Rajasthan High Court - Jodhpur
The New India Ass. Co. Ltd vs Pawan Kumar And Ors on 8 November, 2024
Author: Nupur Bhati
Bench: Nupur Bhati
[2024:RJ-JD:44104]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
S.B. Civil Misc. Appeal No. 587/2016
Mukhi Devi W/o late Shri Om Prakash, aged about 48 years,
Resident of Ramsara, Tehsil Lunkaransar, District Bikaner Raj.
----Appellant
Versus
1. Shyam Sunder S/o Shri Ajeet Ram, Resident of Talvandi
Bhai, Ward No.3, in front of Railway Station, Old Thana
Ghalkhurd, District Firojpur, Punjab.
2. Hardayal Singh S/o Shri Harbansh Singh, Resident of
Talwandi Bhai Mohalla, Street No.4, Near Gurudwara, New
Abadi, Old Station Ghalkhurd, District Firojpur, Punjab
3. The New India Insurance Company Ltd. Through Branch
Manager, Sri Ganganagar.
4. Rajendra Kumar S/o Shri Bhagwana Ram, Resident of
Hindor, Tehsil Suratgarh, District Ganganagar (Raj.)
5. National Insurance Company Ltd., Highway No.15, Sri
Ganganagar, Raj.
----Respondents
Connected With
S.B. Civil Misc. Appeal No. 586/2016
Pawan Kumar S/o Shri Ram Pratap, aged about 30 years,
Resident of Chak 5-E-Chhoti, Sri Ram Colony (Naiwala), Tehsil
and District Sri Ganganagar.
----Appellant
Versus
1. Shyam Sunder S/o Shri Ajeet Ram, Resident of Talvandi
Bhai, Ward No.3, in front of Railway Station, Old Thana
Ghalkhurd, District Firojpur, Punjab (Name of R-1 deleted
vide order dated 14.07.2017)
2. Hardayal Singh S/o Shri Harbansh Singh, Resident of
Talwandi Bhai Mohalla, Street No.4, Near Gurudwara, New
Abadi, Old Station Ghalkhurd, District Firojpur, Punjab
3. The New India Insurance Company Ltd. Through Branch
Manager, Sri Ganganagar.
4. Rajendra Kumar S/o Shri Bhagwana Ram, Resident of
Hindor, Tehsil Suratgarh, District Ganganagar (Raj.)
5. National Insurance Company Ltd., Highway No.15, Sri
Ganganagar, Raj.
----Respondents
S.B. Civil Misc. Appeal No. 589/2016
Pawan Kumar S/o Shri Ram Pratap, aged about 30 years,
Resident of Chak 5-E-Chhoti, Sri Ram Colony (Naiwala), Tehsil
and District Sri Ganganagar.
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[2024:RJ-JD:44104] (2 of 25) [CMA-587/2016]
----Appellant
Versus
1. Shyam Sunder S/o Shri Ajeet Ram, Resident of Talvandi
Bhai, Ward No.3, in front of Railway Station, Old Thana
Ghalkhurd, District Firojpur, Punjab (Name of R-1 deleted
vide order dated 14.07.2017).
2. Hardayal Singh S/o Shri Harbansh Singh, Resident of
Talwandi Bhai Mohalla, Street No.4, Near Gurudwara, New
Abadi, Old Station Ghalkhurd, District Firojpur, Punjab
3. The New India Insurance Company Ltd. Through Branch
Manager, Sri Ganganagar.
4. Rajendra Kumar S/o Shri Bhagwana Ram, Resident of
Hindor, Tehsil Suratgarh, District Ganganagar (Raj.)
5. National Insurance Company Ltd., Highway No.15, Sri
Ganganagar, Raj.
----Respondents
S.B. Civil Misc. Appeal No. 1028/2016
The New India Assurance Company Ltd., Branch Office-
Sriganganagar through its Authorized Officer, T.P. Claims Hub,
Divisional Office-I, Abhay Chambers, Jalori Gate, Jodhpur
----Appellant
Versus
1. Pawan Kumar S/o Shri Ram Pratap Jat, Resident of Chak-5E
Chhoti, Sri Ram Colony (Naiwala), Tehsil and District
Sriganganagar.
2. Shyam Sundar S/o Shri Ajit Ram Arora, Resident of
Talwandibhai, Ward No.3, Opp. Railway Station,
P.S.Dhalkhurd, District Ferozpur Punjab. (Name of R-2
struck off vide order dated 03.03.2017)
3. Hardayal Singh S/o Shri Harbans Singh Arora, Resident of
Talwandibhai, Ward No.3, Opp. Railway Station,
P.S.Dhalkhurd, District Ferozpur Punjab.
4. Rajendra Kumar S/o Shri Bhagwana Ram Brahmin,
Resident of Village Hindore, Tehsil Suratgarh, District
Sriganganagar.
5. National Insurance Company Ltd., Highway No.15, Sri
Ganganagar, Raj.
----Respondents
S.B. Civil Misc. Appeal No. 1030/2016
The New India Assurance Company Ltd., Branch Office-
Sriganganagar through its Authorized Officer, T.P. Claims Hub,
Divisional Office-I, Abhay Chambers, Jalori Gate, Jodhpur
----Appellant
Versus
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[2024:RJ-JD:44104] (3 of 25) [CMA-587/2016]
1. Smt. Neelam W/o Shri Sahiram Jat, Resident of Village
Ramsara, Tehsil Loonkaransar, District Bikaner.
2. Shyam Sundar S/o Shri Ajit Ram Arora, Resident of
Talwandibhai, Ward No.3, Opp. Railway Station,
P.S.Dhalkhurd, District Ferozpur Punjab. (Name of R-2
struck off vide order dated 03.03.2017)
3. Hardayal Singh S/o Shri Harbans Singh Arora, Resident of
Talwandibhai, Ward No.3, Opp. Railway Station,
P.S.Dhalkhurd, District Ferozpur Punjab.
