Rajasthan High Court - Jodhpur
Smt.Gunjan And Ors vs Banshi And Ors on 22 February, 2024
Author: Birendra Kumar
Bench: Birendra Kumar
[2024:RJ-JD:8416]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Misc. Appeal No. 4112/2011
Shammi Kumar S/o. Daulram, by caste Khatri, aged 36 years,
resident of Behind Petrol Pump, Manpur, Abu Road, District Sirohi
----Appellant-Owner
Versus
1. Pukhraj S/o. Surja Ram, by caste Banjara, R/o. Aakara Bhata,
Abu Road.
---Claimant
2. Bansi S/o. Samdar Ji, by caste Bhat, R/o. Aakara Bhata, Abu
Road.
---Driver
3. The Oriental Insurance Company Limited through Divisional
Manager, Chandel Building, Madiya Road, In front of L.I.C.
Building, Pali (Marwar).
---Non-claimant
Connected With
S.B. Civil Misc. Appeal No. 1240/2008
Iqbal Khan S/o. Sh. Raheem Khan, by caste Mohammedan, age
45 years, resident of Gandhi Nagar, Abu Road, District Sirohi.
----Appellant-Claimant
Versus
1. Banshi S/o. Sh. Samdar, by caste Bhat, resident of Akra
Bhatta, Abu Road, District Sirohi.
---Driver
2. Shammi S/o. Sh. Dalu Ram, by caste Khatri, resident of
Behind Petrol Pump, Manpur, Abu Road, District Sirohi.
--- Registered Owner
3. The Oriental Insurance Company Ltd., through its Divisional
Manager, Opposite LIC Building, Mandia Road, Pali (Raj.)
----Respondent
S.B. Civil Misc. Appeal No. 1241/2008
Hairsh S/o. Shri Babulal, by caste Banjara (Bhat), age 31 years,
resident of Akra Bhatta, Abu Road, District Sirohi.
----Appellant
Versus
1. Banshi S/o. Sh. Samdar, by caste Bhat, resident of Akra
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Bhatta, Abu Road, District Sirohi.
---Driver
2. Shammi S/o. Sh. Dalu Ram, by caste Khatri, resident of
Behind Petrol Pump, Manpur, Abu Road, District Sirohi.
--- Registered Owner
3. The Oriental Insurance Company Ltd., through its Divisional
Manager, Opposite LIC Building, Mandia Road, Pali (Raj.)
Respondent
S.B. Civil Misc. Appeal No. 1242/2008
Pukh Raj S/o. Sh. Surja, by caste Banjara (Bhat), age 33 years,
resident of Akra Bhatta, Abu Road, District Sirohi.
----Appellant
Versus
1. Banshi S/o. Sh. Samdar, by caste Bhat, resident of Akra
Bhatta, Abu Road, District Sirohi.
---Driver
2. Shammi S/o. Sh. Dalu Ram, by caste Khatri, resident of
Behind Petrol Pump, Manpur, Abu Road, District Sirohi.
--- Registered Owner
3. The Oriental Insurance Company Ltd., through its Divisional
Manager, Opposite LIC Building, Mandia Road, Pali (Raj.)
Respondent
S.B. Civil Misc. Appeal No. 1243/2008
1. Smt. Gunjan Soni W/o. Late Sh. Gopal Soni, age 38 years.
2. Mst. Guddan D/o. Late Sh. Gopal Soni, age 13 years, minor
through his natural guardian, mother Smt. Gunjan Soni,
appellant no.1.
3. Vijay Soni S/o. Sh. Dauji Ram Soni, age 83 years.
4. Smt. Prabha @ Pushpa W/o. Sh. Vijay Soni.
All by caste Soni & all residents of Opposite Mahaveer Talkies,
Mahaveer Colony, Abu Road, District Sirohi.
----Appellant
Versus
1. Banshi S/o. Sh. Samdar, by caste Bhat, resident of Akra
Bhatta, Abu Road, District Sirohi.
---Driver
2. Shammi S/o. Sh. Dalu Ram, by caste Khatri, resident of
Behind Petrol Pump, Manpur, Abu Road, District Sirohi.
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--- Registered Owner
3. The Oriental Insurance Company Ltd., through its Divisional
Manager, Opposite LIC Building, Mandia Road, Pali (Raj.)
