United India Insurance Co. Ltd vs Prakash Chand And Ors. ... on 8 October, 2024

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Rajasthan High Court - Jodhpur

United India Insurance Co. Ltd vs Prakash Chand And Ors. ... on 8 October, 2024

1. These appeals have been preferred by the appellant/non- claimant insurance company and claimants under Section 173 of the M.V. Act, 1988 assailing the judgment and award dated 25.11.2014 passed by learned Judge, Motor Accident Claims Tribunal, Jaitaran, District Pali in MAC Cases Nos.154/2011, 155/2011, 156/2011, 157/2011 and 60/2012, whereby the learned Tribunal has partly allowed 4 claim petitions filed by respective claimants and awarded compensation in favour of respective claimants. The liability to satisfy the award was fastened upon all the non-claimants jointly and severally. The learned Tribunal, however, rejected the MAC Case No.60/2012, preferred by claimants Dhaglaram and Maya Devi claiming compensation on account of death of their daughter deceased Guddi @ Kirti.

2. All these nine appeals, arising out of same accident, are being decided by this common judgment, however, the facts (Downloaded on 09/10/2024 at 09:50:53 PM) [2024:RJ-JD:41196] (5 of 17) [CMA-452/2015] illustratively taken of CMA No.452/2015 : United India Insurance Co. Ltd. v. Prahlad & Ors.

3. Briefly stated, the facts of the case are that the claimants filed claim petitions under Section 166 of the M.V. Act, 1988 claiming compensation on account of death of Sh. Sanjay Kumar, Kirti and Richa and the injuries suffered by the injured claimants. In the claim petitions, it was inter-alia stated by the claimants that on 11.05.2011, the claimants boarded in vehicle Tavera bearing registration number RJ-36-UA-0646 for attending Baran from Babra to Jodhpur. The aforesaid vehicle was being plied by Dinesh Sankhla, non-claimant No.1/driver rashly and negligently. In the evening at about 07:00 pm, near Bilara, the aforesaid vehicle collided with Indica Car, as a result of which, the occupants of Tavera vehicle viz. Sanjay Kumar, Kirti, Richa died and Sangeeta sustained grievous injuries. The vehicle was owned by non- claimant No.2 Sohanlal and the same was insured with non- claimant No.3 United India Insurance Co. Ltd. at the time of accident.

4. The claim petition was contested by the non-claimants No.1 and 2 by filing their reply while denying the contents of the claim petitions and it was stated that the accident occurred due to rash and negligent driving of driver of Indica Car.

5. The non-claimant No.3 United India Insurance Co. Ltd. filed its reply to the claim petitions stating therein that the accident occurred due to rash and negligent driving of driver of Indica Car bearing registration number RJ-36-CA-2165. The involvement of the offending vehicle i.e. Tavera vehicle was denied, however, the fact that the vehicle was insured with it, was admitted. It was, (Downloaded on 09/10/2024 at 09:50:53 PM) [2024:RJ-JD:41196] (6 of 17) [CMA-452/2015] however, stated that there was breach of policy conditions, inasmuch as the private vehicle was being used for transportation and the passengers travelling in the said vehicle were much beyond the sitting capacity. Thus, by filing the reply to the claim petitions, it was prayed that the insurance company was not liable to pay the compensation.

6. The learned Tribunal, on the basis of pleadings of the parties, framed issues in all five claim petitions. In support of their claim petitions, the claimants examined AW.1 Ghanshyam, AW.2 Prakash Chand, AW.3 Prahlad, AW.4 Sangeeta, AW.5 Dhaglaram and AW.6 Bakhtaram. The claimants exhibited 185 documents and in rebuttal evidence, statements of AW.3 Prahlad and AW.7 Dilipraj were recorded. On behalf of non-claimants, NAW.1 Ranchhod Chauhan, NAW.2 Vijay Kumar Gaur, NAW.3 Sohanlal, NAW.4 Dinesh Kumar were examined and the non-claimant insurance company exhibited Ex.A/1- insurance policy, report of the investigator as Ex.A/2 and copy statement of Prahlad as Ex.A/

7. The learned Tribunal thereafter heard final arguments of the parties and after considering the evidence produced before it, vide judgment and award impugned dated 25.11.2014 proceeded to partly allow the claim petitions filed by respective claimants and awarded compensation while fastening the liability upon all the non-claimants along with interest @9% p.a. from the date of filing of claim petitions. The learned Tribunal, however, rejected the MAC Case No.60/2012, preferred by claimants Dhaglaram and Maya Devi claiming compensation on account of death of their daughter deceased Guddi @ Kirti.

