Ram
2. Khiya Ram S/o Late Shri Lala Ram (Minor)
3. Prem S/o Late Shri Lala Ram (Minor)
4. Viram S/o Late Shri Lala Ram (Minor)
5. Sohan Lal S/o Late Shri Lala Ram (Minor)
6. Suresh S/o Late Shri Lala Ram (Minor)
7. Miss Sugan D/o Late Shri Lala Ram (Minor) Minors are represented through their natural guardian mother Smt. Kamla Devi (Respondent No.1).
8. Smt. Tulsi Devi W/o Shri Kalu Ram All By Caste-Meghwal, Residents of Boranada, Tehsil & District-Jodhpur.
----CLAIMANTS
9. Shri Bheem Ji Bhai S/o Shri Devi Ji Bhai Thakkar, Resident of Barnorsi, Police Station, Barani, District - Palanpur, Gujarat (Driver).
10. Arvind S/o Shri Shankar Lal Thakkar, Resident of - Mithiroher, Tehsil - Anjar, Distt.-Kuchchh, Gujarat (Owner).
Connected With S.B. Civil Cross Objections No. 38/2001 IN S.B. CIVIL MISC. APPEAL NO. 36/2001.
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(2 of 23) [CMA-36/2001]
The New India Assuarance Company Ltd.
... Appellant
Vs.
Smt. Kamla Devi & Others.
.... Respondents
...
CROSS-OPBJECTORS/APPLICANTS/RESPONDENTS/CLAIMANTS:
1. Smt. Kamla Devi W/o Late Shri Lala Ram
2. Khiya Ram S/o Late Shri Lala Ram (Minor)
3. Prem S/o Late Shri Lala Ram (Minor)
4. Viram S/o Late Shri Lala Ram (Minor)
5. Sohan Lal S/o Late Shri Lala Ram (Minor)
6. Suresh S/o Late Shri Lala Ram (Minor)
7. Miss Sugan D/o Late Shri Lala Ram (Minor)
8. Smt. Tulsi Devi W/o Shri Kalu Ram All by caste Meghwal, r/o Boranada, Tehsil & District-Jodhpur.
Respondents-cross-objectors No. 2 to 7 are minors through their natural guardian and mother Smt. Kamla Devi, respondent -cross-objector No.1.
Versus NON-CROSS-OBJECTORS/NON-APPLICANTS:
1. The New India Assurance Company Ltd., Divisional Office, Abhay Chambers, Jalori Gate, Jodhpur.
2. Bheem Ji Bhai S/o Shri Devi Ji Bhai, by caste Thakkar, r/o Barnorsi, Police Station, Barai, District - Palanpur (Gujarat).
3. Arvind S/o Shri Shankar Lal, by caste Thakkar, r/o Mithiroher, Tehsil - Anjar, Distt.-Kutchh (Gujarat).
For Appellant(s) : Mr. Jagdish Vyas, for the Insurance Company.
For Respondent(s) : Mr. Ayush Gehlot & Mr. Prashant Panwar, for the claimants.
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(3 of 23) [CMA-36/2001]
HON'BLE MR. JUSTICE DEVENDRA KACHHAWAHA
Judgment
Judgment reserved on :: 25/03/2021
Judgment pronounced on :: 29/04/2021
The present Civil Misc. Appeal (No. 36/2001) is directed against the judgment and award dated 09.10.2000 passed by the Motor Accident Claims Tribunal (I), Jodhpur in Claim Case No. 86/1996 titled as "Smt. Kamla Devi & Ors. Vs. Bheem Ji Bhai & Ors." whereby, the Tribunal has awarded a sum of Rs.5,22,000/- in favour of the claimants, while holding the appellant Insurer liable for payment of the entire award amount.
The prayer clause as made in this appeal is as follows:-
"It is, therefore, most respectfully prayed that this appeal may kindly be allowed and the impugned judgment and award dated 09.10.2000 passed by MACT (I), Jodhpur in MACT Claim No. 86/96 may kindly be set-aside and the claims petition may kindly be dismissed as against the appellant company with costs throughout. Any other relief to which the appellant company may be entitled, may kindly be granted in its favour."
