Miss. Devli vs Rajkumar And Anr on 10 February, 2021

[Cites 13, Cited by 0]

Rajasthan High Court - Jodhpur

Miss. Devli vs Rajkumar And Anr on 10 February, 2021

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Misc. Appeal No. 2299/2013
Miss. Devli d/o Shri Jai Ram Vagariya, aged about 06 years
(minor) through Natural Guardian father Jai Ram Vagariya s/o
Shri Varda, by caste Vagariya, r/o Vadiyar, Tehsil Mawali District
Udaipur
----Appellant
Versus
1. Rajkumar s/o Shri Durga Ram Banjara, Resident of 442
Banjara Basti, Nahar Magara, Udaipur.
Owner & Driver of Truck No. RJ-27-GA-5447
2. M/s Bharati Axa General Insurance Company Ltd. through its
Branch Manager, Third Floor, Centre Point, Airport Road,
Opposite B.N. College, Udaipur.
Insurer of Truck No. RJ-27-GA-5447
----Respondent
Connected With
S.B. Civil Misc. Appeal No. 2287/2013
Smt. Sundar w/o Late Shri Khema, age 42 years, b/c Vagariya,
r/o Ladana, Tehsil Mawali District Udaipur
----Appellant
Versus
1. Rajkumar s/o Shri Durga Ram Banjara, r/o 442 Banjara Basti,
Nahar Magara, Udaipur.
Owner & Driver of Truck No. RJ-27-GA-5447
2. M/s Bharati Axa General Insurance Company Ltd. through its
Branch Manager, Third Floor, Centre Point, Airport Road,
Opposite B.N. College, Udaipur.
Insurer of Truck No. RJ-27-GA-5447

----Respondent
S.B. Civil Misc. Appeal No. 2288/2013
Ratan s/o Late. Shri Khema, age 17 years (minor) through
Natural Guardian Mother Smt. Sundar w/o Late. Shree Khema,
b/c Vagariya, r/o Ladana, Tehsil Mawali District Udaipur
----Appellant
Versus
1. Rajkumar s/o Shri Durga Ram Banjara, r/o 442 Banjara Basti,
Nahar Magara, Udaipur.
Owner & Driver of Truck No. RJ-27-GA-5447
2. M/s Bharati Axa General Insurance Company Ltd. through its
Branch Manager, Third Floor, Centre Point, Airport Road,
Opposite B.N. College, Udaipur.
Insurer of Truck No. RJ-27-GA-5447
----Respondent
S.B. Civil Misc. Appeal No. 2289/2013

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Smt. Pyari w/o Shri Jai Ram, age 32 years, b/c Vagariya r/o
Vadiyar, Tehsil Mawali, District Udaipur
----Appellant
Versus
1. Rajkumar s/o Shri Durga Ram Banjara, r/o 442 Banjara Basti,
Nahar Magara, Udaipur.
Owner & Driver of Truck No. RJ-27-GA-5447
2. M/s Bharati Axa General Insurance Company Ltd. through its
Branch Manager, Third Floor, Centre Point, Airport Road,
Opposite B.N. College, Udaipur.
Insurer of Truck No. RJ-27-GA-5447
----Respondent
S.B. Civil Misc. Appeal No. 2290/2013
Jai Ram s/o Shri Varda Vagariya age 37 years b/c Vagariya, R/o
Vadiyar, Tehsil Mawali, District Udaipur.
----Appellant
Versus
1. Rajkumar s/o Shri Durga Ram Banjara, r/o 442 Banjara Basti,
Nahar Magara, Udaipur.
Owner & Driver of Truck No. RJ-27-GA-5447
2. M/s Bharati Axa General Insurance Company Ltd. through its
Branch Manager, Third Floor, Centre Point, Airport Road,
Opposite B.N. College, Udaipur.
Insurer of Truck No. RJ-27-GA-5447
----Respondent
S.B. Civil Misc. Appeal No. 2291/2013
1. Varada s/o Shri Jeeva Vagariya, aged about 52 years, b/c
Vagariya R/o Village Seed Tehsil Vallabh Nagar, District Udaipur
2. Nathi w/o Shri Varda, aged about 50 b/c Vagariya R/o Village
Seed Tehsil Vallabh Nagar, District Udaipur
3. Smt. Bhuri w/o Late Shri Narain Vagariya aged about 42
years, b/c Vagariya R/o Village Seed Tehsil Vallabh Nagar,
District Udaipur
4. Magani Ram s/o Shri Narain aged about 22 years, b/c
Vagariya R/o Village Seed Tehsil Vallabh Nagar, District Udaipur
5. Shankar s/o Shri Narain Vagariya, abed about 17 years
(minor)
6. Miss Jamanal d/o Shri Narain Vagariya, abed about 12 years
(minor)
7. Miss Ganeshi d/o Late Shri Narain Vagariya, abed about 10
years (minor)
Appellant No. 5 to7 are minor through natural guardian mother
Smt. Bhuri (appellant-claimant No. 3) b/c Vagariya R/o Village
Seed Tehsil Vallabh Nagar, District Udaipur
----Appellant
Versus
1. Rajkumar s/o Shri Durga Ram Banjara, r/o 442 Banjara Basti,
Nahar Magara, Udaipur.
Owner & Driver of Truck No. RJ-27-GA-5447
2. M/s Bharati Axa General Insurance Company Ltd. through its