Respondent
For Appellant(s) : Mr. Surendra Surana
Mr. Pradeep Shah
Ms. Sonal Suryavanshi
For Respondent(s) : Mr. Mukul Singhvi
Mr. Bharat Singh Rathore
HON'BLE MR. JUSTICE BIRENDRA KUMAR
Judgment Judgment Reserved in : 11.01.2024 CMA No.4112/2011 on Judgment Reserved in : 04.01.2024 CMA Nos.1240, 1241, 1242 & 1243 of 2008 on Judgment Pronounced on : 22.02.2024
1. A brief background of the aforesaid appeals under Section 173 of the Motor Vehicles Act, 1988 is that on 19.7.2005 a rash and negligent Truck bearing Regn. No.GJ-8U-1400 driven by respondent no.1 Banshi, first dashed against a motor-cycle rider causing his death; thereafter against an Auto-riksha causing injuries and lastly against a Jeep bearing Regn. No.RJ-24T-0867. Two persons including Gopal Soni died in incident. The dependents of Gopal Soni brought Claim Case No.136/2005. Gopal Soni was sitting in the Jeep. Some of the occupants of Jeep had sustained personal injuries/ serious injuries/ permanent disablement. They filed separate claim cases. Injured Pukhraj filed Claim Case No.96/2005. Injured Iqbal Khan filed Claim Case (Downloaded on 22/02/2024 at 08:52:09 PM) [2024:RJ-JD:8416] (4 of 17) [CMA-4112/2011] No.103/2005. Injured Harish filed Claim Case No.114/2005 and the learned Motor Accident Tribunal decided all the aforesaid claim cases alongwith some other claim cases by other victims of the accident by the impugned judgment and award dated 12.6.2008 and made certain awards in favour of the claimants. The learned Tribunal found that the driver of the offending truck had no driving licence, hence, the Insurer-respondent was directed to pay compensation to the claimants and to recover from the owner of the offending vehicle.
2. The owner of the offending vehicle being aggrieved by the directions of pay and recovery filed above S.B. Civil Misc. Appeal No.4112/2011 only in the matter of Claim Case of Pukhraj. Pukhraj had also filed above-mentioned Misc. Appeal No.1242/2008 challenging the quantum of compensation awarded in his favour.
Some of the above-referred claimants/dependents of the deceased are not satisfied with the quantum of award made by the Motor Accident Claims Tribunal, hence, they have filed separate appeals challenging the same impugned judgment and award.
3. The same owner has not challenged the award made in favour of other claimants with the same direction of right to pay and recover by the Insurer. It would be appropriate to decide appeal of owner of offending vehicle first as that would have repercussion and effect on other appeals as well. (Downloaded on 22/02/2024 at 08:52:09 PM) [2024:RJ-JD:8416] (5 of 17) [CMA-4112/2011] S.B. CIVIL MISC. APPEAL NO.4112/2011 :
4. Learned counsel for the appellant contends that the Tribunal has wrongly allowed right to recover to the Insurer ignoring the settled law laid down in the case of National Insurance Co. Ltd. Vs. Swarn Singh & Ors., reported in (2004) 3 SCC 297. Contention is that the Insurance Company failed to establish that the insured had knowledge of the disqualification of the driver.
5. Learned counsel for the respondent contends that there is material on record and the learned Tribunal has elaborately discussed while deciding Issue No.7. Respondent witness no.1 L.D. Joshi, Manager of the Oriental Insurance Company Limited, Abu Road, Branch has admitted that the truck was insured with his Company, however, the driver had no driving licence. Investigator of the Company reported that the driving licence produced by the respondent no.1 (Exhibit-5) bearing DL1/AD/99/M2632 was fake one. This fact was verified from the office of RTO, Ahmedabad and record of the driving licence was called for. Navin Bhai, the RTO employee, deposed that the referred licence was issued in favour of Dinesh Kumar S/o. Manak Lal Patel, resident of 6 Society, Maninagar, Ahmedabad and not in the name of Banshi Lal, the driver of the offending truck, therefore, it was established by the evidence that the driver had no driving licence on the date of accident. Law is well-settled that it is the primary responsibility of the owner of vehicle to satisfy that the person to whom he is engaging as a driver is holding a valid driving licence to drive that particular type of vehicle. If the driver had no driving licence from (Downloaded on 22/02/2024 at 08:52:09 PM) [2024:RJ-JD:8416] (6 of 17) [CMA-4112/2011] the very inception, it cannot be an excuse for the owner of the vehicle, who is carrying co-liability with the driver, that he was unaware of the fact that the driver had no valid driving licence. In Swarn Singh (supra), the Hon`ble Supreme Court categorically stated that if violation of terms and conditions of the policy is of such a nature which contributed to the accident, then the Insurer would not be held liable to pay compensation.
