Rajasthan High Court - Jodhpur
The Oriental Insurance Co. Ltd vs Devki Devi And Ors on 2 November, 2018
Author: P.K. Lohra
Bench: P.K. Lohra
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Misc. Appeal No. 1713/2018
The Oriental Insurance Company Ltd., through its Divisional
Manager, Divisional Office, Jodhpur, Bhansali Tower, Residency
Road, Jodhpur
----Insurer-non-claimant No.2 before the MACT, Jodhpur-I
Versus
1. Devki Devi w/o Late Sh. Trilok Chand
2. Ranveer S/o Late Sh. Trilok Chand
3. Jaideep S/o Late Sh. Trilok Chand
(respondents nos. 2 and 3 are minor through their natural
guardian mother Devki Devi)
4. Bhagta Ram s/o Kesu Ram
5. Khamma Devi S/o Bhagta Ram
(All the respondents are resident of village Kallau, Tesil
Shergarh, District Jodhpur)
----Claimants before the MACT, Jodhpur-I
6. Aksar Khan @ Askar Ali s/o Sh. Safi Khan, resident of
Teliyon Ki Dhani, Jetsar (setrawa), Tehsil Shergarh, District
Jodhpur
.......Driver
For Appellant(s) : Mr. K.R. Meghwal & Mr. Ajay Kumar.
For Respondent- : Mr. L.K. Purohit.
Claimants (Caveator)
HON'BLE MR. JUSTICE P.K. LOHRA
Judgment 02/11/2018 Appellant, the Oriental Insurance Company Ltd., has laid this appeal to challenge judgment & award dated 15 th of February, 2018, passed by Motor Accident Claims Tribunal-I, Jodhpur (for short, 'Tribunal'). The learned Tribunal, by the impugned judgment & award, upon adjudicating the claim of respondent-
(2 of 6) [CMA-1713/2018] claimants, partly allowed it and awarded compensation to the tune of Rs.33,55,232/-.
Succinctly stated, facts of the case are that on fateful day of 21st of January, 2013, when deceased Trilok Chand was traveling in pick-up vehicle, bearing registration No.RJ-19-GC-7418, carrying glazed tiles for installation in his house, at about 11:00 PM, it turned turtle due to sudden appearance of cattle (Blue Bull) and the vehicle hitting cattle in between villages Shekhala and Deda. Due to the accident, Trilok Chand suffered grave and serious injuries which resulted in his death. Respondent- claimants, being dependents of the deceased, in order to claim compensation, filed petition under Section 166 read with Section 140 of the Motor Vehicles Act, 1988 (for short, 'Act') before the learned Tribunal. In the claim petition, it was specifically pleaded that the accident occurred due to rash and negligent driving of pick-up vehicle by its driver. While claiming compensation amount, claimants averred in the petition that deceased Trilok Chand was 31 years of age at the time of death and was earning Rs.3,56,000/- per annum from his business as Goldsmith and income derived from agriculture. It is also stated in the petition that deceased was income-tax payer and in support thereof requisite proofs are also furnished. Under different heads, claimants quantified total compensation of Rs.1,58,03,000/-. In the claim petition, besides sixth respondent Aksar Khan @ Askar Ali-owner & driver, appellant-insurer was also impleaded as non- claimant.
(3 of 6) [CMA-1713/2018] After issuance of notices by learned Tribunal, none appeared on behalf of owner & driver of the vehicle despite service of notice, and therefore, the learned Tribunal proceeded ex-parte against him. The appellant-insurer joined issue with the respondent- claimants before the learned Tribunal and contested the claim. In the return, the appellant-insurer, while acknowledging factum of insurance of the offending vehicle on the crucial day, seriously disputed quantum of compensation. Apart from these averments, as usual, appellant Insurance Company also incorporated all the legal objections for seeking its absolvement from its liability to pay compensation.
Learned Tribunal, on the basis of pleadings of rival parties, settled three issues for determination. For proving their case, on behalf of respondent-claimants, A.W.1 Devki (widow of deceased) and A.W.2 Punaram appeared in the witness box. Besides producing documentary evidence, in all, twenty-one documents were produced by the respondent-claimants, which were exhibited. For substantiating its defence, no documentary or oral evidence was tendered by the appellant Insurance Company.