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Branch Manager, Third Floor, Centre Point, Airport Road,
Opposite B.N. College, Udaipur.
Insurer of Truck No. RJ-27-GA-5447
----Respondent
S.B. Civil Misc. Appeal No. 2292/2013
1. Smt. Sunder w/o Late Shri Khema, aged about 40 years, b/c
Vagariya, r/o Ladana, Tehsil Mawali, District Udaipur
2. Ratan s/o Late Shri Khema, aged about 15 years, b/c
Vagariya, r/o Ladana, Tehsil Mawali, District Udaipur.
Minor through natural guardian his mother Smt. Sunder
(appellant-claimant No.1)
----Appellant
Versus
1. Rajkumar s/o Shri Durga Ram Banjara, r/o 442 Banjara Basti,
Nahar Magara, Udaipur.
Owner & Driver of Truck No. RJ-27-GA-5447
2. M/s Bharati Axa General Insurance Company Ltd. through its
Branch Manager, Third Floor, Centre Point, Airport Road,
Opposite B.N. College, Udaipur.
Insurer of Truck No. RJ-27-GA-5447
----Respondent
S.B. Civil Misc. Appeal No. 2293/2013
1. Smt. Lali w/o Late Shri Bhera, aged about 27 years, b/c
Vagariya, r/o Vadiyar, Tehsil Mawali, District Udaipur.
2. Miss Laxmi d/o Late Shri Bhera, aged about 10 years, (minor)
3. Vinod s/o Late Shri Bhera, aged about 8 years, (minor)
4. Miss Pooja d/o Late Shri Bhera, aged about 6 years, (minor)
5. Miss Sona d/o Late Shri Bhera, aged about 21/2 years, (minor)
appellant No. 2 to 5 are minor through natural guardian mother
Smt. Lali (appellant-claimant No.1)
6. Varadha s/o Shri Jeeva aged about 52 years.
7. Smt. Nathi w/o Shri Vardha aged about 50 years.
Both by caste Vagariya, r/o Vadiyar, Tehsil Mawali, District
Udaipur.

----Appellant
Versus
1. Rajkumar s/o Shri Durga Ram Banjara, r/o 442 Banjara Basti,
Nahar Magara, Udaipur.
Owner & Driver of Truck No. RJ-27-GA-5447
2. M/s Bharati Axa General Insurance Company Ltd. through its
Branch Manager, Third Floor, Centre Point, Airport Road,
Opposite B.N. College, Udaipur.
Insurer of Truck No. RJ-27-GA-5447
----Respondent
S.B. Civil Misc. Appeal No. 2294/2013
Magani Ram s/o Late Shri Narayan, age 22 years, b/c Vagariya,
r/o Vadiyar, Tehsil Mawali District Udaipur.
----Appellant

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Versus
1. Rajkumar s/o Shri Durga Ram Banjara, r/o 442 Banjara Basti,
Nahar Magara, Udaipur.
Owner & Driver of Truck No. RJ-27-GA-5447
2. M/s Bharati Axa General Insurance Company Ltd. through its
Branch Manager, Third Floor, Centre Point, Airport Road,
Opposite B.N. College, Udaipur.
Insurer of Truck No. RJ-27-GA-5447
----Respondent

For Appellant(s) : Mr. Shambhoo Singh Rathore
Mr. Bharat Singh
For Respondent(s) : Mr. Rakesh Chotia
Mr. Santosh Choudhary.