4. Rajendra Kumar S/o Shri Bhagwana Ram Brahmin,
Resident of Village Hindore, Tehsil Suratgarh, District
Sriganganagar.
5. National Insurance Company Ltd., Highway No.15, Sri
Ganganagar, Raj.
----Respondents
S.B. Civil Misc. Appeal No. 1031/2016
The New India Assurance Company Ltd., Branch Office-
Sriganganagar through its Authorized Officer, T.P. Claims Hub,
Divisional Office-I, Abhay Chambers, Jalori Gate, Jodhpur
----Appellant
Versus
1. Pawan Kumar S/o Shri Ram Pratap Jat, Resident of Chak-5E
Chhoti, Sriram Colony (Naiwala), Tehsil and District
Sriganganagar.
2. Shyam Sundar S/o Shri Ajit Ram Arora, Resident of
Talwandibhai, Ward No.3, Opp. Railway Station,
P.S.Dhalkhurd, District Ferozpur Punjab. (Name of R-2
struck off vide order dated 03.03.2017)
3. Hardayal Singh S/o Shri Harbans Singh Arora, Resident of
Talwandibhai, Ward No.3, Opp. Railway Station,
P.S.Dhalkhurd, District Ferozpur Punjab.
4. Rajendra Kumar S/o Shri Bhagwana Ram Brahmin,
Resident of Village Hindore, Tehsil Suratgarh, District
Sriganganagar.
5. National Insurance Company Ltd., Highway No.15, Sri
Ganganagar, Raj.
----Respondents
S.B. Civil Misc. Appeal No. 1034/2016
The New India Assurance Company Ltd., Branch Office-
Sriganganagar through its Authorized Officer, T.P. Claims Hub,
Divisional Office-I, Abhay Chambers, Jalori Gate, Jodhpur
----Appellant
Versus
1. Pawan Kumar S/o Shri Ram Pratap Jat, Resident of Chak-5E
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[2024:RJ-JD:44104] (4 of 25) [CMA-587/2016]
Chhoti, Sriram Colony (Naiwala), Tehsil and District
Sriganganagar.
2. Shyam Sundar S/o Shri Ajit Ram Arora, Resident of
Talwandibhai, Ward No.3, Opp. Railway Station,
P.S.Dhalkhurd, District Ferozpur Punjab. (D. 10.09.2014)
3. Hardayal Singh S/o Shri Harbans Singh Arora, Resident of
Talwandibhai, Ward No.3, Opp. Railway Station,
P.S.Dhalkhurd, District Ferozpur Punjab.
4. Rajendra Kumar S/o Shri Bhagwana Ram Brahmin,
Resident of Village Hindore, Tehsil Suratgarh, District
Sriganganagar.
5. National Insurance Company Ltd., Highway No.15, Sri
Ganganagar, Raj.
----Respondents
S.B. Civil Misc. Appeal No. 1037/2016
The New India Assurance Company Ltd., Branch Office-
Sriganganagar through its Authorized Officer, T.P. Claims Hub,
Divisional Office-I, Abhay Chambers, Jalori Gate, Jodhpur
----Appellant
Versus
1. Smt. Mukhi Devi W/o Shri Om Prakash Jat, Resident of
Ramsara, Tehsil Lunkaransar, District Bikaner
2. Shyam Sundar S/o Shri Ajit Ram Arora, Resident of
Talwandibhai, Ward No.3, Opp. Railway Station,
P.S.Dhalkhurd, District Ferozpur Punjab. (D)
3. Hardayal Singh S/o Shri Harbans Singh Arora, Resident of
Talwandibhai, Ward No.3, Opp. Railway Station,
P.S.Dhalkhurd, District Ferozpur Punjab.
4. Rajendra Kumar S/o Shri Bhagwana Ram Brahmin,
Resident of Village Hindore, Tehsil Suratgarh, District
Sriganganagar.
5. National Insurance Company Ltd., Highway No.15, Sri
Ganganagar, Raj.
----Respondents
S.B. Civil Misc. Appeal No. 1029/2016
The New India Assurance Company Ltd., Branch Office-
Sriganganagar through its Authorized Officer, T.P. Claims Hub,
Divisional Office-I, Abhay Chambers, Jalori Gate,Jodhpur
----Appellant/Non-applicant No.3
Versus
1. Smt. Sunita W/o Shri Pawan Kumar Jat, Resident of Chak
5E Chhoti, Sriram Colony (Naiwala), Tehisl and District
Sriganganagar.
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2. Shyam Sundar S/o Shri Ajit Ram Arora, Resident of
Talwandibhai, Ward No.3, Opp. Railway Station,
P.S.Dhalkhurd, District Ferozpur Punjab. (Name of R-2
struck off vide order dated 03.03.2017)
3. Hardayal Singh S/o Shri Harbans Singh Arora, Resident of
Talwandibhai, Ward No.3, Opp. Railway Station,
P.S.Dhalkhurd, District Ferozpur Punjab.
4. Rajendra Kumar S/o Shri Bhagwana Ram Brahmin,
Resident of Village Hindore, Tehsil Suratgarh, District
Sriganganagar.
5. National Insurance Company Ltd., Highway No.15, Sri
Ganganagar, Raj.
----Respondents
For Appellant(s) : Mr. Hemant Kumar Jain &
Ms. Kusha Sharma.
For Respondent(s) : Mr. Jagdish Vyas, for The India Assu.
Co. Ltd. (Non-claimant No.3/Insurer
of Trailer)
Mr. G.J. Gupta, for Owner of Trailer.