Brief facts of the case leading to this appeal are that on the fateful day, i.e., 09.08.1995, the husband of the respondent Smt. Kamla Devi and father of the minor children, namely, Lala Ram along with one pillion rider (Sukhram) at around 5:00 p.m. were going from Balotra to Pachpadra on the motorcycle bearing registration number R.N.M. 7327 and when they reached near a temple of Lord Mahadevji then, a tanker bearing registration (Downloaded on 05/05/2021 at 08:18:01 PM) (4 of 23) [CMA-36/2001] number G.J.-12/T-7848 came in front of the motorcycle which was driven by the non-applicant No.1 rashly and negligently and suddenly coming from wrong side, collided with the motorcycle. As a result of the collusion, motor riders, namely, Lalaram and Sukhram received serious injuries and succumbed to death on the spot. The motorcycle was completely destroyed. The clothes were also destroyed in the accident. It was alleged that the deceased (Lalaram) was 37 years in age. He allegedly earned Rs. 12,000/- per month by involving himself in various types of work. The non- applicant No.1 was the driver and the non-applicant No.2 was the owner and the non-applicant No.3 was the insurer of the offending vehicle. It was alleged that all the non-applicants were liable to pay the compensation jointly and severally. An amount of Rs.20,00,000/- was claimed as compensation under various heads.
The learned Tribunal proceeded ex-parte against the non- applicants No. 1 and 2.
In the written statement filed on behalf of the non-applicant No.3 (insurer), it was alleged that the claimants have claimed huge amount of compensation without any basis. It was alleged that the accident was not occurred due to negligence on the part of the driver of the offending tanker. On the contrary, it was alleged that the accident in question was occurred by the negligence on the part of driver of the motorcycle. It was also alleged that the tanker was driven by the driver, who was not holding the valid license and thereby, violation of the terms of the policy was alleged. Therefore, in these circumstances, the Insurer is not liable to pay the compensation. It was further alleged that the driver of the motorcycle was also not holding the valid license (Downloaded on 05/05/2021 at 08:18:01 PM) (5 of 23) [CMA-36/2001] and, therefore, for this reason, the Insurer is not liable to pay the compensation.
After hearing the arguments advanced on behalf of learned counsel for the parties, as many as four issues were framed by the Tribunal which reads as under:-
(1) vk;k iz"uxr~ okgu Vsadj la[;k th-ts-12@Vh&7848 ds pkyd foi{kh la[;k&,d ds }kjk fnukad 9-8-95 dks ckyksrjk ls ipinjk dh vksj 3&4 fdeh0 nwj mDr okgu dks mis{kk @ mrkoysiu ls pyk dj dh xbZ nq?kZVuk esa vkbZ pksVksa ds ifj.kkeLo:i ykykjk dh e`R;q gqbZ \ (2) vk;k mDr okgu pkyd rc mDr okgu Lokeh foi{kh la[;k&nks ds fu;kstu esa gksdj mlh ds fgrkFkZ ,oa ykHkkFkZ dk;Z dj jgk Fkk \ (3) vk;k foi{kh la[;k rhu chek dEiuh }kjk vius fyf[kr dFku dh izkjfEHkd vkFkhZLrohZ ,oa fo"ks'k dFku ds en~ns utj chek dEiuh vius nkf;Ro ls eqDr gks ldrh gS ugha rks bldk izHkko gS \ (4) vk;k nkosnkj vius nkos esa vafdr iz"uxr~ jkf"k ;k vU;
U;k; lEer~ jkf"k ik ldrs gS gkWa rks dkSu dkSu nkosnkj fdruh jkf"k fdl fdl foi{kh ,oa fdl izdkj ls ik ldrs gS \ In support of their claim, the claimants have recorded the statements of PW-1 Kamla & Tikmaram as PW-2 and exhibited as many as 16 documents, viz., FIR (Ex.1), Report of Accident (Ex.1), Recovery Memo. of motorcycle (Ex.3), Chargesheet (Ex.4), Memo. of site (Ex.5), Site Plan (Ex.6), Recovery Memo. of tanker (Downloaded on 05/05/2021 at 08:18:01 PM) (6 of 23) [CMA-36/2001] (Ex.7), Memo. of dead-body (Ex.8), Panchnama of dead-body (Ex.9), Postmortem report (Ex.10), MTO Report (Ex.11), MTO Report of motorcycle (Ex.12), Notice (Ex.13), RC of Motorcycle (Ex.14), Receipts issued by the Department of Mines & Geology (Ex.15 & Ex.16).
No evidence was produced on behalf of the non-applicants. Issue No.1 regarding negligence was decided by the Tribunal in the manner that the accident in question was occurred due to negligence on the part of driver of the tanker in which Lalaram was died but at the same time, the Tribunal also observed that in the accident in question, some negligence was also on the part of the driver of the motorcycle.
Regarding issue Nos.2 & 3, the burden to prove these issues was on the Insurance Company but as no evidence was led by insurer, this issue was decided against the insurer.
Issue No. 4 regarding entitlement of the claimants to get the amount of compensation, after a detailed deliberation by the Tribunal, this was decided in favour of the claimants. As a result of decision on all the issues, lastly, the Tribunal has awarded a sum of Rs.5,22,000/- in favour of the claimants and held the insurance company liable for payment of the compensation.
