United India Insurance Co. Ltd vs Babu Lal And Ors. (2024:Rj-Jd:30223) on 22 July, 2024

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Rajasthan High Court - Jodhpur

United India Insurance Co. Ltd vs Babu Lal And Ors. (2024:Rj-Jd:30223) on 22 July, 2024

1. These misc. appeals have been filed by the appellant/non- claimant No.3 challenging the validity of the judgment and award dated 22.05.2015 passed by learned Judge, Motor Accident Claims Tribunal, Balotra, District Barmer in MAC Case Nos.1121/2014 (98/2014) : Smt. Kamla Devi & Ors. vs. Razak Mohammed & Ors. and 1120/2014 (99/2014) : Babulal Vs. Razak Mohammed & Ors., whereby the learned Tribunal partly allowed the claim petitions filed by the claimants and awarded compensation in favour of respective claimants to tune of Rs.10,04,000/- and Rs.35,000/- along with interest @ 9% per annum while holding all the non- claimants to satisfy the award.

2. Briefly stated, the facts of the case are that the claimants filed their claim petitions under Section 166 of the M.V. Act before the learned Tribunal claiming compensation. Claimants, Smt. Kamla Devi and other filed claim petition claiming compensation of Rs.69,00,000/- on account of death of their sole bread winner Sh. Ghewar Chand and the Claimant Babulal filed claim petition claiming compensation of Rs.14,00,000/- for the injuries suffered by him. In the claim petitions, it was inter-alia alleged that on 22.03.2014 deceased Ghewar Chand along with Babulal were travelling in Bolero Jeep bearing registration number RJ-04-UA- (Downloaded on 26/07/2024 at 09:35:51 PM) [2024:RJ-JD:30223] (3 of 8) [CMA-1435/2015] 1593. When the said jeep reached near village Araba, a Mahindra Pick-Up bearing registration number RJ-21-GA-3986 which was plied by its driver, non-claimant No.1, Razak Khan, rashly and negligently, hit the Bolero vehicle; as a result of which occupants of Bolero vehicle sustained injuries and on account of injuries suffered, Ghewar Chand died while he was removed to hospital. In the said accident, claimant Babulal sustained injuries. An FIR of the accident was lodged at Police Station Kalyanpur and after investigation, charge sheet was filed against the driver of the offending vehicle for offences under Sections 279, 337, 338 and 304A of IPC. It was further alleged in the claim petition that deceased Ghewar Chand was 54 years of age and was running a jewellery shop in his village and was earning Rs.20,000/- per month. Claimant Babulal alleged that at the time of accident, he was 50 years of age and by doing the work of jewellery, he was earning Rs.15,000/- per month.

3. On receipt of summons of the claim petition, non-claimants No.1 and 2 filed reply to the claim petition while denying involvement of their vehicle in the accident. In the alternative, it was alleged that even if there was any fault on their part, the liability to pay compensation was of the insurance company, as at the relevant time, the vehicle was insured with non-claimant No.3.

4. On behalf of non-claimant No.2/appellant herein, reply to claim petition was filed while denying the facts averred therein. It was inter-alia alleged that at the time of accident, the driver was not having valid and effective licence and the vehicle was not even having permit and fitness. It was stated that the driver was having (Downloaded on 26/07/2024 at 09:35:51 PM) [2024:RJ-JD:30223] (4 of 8) [CMA-1435/2015] the licence to ply LMV and therefore, it was not liable to pay the compensation to the claimants.