Mr. Kuldeep Vaishnav, for NICL
(Insurer of Jeep/Non-claimant No.5)
HON'BLE DR. JUSTICE NUPUR BHATI
Judgment Reserved on: 23/10/2024 Pronounced on :08/11/2024
1. These misc. appeals have been preferred by both, claimants seeking enhancement of the compensation (CMA Nos.587/2016, 586/2016 & 589/2016) and non-claimant No.3 i.e. The New India Assurance Company Ltd. (CMA Nos.1028/2016, 1030/2016, 1031/2016, 1034/2016, 1037/2016 & 1029/2016) under Section 173 of the Motor Vehicles Act, 1988 ('Act') assailing the validity of the impugned judgment and award dated 08.01.2016 passed by (Downloaded on 11/11/2024 at 09:48:41 PM) [2024:RJ-JD:44104] (6 of 25) [CMA-587/2016] learned Judge, Motor Accident Claims Tribunal (Labour Court), Sri Ganganagar ('Tribunal') in MAC Cases No.23/2010, 24/2010, 25/2010, 34/2010, 35/2010 & 36/2010 respectively, whereby the learned Tribunal awarded compensation in favour of respective claimants along with interest @ 9% p.a. from the date of filing the claim petition(s) and the liability to pay the compensation was fastened upon non-claimants No.1, 2 and 3 jointly and severally.
2. Briefly stated, the facts of the case are that six claim petitions under Section 166 of the Act were filed before the learned Tribunal by respective claimants claiming compensation, the details whereof is summarized in tabular form for convenience:
S. No. MAC Case No. Death/Injury Amount claimed
1. Claim Case No.23/2010 : Claim Petition was filed Rs.2,39,20,000 Pawan Kumar v. Shyam claiming compensation Sunder & Ors. on account of death of Pradeep (Brother of Claimant Pawan Kumar)
2. Claim Case No.24/2010 : Claim Petition was filed Rs.91,87,670 Pawan Kumar v. Shyam claiming compensation Sunder & Ors. on account of death of Sh. Ram Paratap (Father of Claimant Pawan Kumar)
3. Claim Case No.25/2010 : Claim Petition was filed Rs.22,14,000 Pawan Kumar v. Shyam claiming compensation Sunder & Ors. on account of death of Smt. Nirmala (Mother of Claimant Pawan Kumar)
4. Claim Case No.34/2010 : Claim Petition was filed Rs.39,50,000 Mukhi Devi v. Shyam Sunder claiming compensation & Ors. on account of death of Sh. Purnram (Son of Claimant Mukhi Devi)
5. Claim Case No.35/2010 : Claim Petition was filed Rs.34,70,000 Sunita v. Shyam Sunder & claiming compensation Ors. on account of injuries suffered by her.
6. Claim Case No.36/2010 : Claim Petition was filed Rs.37,48,000 Neelam v. Shyam Sunder & claiming compensation Ors. on account of injuries suffered by her.(Downloaded on 11/11/2024 at 09:48:41 PM)
[2024:RJ-JD:44104] (7 of 25) [CMA-587/2016] In the claim petitions, it was inter-alia stated that by the claimants that on 06.02.2009 in the morning, deceased Pradeep Kumar along with his father Rampratap (deceased), mother Nirmala, sister Neelam, Purn Bhagat @ Purnaram, Smt. Sunita and nephew were going to Ramdeora in Commander Jeep bearing number RJ- 13-C-4088, which jeep was driven by Rampratap. When they reached two kilometer ahead of Village Nokhadra at 07:30 pm in the evening, the Jeep met with an accident with a Truck Trailer bearing number PB-05L-9688 ('offending vehicle'), which was illegally parked in the middle of the road without any indicator of light. In the claim petition, it was further stated that though the driver of the jeep applied the brakes of the jeep, but since the driver of the offending vehicle parked its truck in the middle of the road and covered it with Tripal, the same could not be seen from a distance, as a result of which, the Jeep collided with the offending vehicle. In the said accident, Puran Bhagat @ Purnaram, Pradeep Kumar, Rampratap and Nirmala died on the spot, and other occupants of the jeep viz. Sunita and Neelam sustained grievous injuries. An FIR of the accident was also lodged at concerned police station, wherein after investigation, charge sheet was filed against the driver and owner of the offending vehicle.
3. Upon receipt of the summons of the claim petitions, the non- claimants No.1 and 2 i.e. driver and owner of the offending vehicle filed reply to the claim petitions while denying the facts averred in the claim petitions. It was stated that there was no fault of the driver of the offending vehicle and it was driver of the jeep, who drove his vehicle rashly/negligently and collided with the Truck, (Downloaded on 11/11/2024 at 09:48:41 PM) [2024:RJ-JD:44104] (8 of 25) [CMA-587/2016] which was parked on the side road. It was further stated that the vehicle was insured with non-claimant No.3, therefore, the insurance company was liable for payment of the compensation, if any.
4. On behalf of non-claimant No.3 (appellant herein), reply was filed while taking the stand that the accident took place on account of negligence on the part of driver of the jeep, inasmuch as the jeep collided with the truck from behind. It was further stated that the vehicles were being plied without license, permit and fitness etc. The non-claimant No.3 further stated that it was not informed about the accident soon after the accident by its owner, therefore, on account of violation of conditions of the policy, it was not liable to pay the compensation.
5. On behalf of non-claimant No.4 i.e. owner of the Jeep, no body appeared and, therefore, exparte proceedings were drawn against him on 27.04.2011.
6. On behalf of non-claimant No.5 insurer of jeep, it was stated that the accident occurred due to negligence on the part of driver of the offending vehicle, as it was parked in the middle of the road and further the charge sheet was filed against the driver/non- claimant No.1 by the police. It was further stated that at the time of accident, the driver of the jeep was not having valid and effective license and that the occupants of the jeep were not covered as the policy was act only policy. It was thus prayed that the claim petition qua non-claimant No.5 be rejected.