The award portion of the judgment and award dated 09.10.2000 is reproduced here as under:-
-: vokMZ :-
21/ izkFkhZx.k ds i{k esa rFkk foi{khx.k ds fo:} 5]22]000@& :i;s dk vokMZ la;qDr o i`Fkd i`Fkd :i ls ikfjr fd;k tkrk gS A mDr vokMZ dh jkf"k ij izkFkhZx.k rkjh[k vkosnu 13&12&96 ls rkjh[k olqyh rd 12 izfr"kr (Downloaded on 05/05/2021 at 08:18:01 PM) (7 of 23) [CMA-36/2001] izfr o'kZ dh nj ls C;kt Hkh izkIr djus ds vf/kdkjh jgsaxs ! iwoZ esa vnk dh xbZ jkf"k 50]000@& :i;s de djus ij vc izkFkhZx.k 4]78]000@& :i;s izkIr djus ds vf/kdkjh jgsaxs A mDr jkf"k esa ls izkFkhZ la[;k&1 dks 2]00]000@& :i;s ns; gksaxs ftlesa ls mldks 20]000@& udn fn;s tk;s rFkk "ks'k jkf"k mlds uke ls fdlh jk'Vªh;d`r cSad esa de ls de 3 o'kZ vFkok viuh bPNkuqlkj lkof/k tek ;kstuk ds rgr tek djk fn;s tkos ftl ij vxj og pkgs rks =Sekfld C;kt cSad ls izkIr djus dh vf/kdkjh.kh jgsxh A izkFkhZ la[;k 2 ls 7 izR;sd dks :i;s 37]000@&] 37]000@& :i;s ns;
gksaxs tks vo;Ld gksus ds dkj.k mudks ns; jkf"k tfj;s ekrk izkFkhZ la[;k &1 ds }kjk fdlh jk'Vªh;d`r cSad esa muds o;Ld gksus rd dh vof/k ds fy;s lkof/k tek ;kstuk ds rgr tek djk fn;s tkos ftl ij vxj os pkgs rks ekrk ds tfj;s =Sekfld C;kt cSad ls izkIr dj ldsaxsA izkFkhZ la[;k&8 dks 50]000@& :i;s ns; gksaxs rFkk mlesa ls mldks 10]000@& udn rFkk "ks'k jkfZ"k mlds uke ls fdlh jk'Vªh;d`r cSad esa de ls de 3 o'kZ vFkok viuh bPNkuqlkj lkof/k tek ;kstuk ds rgr tek djk fn;s tkos ftl ij vxj og pkgs rks =Sekfld C;kt cSad ls izkIr dj ldsxh ! foIk{kh la[;k&3 vokMZ dh frFkh ls ,d ekg ds Hkhrj Hkhrj mDr jkf"k ds vnkrk pSd tks fd izkFkhZx.k ds uke ds gksaxs bl U;k;kf/kdj.k esa okLrs Hkqxrku gsrq tek djoks bl gsrq vokMZ dh udy lEcfU/kr chek dEiuh dks okLrs ikyukFkZ gsrq Hksth tkosA^^ Feeling aggrieved against the judgment and award dated 09.10.2000, the appellant-insurer of the offending tanker has filed the Misc. Appeal (No.36/2001).
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(8 of 23) [CMA-36/2001] The CMA No. 36/2001 was admitted for consideration by this Court on 11.01.2001 and execution of the impugned award was stayed on the condition of appellant depositing 50% of the award amount.
On 19.07.2006, the interim order granted by this Court on 11.01.2001 was confirmed till disposal of the appeal and the stay application was disposed of.
Upon receiving the notices of this appeal, the claimants have filed the cross-objections (No. 36/2001). While narrating the whole story of passing of the award, the claimants have explained the age, occupation, dependency etc. of the deceased and prayed for enhancing the amount of compensation to the tune of Rs.20,00,000/- instead of Rs. 5,22,000/- as awarded by the learned Tribunal vide impugned judgment and award.
For ready reference, the prayer clause as made by the claimants in the cross-objections is reproduced here as under:-
"It is therefore respectfully prayed that cross- objection may kindly be allowed and award under appeal may kindly be enhanced to the extent amount claimed with interest at the rate of 18% per annum from the date of accident till realisation with cost throughout."
Heard learned counsel for the parties.