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8. Aggrieved by judgment and award dated 25.11.2014, appellant/non-claimant No.3 insurance company and appellants/claimants have preferred these appeals.

9. Learned counsel appearing on behalf of appellant/non- claimant No.3 Insurance Company submits that in the reply to claim petitions, on behalf of insurance company, specific plea was raised that the vehicle insured with it was a private vehicle and the same could not have been plied for hire and reward. Learned counsel for the appellant-insurance company submits that on behalf of insurance company, NAW.1 Ranchhod Chauhan, Officer of the Insurance Company and NAW.2 Vijay Kumar Gaur, investigator who investigated the matter were examined. While relying upon the testimony of NAW.2 Vijay Kumar Gaur, learned counsel for the appellant submits that NAW.2 recorded the statements of relatives of victim, wherein it was clearly stated that the vehicle was hired for Rs.4500/- and a sum of Rs.1000/- was paid in advance and the rest amount was to be paid later i.e. after completion of the journey. Learned counsel for the appellant submits that while deciding the Issue No.3 in this regard, the learned Tribunal though has accepted the contentions raised by the insurance company, however, qua the payment of Rs.1000/-, the learned Tribunal observed that the aforesaid sum was paid towards fuel charges and thus the vehicle was not used on hire and reward. Learned counsel for the appellant submits that there was specific condition that the vehicle shall not be plied for hire and reward, however, the learned Tribunal has not considered the evidence led by the insurance company to prove the breach of terms and conditions of the policy.

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10. Learned counsel for the appellant- insurance company further submits that the sitting capacity of the insured vehicle was 9+1, whereas as per the FIR and facts pleaded by the claimants in their claim petition 13-14 persons were travelling in the vehicle. Learned counsel for the appellant thus submits that there was violation of conditions of the policy. Learned counsel for the appellant further submits that as per the insurance policy and limitation clause, the insurance company was not liable to pay the compensation in the case of hire and reward. Learned counsel for the appellant- insurance company laid much emphasis upon Exhibit A/2, which is the statement of witness Prahlad, wherein said Prahlad has accepted that vehicle was taken on hire and reward basis. Learned counsel for the appellant-insurance company submits that said Prahlad, as an afterthought stated that the concerned authority of the insurance company had come to him with blank papers and he had only put in his signatures on the papers and he has not given any statement Ex.A/2, exhibited by the insurance company.

11. Learned counsel for the appellant insurance company also disputed the quantum of compensation awarded in favour of claimants as the learned Tribunal has taken higher income into consideration while deciding the said issue.

12. On the other hand, learned counsel appearing for the respondents vehemently opposed the submissions made by counsel for the insurance company. Learned counsel for the respondents submits that the insurance company has utterly failed to prove that the passengers of the vehicle had hired the vehicle and in lieu of which some reward was paid to the driver. They also (Downloaded on 09/10/2024 at 09:50:54 PM) [2024:RJ-JD:41196] (9 of 17) [CMA-452/2015] submit that Exhibit-A/2, which is report prepared by the investigator of the insurance company cannot be believed, inasmuch as witness AW.5 Prahlad had category stated in his statements before the learned Tribunal that he had signed on blank papers when the investigator came to him with an intent to settle the claim, however, he had not deposed anything before the investigator.

13. Learned counsel for the claimant submits that while deciding Claim Case No.156/2011, the multiplier applied by the learned Tribunal is on lower side, which looking to age of deceased i.e. 24 years, highest multiplier ought to have been applied. Learned counsel for the appellants/claimants further submits that deceased Richa was earning Rs.6000/- per month by teaching work in a private school, however, the learned Tribunal while quantifying the compensation has taken into consideration the monthly income of the deceased at Rs.3000/- per month. Learned counsel for the appellants Learned counsel for the claimants submits that no amount towards future prospects has been quantified and awarded by the learned Tribunal.

13. Learned counsel for the claimants submits that while deciding Claim Case No.154/2011, the multiplier applied by the learned Tribunal is on lower side, which looking to age of deceased i.e. 17 years, highest multiplier ought to have been applied. Learned counsel for the appellants/claimants further submits that deceased Sanjay Kumar was earning Rs.4000/- per month through tuition, however, the learned Tribunal while quantifying the compensation has taken into consideration the monthly income of the deceased at Rs.3000/- per month. Learned counsel (Downloaded on 09/10/2024 at 09:50:54 PM) [2024:RJ-JD:41196] (10 of 17) [CMA-452/2015] for the claimants submits that no amount towards future prospects has been quantified and awarded by the learned Tribunal.