7. As per the pleadings of the parties, the learned Tribunal framed as many as ten issues including reliefs. To prove their case, the claimants examined three witnesses. In documentary (Downloaded on 11/11/2024 at 09:48:41 PM) [2024:RJ-JD:44104] (9 of 25) [CMA-587/2016] evidence, Ex.1 to Ex.121 were exhibited. On behalf of non- claimants, NAW.1 Jagdish Chandra, NAW.2 were examined and three documents were exhibited viz. NAW.5/1 to NAW 5/3.
8. The learned Tribunal thereafter heard arguments of the parties and after considering the evidence adduced by the parties partly allowed the claim petition and awarded compensation of Rs.75,000/- in Case No.23/2010, Rs.25,33,560/- in Case No.24/2010, Rs.75,000 in Case No.25/2010, Rs.2,50,000/- in Case No.34/2010, Rs.83,532/- in Case No.35/2010 and Rs.1,48,314/- in Case No.36/2010 respectively along with interest @ 9% p.a. from the date of filing the claim petitions. Non- claimants No.1, 2 and 3 were jointly and severally held responsible for paying the compensation.
9. Aggrieved by the same, the misc. appeals - S.B.CMA no.586/2016 (wherein award passed in MAC Case No.23/2010 is challenged), S.B.CMA no.587/2016 (wherein the award passed in MAC Case No.34/2010 is challenged) and S.B.CMA no.589/2016 (wherein the award passed in MAC Case No.25/2010 is challenged) have been preferred by the respective claimants. And the misc. appeals - S.B.CMA no.1028/2016 (wherein the award passed in MAC Case No.23/2010 is challenged), S.B.CMA no.1030/2016 (wherein the award passed in MAC Case No.36/2010 is challenged), S.B.CMA no.1031/2016 (wherein the award passed in MAC Case No.25/2010 is challenged), S.B.CMA no.1034/2016 (wherein the award passed in MAC Case No.24/2010 is challenged), S.B.CMA no.1037/2016 (wherein the award passed in MAC Case No.34/2010 is challenged) and S.B.CMA no.1029/2016 (wherein the award passed in MAC Case (Downloaded on 11/11/2024 at 09:48:41 PM) [2024:RJ-JD:44104] (10 of 25) [CMA-587/2016] No.35/2010 is challenged) have been preferred by the non- claimant no.3/insurance company. The misc. appeals preferred by the appellant/non-claimant No.3 viz. CMA Nos.1028/2016, 1029/2016, 1030/2216, 1031/2016 and 1037/2016, were admitted by a Coordinate Bench of this Court vide order dated 30.05.2016 and the stay applications were rejected.
10. So far as CMA No.1034/2016 preferred by appellant Insurance Company is concerned, the Coordinate Bench of this Court while admitting the appeal vide order dated 30.05.2016 granted interim order while directing the appellant Insurance Company to deposit 70% of the amount of compensation awarded by the Tribunal inclusive amount already deposited within a period of one month. The amount upon being deposited was directed to be disbursed to the claimant in terms of the award on furnishing solvent security and undertaking to the satisfaction of the learned Tribunal that in case the appeal filed by the Insurance Company succeeds, they shall refund back the amount with 6% interest. The recovery for rest of the award/amount qua the appellant- Insurance Company was stayed.
11. Learned counsel appearing for the claimant Mukhi Devi (CMA No.587/2016) contended that for the death of claimant's son, namely, Puran Bhagat @ Purna Ram, who at the relevant point of time was 12 years of age and he was studying in 6 th standard, while deciding the Issue No.7, the learned Tribunal has awarded compensation of Rs.2,25,000/-, which is on lower side. Learned counsel for the claimant contended that the same deserves to be enhanced while considering the notional income of the deceased at Rs.30,000/- while applying the multiplier of 15. Learned (Downloaded on 11/11/2024 at 09:48:41 PM) [2024:RJ-JD:44104] (11 of 25) [CMA-587/2016] counsel for the appellant/claimant contended that the compensation awarded under the other heads is also on lower side and the same also deserves to be suitably enhanced.
12. Learned counsel appearing for the claimant Pawan Kumar (CMA No.586/2016) contended that claimant's brother, namely, Pradeep Kumar, who at the relevant point of time was 21 years of age and had cleared the IELTS Exams lost his life in the accident. Learned counsel for the claimant contended that while deciding the Issue No.4, the learned Tribunal though observed that income of the deceased could have been determined at Rs.48,000/- while adding 50% future prospects, however, while quantifying the compensation, the learned Tribunal has erred in holding that the claimant could not be said to be dependent on his brother, Pradeep Kumar (deceased) and refused to award any amount under the head of loss of income.
13. Learned counsel appearing for the claimant Pawan Kumar (CMA No.589/2016) contended that the learned Tribunal has awarded a meager compensation of Rs.75,000/- in favour of claimant, on account of untimely death of claimant's mother Smt. Nirmala. Learned counsel for the appellant/claimant submitted that the learned Tribunal has erred in not awarding a single penny under the head of loss of dependancy.