6. In National Insurance Co. Ltd. Vs. Swarn Singh & Ors., reported in 2004 DNJ (SC) 154, Hon'ble the Supreme Court summarized its findings in para-110, which reads as follows :-
"110. The summary of our findings to the various issues as raised in these petitions are as follows: -
(i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object.
(ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163 A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a)(ii) of the said Act. (iii) The breach of policy condition e.g., disqualification of driver or invalid driving licence of the driver, as contained in sub-section (2)(a)(ii) of section 149, have to be proved to have been committed by the insured for avoiding liability by the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver (Downloaded on 22/02/2024 at 08:52:09 PM) [2024:RJ-JD:8416] (7 of 17) [CMA-4112/2011] for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time.
(iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof wherefor would be on them.
(v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case.
(vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/ are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under section 149(2) of the Act [emphasis is mine].
(vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving (Downloaded on 22/02/2024 at 08:52:09 PM) [2024:RJ-JD:8416] (8 of 17) [CMA-4112/2011] licence produced by the driver, (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case.
(viii) If a vehicle at the time of accident was driven by a person having a learner's licence, the insurance companies would be liable to satisfy the decree.
(ix) The claims tribunal constituted under Section 165 read with Section 168 is empowered to adjudicate all claims in respect of the accidents involving death or of bodily injury or damage to property of third party arising in use of motor vehicle. The said power of the tribunal is not restricted to decide the claims inter se between claimant or claimants on one side and insured, insurer and driver on the other. In the course of adjudicating the claim for compensation and to decide the availability of defence or defences to the insurer, the Tribunal has necessarily the power and jurisdiction to decide disputes inter se between insurer and the insured. The decision rendered on the claims and disputes inter se between the insurer and insured in the course of adjudication of claim for compensation by the claimants and the award made thereon is enforceable and executable in the same manner as provided in Section 174 of the Act for enforcement and execution of the award in favour of the claimants.
(x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of section 149(2) read with sub-
section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal. Such determination of claim by the Tribunal will be (Downloaded on 22/02/2024 at 08:52:09 PM) [2024:RJ-JD:8416] (9 of 17) [CMA-4112/2011] enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal.
(xi) The provisions contained in sub-section (4) with proviso thereunder and sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recovery amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by relegating them to the remedy before regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims."
7. Evidently the owner has not led any evidence to discharge the burden that he had taken reasonable care to find out as to whether the driving licence produced by the driver was not a fake one, rather the Insurer has proved the aforesaid fact that the driving licence was a fake one.
8. In view of the discussions made above, this Court does not find any merit in this appeal. Accordingly, the S.B. Civil Misc. Appeal No.4112/2011 stands dismissed as being devoid of any merit.
(Downloaded on 22/02/2024 at 08:52:09 PM) [2024:RJ-JD:8416] (10 of 17) [CMA-4112/2011] S.B. CIVIL MISC. APPEAL NO.1243/2008 :
1. Claim Case No.136/2005 was filed by widow, a minor daughter and parents of deceased Gopal Soni, who was travelling as a passenger in Jeep at the time of accident.
2. The factum of rash and negligent driving by the driver of offending truck is established by oral evidence of injured witnesses of the accident as well as the FIR registered for the incident and conclusion of police that the driver of offending truck was responsible for the accident and injury/death to different persons, therefore, this issue has not been agitated before this Court. The Tribunal has found that the accident was due to rash and negligent driving of the offending truck.
3. The widow of deceased, namely, Gunjan was examined as claimants witness and she deposed that at the time of death, Gopal Soni was aged about 40 years and he was earning Rs.4,000/- per month as he was privately employed in M/s.
Tirupati Fibers & Industries Limited. The witness has not been cross-examined on income and age of deceased and his employment nor any contrary evidence was brought on the record. However, the Tribunal was of the view that no evidence of employment has been brought on the record. No document of proof of age has been brought on the record, therefore, the Tribunal abruptly accepted Rs.15,000/- as the annual income of deceased and age of deceased as 41 years based on the entry in the post-mortem report.
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4. Learned counsel for the claimant(s) contends that the Tribunal has acted on surmises and conjectures ignoring the material on record. Oral testimony of witness Gunjan has not been controverted by even making any suggestion to the contrary in cross-examination or producing any other cogent material. Only for trivial mistake that at one place it is stated that the deceased was in private job and at another place she has specifically mentioned name of the private employer.