HON'BLE MR. JUSTICE VINIT KUMAR MATHUR

Judgment

10/02/2021

In CMA No. 2293/13 and 2294/13, the notices have not been

issued, however, since they arise out of the same judgment and

award, learned counsel for the respondent-Insurance Company

Shri Santosh Choudhary is requested to accept notice on behalf of

the respondents.

All the above mentioned appeals shall stand decided by this

common judgment as they arise out of the same accident dated

10.10.2010.

With the consent of learned counsel for the parties, the

matters are being heard and disposed of finally.

The appellant-claimant in CMA No. 2299/13 has preferred an

application under Order 41 Rule 27 of CPC for taking on record the

additional evidence in this case. The appellant has produced the

copies of the FIR, the photographs and the statements of Ganeshi,

Smt. Laxmi and Smt. Bhuri recorded under Section 161 of Cr.P.C.

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By virtue of these documents, it is submitted that the truck in

which the deceased and the claimants were travelling was loaded

with broom leaves (Khajur leaves) and the photographs clicked by

the police at the time of investigation also shows that the truck

was loaded with broom leaves (Khajur leaves).

Learned counsel for the respondent-Insurance Company, by

filing reply to the application preferred under Order 41 Rule 27,

C.P.C., has opposed the same and submits that the application has

been preferred after a period of five years from the date of filing

of the appeal and these documents were not brought before the

learned MACT court at the time of adjudication of the claim

application. He therefore, submits that the documents sought to

be placed on record before this Court, should not be taken into

consideration without affording opportunity of cross examination

of the said documents or evaluation of the same by the trial court.

I have considered the submissions made at the Bar on the

application.

This Court is prima facie of the view that these are the

documents which were collected by the Police during the course of

investigation but the same were not placed on record along with

the charge-sheet. The claimants after obtaining the certified

copies of the same have sought to be placed on record before this

Court, therefore, the veracity of the same cannot be doubted. As

far as the delay in filing the same is concerned, since the claimant

belongs to the downtrodden society and of a backward place of

the Southern Rajasthan, the delay in filing these documents

before this Court is, therefore, condoned. Thus, the application for

taking additional evidence on record preferred by the appellant-

claimant under Order 41 Rule 27 is allowed.

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Heard on the main appeals.

The present appeals seeking enhancement of compensation

filed by the appellant-claimants arise out of the Judgment and

Award dated 19.09.2013 passed by Motor Accident Claims

Tribunal, Udaipur in MACT Claim Case Nos. 170/2011, 237/2011,

173/2011, 172/2011, 171/2011, 318/2011, 169/2011, 213/2011,

317/2011 whereby, different amounts of compensation have been

awarded to the claimants after evaluating the evidence on record.

Brief facts of the case are that the appellants-claimants on

10.10.2010 at around 8 o'clock in the morning, after boarding the

truck bearing registration No. RJ-27-GA-5447 on a rental basis,

proceeded to Ahmedabad. The claimants were carrying broom

leaves (Khajur leaves) for selling the same at Ahemdabad. On

their way to Ahmedabad, because of the rash and negligent

driving of the driver of the truck in which the claimants, were

travelling along with broom leaves, overturned. In the said

accident three persons, namely, Khema, Bhera @ Bheria and

Narain died and Smt. Sunder, Ratan, Smt. Pyari, Jairam, Devli and

Magani Ram sustained injuries.

In these circumstances, separate claim-petitions were

preferred by the claimants before the Tribunal. The Tribunal after

framing the issues, adducing the evidence on record and hearing

learned counsel for the parties while partly allowing the claim

petitions, passed the judgment and award dated 19.09.2013 and

awarded different amounts as compensation to the claimants. Vide

Judgment and Award dated 19.09.2013, the respondent-Insurance

Company was discharged from the liability to pay compensation to

the claimants.