14. On the other hand, learned counsel appearing for the Insurance Company opposed the submissions made by counsel for the claimants. He contended that the burden of establishing the negligence of the driver of offending vehicle was upon the claimants, however, they utterly failed to prove the negligence on the driver of offending vehicle. Learned counsel for the Insurance (Downloaded on 11/11/2024 at 09:48:41 PM) [2024:RJ-JD:44104] (12 of 25) [CMA-587/2016] Company further contended that as per the site plan and site inspection memo, there were skidding marks of applying brake by the driver of the jeep for a distance of 45 feet, which clearly establishes that the jeep was being driven at a very high speed and it was the driver of the jeep, who lost his control over the jeep and dashed with the rear part of the offending vehicle, moving ahead in the correct side of the road. Learned counsel for the Insurance Company further contended that it was a case of contributory negligence on the part of driver of the jeep as well, inasmuch as the deceased (Rampratap, driver of jeep) failed to take adequate care and caution while driving the jeep and contributed towards the accident. Learned counsel for the Insurance Company, in alternate contended that even if it is presumed that the offending vehicle was stationary on the road, offending vehicle was parked in the side of the road i.e. the same was standstill position and even though there was adequate way for the jeep, however, the driver of the jeep while plying his jeep negligently, firstly could not see the offending vehicle and secondly failed to apply brakes diligently and dashed with the offending vehicle from behind. Learned counsel for the Insurance Company further submits that the learned Tribunal has misread the site plan and observed that the accident took place in the middle of the road, whereas the accident took place towards left side of the road, which indicates that the offending vehicle was parked in the extreme left of the road and it was the jeep, which deviated from its path and dashed with the offending vehicle.
15. Learned Counsel for the non-claimant no.3-Insurance Company in S.B.CMA no.586/2016, S.B.CMA no.587/2016, (Downloaded on 11/11/2024 at 09:48:41 PM) [2024:RJ-JD:44104] (13 of 25) [CMA-587/2016] S.B.CMA no.589/2016, S.B.CMA no.1028/2016, S.B.CMA no.1030/2016, S.B.CMA no.1031/2016, S.B.CMA no.1037/2016 and S.B.CMA no.1029/2016, restricted his arguments only to the issue of negligence.
16. Learned counsel for the appellant Insurance Company in S.B.CMA no.1034/2016 (wherein the award passed in MAC Case No.24/2010 is challenged) submitted that the learned tribunal was not justified in awarding compensation of Rs.24,58,560/- under the head of loss of income/dependency on account of death of deceased-Rampratap (father of the appellant/claimant), inasmuch as the learned Tribunal has not deducted income tax for the purpose of assessing the net income of the deceased while determining the income of the deceased as per the income slab of the relevant year i.e. 2009-10. He further submitted that the learned tribunal has erred in making deduction of 1/3 instead of 1/2 on account of personal expenses of the deceased-Rampratap as there is only one dependant/claimant.
17. While controverting the submissions made by counsel for the Insurance Company with respect to non-deduction of income tax from the income considered by the learned Tribunal, learned counsel appearing for the claimant contended that no evidence in this regard was adduced by the insurance company before the learned Tribunal and not before this Court.
18. Per Contra, so far as contentions raised by counsel for the Insurance Company in relation to negligence of driver of jeep is concerned, learned counsel for the claimant(s) submitted that injured eye-witness, namely, AW.3 Sunita (who was also travelling in the Jeep at the time of the accident) in her statements stated (Downloaded on 11/11/2024 at 09:48:41 PM) [2024:RJ-JD:44104] (14 of 25) [CMA-587/2016] that her father-in-law (Rampratap) was plying the jeep and at about 07:30 pm, when they reached two kilometer ahead of Village Nokhadra, the offending vehicle was parked in the middle of the road without any indicator or parking lights being on and even though brakes were applied, but even after skidding to the extent of 45 feet, the jeep collided with the offending vehicle, as a result of which, Rampratap, Smt. Nirmala Devi, Pradeep and Purn Bhagat died and she (AW.3) and Neelam sustained injuries. Similar statements were given by AW.1 and AW.2. Learned counsel for the claimant further argued that charge sheet was filed against the driver of the offending vehicle for offences under Sections 279, 337, 338, 304A of IPC and Sections 121 and 122/77, 134/187 of the M.V. Act. Learned counsel for the claimants submitted that no evidence was led by the non-claimant No.3 Insurance Company controverting the testimonies of the said witnesses, thus, the learned tribunal has rightly decided the issue of negligence against the non-claimant no.3-insurance company.
19. Further, the learned counsel appearing for the owner of the Jeep contended that the accident occurred due to the negligence of the driver of the offending vehicle as it was parked in the middle of the road without any indicator that too at the night hours. In support of his contention, he relied upon judgments passed by the hon'ble supreme Court passed in SUSHMA VERSUS NITIN GANAPATI RANGOLE & ORS. [CIVIL APPEAL NO(S). 10648 OF 2024, decided on 19.09.2024] and the judgment passed by this Court in Kailash Kunwar & Ors. v. Nawal Singh & Ors [SBCMA No.746/2017, Decided on 10.09.2024].
(Downloaded on 11/11/2024 at 09:48:41 PM) [2024:RJ-JD:44104] (15 of 25) [CMA-587/2016]
20. Learned counsel for the appellant/non-claimant No.3 Insurance Company relied upon judgments in Oriental Insurance Co. Ltd. v. Premlata Shukla & Ors. : (2007) 13 SCC 476, Nishan Singh & Ors. v. Oriental Insurance Co. Ltd. & Ors. : 2018 (1) RAR 129 (SC) and Pramod Kumar Rasikbhai Jhaveri v. Karmasey Kunvargi Tak & Ors. : (2002) 6 SCC 455.
21. I have considered the submissions made by counsel for the parties length and have perused the material available as also judgments cited at bar.