14. Learned counsel for the claimant submits that while deciding Claim Case No.155/2011, the multiplier applied by the learned Tribunal is on lower side, which looking to age of deceased i.e. 23 years, highest multiplier ought to have been applied. Learned counsel for the appellants/claimants further submits that deceased Smt. Kirti was earning Rs.4000/- per month by giving tuition to the students, however, the learned Tribunal while quantifying the compensation has taken into consideration the monthly income of the deceased at Rs.3000/- per month. Learned counsel for the claimants submits that no amount towards future prospects has been quantified and awarded by the learned Tribunal.

15. Learned counsel for the claimant submits that while deciding Claim Case No.157/2011, the learned Tribunal has awarded a meager amount of compensation for the injuries suffered by the injured claimant in the accident. Learned counsel for the appellant/claimant submits that a sum of Rs.4000/- has been awarded for four injuries suffered by the claimant. Learned counsel for the appellant submits that the claimant remained hospitalized for a period of two months and has undergone surgical operation in right elbow, therefore, adequate compensation deserves to be awarded in favour of claimant.

16. Learned counsel for the claimants submits that while deciding the Claim Case No.60/2012, the learned Tribunal has erred in rejecting the claim petition filed by the claimants. He submits that the claimants being the parents of deceased Smt. (Downloaded on 09/10/2024 at 09:50:54 PM) [2024:RJ-JD:41196] (11 of 17) [CMA-452/2015] Kirti, were entitle to get compensation, however, the learned Tribunal has rejected the claim petition on the ground that since husband of the deceased has filed separate claim petition claiming compensation and, therefore, they are not entitled to get any compensation. Learned counsel for the appellants/claimants submits that the claimants are entitled to get compensation towards the loss of consortium.

17. In CMA No.452/2015 preferred by appellant- Insurance Company, a Coordinate Bench of this Court vide order dated 24.07.2015 while admitting the appeal stayed the execution of the impugned judgment and award dated 25.11.2014 upon appellant depositing a sum of Rs.2,00,000/- as against the total awarded sum of Rs.2,42,183/- within a period of one month from the date of order. The amount on being deposited was ordered to be disbursed to the claimant in terms of Tribunal's directions, subject to claimant(s) furnishing an undertaking that in case the appeal filed by the appellant insurance company is allowed, they will refund back the said sum with interest @ 6% p.a.

18. In CMA No.450/2015 and 455/2015 preferred by appellant- Insurance Company, a Coordinate Bench of this Court vide order dated 24.07.2015 while admitting the appeal stayed the execution of the impugned judgment and award dated 25.11.2014 upon appellant depositing a sum of Rs.3,50,000/- as against the total awarded sum of Rs.4,47,000/- within a period of one month from the date of order. The amount on being deposited was ordered to be disbursed to the claimant in terms of Tribunal's directions, subject to claimant(s) furnishing an undertaking that in case the (Downloaded on 09/10/2024 at 09:50:54 PM) [2024:RJ-JD:41196] (12 of 17) [CMA-452/2015] appeal filed by the appellant insurance company is allowed, they will refund back the said sum with interest @ 6% p.a.

19. In CMA No.456/2015 preferred by appellant- Insurance Company, a Coordinate Bench of this Court vide order dated 24.07.2015 while admitting the appeal stayed the execution of the impugned judgment and award dated 25.11.2014 upon appellant depositing a sum of Rs.50,000/- as against the total awarded sum of Rs.83,135/- within a period of one month from the date of order. The amount on being deposited was ordered to be disbursed to the claimant in terms of Tribunal's directions, subject to claimant(s) furnishing an undertaking that in case the appeal filed by the appellant insurance company is allowed, they will refund back the said sum with interest @ 6% p.a.

20. I have considered the submissions made by counsel for the parties at length and have perused the material available on record.