5. Learned counsel for the Insurance Company, though, submits that the Tribunal has correctly awarded compensation of Rs.1,60,000/-, however, this Court finds that while deciding issue No.2A in this regard, the Tribunal has acted on conjectures and surmises.
6. For deciding just compensation, income of deceased is accepted as Rs.4000/- per month, which is not an exorbitant claim. Since the deceased had left four dependents; 1/4th is deductible for personal expenses of the deceased. Considering age of deceased as 40 years, the proper multiplier would be of 15 and not of 16 as applied by the Tribunal. Moreover, the claimants would be entitled for 25% of income of the deceased under the head "future prospects". Thus, the payable compensation is calculated as Rs.3000/- X 12 months X 15 = Rs.5,40,000/-. 25% of the same would be Rs.1,35,000/-. Besides the aforesaid, claimants would be entitled for Rs.40,000/- each for the loss of their respective consortium. Therefore, under this head Rs.1,60,000/- is payable. The claimants would also be entitled for (Downloaded on 22/02/2024 at 08:52:09 PM) [2024:RJ-JD:8416] (12 of 17) [CMA-4112/2011] Rs.30,000/- for funeral expenses and loss of the estate jointly. The total payable compensation is calculated at Rs.8,65,000/-. The aforesaid amount shall be payable minus the already paid amount alongwith interest @ 7% per annum.
7. Contrary finding by the Tribunal is set aside and this appeal stands allowed to the aforesaid extent.
S.B. CIVIL MISC. APPEAL NO.1241/2008 :
1. Appellant Harish S/o. Babulal had brought Claim Case No.114/2005 before the Tribunal. Case of the appellant is that at the time of accident being caused by rash and negligent truck, appellant was driving the Jeep, which met with the accident. The appellant was examined as witness no.2 before the Tribunal.
Appellant deposed that in the accident besides other injuries, he had sustained fracture of Femur bone, for which, he had to undergo long treatment at Palanpur in the State of Gujarat. Appellant was earning Rs.4,500/- per month by his skilled work of a driver. Appellant produced his driving licence and injury report vide (Exhibit-12). There is a report of disability of appellant, which shows that the doctor had found 22% disability. The Tribunal discussed claim of the appellant in issue no.6 and awarded Rs.64,666/- to the appellant.
2. Since appellant had not produced any document of income, the Tribunal did not accept claim of income of appellant. While applying multiplier method for assessing compensation awarded only 22% of the same on the basis of medical disability. Besides aforesaid, the Tribunal awarded Rs.15,166/- for medical expenses (Downloaded on 22/02/2024 at 08:52:09 PM) [2024:RJ-JD:8416] (13 of 17) [CMA-4112/2011] based on the vouchers. However, nothing has been awarded under other heads admissible in a case of serious injury.
3. In Raj Kumar Vs. Ajay Kumar & Anr., reported in (2011) 1 SCC 343, Hon'ble Supreme Court said that while assessing loss of earning due to permanent disablement, the Tribunal/Court must be conscious that the criteria should not be the extent of permanent disability found by medical experts, rather the assessment should be based on percentage of inability to the injured, which prevented him from doing the same vocation or from performing other vocations.
4. Evidently, the present case is a case of serious injury and not of permanent disablement incapacitating the appellant to follow the same vocation or other vocations, however, considering the settled criteria and heads under which claim in case of serious injury would be allowed, the law has been clearly stated in Raj Kumar (supra) as well as in Jagdish vs. Mohan and ors. reported in (2018) 4 SCC 571.
5. In the case on hand, the appellant would be entitled for following amounts under the following heads :-
1. Expense relating to treatment/medicines Rs.15,166/-
allowed by the Tribunal is affirmed.
2. Transportation charges Rs.10,000/-
considering distance & frequency of travel by appellant for treatment.
3. Nourishing diet Rs.10,000/-
for four months treatment.
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4. Loss of earning during period of Rs.18,000/-
treatment, which was four months.
5. Loss of future earning Rs.54,000/-
Since appellant was unable to drive vehicle for a year, hence, Rs.54,000/- is payable under this head.
Besides the aforesaid, for pain, suffering and trauma meted out by the appellant and for his inability to lead normal life Rs.3,00,000/- is payable. Total payable compensation is calculated at Rs.4,07,166/-.
6. The Insurer is directed to pay the aforesaid amount minus already paid amount within two months alongwith 7% interest from the date of application.