Learned counsel Mr. Jagdish Vyas appearing on behalf of the appellant - Assurance Company stated that a bare look at the site inspection report (Ex.-6) would show that the deceased Lala Ram was driving his motorcycle on wrong side of the road whereas the tanker was plying on its correct side, but still deceased Lala Ram (Downloaded on 05/05/2021 at 08:18:01 PM) (9 of 23) [CMA-36/2001] collided with the tanker which resulted into his death. While deciding issue No.1, the learned Tribunal considered the site inspection report and held that the tanker driver alone was not negligent and there was also contributory negligence of motorcycle driver Lala Ram (deceased). In such circumstances, the learned Tribunal ought to have deducted the proportionate amount of compensation but while deciding issue No.1, it appears that the findings on issue No.1 lost sight of the learned Tribunal which resulted into such erroneous judgment and award. Learned counsel also stated that the learned Tribunal has gravely erred in awarding huge amount as compensation in favour of the claimants without any basis. The findings as recorded by the learned Tribunal are contrary to material available on record and therefore, are liable to be quashed. Learned counsel further stated that without there being any proof regarding income from mining activities, the learned Tribunal has gravely erred in assessing the monthly income of the deceased from mining at Rs.2,500/-.
Learned counsel appearing for the Insurance Company further stated that admittedly, at the time of accident, the deceased Lalaram was driving the motorcycle and going on Balotra
- Pachpadra road and the offending vehicle was coming from Pachpadra to Balotra road. As per Exhibit-6, site plan, and Exhibit-5, detailed memo. of site inspection, accident took place at the place marked "A" which is situated in the little right side from the centre point/middle of the road. He further stated that looking to the size of the vehicle Tanker required more space on the road whereas the motorcycle required small space. As per evidence available on record, road width is 18 feet and according to AW-2 Tikmaram, at the time of accident, there was no other vehicle on (Downloaded on 05/05/2021 at 08:18:01 PM) (10 of 23) [CMA-36/2001] the road, therefore, ample space was available to the rider of the motorcycle but despite of that, motorcycle was driven by the deceased Lalaram at the little right side from the centre point of road which is wrong side, therefore, accident took place due to negligence of the deceased Lalaram himself. He further stated as per impugned judgment and award, while deciding issue No.1, the learned Tribunal admitted that as per site plan, upto some extent, motorcycle driver was also negligent but despite of that, without any reason, the contributory negligence of the motorcycle driver (deceased) was not attributed by the learned Tribunal.
So far as income of the deceased is concerned, learned counsel for the Insurance Company stated that no documentary evidence to prove the income of the deceased Lalaram has been produced before the learned Tribunal but despite of that, at internal page number 7 of the impugned judgment and award, the learned Tribunal has assessed the income of the deceased Lalaram at Rs. 2,500/- per month. He further stated that since there was no proof regarding definite income of the deceased Lalaram, therefore, as per the prevalent rate of minimum wages on 01.01.1995, the income of the deceased ought to have been considered at Rs. 884/- per month. Lastly, he requested that the appeal of the Insurance Company may kindly be allowed and the impugned award may kindly be modified as per the above- mentioned grounds.
In support of his contentions, learned counsel for the appellant Insurance Company has referred to and relied upon the following judgments which are as under:-
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(1) In the case of Oriental Insurance Company Limited
(The) Vs. Meena Variyat & Ors., reported in MACD
2007 (1) (SC) 390;
(2) In the batch of appeals led by S.B. Civil Misc. Appeal No.
342/1995 titled as "United India Insurance Co. Ltd. Vs. Hamu Ram & Ors., reported in 2004 R.A.R. 308 (Raj.);
(3) In the case of Oriental Insurance Co. Ltd. Vs. Premlata Shukla & Ors., reported in MACD 2007 (1) (SC) 600;
(4) In the case of RSRTC Vs. Balbeer Singh & Anr., reported in 2009 R.A.R. 146 (Raj.); and (5) In the case of New India Assurance Company Vs. Yogesh Devi & Ors., reported in (2012) 3 Supreme Court Cases 613.
Per contra, learned counsel appearing on behalf of the claimants/respondents/cross-objectors stated that as per observations made by the learned Tribunal, no evidence was adduced by the Insurance Company, therefore, un-controverted evidence led on behalf of the claimants ought to have been accepted. Learned Tribunal has wrongly assessed the income of the deceased Lalaram at Rs. 2,500/- per month only whereas, as per evidence adduced on behalf of the claimants, deceased Lalaram was performing mining works, contract works for construction of road and buildings as well as performing agricultural works and thereby earning total Rs.12,000/- per month. In these circumstances, the income of the deceased Lalaram may kindly be assessed as per evidence led on behalf of (Downloaded on 05/05/2021 at 08:18:01 PM) (12 of 23) [CMA-36/2001] the claimants. While relying upon the judgment of Hon'ble the Supreme Court rendered in the batch of appeals led by Civil Appeals Nos. 4945-46/2013 titled as "Jiju Kuruvila & Ors. Kunjujamma Mohan & Ors., reported in (2013) 9 Supreme Court Cases 166, learned counsel for the cross-objectors argued that in absence of any direct or corroboratory evidence, no interference can be drawn as to contributory negligence on the part of the deceased Lalaram on the basis of site plan. He further stated that at the time of accident, the deceased Lalaram was 37 years old. He further stated that no benefit of future prospects has been considered by the learned Tribunal and as the deceased was 37 years in age at the time of accident, therefore, as per the judgment rendered by Hon'ble the Supreme Court in the batch of appeals led by S.L.P. No. 25590/2014 titled as "National Insurance Company Ltd. Vs. Pranay Sethi", decided on 30.10.2017, the award may kindly be modified considering some amount towards future prospects. Lastly, learned counsel appearing on behalf of the claimants/respondents/cross-objectors requested that the cross-objections filed in the appeal of the Insurance Company may kindly be accepted and accordingly, the award may kindly be modified accordingly. Lastly, learned counsel for the claimants stated that the claimants are also entitled to get additional amount towards consortium and loss of love & affection.