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Learned counsel for the appellants vehemently submitted

that the findings of the Tribunal on Issue No. 2 are incorrect. He

further submitted that the Tribunal has not rightly appreciated the

evidence and the statements brought before it by the claimants

specifically showing that the subject goods i.e broom leaves

(Khajur leaves) were being carried to Ahmedabad for selling the

same and the passengers in the truck were in the capacity of the

owner of the goods and therefore, the liability to pay the

compensation amount, squarely falls on the Insurance Company in

view of the provisions of Section 147 of the Motor Vehicles Act.

Thus, in view of the evidence and photographs produced, the

findings recorded by the Tribunal are erroneous.

He further submits that the compensation amount awarded

to the claimants-appellants in the present case is far too less and

needs to be recomputed in the light of the judgments of Hon'ble

the Supreme Court and the Guidelines of RALSA.

Per contra, Shri Choudhary, learned counsel for the

respondent-Insurance Company vehemently submits that the

findings of fact recorded by the Tribunal on Issue No.2 are

perfectly just and proper. The Tribunal after evaluation of the

evidence on record has come to the conclusion that there is no

documentary evidence showing that the broom leaves were being

transported to Ahmedabad for sale. He further submits that the

Tribunal has appreciated the evidence which was brought before it

and has come to the conclusion that Insurance Company is not

liable to pay compensation in this case as the claimants were not

covered under the terms & condition of insurance policy being

gratuitous passengers in the insured vehicle. Learned counsel

further submits that the truck was having seating capacity of only

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two persons and therefore, if thirteen persons boarded the truck,

the Insurance Company cannot be held liable as it would breach

the policy conditions. He further submits that there was no

evidence on record which shows that the passengers of the truck

were actually the owners of the broom leaves. Learned counsel

further submits that the police after investigation filed the charge-

sheet under Section 99 and 192-A of the M.V. Act against the

owner-cum-driver of the insured vehicle, which clearly shows that

the vehicle was being driven in violation of the policy conditions.
It is contended that admittedly, the vehicle involved in the
present case was a 'goods vehicle' and therefore, only two persons
were liable to be covered under the insurance policy, whereas, 13
persons were traveling in the subject vehicle in the present case.
Learned counsel further submits that in the Old Act of 1939, the
definition of 'goods vehicle' provided in sub-clause (25) of Section
2 was inclusive of the persons traveling in the 'goods vehicle but
in the Act of 1988, the definition of 'goods vehicle' was amended
to 'goods carriage'. He submits that the intention of the
legislature, thus, was clear that the risk of the passengers
traveling in the 'goods vehicle' will not be covered as the vehicle is
principally used for transporting the goods and therefore, the
same is not supposed to carry the passengers. Learned counsel,
therefore, submits that the insurance company is not liable to
compensate the claimants-appellants in the present case.
Learned counsel further submits that it has not been
conclusively proved before the Tribunal that the injured/ deceased
persons were belonging to the same family and collectively hired
the truck for transporting their goods to Ahmedabad at a rental
price of Rs. 6,000/-.
Learned counsel further submits that even as per the
provisions of Section 147 of M.V. Act, the owner of the goods can
be one who can sit in the cabin of the truck and whose risk would
be covered under the insurance policy, whereas, in the present

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case, there were 13 passengers sitting in the rare portion of the
truck with their broom leaves. Thus, all 13 persons cannot be
termed as owners of the goods.
Learned counsel further submits that on account of death of
Khema, Bhera and Narain, the claimants have already been
awarded the amount in excess if, the calculation in light of the
judgment of the Hon'ble Supreme Court in the case of National
Insurance Company Ltd. Vs. Pranay Sethi reported in (2017)
SC 5157 is done. Therefore, the amount awarded by the Tribunal
is not required to be interfered with as the calculation for arriving
at the 'just compensation' in this case by the Tribunal appears to
be in order.
I have considered the submissions made at the Bar and have
gone through the judgment dated 19.09.2013 and the relevant
record of the case.

The finding of the Tribunal on issue No. 2 that the vehicle

which met with the accident was carrying broom leaves does not

appear to be incorrect as during the course of investigation, the

police clicked certain photographs, in which, the subject truck was

found loaded with broom leaves (Khajur Leaves). Although, the

same were not part of the charge-sheet, which was produced

before the Tribunal, however, the certified copies obtained by the

claimants which is placed before this Court cannot be disbelieved.

