Rajasthan High Court - Jaipur
Lali vs Namo Narain And Others ... on 3 October, 2023
Author: Ashutosh Kumar
Bench: Ashutosh Kumar
[2023:RJ-JP:26451]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Cross Objection (Civil) No.04/2013
1. Smt. Lali wife of Late Shri Nathu Ram, aged 41 years
2. Shankar S/o Late Shri Nathu Ram, aged 23 years
3. Prithviraj S/o Late Shri Nathu Ram, aged 21 years
4. Raju S/o Late Shri Nathu Ram, aged 11 years
5. Rakshak S/o Late Shri Nathu Ram, aged 4 years
Appellant Nos.4 to 5 are minors through their natural guardian
and mother Smt. Lali W/o Late Shri Nathu Ram.
All b/c Kharwal, R/o village Tilana, P. S. Nasirabad, District
Ajmer.
----Appellants/Claimants
Versus
1. Namo Narain Meena @ Ram Narayan Meena S/o Shri Jauhari
Lal Meena, R/o Meeno Ka Mohalla, Neenad, P. S. Harmada, Tehsil
Amer, District Jaipur.
2. Smt. Lakshmi Devi Meena W/o Late Shri Lalaram, R/o Village
Neenad, Ward No.70, P. S. Harmada, Tehsil Amer, District Jaipur.
----Cross-Objectors
3. The United India Insurance Company Limited, Regional Office,
Vishal Chamber, Tonk Road, Jaipur through Regional Manager.
----Respondents/Non-Claimants
Connected With S.B. Civil Miscellaneous Appeal No. 627/2012
1. Smt. Lali wife of Late Shri Nathu Ram, aged 41 years
2. Shankar S/o Late Shri Nathu Ram, aged 23 years
3. Prithviraj S/o Late Shri Nathu Ram, aged 21 years
4. Raju S/o Late Shri Nathu Ram, aged 11 years
5. Rakshak S/o Late Shri Nathu Ram, aged 4 years Appellant Nos.4 to 5 are minors through their natural guardian and mother Smt. Lali W/o Late Shri Nathu Ram. All b/c Kharwal, R/o village Tilana, P. S. Nasirabad, District Ajmer.
----Appellants/Claimants Versus
1. Namo Narain Meena @ Ram Narayan Meena S/o Shri Jauhari Lal Meena, R/o Meeno Ka Mohalla, Neenad, P. S. Harmada, Tehsil Amer, District Jaipur.
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2. Smt. Lakshmi Devi Meena W/o Late Shri Lalaram, R/o Village Neenad, Ward No.70, P. S. Harmada, Tehsil Amer, District Jaipur.
3. The United India Insurance Company Limited, Regional Office, Vishal Chamber, Tonk Road, Jaipur through Regional Manager.
----Respondents/Non-Claimants For Petitioner(s) : Mr. Gaurav Sharma in Cross Objection No.04/2013.
Mr. Sandeep Mathur in Civil Misc.
Appeal No.627/2012For Respondent(s) : Ms. Archana Mantri for Insurance Company HON'BLE MR. JUSTICE ASHUTOSH KUMAR Order 03/10/2023 S. B. Civil Misc. Appeal No.627/2012 :
1. As the appeal and cross-objection involve common question of facts and law, they are being decided by the instant common order.
2. The instant appeal has been filed by the appellants -
claimants under Section 173 of the Motor Vehicles Act, 1988 against the judgment and award dated 04.11.2011 passed by Judge, Motor Accident Claims Tribunal, Jaipur City, Jaipur (hereinafter referred to as the 'Tribunal') in MAC Case No.978/2009, whereby the learned Tribunal has partly allowed the claim petition filed by the appellants-claimants (hereinafter referred to as the 'claimants') and awarded a compensation of Rs.4,40,000/- in favour of the claimants.
3. The claimants submitted a claim petition claiming compensation of Rs.58,04,000/-. After hearing learned counsel for (Downloaded on 11/11/2023 at 08:29:52 PM) [2023:RJ-JP:26451] (3 of 10) [XOBJC-4/2013] the parties, decided the claim petition of the claimants and passed the impugned judgment and award. Hence, the present appeal.
4. Learned counsel for the claimants contended that the learned Tribunal has erred in passing the impugned judgment by awarding the compensation on a lower side. Learned Tribunal assessed the income of the deceased only at Rs.3510/- per month, whereas the deceased by doing the work of loading and unloading stones was earning Rs.9,000/- per month.
5. Learned counsel further contended that the learned Tribunal has also erred in not awarding future prospects, as the deceased was 46 years of age at time of accident and he was self employed and, therefore, the claimants are entitled for 25% future prospects.
6. Learned counsel argued that learned Tribunal has wrongly deducted 1/4 from the income of the deceased, as the appellant Nos.1 to 5 are dependents upon deceased - Nathuram and, therefore, 1/5 ought to be deducted from the income of the deceased.