In support of his contentions, learned counsel appearing on behalf of the respondents/claimants has referred to and relied upon the following judgments:-
(1) In the case of United India Insurance Company Vs. Satyendra Kaur, reported in 2020 (2) R.A.R. 153 and (Downloaded on 05/05/2021 at 08:18:01 PM) (13 of 23) [CMA-36/2001] (2) In the case of Smt. Sangeeta Devi & Ors. Vs. Samma Ram & Ors., S.B. Civil Misc. Appeal No. 35/2014, decided on 17.09.2016.
Having given a thoughtful consideration to the submissions advanced by both the sides and upon perusal of the impugned judgment & award, including the case law cited on behalf of both the sides, this Court is of the opinion that the award as made by the Tribunal is required to be modified, while partly allowing both, the appeal of the Insurance Company and the cross-objections of the claimants.
In the case of Oriental Insurance Co. Ltd. Vs. Meena Variyat (supra), it was held that if petition under Section 166 of the Motor Vehicles Act is filed by the claimants then, burden of proof, establishing negligence of driver or owner of the vehicle involved in the accident, lies upon the claimants.
In the case of United India Insurance Co. Ltd. Vs. Hamu Ram & Ors. (supra), it was held that, "if the document is certified copy of the public document, it need not be proved by calling a witness." It was further held by this Court that, "other relevant documents prepared by the police of the doctor, while discharging official duty are admissible in evidence without there being a formal proof."
In the case of Oriental Insurance Co. Ltd. Vs. Premlata Shukla & Ors.. (supra), Hon'ble the Apex Court was of the view that, "once a part of the contents of the document is admitted in evidence, the party bringing the same on record cannot be permitted to turn round and contend that the other contents contained in the rest part thereof had not been proved." (Downloaded on 05/05/2021 at 08:18:01 PM)
(14 of 23) [CMA-36/2001] In the case of RSRTC Vs. Balbeer Singh & Anr. (supra), this Court has held that, "while a man may lie, circumstances do not". It is pertinent to mention here that the circumstances of that case are upto some extent similar to the facts and circumstances of the present case. In that case, accident took place at the middle of the road and 5 to 8 feet space exists between edge of road and left side of jeep and bus was standing on its correct side and edge of road which is proved from the photographs and corroborated by site plan and, therefore, 25% negligence of the bus driver and 75% negligence of the jeep driver was held by this Court; whereas, in the present case, sole negligence of the bus driver was attributed by the Tribunal below. In the present case, accident took place near the centre point of the road although sufficient space was available in the left side of the motorcycle but the tanker in question was not driven on the edge of the road and sufficient space was available on the left side of the tanker which was coming from the opposite direction but the tanker driver did not take the tanker off the road whereas he was able to take the tanker off the road and could avoid the accident. As per evidence available on record, as per Exhibit-6, description of site plan, accident was occurred at the place marked "A", motorcycle and tanker were dragged from place "A" and stopped after about 75 feet and after accident, both the vehicle were found on the eastern side of the road which is right side for the offending tanker; position of the dead bodies, eye-witness, trees etc. were also mentioned in that site plan. As per both the documents (Exhibit-5 & 6), at the time of accident, motorcycle was driven in wrong side and it is an admitted position as per the statement of AW-2 Tikmaram that at the time of accident, there was no other (Downloaded on 05/05/2021 at 08:18:01 PM) (15 of 23) [CMA-36/2001] vehicle on road except to motorcycle and tanker; motorcycle can easily pass from right side. Therefore, in my humble opinion, in the present case also, deceased motorcycle rider Lalaram is held 25% negligent and the tanker driver is held 75% negligent for the accident in the present case.