5. On the basis of pleadings of the parties, the learned Tribunal framed five issues, including relief, which inter-alia reads as under:

"1. D;k fnukad 22-3-2014 dks djhc 08-30 ih-,e- ij ekStk ljgn vjkck esa vizkFkhZ la[;k 1 jtk eksgEen us okgu fidvi la[;k vkj ts&21 th ,&3986 dks rstxfr o ykijokgh ls pykdj xyr lkbZM esa tkdj lgh lkbZM esa tk j gh cksysjks thi la[;k vkj ts&04 ;w ,& 1593 ds Vddj ekjh] ftl nq?kZVuk esa mDr thi esa lokj ?ksojpan o ckcwyky ds pksVs yxh] ftuesa ls ?ksjojpan ds xaHkhj pksVsa yxus ls ?ksojpan dh e`R;q gks xbZ\

2. D;k Dyse izkFkZuk i= esa fn;s x;s fooj.k ds vuqlkj izkFkhZx.k dks vizkFkhZ.k la[;k 1] 2 o 3 ls la;qDrr% o i`Fkdr% Dyse jkf'k 69]00]000 :i;s izkIr djus dk vf/kdkj gS\

3. D;k Dyse izkFkZuk i= esa fn;s x;s fooj.k ds vuqlkj izkFkhZ dks vizkFkhZx.k la[;k 1] 2 o 3 ls la;qDrr% o i`Fkdr% Dyse jkf'k 14]00]000 :i;s izkIr djus dk vf/kdkj gS\

4. vizkFkhZ la[;k 3 ds tokc ds **fo'ks"k vkifRr;ksa** uked 'kh"kZd esa mYysf[kr izfrj{kkvksa (Defences) dk Dyse izkFkZuk i= ij D;k izHkko gS\

5. vuqrks"k\"

6. In support of their claim petition, claimants examined AW.1 Smt. Kamali Devi and AW 2 Babulal. In documentary evidence claimants exhibited 23 documents. No evidence was led by the non-claimants No.1 and 2, however, on behalf of non-claimant No.3 i.e. insurance company NAW.1 Sudheer Bhandari was examined.

7. The learned Tribunal after hearing the arguments of the parties and considering the material produced before it, vide judgment and award dated 22.05.2015 partly allowed the claim petitions preferred by the claimants and awarded compensation of Rs.10,04,000/- and Rs.35,000/- respecitvely alongwith interest @ 9% p.a. and the liability was fastened upon all the non-claimants jointly and severally.

(Downloaded on 26/07/2024 at 09:35:51 PM) [2024:RJ-JD:30223] (5 of 8) [CMA-1435/2015]

8. Being aggrieved of the judgment and award dated 22.05.2015 passed by learned Motor Accident Claims Tribunal, Bikaner in MAC Cases No.1121/2014 (98/2014) : Smt. Kamla Devi & Ors. vs. Razak Mohammed & Ors. and 1120/2014 (99/2014) :

Babulal Vs. Razak Mohammed & Ors., appellant/non-claimant No.3 has filed the present appeal.

9. Learned counsel for the appellant vehemently submits that the vehicle in question was a transport vehicle, however, the driver of the vehicle was having the licence to ply LMV only. Thus, there was breach of conditions of the policy and the learned Tribunal has thus erred in fastening the liability upon the appellant. Learned counsel for the appellant submits that the future prospects awarded by the learned Tribunal @ 30% while assessing the loss of income of the deceased, is higher and the same ought to be 25% only, inasmuch as the deceased was 44 years of age. Learned counsel for the appellant further argued that the learned Tribunal has also erred in deducting 1/4 for personal expenses of the deceased, whereas the same ought to have been 1/3. As far as the claim petition filed by injured Babulal is concerned, learned counsel for the appellant reiterated his submissions that the driver of the offending vehicle was not having the licence to ply the vehicle. Learned counsel for the appellant also questioned the interest awarded by the learned Tribunal @ 9% per annum.

10. On the other hand, learned counsel appearing for the claimants submits that the judgment and award passed by the learned Tribunal is just and proper and the same calls for no interference by this Court. He submits that deceased was doing (Downloaded on 26/07/2024 at 09:35:51 PM) [2024:RJ-JD:30223] (6 of 8) [CMA-1435/2015] the work of jewellery and the learned Tribunal has rightly assessed his annual income Rs.60,000/- and looking the age of the deceased multiplier of 14 has rightly been applied while adding 30% increase in the income of the deceased. In other heads also viz. transportation charges, consortium and love and affection, adequate compensation has been awarded, which also calls for no interference. Learned counsel for the respondents/claimants prayed for dismissal of the appeals.