22. So far as the contention raised by counsel for the appellant Insurance Company with regard to negligence on the part of driver of jeep is concerned, this Court finds that the learned Tribunal while deciding the Issue No.1 has considered the Site Plan (Ex.5), according to which, the offending vehicle was parked without using parking indicator or any sign in the middle of the road and there were skidding marks of tyres of jeep, and the aforesaid fact has not been controverted by the non-claimant No.3. Learned Tribunal has also considered that AW.3 Sunita, who is eyewitness and was travelling in the jeep at the time of the accident, in her statements stated that her father-in-law (deceased-Rampratap) was plying the jeep and at about 07:30 pm, when they reached two kilometer ahead of Village Nokhadra, the offending vehicle was parked in the middle of the road and even though applying the brakes diligently the jeep skidded to the extent of 45 feet and collided with the offending vehicle due to low visibility. The testimony of said witness has not been controverted by the non- claimants by leading contrary evidence in this regard. This court also finds that, the accident occurred on 06.02.2009 at around (Downloaded on 11/11/2024 at 09:48:41 PM) [2024:RJ-JD:44104] (16 of 25) [CMA-587/2016] 7:30 PM on a highway where the usual speed of the vehicles are higher than on any other road. Further, it was the month of February when the accident took place, which usually falls in the winter period, thus it can be expected that at 7:30 PM there must have been pitch dark on the highway as no contrary evidence has been placed on record to show that there was lights on the said part of highway. Thus, in view of the peculiar facts and circumstances, it cannot be expected that the driver of the Jeep could have seen that the offending vehicle was parked in the middle of the road. Also, the marks of tyre of Jeep on the road as mentioned in the Site plan, clearly show that the driver of the Jeep tried his best to avoid the accident as soon as the offending vehicle was visible to him. Also it is not expected that in the middle of the road on a highway a vehicle would be parked. Further, the fact that the offending vehicle was parked in the middle of the road without any parking light or indicator that to at the night hours makes it evident that the negligence in the given circumstances is attributable solely to the driver of the offending vehicle. This court finds that the Hon'ble Supreme Court in SUSHMA VERSUS NITIN GANAPATI RANGOLE & ORS. [CIVIL APPEAL NO(S). 10648 OF 2024, decided on 19.09.2024], while dealing with similar facts wherein the offending vehicle was parked on a highway and another vehicle collided with it, held the person in control of the offending vehicle solely responsible for the accident. The relevant paragraphs of the aforesaid judgment are as under:
"40. On a holistic analysis of the material available on record, it is established beyond the pale of doubt that the offending truck was parked in the middle of the road (Downloaded on 11/11/2024 at 09:48:41 PM) [2024:RJ-JD:44104] (17 of 25) [CMA-587/2016] without any parking lights being switched on and without any markers or indicators being placed around the stationary vehicle so as to warn the incoming vehicular traffic. This omission by the person in control of the said truck was in clear violation of law. The accident took place on a highway where the permissible speed limits are fairly high. In such a situation, it would be imprudent to hold that the driver of a vehicle, travelling through the highway in the dead of the night in pitch dark conditions, would be able to make out a stationary vehicle lying in the middle of the road within a reasonable distance so as to apply the brakes and avoid the collision. The situation would be compounded by the headlights of the vehicles coming from the opposite direction and make the viewing of the stationary vehicle even more difficult. Thus, the conclusion drawn by the Courts below that the driver of the car could have averted the accident by applying the brakes and hence, he was equally negligent and contributed to the accident on the application of principle of last opportunity is ex-facie perverse and cannot be sustained. Hence, it is a fit case warranting exercise of this Court's powers under Article 136 of the Constitution of India to interfere with the concurrent finding of facts.
41. We, therefore, hold that the person in control of the offending truck insured by respondent No. 2-Insurer, was fully responsible for the negligence leading to the accident."
Thus, considering the overall facts and circumstances of the case, this Court is of the considered view that the learned Tribunal has not committed any error while deciding the Issue No.1 (with respect to negligence of the offending vehicle) against the non- claimants No.1, 2 and 3. Therefore, this court is not inclined to interfere with respect to the finding of the learned tribunal in this regard.
(Downloaded on 11/11/2024 at 09:48:41 PM) [2024:RJ-JD:44104] (18 of 25) [CMA-587/2016]
23. Further, this Court finds considerable force in the submission made by counsel for the appellant/claimant in CMA No.587/2016 that the compensation of Rs.2,50,000/- awarded by the learned Tribunal in favour of claimant in a case of death of 12 years' child is on lower side. This court finds that the Hon'ble Supreme Court in Kishan Gopal and Ors. Vs. Lala and Ors.[(2014) 1 SCC 244], where the age of the deceased child was 10 years has taken the notional income of the deceased child as Rs. 30,000/- p.a. looking to the facts and circumstances. Further, the Hon'ble Supreme Court in Kurvan Ansari and Ors. Vs. Shyam Kishore Murmu and Ors.[(2022) 1 SCC 317], where the age of the deceased child was 7 years, has taken notional income of the deceased child as Rs.25,000/- p.a. and after applying Multiplier of 15 granted total of Rs.3,75,000/- under the head of 'loss of dependency' and also an amount of Rs.40,000/- to each of the parents under the head of filial consortium and Rs.15,000/- under the head of funeral expenses. Further, the Hon'ble Supreme Court in Meena Devi Vs. Nunu Chand Mahto and Ors[(2023) 1 SCC 204], where the age of the deceased child was 12 years, has taken the notional income as Rs.30,000/- p.a. including future prospect and applied Multiplier of 15 to arrive at the compensation awardable under the head of 'loss of dependency' and awarded Rs.50,000/- under the conventional heads.
24. Thus, looking to the age of the deceased child (Puran Bhagat @ Purna Ram, who was 12 years of age at the time of accident) and peculiar facts and circumstances of the present case and in the light of the above cited judgments, this Court deems it appropriate to take the notional income of the deceased child as (Downloaded on 11/11/2024 at 09:48:41 PM) [2024:RJ-JD:44104] (19 of 25) [CMA-587/2016] Rs.30,000/- p.a. Further, the applicable multiplier would be of 15 in the light of the judgment of the Honble Supreme Court in Divya vs. The National Insurance Co. Ltd. and Ors. [2022 INSC 1108]. Further, looking to the fact that only one claimant is there, this court deems it just to modify the compensation awarded under the conventional heads by learned tribunal to Rs.67,000/- (rounded off from Rs.66,550/-).