In the case of New India Assurance Company Limited Vs. Yogesh Devi & Ors. (supra), it was held by Hon'ble the Supreme Court that as per the claimants, the deceased was owner of the three mini buses, driver and agriculturist and earning more than Rs. 35,000/- per month and it was specifically contended that the deceased was earning Rs.3,900/- per month as a driver of buses and was handed over Rs.3,500/- per month to his wife, respondent No.1. While dealing with the claim petition, the Tribunal has awarded a sum of Rs.10,00,000/- as compensation in favour of the claimants which was enhanced by the High Court to Rs.30,72,000/- on appeal, treating the notional income of the deceased as Rs.24,000/- per month. In that case, although the income of the deceased out of agricultural lands would still accrue to his family and likewise, the income derived out of three buses would also still accrue to the family but it was accepted that the respondents-claimants needed someone to manage the agricultural lands and three mini buses, therefore, payment made for Manager and driver for the three buses would be the loss of income to the respondents-claimants. Although, no evidence was adduced to show loss of income in this respect, despite of that, Hon'ble the Supreme Court computed the compensation treating the salary to be given to the Manager of the buses as Rs.10,000/- per month and for the driver as Rs,3,900/-, thus, the total loss of income sustained by the respondents-claimants was calculated at (Downloaded on 05/05/2021 at 08:18:01 PM) (16 of 23) [CMA-36/2001] Rs.13,900/- per month. Although, no direct evidence, as to what would be the quantum of compensation, was adduced on behalf of the claimants, despite of that, looking to the facts and circumstances of that case, Hon'ble the Apex Court, while making a reasonable conjecture that somebody is to be employed for the purpose of managing the business of the three minibuses, the amount of compensation towards loss of income was altered to Rs.26,68,800/- (Rs.13,900/- x 12 x 16), while maintaining the rest of the judgment and award.
The above cited judgment in the case of New India Assurance Company Limited Vs. Yogesh Devi & Ors. was relied upon by the Insurance Company in support of the argument that, no loss of income for mines (quarry) and agriculture have been caused to the claimants, as income from both the assets would still accrue to the family of the deceased. Upon considering the ratio of the judgment, in my humble opinion, as decided by Hon'ble the Apex Court, the claimants have to spend more money for managing both the mining operations and agricultural works by deploying some other persons and the money incurred in payment of salary for those persons, would be the loss of income to the claimants. Therefore, after considering all the relevant factors, this Court has assessed the compensation towards loss of income to the claimants at Rs.4,000/- per month.
Regarding issue No.1, I am principally agree with the ratio decided by Hon'ble the Supreme Court as rendered in the case of Jiju Kuruvila & Ors. Vs. Kanjujamma Mohan & Ors. (vide Head Note D, para 20.6) (supra) wherein, it was held by Hon'ble the Supreme Court that, in absence of any direct or corroborative evidence, no inference can be drawn as to (Downloaded on 05/05/2021 at 08:18:01 PM) (17 of 23) [CMA-36/2001] contributory negligence on the part of victim merely on basis of such "scene mahazar" (i.e., site plan) but the facts of the above case are not similar to the facts of the present case. In that case, findings were made on the basis of Exhibit-2 "scene mahazar"
(i.e., site plan) which was not suggested any rash and negligent driving on the part of the deceased and Ex. A/5 clearly suggested that the deceased had consumed liquor but on the basis of the same, no definite finding can be given to the effect that the deceased was driving the vehicle (car) rashly and negligently at the time of accident; and Ex. B/2 "scene mahazar" (i.e., site plan) and Ex.5 postmortem report cannot take the place of oral evidence. In the cited case, the site plan was not properly prepared by Police officials but in the present case, Exhibit-6, site plan, and Exhibit-5, detailed memo. of site inspection, both the documents were prepared by the police official while discharging official duty, as per the legal requirements, marks of tyres of tanker, position of eye witness was also shown and as per the site plan and the marks pointed out that the tanker was driven rashly and negligently and as per statement of eye witness Tikmaram, that no other vehicle was on the road at the time of accident except to tanker and motorcycle and accident took place at the centre point of the road and more than sufficient space was available for motorcycle in his own side. Having regard to the above-mentioned exhibits, the statement of AW-2 Tikmaram cannot be accepted as a whole.