11. In SBCMA No.1435/2015, a Coordinate Bench of this Court dispensed with service upon the respondent No.6/driver of offending vehicle vide order dated 16.09.2016. In SBCMA No.1439/2015, noticing the fact that the claim awarded in favour of claimant Babulal having been disbursed, service upon respondent No.1/claimant was dispensed with by a Coordinate Bench of this Court vide order dated 26.07.2018.

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

13. This Court finds that the learned Tribunal after considering the evidence, oral as well as documentary, led by the parties rightly considered the annual income of the deceased Ghewarchand at Rs.60,000/- (Rs.5000/- per month) and looking to the age of the deceased at the time of accident i.e. 44 years, multiplier of 14 applied by the learned Tribunal appears to be just and proper. Further, while considering the age of the deceased, future prospects to the extent 30% applied by the learned Tribunal is also just and proper, therefore, the same calls for no interference by this Court. The learned Tribunal looking to dependency upon the deceased, who were 5 in number, has (Downloaded on 26/07/2024 at 09:35:51 PM) [2024:RJ-JD:30223] (7 of 8) [CMA-1435/2015] rightly deducted 1/4th towards personal expenses of the deceased, which also calls for no interference by this Court. This Court also finds that the interest awarded by the learned Tribunal 9% p.a. is also just and proper and the contention raised by counsel for the appellant that the interest awarded by the learned Tribunal is higher, has no force.

14. Similarly, in connected CMA No.1439/2015, the learned Tribunal after considering the nature of injuries suffered by the claimant, Babulal and bills produced by him, has awarded compensation of Rs.35,000/-, which in the opinion of this Court is just and proper and calls for no interference by this Court.

15. Insofar as the contention/issue raised by the learned counsel for the appellant Insurance Company that the driver of the offending vehicle was having the licence to ply LMV vehicle and at the time of accident he was plying a transport vehicle, therefore, the insurance company was not liable to pay the compensation is concerned, the said issue is no more res-inetra in view of judgment passed by Hon'ble Apex Court in the case of Mukund Dewangan v. Oriental Insurance Company Ltd. & Ors. : Civil Appeal No.5826/2011 decided on 03.07.2017, wherein, the Hon'ble Court has held as under:

"A transport vehicle and omnibus, the gross vehicle weight of either of which does not exceed 7500 kg. would be a light motor vehicle and also motor car or tractor or a road roller, 'unladen weight' of which does not exceed 7500 kg. and holder of a driving licence to drive class of "light motor vehicle" as provided in section 10(2)(d) is competent to drive a transport vehicle or omnibus, the gross vehicle weight of which does not exceed 7500 kg. or a motor car or tractor or road-roller, the "unladen weight"

of which does not exceed 7500 kg. That is to say, no separate endorsement on the licence is required to drive a transport vehicle of light motor vehicle class as enumerated above. A licence issued under Section 10 (2) (Downloaded on 26/07/2024 at 09:35:51 PM) [2024:RJ-JD:30223] (8 of 8) [CMA-1435/2015]

(d) continues to be valid after Amendment Act 54/1994 and 28.3.2001 in the form"

16. Thus, in view of judgment passed by Hon'ble Apex Court in the case of Mukund Diwangan (supra), the issue sought to be raised by the counsel for the appellant for its exoneration on account of breach of policy condition has no force and, therefore, the same is accordingly rejected.

17. The upshot of the above discussion is that the misc. appeal preferred by the appellant/non-claimant have no force and, therefore, the same are dismissed. No costs.

(DR. NUPUR BHATI),J 150 & 151-DJ/-

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Rajasthan High Court - Jodhpur