25. Thus, in view of discussion, the compensation awardable to the appellant/claimant in CMA No.587/2016 is quantified as under:
Particulars Awarded by Tribunal Awarded/modified by the Court Loss of dependancy Rs. 1,75,000/- Rs. 4,00,000/-
(i.e. 30,000 x 15) (after deducting (after deducting
Rs.50,000/- already Rs.50,000/- already
provided as interim provided as interim
compensation) compensation)
Conventional Heads 75,000/- Rs.67,000/- (Rounded Off)
Total 2,50,000/- Rs.4,67,000/-
Enhanced Amount [D]-[C] Rs.4,67,000 - Rs.2,50,000 = Rs.2,17,000/-
26. Thus, in view of the afroresaid discussion the misc. appeal-
S.B.CMA No.587/2016 preferred by the appellant/claimant is partly allowed. The impugned award passed by the learned tribunal is modified accordingly. Therefore, the appellants/claimants are held entitled to get enhanced compensation of Rs.2,17,000/- along with interest @9% (same as awarded by the learned Tribunal) from the filing of the claim petition in the same manner as directed by the learned tribunal. The amount of compensation, if any disbursed to the appellants/claimants, shall be adjusted accordingly. (Downloaded on 11/11/2024 at 09:48:41 PM) [2024:RJ-JD:44104] (20 of 25) [CMA-587/2016]
27. Insofar as CMA No.586/2016 preferred by appellant/claimant seeking enhancement of compensation is concerned, this court finds that the deceased-Pradeep was younger brother of the appellant/claimant, and was not earning anything. Further, as the deceased-Rampratap (Father of appellant-Pawan Kumar and the Deceased-Pradeep) was alive before the accident, thus, in the presence of the father (deceased-Rampratap) who was in a permanent job and was earning, it cannot be said that the appellant/claimant was dependant on the deceased-Pradeep, therefore, the learned tribunal has rightly not awarded any compensation under the head of loss of dependancy. However, this court finds that the learned tribunal has not awarded any compenstion under the head of loss of estate, thus, in light of the judgment of the Hon'ble Supreme Court passed in National Insurance Co. Ltd. v. Pranay Sethi[(2017) 16 SCC 680], this court deems it just to award Rs.18,150/- under the head of loss of estate. Further, in the light of judgment of the Hon'ble Supreme Court in Pranay Sethi(Supra), the amount awarded under the heads of Loss of consortium and funeral expenses is modified to Rs.48,400/- and 18,150/- respectively. Therefore, the compensation payable to appellant/claimant in S.B. CMA no.586/2016 is as under:
S. No. Particulars Amount Amount
awarded by the awarded and
Tribunal enhanced by
this Court
1. Loss of consortium Rs.50,000/- Rs.48,400/-
2. Funeral expenses Rs.25,000 Rs. 18,150/-
3. Loss of Estate Nil Rs. 18,150/-
Total Rs.75,000/- Rs.84,700/-
Enhanced Compensation (84,700 - 75,000) = Rs.9,700/- (Downloaded on 11/11/2024 at 09:48:41 PM) [2024:RJ-JD:44104] (21 of 25) [CMA-587/2016] Accordingly, and in view of the above discussion, the appeal - S.B. CMA no.586/2016 preferred by the appellant/claimant is partly allowed and the appellant/claimant is held entitled to receive enhanced compensation of Rs.9,700/- in addition to what has been awarded by the learned Tribunal i.e. Rs.75,000/- along with interest @9% (same as awarded by the learned Tribunal) from the filing of the claim petition in the same manner as directed by the learned tribunal. The amount of compensation, if any disbursed to the appellants/claimants, shall be adjusted accordingly.
28. Now adverting to S.B. CMA No.589/2016 (wherein the award passed in MAC Case No.25/2010 is challenged), this court finds that the learned tribunal has observed that the deceased-Nirmala was mother of the appellant/claimant and was not earning anything. Also, the appellant/claimant was dependant on the deceased-Rampratap (father of appellant/claimant). Thus, in view of peculiar facts and circumstances of the present case, it cannot be said that appellant/claimant was dependant on deceased- Nirmala nor can it be said that he has faced inconvenience in the household chores as he was already married as on the date of the accident. Therefore, in considered view of this court, the learned Tribunal has rightly not awarded any compensation under the head of loss of dependancy on account of death of claimant's mother Smt. Nirmala, who was not earning anything. However this court finds that the learned tribunal has not awarded any compensation under the head of loss of estate, thus, in light of the judgment of the Hon'ble Supreme Court passed in Pranay Sethi[(Supra), this court deems it just to award Rs.18,150/- under the head of loss of estate. Further, in the light of Pranay (Downloaded on 11/11/2024 at 09:48:41 PM) [2024:RJ-JD:44104] (22 of 25) [CMA-587/2016] Sethi(Supra), the amount awarded under the heads of Loss of consortium and funeral expenses is modified to Rs.48,400/- and 18,150/- respectively.