Besides that, the statements of Ganesh, Smt. Laxmi and Smt.

Bhuri recorded under Section 161 of Cr.P.C as well as the

statements of witnesses recorded by the Tribunal while

adjudicating the claim applications, clearly show that the

claimants were actually the owners of broom leaves (khajur

leaves) and they were going to Ahmedabad for selling the same

collectively. In light of the evidence adduced, it cannot be said

that on the date of the accident, the truck insured with the

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respondent-Insurance Company was not carrying any broom

leaves. The evidence which has come on record also shows that

the claimants were the residents of a very backward area of the

State of Rajasthan. It is of common knowledge that people of this

area are very poor, and it is quite possible that claimants, after

collecting the leaves and making the bundles of the same, were

going to Ahmedabad for selling the same to earn their livelihood.

It has also come on record that the persons who boarded the

truck belonged to the same family. The possibility cannot be ruled

out that these persons collected broom leaves(khajur leaves) and

after hiring the truck in common, were travelling in the same

along with the leaves collected. Therefore, it cannot be said that

they were not the owners of the leaves. This Court takes into

account the geographical condition of the area to which the

claimants belong and the place where the accident occurred. It is

worth noticing here that for the inhabitants of the area to which

the claimants belong, the main source of livelihood is agriculture

and the produce thereof.

In view of the re-evaluation of evidence, photographs and

the statements, this Court is of the view that the entire family who

boarded the truck along with their collected produce of broom

leaves(khajur leaves) were going to Ahmedabad in the truck for

selling the same to earn their livelihood. Thus, the persons who

suffered injuries and died in the accident were actually the owners

of the goods in the light of Section 147 of the MV Act. It is true

that there cannot be multiple owners of the transport goods but in

the present case, when the family members have collected the

broom leaves and after making the bundles of the same, jointly

rented a truck for selling the same at Ahmedabad and therefore,

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they are owners of the goods being transported. It cannot be

segregated that there was only one owner and other persons who

boarded the truck were not the owners in the present case. Thus,

the finding recorded by the Tribunal on Issue No. 2 is not correct

and the same is set aside.

Leaned counsel for the respondent has placed reliance upon

the judgments of the Hon'ble Supreme Court in the cases of

N.I.C. V/s Cholleti Bharatamma & Ors. reported in 2008

R.A.R. 141(SC), Smt. Asu Devi & Ors. V/s Prabhu Dan &

Ors. reported in 2017(2) R.A.R. 581 (Raj.), National

Insurance Company Ltd. V/s Jitendra Kumar & Anr.

reported in 2013 R.A.R. 279(Raj.), National Insurance Co.

Ltd. V/s Rattani & Ors. reported in 2009 R.A.R. 252(SC),

Sanjeev Kumar Samrat V/s National Insurance Company

Ltd. & Ors. reported in 2013 R.A.R. 108(SC), Smt. Kesar Bai

V/s Saleem Mohammad & Anr. reported in 2012 R.A.R.

374(Raj.), National Insurance Company Ltd. V/s Prabhu

reported in 2010 R.A.R. 107 (Raj.), National Insurance

Company Ltd. V/s Prema Devi & Ors. Reported in 2008

R.A.R. 123 (SC).

The judgments relied upon by the learned counsel for the

respondent - Insurance Company are not applicable in the facts

and circumstances of the present case as it has been held that the

deceased and the injured persons traveling in the truck were

actual owners of the goods, which was being transported in the

said truck.
As far as contention of the learned counsel for the

respondent - Insurance Company that the truck was a 'goods

vehicle' and therefore, the risk of only two persons can be covered

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under the insurance policy, whereas 13 persons were traveling in

the subject truck, is also of no help to the Insurance Company in

view of the fact that as per the provisions of Section 147 of the

M.V. Act, any person who is traveling in the vehicle in the capacity

of owner of the goods, his risk will be covered under the insurance

policy and therefore, the Insurance Company will be liable to pay

the compensation as the persons traveling in the subject truck

were owners of the broom leaves and belonged to the same

family.