21. The Issue No.3 framed by the learned Tribunal reads as under:

"3. vk;k foi{kh la-3 chek daiuh vius vfHkdFkuksa esa mBkbZ xbZ vkifRr;ksa ds vuqlkj {kfriwfrZ vnk djus ds fy, nk;h ugha gS\"

22. This Court finds that while deciding the Issue No.3, the learned Tribunal has considered the arguments raised by the non- claimant No.3 Insurance Company in its correct perspective. The appellant/non-claimant No.3 has led much emphasis on Exhibit-A/ 2, which are prepared by NAW.2 Vijay Kumar and Exhibit-A/3 i.e. statement of Prahlad. This Court finds that the learned Tribunal while deciding the issue No.3 has observed that NAW.3 Sohanlal, in his statements stated that on account of acquaintance, Dinesh (Downloaded on 09/10/2024 at 09:50:54 PM) [2024:RJ-JD:41196] (13 of 17) [CMA-452/2015] (non-claimant No.1) took his vehicle to attend the marriage ceremony of his friend, Ajay Kumar and that the vehicle was not given on rent/hire and reward. The learned Tribunal has also considered the statement of AW.3 Prahlad, wherein he specifically stated that representative of insurance company obtained his signatures on blank papers and a notice in this regard was also issued by him though his counsel. This Court finds that the learned Tribunal has also considered the arguments of the insurance company with respect to number of persons travelling in the vehicle beyond the prescribed number of persons insured. The learned Tribunal has observed that travelling of excess passengers in a vehicle can be violation of the M.V. Act, however, the same cannot be considered a ground to exonerate the insurance company from his liability. This Court finds that the learned Tribunal considering the overall evidence led by the insurance company has rightly observed that a sum of Rs.1000/- was towards fuel charges and the same cannot be termed as a token money towards rent or hire and reward. The driver of the offending vehicle was having a valid and effective licence to ply the vehicle. In the considered view of this Court, the learned Tribunal has not committed any error while deciding the issue No.3 against the appellant/non-claimant No.3 insurance company.

23. Accordingly and view of above discussion, this Court finds no force in the appeals filed by the appellant/non-claimant No.3 United India Insurance Co. Ltd. and, therefore, the misc. appeals No.452/2015, 450/2015, 455/2015 and 456/2015 are dismissed. Stay Applications are rejected and interim orders passed in these appeals are vacated.

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24. Insofar as CMA No.1948/2014 : Prahlad & Anr. v. Dinesh Sankhla & Ors. is concerned, having regard to the submissions made by counsel for the appellants/claimants, this Court is of the view that monthly income of the deceased Sanjay Kumar, is to be assessed as Rs.3770/- while considering him to be semiskilled labour while deducting 1/2 towards personal expenses and adding 40% towards future prospects. The claimants are entitled to receive enhanced compensation under the heads of loss of estate and funeral expenses @ Rs.18,150/- each. The learned Tribunal has awarded compensation of Rs.10,000/-, which also deserves to be enhanced to Rs.48,400/- each.

25. Accordingly, in view of above discussion, the instant misc. appeal preferred by the appellants/claimants is partly allowed. The judgment and award dated 25.11.2014 passed by learned Tribunal in MAC Case No.154/2011 is modified accordingly and the claimants are held entitled to get enhanced compensation as under: -

  S. No.                             Particulars                         Amount awarded
                                                                         and enhanced by
                                                                            this Court
      1.      Compensation under the head of loss of income                  Rs.5,70,024/-
              Monthly Income               Rs.3770/-
              deduction 50%                Rs. 1885/-
                                           Rs. 1885/-
              Add. 40% Future Pros.        Rs. 754/-
                                           Rs.2639/-
              Rs.2639 x 12 x 18 =Rs.5,70,024/-
      2.      Consortium (Rs.48,400 x 2)                                      Rs.96,800/-
      3.      Loss of Estate                                                  Rs.18,150/-
      4.      Funeral Expenses                                                Rs.18,150/-
                                                           Grand Total       Rs.7,03,124/-
                               Less amount awarded by learned Tribunal       Rs.2,42,183/-
                                                                           Rs.4,60,941/-

26. The appellants/claimants are thus held entitled to get enhanced compensation of Rs.4,60,941/-. The enhanced amount (Downloaded on 09/10/2024 at 09:50:54 PM) [2024:RJ-JD:41196] (15 of 17) [CMA-452/2015] of compensation be paid to the claimants within a period of six weeks from the date of receipt of certified copy of this order along with interest @ 9% p.a. from the date of filing the claim petition, as awarded by the learned Tribunal. The non-claimants shall pay the enhanced amount jointly and severally.