Accordingly, in view of above discussion, the misc. appeal- S.B.CMA No.589/2016 preferred by the appellant/claimant is partly allowed. The judgment and award dated 08.01.2016 passed by learned Tribunal in MAC Case No.25/2010 is modified accordingly and the claimant is held entitled to get enhanced compensation as under:
S. No. Particulars Amount Amount
awarded by the awarded and
Tribunal enhanced by
this Court
1. Loss of consortium Rs.50,000/- Rs.48,400/-
2. Funeral expenses Rs.25,000 Rs. 18,150/-
3. Loss of Estate Nil Rs. 18,150/-
Total Rs.75,000/- Rs.84,700/-
Enhanced Compensation (84,700 - 75,000) = Rs.9,700/-
29. Therefore, the appellant/claimant in S.B.CMA No.589/2016 is held entitled to receive enhanced compensation of Rs.9,700/- in addition to what has been awarded by the learned Tribunal i.e. Rs.75,000/- along with interest @9% (same as awarded by the learned Tribunal) from the filing of the claim petition in the same manner as directed by the learned tribunal. The amount of compensation, if any disbursed to the appellants/claimants, shall be adjusted accordingly.
30. Accordingly and in view of above discussion, this Court finds no force in the misc. appeals (CMA Nos. 1028/2016, 1029/2016, 1030/2216, 1031/2016 and 1037/2016) preferred by the appellant/non-claimant No.3-insurance company, and, therefore, the same are dismissed being devoid of any merit. (Downloaded on 11/11/2024 at 09:48:41 PM) [2024:RJ-JD:44104] (23 of 25) [CMA-587/2016]
31. So far as CMA No.1034/2016 preferred by the appellant/non- claimant No.3 is concerned, this Court finds force in the submission made by counsel for the appellant that income tax ought to have been deducted from the gross income of the deceased- Ram Pratap. It is settled law, as propounded by Hon'ble Apex Court in the case of Vimal Kanwar & Ors. v. Kishore Dan & Ors. : 2013 ACJ 1441, wherein the Hon'ble Apex Court has held that while assessing/quantifying the compensation under the loss of income/dependency, the tax payable on the income of the deceased has to be deducted and thus taking into consideration the tax slab of the relevant year i.e. 2009-10, the tax payable on the annual income of the deceased ought to be deducted while adding 30% towards future prospects and applying the multiplier of 13. The claimant is also held entitle to get compensation of Rs.18,150/- under the head of loss of estate.
The calculation with regard to yearly income of the deceased-Rampratap after deduction of Income Tax is as follows:
Monthly income of deceased Rampratap : Rs.18,185.00 Yearly Income : 18,185 x 12 = 2,18,220.00 Less standard deduction 1,60,000.00 Taxable Income 58,220.00 @ 10% = 5822 Add: Cess 3% 175 Tax liability 5997 Round off Rs.6000/-. Net yearly income after deduction of income tax (Rs.2,18,220 - Rs.6000): = Rs.2,12,220/-.
32. This court also finds that learned tribunal has not awarded any compensation under the head of loss of estate. Thus, this court deems it just to award Rs.18,150/- under the head of loss of estate in the light of the judgment of the Hon'ble Supreme Court in Pranay Sethi (Supra). Also, in the light of Pranay Sethi (Supra), (Downloaded on 11/11/2024 at 09:48:41 PM) [2024:RJ-JD:44104] (24 of 25) [CMA-587/2016] the amount awarded under the heads of loss of consortium and funeral expenses is modified as Rs.48,400/- and Rs.18,150/- respectively. Further, this court finds that the learned tribunal has erred in making deduction of 1/3 instead of 1/2 as there is only one claimant in the present case, thus, looking to the peculiar facts and circumstances of the case, this court is of the considered view that deduction of 1/2 ought to be made towards personal expenses of deceased-Rampratap in light of the judgment of the Hon'ble Supreme Court passed in Sarla Verma v. Delhi Transport Corporation : AIR 2009 SC 3104. Thus, in view of the above, the amount of compensation payable to the claimant (in S.B.CMA No.1034/2016) is as under: -
S. No. Particulars Amount Amount
awarded by the awarded and
Tribunal enhanced by
this Court
1. Compensation under the head of loss of Rs.24,58,560/- Rs.17,93,259/-
dependency
Yearly Income = Rs.2,12,220/-
Add: 30% future prospects Rs. 63,666/-
Rs.2,75,886/-
Less: 1/2 deduction Rs.1,37,943/-
Rs.1,37,943/-
1,83,924 x 13 = 17,93,259/-
2. Loss of consortium Rs.50,000/- Rs.48,400/-
3. Funeral expenses Rs.25,000 Rs. 18,150/-
4. Loss of Estate Nil Rs. 18,150/-
Total Rs.25,33,560/- Rs.18,77,959/-
Reduced Compensation (25,33,560- 18,77,959) = Rs.6,55,601/- Accordingly, in view of above discussion, the misc. appeal- S.B.CMA No.1034/2016 preferred by the appellant/non-claimant No.3 is partly allowed only to the extent of quantum of compensation. The judgment and award dated 08.01.2016 passed by learned Tribunal in MAC Case No.24/2010 is partially modified and the claimant is held entitled to get compensation of (Downloaded on 11/11/2024 at 09:48:41 PM) [2024:RJ-JD:44104] (25 of 25) [CMA-587/2016] Rs.18,77,959/- instead of Rs.25,33,560/- along with interest @9% (same as awarded by the learned Tribunal) from the filing of the claim petition in the same manner as directed by the learned tribunal. The amount of compensation, if any disbursed to the appellants/claimants, shall be adjusted accordingly.
33. Therefore, in view of the discussion in the above paragraphs, the appeals filed by the claimants being SBCMA No.587/2016, SBCMA No.586/2016 & SBCMA No.589/2016 are partly allowed and the appeals filed by the Insurance Company being SBCMA No.1028/2016, 1029/2016, 1030/2016, 1031/2016, 1037/2016 are dismissed and appeal preferred by the Insurance Company being SBCMA No.1034/2016 is partly allowed only to the extent of quantum of compensation.
34 The amount of compensation already paid pursuant to the interim order shall be taken into consideration/adjusted. No order as to costs.
(DR.NUPUR BHATI),J 60 to 67 & S-1-DJ/-
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