For brevity, Section 147 of the M.V. Act is reproduced as

under :-

"147 Requirements of policies and limits of liability.
--

(1) In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which--

(a) is issued by a person who is an authorised insurer; and

(b) insures the person or classes of persons specified in the policy to the extent specified in sub-section (2)--

(i) against any liability which may be incurred by him in respect of the death of or bodily [injury to any person, including owner of the goods or his authorised representative carried in the vehicle] or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place;"

So far as the argument of the learned counsel for the respondent - Insurance Company that the police after investigation filed charge-sheet under Sections 99 and 192 of the M.V. Act against the driver of the subject vehicle is also noted to be rejected in view of the fact that the court of competent criminal (Downloaded on 16/02/2021 at 08:21:50 PM) (13 of 14) [CMA-2299/2013] jurisdiction vide Order dated 03.02.2016 has only taken cognizance of offences under Sections 279, 337, 338 & 304-A of I.P.C. in the present case.

A bare reading of the same goes to show that the Insurance Company cannot escape its liability of paying the compensation if it is proved before the courts that the passengers were travelling in the capacity of the owners of the goods. Thus, the argument of the learned counsel for the Insurance Company that the Insurance Company cannot be fastened with the liability to pay compensation in the present case is devoid of any force and the same is rejected.

As far as the enhancement of the claim amount is concerned, this court finds that in claim petitions of deceased- Khema, Bhera and Narain, the Tribunal has correctly taken into consideration the factors for computation of the award, however, an additional amount of Rs. 10,000/- each in the claim petitions of the deceased Khema (Civil Misc. Appeal No.2292/2013-MAC Case No.169/2011), Bhera @ Bheriya (Civil Misc. Appeal No.2293/2013-MAC Case No.213/2011), Narain (Civil Misc. Appeal No.2291/2020-MAC Case No.318/2011) will serve the ends of justice and will constitute the 'just compensation' in the present cases.

As far as the civil misc. appeal nos.2299/2013(MAC Case No.170/2011), 2290/2013(MAC Case No.171/2011), 2289/2013(MAC Case No.172/2011), 2288/2013(MAC Case No.173/2011), 2287/2013(MAC Case No.237/2011), 2294/2013(MAC Case No.317/2011) for the injuries sustained by Smt. Devli, Jairam, Smt. Pyari, Ratan, Smt. Sundar and Magani Ram are concerned, as per the RALSA Guidelines, the amount (Downloaded on 16/02/2021 at 08:21:50 PM) (14 of 14) [CMA-2299/2013] which is required to be enhanced will be Rs.72,350/-, Rs.48,000/-, Rs.1,28,150/-, Rs.69,350/-, Rs. 2,55,100/- and Rs. 68,750/- respectively. The same is produced here in the tabular form with the details of injuries sustained by them :-

Name of Income( Perma- Nature of Injury Tribunal As per Net Injured Per nent awarded RALSA Enhance Month) Disability Guidelines d Amt.

Ms. Devli -- 10% Fracture in frontal 61,000/- 72,350/- 11,350/-

bone Jai Ram 3,000/- 5% Lower ribs 47,000/- 48,000/- 1,000/-

fractured Smt. Pyari 3,000/- 13% Right hand 79,500/- 1,28,150/- 48,650/-

(Humerous) fractured Ratan -- 10% Right hand 47,500/- 69,350/- 21,850/-

                                                                           clevical     bone
                                                                           fractured
                                   Smt. Sunder      3,000/-      30%       Both legs(femur &     1,53,500/-    2,55,100/- 1,01,600/
                                                                           pelvis      bone)                                      -
                                                                           fractured
                                   Magni Ram             --      10%       Dislocation of left    35,000/-       68,750/-   33,750/-
                                                                           clevical bone of
                                                                           shoulder

The enhanced amount of compensation shall carry the interest @ 6% in the light of the judgment of Hon'ble the Supreme Court in the case of Sri Anthony @ Anthony Swami vs. The Managing Director K.S.R.T.C. reported in 2020 ACJ 1592.

Thus, the present appeals are partly allowed with a direction to the respondent-Insurance Company to pay the compensation as ordered by Tribunal along with the enhanced amount within a period of six weeks from today. The compensation amount shall carry the interest @6% per annum till the same is paid.

(VINIT KUMAR MATHUR),J 168-176/VivekM/-

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