The learned Tribunal, after conclusion of evidence of rival parties, heard final arguments and partly allowed the claim petition. On the basis of material available on record, the learned Tribunal decided all the issues in favour of respondent-claimants and against the appellant Insurance Company for awarding aforementioned compensation.
(4 of 6) [CMA-1713/2018] I have heard learned counsel for the appellant, learned counsel for the respondent-claimants, perused impugned judgment & award and thoroughly scanned record of the case.
Upon perusal of the impugned judgment & award as well as available material, it is abundantly clear that learned Tribunal, while deciding Issue No.1, regarding rash and negligent driving of the offending vehicle, has rightly placed reliance on documentary and ocular evidence of the respondent-claimants. It is also noteworthy that apart from pertinent documentary evidence to prove rash and negligent driving of the insured vehicle, respondent-claimants have also adduced evidence of eye-witness A.W.2 Punaram. During cross-examination, the witness has remained unruffled, and therefore, his testimony has been rightly relied upon by the learned Tribunal for recording its finding in favour of respondent-claimants.
Adverting to finding on Issue No.2, suffice it to observe that deceased was traveling in the insured vehicle as owner of the tiles after paying freight charges, and therefore, it cannot be said that he was travelling in the capacity of gratuitous passenger. This positive assertion of respondent-claimants is also fortified from the statements of both the witnesses and, thus, in absence of any counter evidence by the Insurance Company, the learned Tribunal has rightly relied upon unimpeached testimony of both the witnesses of the claimants. If the finding of the learned Tribunal pertaining to this issue is examined in the light of legislative provision contained under Section 147(1)(b) of the Act, then there remains no room of doubt that it is satisfying the requirements envisaged therein and consequently same cannot be categorized (5 of 6) [CMA-1713/2018] as infirm. In this view of the matter, in my opinion, the findings and conclusions of the learned Tribunal on Issue No.2 cannot be faulted.
I am aghast to observe that when owner & driver of the offending vehicle has not contested the claim then why the appellant-insurer has not joined issue to contest claim of the respondent-claimants with full potential. In the wake of the fact that learned Tribunal proceeded ex-parte against owner & driver of the vehicle, it was expected of the appellant-insurer to tender requisite evidence for authenticating its defence. Taking into consideration all these aspects, it is a clear case of not discharging burden to prove issue No.2 by the appellant-insurer. Any pleading by a party to the litigation without proof is of no consequence inasmuch as evidence is to be tendered on a plea properly raised in the written statement. Therefore, finding on Issue No.2 warrants no interference.
Lastly, the crucial issue, i.e., Issue No.3, pertaining to quantum of compensation, suffice it to observe that learned Tribunal, while assessing the amount of compensation for loss of dependency, has relied upon Ex-20, the Income-tax Returns of deceased and the amount of tax paid by him. The learned Tribunal, while considering age of deceased as 32 years, applied multiplier of 16 by relying on a decision of Supreme Court in Sarla Verma (Smt.) & Ors. V/s. Delhi Transport Authority & Anr. [(2009) 6 SCC 121]. Furthermore, the learned Tribunal has also rightly assessed annual income of the deceased as per Income-tax Return of 2012-13 to the tune of Rs.1,97,564/- and by making (6 of 6) [CMA-1713/2018] one-forth deduction for personal expenses rightly added 40% for future prospects. Being a self-employed person, the learned Tribunal for adding 40% future prospects has relied on latest decision of Supreme Court in the case of National Insurance Company Ltd. V/s. Praney Sethi & Ors. [(2017) 16 SCC 680]. Accordingly, the assessment of compensation for loss of dependency to the tune of Rs.32, 85,232/- is just and reasonable. Besides that, the learned Tribunal has also awarded compensation for loss of consortium to the tune of Rs.40,000/- and Rs.15,000/- for loss of estate so also an amount of even denomination for funeral expenses as per verdict in Praney Sethi (supra). Thus, the total compensation amount is worked out to the tune of Rs.33,55,232/-.
In totality of the circumstances, the amount of compensation awarded by the learned Tribunal is based on fair assessment and same is satisfying the requirements of just compensation within the four corners of Section 166 of the Act. By no stretch of imagination, the amount of compensation determined by the learned Tribunal can be categorized as excessive or exorbitant warranting interference in exercise of appellate jurisdiction by this Court.
Resultantly, the instant appeal fails and same is, hereby, rejected.
(P.K. LOHRA),J a.asopa/-
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