27. Insofar as CMA No.1947/2014 : Ghanshyam v. Dinesh Sankhla & Ors. CMA 1950/2014 : Prakash Chand v. Dinesh Sankhla & Ors. are concerned, having regard to the submissions made by counsel for the appellant/claimant, this Court is of the opinion that monthly income of the deceased Smt. Rich and Smt. Kirti, is to be assessed in view of judgment passed by Hon'ble Apex Court in the case of Kirti & Ors. v. Oriental Insurance Co. Ltd. : AIR 2021 SC 353 and, accordingly, while treating the deceased as homemaker, their monthly income is assessed at Rs.3770/- per month while deducting 1/2 towards personal expenses while adding 40% towards future prospects. The claimants are entitled to receive enhanced compensation under the heads of loss of estate and funeral expenses @ Rs.18,100/- each. The learned Tribunal has awarded compensation of Rs.10,000/-, which also deserves to be enhanced to Rs.48,400/- each.

28. Accordingly, in view of above discussion, the misc. appeals (CMA Nos.1947/2014 & 1950/2014) preferred by the appellants/claimants are partly allowed. The judgment and award dated 25.11.2014 passed by learned Tribunal in MAC Case No.154/2011 is modified accordingly and the claimants are held entitled to get enhanced compensation as under: - (Downloaded on 09/10/2024 at 09:50:54 PM)

[2024:RJ-JD:41196] (16 of 17) [CMA-452/2015] S. No. Particulars Amount awarded and enhanced by this Court

1. Compensation under the head of loss of income Rs.5,70,024/-

              Monthly Income               Rs.3770/-
              deduction 50%                Rs. 1885/-
                                           Rs. 1885/-
              Add. 40% Future Pros.        Rs. 754/-
                                           Rs.2639/-
              Rs.2639 x 12 x 18 =Rs.5,70,024/-
      2.      Consortium (Rs.48,400)                                          Rs.48,400/-
      3.      Loss of Estate
                                                                              Rs.18,150/-
      4.      Funeral Expenses
                                                                              Rs.18,150/-
                                                           Grand Total       Rs.6,54,724/-
                               Less amount awarded by learned Tribunal       Rs.4,47,000/-
                                                                           Rs.2,07,724/-

29. The appellants/claimants are thus held entitled to get enhanced compensation of Rs.2,07,724/-. The enhanced amount of compensation be paid to the claimants within a period of six weeks from the date of receipt of certified copy of this order along with interest @ 9% p.a. from the date of filing the claim petition, as awarded by the learned Tribunal. The non-claimants shall pay the enhanced amount jointly and severally.

30. Insofar as CMA No.1949/2014 : Sangeeta v. Dinesh Sankhla & Ors. is concerned, this Court finds that the learned Tribunal has awarded total compensation of Rs.83,135/- for the injuries suffered by the claimant. Claimant- Sangeeta in the said accident had suffered four simple injuries, for which the learned Tribunal has awarded Rs.4000/- as compensation, which in the considered view of this Court, is sufficient. The learned Tribunal has awarded a sum of Rs.7500/- for the period the claimant/injured remained hospitalized for a period of 25 days. The learned Tribunal has awarded a sum of Rs.56,635/- towards the medical bills (Ex.157, 159 to 164, 166, 168, 170 to 172 and 174 to 183. The learned (Downloaded on 09/10/2024 at 09:50:54 PM) [2024:RJ-JD:41196] (17 of 17) [CMA-452/2015] Tribunal has awarded a sum of Rs.5000/- for special diet and nourishment etc. Apart from this, the learned Tribunal has awarded a sum of Rs.10,000/- towards transportation charges for availing the treatment at hospitals. This Court finds that the compensation awarded by the learned Tribunal is adequate and the same calls for no interference by this Court. Consequently, the appeal (1949/2014) preferred by appellant/claimant is dismissed.

31. Insofar as CMA No.1952/2014 : Dhagla Ram & Anr. v.

Dinesh Sankhla & Ors. is concerned, this Court finds that the learned Tribunal has rightly rejected the claim petition preferred by the claimants. The learned Tribunal while deciding the claim petition, has observed that husband of deceased Guddi @ Kirti had already filed claim petition claiming compensation and the claimants, who are the parents of deceased, have also preferred the claim petition. The learned Tribunal while deciding the aforesaid claim petition observed that in his statements, AW.5 Dhagla Ram admitted that though his daughter was married to Prakash, however, she was residing with them only as she never visited her matrimonial home. The learned Tribunal has also observed that dead body of the deceased was handed over to brother-in-law of the deceased for funeral. In the considered view of this Court, the learned Tribunal has not committed any error while rejecting the claim petition filed by the claimants, parents of the deceased. Accordingly, the appeal preferred by claimants (CMA No.1952/2014) is dismissed.

(DR. NUPUR BHATI),J 31 to 39-DJ/-

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Rajasthan High Court - Jodhpur