In the case of Smt. Sangeeta Devi & Ors. Vs. Samma Ram & Ors. (supra), it was held by this Court that, "it is not necessary that in all cases where a claim is filed, the party is in possession of documentary evidence regarding the income of the deceased." It (Downloaded on 05/05/2021 at 08:18:01 PM) (18 of 23) [CMA-36/2001] was also held that, "the income can also be proved by way of producing oral evidence as well and same kind of guess work based on the nature of business being conducted by the deceased.......". It was further held by this Court that, "the standard practice adopted by the Tribunal in cases of lack of documentary evidence to take the minimum wages as the bench mark for assessing the amount of compensation cannot be appreciated/sustained." In that case, the income of the deceased was assessed as Rs.10,000/- per month because of the fact that the deceased was supporting the of four children, wife and mother, the practice of awarding compensation by the Tribunal is wholly unsustainable. In the present case also, the deceased was supporting six children, wife and mother, in total eight claimants were there in the family. Therefore, this argument raised on behalf of the Insurance Company cannot be accepted that income of the deceased must be assessed on the basis of minimum wages and notional income cannot be assessed in absence of direct evidence.
It is an admitted position by both the sides and record of the Tribunal concerned that at the time of accident, the motorcycle bearing registration number R.N.M. 7327 was driven by the deceased Lalaram and he was going towards Pachpadra from Balotra and the offending vehicle, i.e., the tanker bearing registration number GJ-12-T-7848 was coming from Pachpadra to Balotra. As per statement of AW-2 Tikmaram, road width was 18 feet on which accident took place and at the time of accident, no other vehicle was present on the road; and as per Exhibit-6, description of site plan, accident was occurred at the place marked "A", motorcycle and tanker were dragged from place "A" and (Downloaded on 05/05/2021 at 08:18:01 PM) (19 of 23) [CMA-36/2001] stopped after about 75 feet and after accident, both the vehicle were found on the eastern side of the road which is right side for the offending tanker; position of the dead bodies, eye-witness, trees etc. were also mentioned in that site plan. As per both the documents (Exhibit-5 & 6), at the time of accident, motorcycle was driven in wrong side and it is an admitted position as per the statement of AW-2 Tikmaram that at the time of accident, there was no other vehicle on road except to motorcycle and tanker; motorcycle can easily pass from right side.
Although, the learned Tribunal, while deciding issue No.1 in regard to negligence towards accident, admitted that as per site plan, it appears that the driver of the motorcycle is also in fault but despite of that, no contributory negligence was attributed by the learned Tribunal without assigning any reason which is clearly revealed from a bare perusal of the Exhibits-5 & 6 coupled with the statement of AW-2 Tikmaram, who stated that at the time of accident, there was no other vehicle on the road except motorcycle and tanker bearing registration number GJ-12-T-7848 which was driven rashly and negligently came in wrong side and hit the motorcycle, in my humble opinion, this portion of the statement of AW-2 Tikmaram is not correct because as per Exhibits 5 & 6 and as per above mentioned observations, if that was the correct position then, after accident, tanker and motorcycle including deceased persons were found in western side of the road which is correct side for the motorcycle and wrong side for the tanker but situation is totally opposite, the tanker, motorcycle as well as the dead bodies of both the persons were found on eastern side of the road. It is also pertinent to mention here that as per statement of AW-2 Tikmaram and upon perusal of (Downloaded on 05/05/2021 at 08:18:01 PM) (20 of 23) [CMA-36/2001] the Exhibits-5 & 6, marks of tyres of tanker were present on the road upto the extent of 20 feet and all the four tyres were found situated below the road and pressed in soil, it shows that at the time of accident tanker bearing registration number GJ-12-T-7848 was driven rashly. In conclusion, tanker was rashly driven by respondent Bheemji Bhai and simultaneously, the motorcycle was negligently driven by the deceased Lalaram, little on the right from the centre point of the road, therefore, in my humble opinion, the deceased Lalaram was also contributed negligent towards the accident and looking to the facts and circumstances of this case and the evidence available on record, documentary as well as oral and as per judgment in the case of RSRTC Vs. Balbeer Singh & Ors. (supra), particularly having regard to the observations made in that judgment at pages 149 and 150, as cited by the learned counsel for the Insurance Company himself, 25% negligence of the motorcycle rider, i.e., deceased Lalaram is held. Whereas, 75% negligence of tanker driver namely, Bheemji Bhai is totally established in the present case because if the tanker was not driven by him rashly and negligently, he can very well stopped the tanker and the motorcycle as well as deceased were not dragged approximately 50 feet. Similarly, if the motorcycle was driven in wrong side, i.e., little right side from the centre point of road, motorcycle may not collided with tanker.