7. This appeal stands allowed to the aforesaid extent. S.B. CIVIL MISC. APPEAL NO.1240/2008 :
1. Appellant Iqbal Khan had filed Claim Case No.103/2005. The appellant was travelling on the same Zeep which met with the accident. At the time of accident, Iqbal Khan was 42 years of age.
He was earning Rs.4,000/- per month as he was a Supervisor in Bescom Factory at Porbandar. The Tribunal while deciding claim of the appellant in issue No.5 came to the conclusion that the appellant is entitled for Rs.43,830/- only. The Tribunal on the basis of injury report at Exhibit-14 was of the view that simple injuries were found on the person of the injured, however, the learned Tribunal ignoring the uncontroverted statement of the appellant that in the accident his spinal bone near the neck had got some displacement and he had to undergo treatment at Palanpur and (Downloaded on 22/02/2024 at 08:52:09 PM) [2024:RJ-JD:8416] (15 of 17) [CMA-4112/2011] thereafter at Ahmedabad. The appellant did not produce any treatment papers at Ahmedabad or any X-Ray report of displacement of bone, therefore, the Tribunal did not accept the case of the appellant. However, the Tribunal on the basis of documentary evidence allowed medical expenses of Rs.18,630/-. The appellant was entitled for transportation charges of Rs.10,000/- for moving to Palanpur and later on to Ahmedabad for his treatment. Besides the aforesaid Rs.10,000/- would be payable for nourishing diet. The appellant could not attend his work for four months due to his injuries, therefore, loss of income of four months @ Rs.4,000/- per month would be payable, which comes to Rs.16,000/-. Considering entire facts and supporting material Rs.1,00,000/- is payable for pain and agony suffered by the appellant as well as for the disability to lead normal life for some period. Thus, the total payable compensation is calculated at Rs.1,54,630/-.
2. The Insurer is directed to pay the aforesaid amount minus already paid amount alongwith interest @ 7% per annum within two months.
3. The appeal is allowed to the aforesaid extent. S.B. CIVIL MISC. APPEAL NO.1242/2008 :
1. Appellant Pukhraj had brought Claim Case No.96/2005 claiming compensation for the grievous injuries sustained during the accident. Pukhraj- Cleaner of Zeep was earning Rs.4,500/-
per months. He produced injury report at Exhibit-13, which shows that he has sustained fracture of right upper jaw. Exhibit-204 is (Downloaded on 22/02/2024 at 08:52:09 PM) [2024:RJ-JD:8416] (16 of 17) [CMA-4112/2011] the disability certificate, which shows that he had 10% disability. The learned Tribunal while deciding claim of appellant as issue No.4 came to the conclusion that the appellant had no documentary proof of his income. Notional income of Rs.15,000/- per month was taken into consideration and the same was multiplied with the multiplier of 16 and 10% of the same i.e. Rs.24,000/- was paid for permanent disability of 10%. Besides the aforesaid Rs.855/- was paid based on medical vouchers. Nothing has been paid under other head.
2. Learned counsel for the appellant drew attention of Court that Pukhraj was examined as witness no.5 and he stated that he was Cleaner on the same Jeep, which met with the accident due to negligence of the truck and before the accident, he was earning Rs.4,500/-. A claim of income of Rs.150/- on the day of accident is not an exorbitant, hence, the Tribunal should have accepted the same.
3. Claim of Rs.150/- per day by a Cleaner is not excessive and exorbitant one. Appellant has deposed that due to the injuries, his face got ugly look. He cannot eat any solid thing as his two upper tooth and one lower teeth got broken, besides fracture of the bones of jaw. Evidently the aforesaid evidence has not been contradicted, therefore, the Tribunal has assessed compensation in the lower side contrary to the material on the record.
4. The payable compensation would be Rs.855/- for medical expenses; Rs.10,000/- for transportation to Palanpur & Ahmedabad; Rs.10,000/- for nourishing food; Rs.18,000/- for loss (Downloaded on 22/02/2024 at 08:52:09 PM) [2024:RJ-JD:8416] (17 of 17) [CMA-4112/2011] of earning for four months. Rs.3,00,000/- for pain, suffering and trauma faced by the appellant and Rs.1,00,000/- for inability to lead normal life. Total payable compensation Rs.4,38,855/-.
5. The Insurer is directed to pay the aforesaid amount minus already paid amount within two months alongwith 7% interest from the date of application.
6. This appeal stands allowed to the aforesaid extent.
(BIRENDRA KUMAR),J Sanjay/-
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