So far as the income of the deceased Lalaram is concerned, AW-1 Kamla, wife of the deceased, categorically stated that at the time of accident, her husband deceased Lalaram was 37 years in age; he was performing contract works for construction of roads and buildings and earning Rs.6000/- per month. She further stated that from agricultural works, the deceased earned (Downloaded on 05/05/2021 at 08:18:01 PM) (21 of 23) [CMA-36/2001] Rs.4000/- per month and one mining quarry, situated in Barli, which was in the name of her mother-in-law, was also operated by her husband and he earned Rs.2000/- per month. In this manner, she has supported the contentions regarding income that the deceased was earning total Rs.12,000/- at the time of accident. She further stated that the motorcycle of my husband was also destroyed in the accident which costing at Rs.30,000/-. In documentary evidence in support of that oral evidence, Exhibits 15 & 16, receipt of mining operations were also exhibited by this witness. Although she admitted that the revenue record of agricultural land was not produced and the statement of the account which was maintained by her husband was also not produced, for distribution of the amount to the labourers for the contract works but it is an admitted position that the receipt of dead rent (regarding mining) and receipt of octroi duty were exhibited on record as Exhibits 15 & 16 respectively by AW-1 and the same were not controverted by the Insurance Company. It is also an admitted position that AW-1 Kamla stated that we have 15 bighas of revenue land, being cultivated by the deceased and the as per judgment in the case of Smt. Sangeeta Devi & Ors. Vs. Samma Ram (supra), therefore, considering the circumstances, as noted hereinabove and cases cited by parties, in my humble opinion, the Tribunal was not right in assessing the income of the deceased Lalaram at Rs.2,500/- per month only at the time of accident and the same is liable to be treated as Rs.4,000/- per month. It is also an admitted position that nothing was awarded by the Tribunal towards future prospects, therefore, in my humble opinion, 40% future prospects deserves to be allowed keeping in view the guidelines issued by Hon'ble the (Downloaded on 05/05/2021 at 08:18:01 PM) (22 of 23) [CMA-36/2001] Supreme Court in the case of National Insurance Co. Ltd. Vs. Pranay Sethi (SLP No. 25590/2014, decided on
31.10.2017). Since, it is an admitted position that there are total 8 dependents upon the deceased, therefore, deduction of one-fifth is applicable in the present case.
Accordingly, the loss of income deserves to be assessed in the manner that by treating the monthly income of the deceased Lalaram at the time of accident, at Rs.4000/-, further adding Rs. 1600/- (40% for future prospects), total income comes to Rs. 5,600/- and after deducting Rs. 1120/-, i.e., one-fifth towards dependency, the net loss of income comes to Rs.4,520/- per month and after applying multiplier of 15, as applied by the Tribunal, the total amount under the head of loss of income comes to Rs. 8,13,600/- [Rs. 4,520/- x 12 x 15].
Considering the guidelines issued in the above cited case of Satyendra Kaur (supra), in the humble opinion of this Court, the claimants, including wife and six children deserves to be held entitle to get the compensation under this head also. Accordingly, Rs. 40,000/- deserves to be allowed to wife for consortium and Rs.40,000/- each to the six children of the deceased, amount to Rs.2,40,000/- (Rs.40,000/- x 6) towards loss of love and affection deserves to be allowed to the children of the deceased. Apart from the above, this Court is also of the opinion that Rs.15,000/- towards funeral expenses and Rs.15,000/- towards loss of estate deserves also to be allowed in favour of the claimants. This Court is further of the opinion that Rs.20,000/- deserves to be allowed to the claimants for the reason that the Bullet motorcycle, driven by the deceased at the time of accident was totally destroyed in the accident.
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(23 of 23) [CMA-36/2001] In view of the above, the claimants are now held entitled to get the amount of compensation as under:-
1. Loss of Income : Rs. 8,13,600.00
2. Loss of love & affection : Rs. 2,40,000.00
3. Loss of consortium : Rs. 40,000.00
4. Loss of Estate : Rs. 15,000.00
5. Funeral Expenses : Rs. 15,000.00
6. Damage to motorcycle (Enfield make) : Rs. 20,000.00
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Rs.11,43,600/-
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Since, this Court found the deceased Lalaram contributed 25% towards the accident in question, therefore, from the total award of Rs.11,43,600/-, Rs.2,85,900/- (25% of Rs.11,43,600/-) is liable to be deducted, thereby, now the payable amount of compensation comes to Rs. 8,57,700/-.
In view of the above, Appeal of the Insurance Company and Cross Objections of Claimants are partly allowed and the claimants now held entitle to get the compensation in the sum of Rs.8,57,700/- along with interest @ 6% from the date of presentation of the claim petition, i.e.,13.02.1996, after taken into consideration the amount, as already paid or deposited by the Insurance Company, till the date of actual realisation. After deposition of amount of difference, Rs.40,000/- each, in total Rs.2,40,000/- shall be distributed to the claimant Nos. 2 to 7 (children of deceased) for loss of love and affection and remaining amount shall be distributed as per award of learned Tribunal.
Accordingly and in view of the observations foregoing, both the appeal and the cross-objections are partly allowed.
(DEVENDRA KACHHAWAHA),J (10-11)/Mohan/Rashi-
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