7. Learned counsel further contended that the learned Tribunal has erred in awarding interest @ 7% per annum. It is settled law that interest on the compensation amount ought to have been awarded at least @ 12% per annum.
8. On the other hand, learned counsel for the respondent has supported the impugned judgment and award and contended that there is no merit in this appeal and the same be dismissed. (Downloaded on 11/11/2023 at 08:29:52 PM) [2023:RJ-JP:26451] (4 of 10) [XOBJC-4/2013]
9. Heard learned counsel for the parties and perused the material available on record.
10. Learned Tribunal has observed that no evidence has been produced to prove that the deceased, by doing the work of loading and unloading of stones was earning Rs.9,000/- per month at the time of accident. Therefore, learned Tribunal assessed the income of the deceased as per the daily wages i.e. Rs.135/-, applicable on the date of incident (09.04.2009) and calculated his monthly income as Rs.3510/- (135x26).
11. In the opinion of this Court, the income of the deceased should have been considered for 30 days not for 26 days. Therefore, the findings of the learned Tribunal is to be modified in this regard and the income of the deceased is assessed to be 4050 per month (135x30). Learned Tribunal has not added any amount to the income of the deceased under the head of future prospects, which was to be done in the light of judgment of National Insurance Company Limited Vs. Pranay Sethi & Ors. reported in (2017) 16 SCC 680.
12. In view of the abovementioned discussions and considering to the age of the deceased to be 46 years at the time of incident, an increment of 25% of the income for the future prospects, as per the direction given in the case of Pranay Sethi (supra) is also to be made. Thus, total monthly income of the deceased comes out to be Rs.4050 (135 X 30) + 25% (Rs.1012/-) for future prospects = Rs.5062/- per month for the purpose of calculating the loss of income.
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13. It is an admitted fact that the deceased was survived by his wife and four children. All the five persons were living in the same house as family with the deceased and, therefore, 1/4 part from the income of the deceased has rightly been deducted under the head of personal expenses. Therefore, the net income of the deceased comes to Rs.5062/- divided by 4 = Rs.1265 total Rs.5062 - 1265 = Rs.3797/- per month.
14. In this case, the age of the deceased is found to be 46 years. Therefore, as per judgment of Pranay Sethi (supra) the multiplier of 13 is applicable in this case. After applying the multiplier of 13, total amount quantified as the loss of dependency comes out to be Rs.3797 x 12 x 13 = Rs.5,92,332/-.
15. Learned Tribunal has awarded lump sum amount of Rs.25,000/- to the wife and children of deceased under the head of consortium. As per the judgments of Hon'ble the Apex Court in the case of of Pranay Sethi (supra), United India Insurance Company Ltd. Vs. Satinder Kaur @ Satvinder Kaur & Anr. reported in (2021) 11 SCC 780 and Magma General Insurance Co. Ltd Vs. Nanu Ram @ Chuhru Ram & Ors reported in (2018) 18 SCC 130, the claimant-appellant-wife of the deceased is entitled to get Rs.40,000/- under the head of spousal consortium and appellant Nos.2 to 5, who are children of the deceased, are also entitled to get Rs.40,000/- each under the head of parental consortium.
16. Learned Tribunal has awarded a sum of Rs.4330/- for funeral expenses, which needs to be enhanced to Rs.15,000/-. Further, (Downloaded on 11/11/2023 at 08:29:52 PM) [2023:RJ-JP:26451] (6 of 10) [XOBJC-4/2013] Rs.15,000/- are also to be granted under the head of loss of estate, as per the judgment of Pranay Sethi (supra).
17. So, judgment and award of the Tribunal is modified to the extent as under:
1. Loss of Annual Income (as Rs.3797 x 12 x 13 = per the age of the Rs.5,92,332/-
deceased, multiplier of 13).
2. Under the head of Spousal Rs.40,000/- each to the Consortium and Parental appellants Consortium Total Rs.2,00,000/-
3. Funeral expenses Rs.15,000/-
4. Loss of estat Rs.15,000/-
5. Total amount of Rs.8,22,332/-
compensation
6. Less amount awarded by Rs.4,40,000/-
the Tribunal
7. Enhanced amount of (Rs.8,22,332-
compensation Rs.4,40,000=
Rs.3,82,332/-
18. In view of the above, the impugned judgment and award dated 04.11.2011 passed by the Tribunal is modified to the aforesaid extent. The claimants-appellants are entitled to get a sum of Rs.8,22,332/- as compensation. Insurance Company is directed to deposit enhanced amount of compensation with the Tribunal within a period of two months from the date of receipt of certified copy of this order. After deposition of the said amount, the learned Tribunal is directed to disburse the same in terms of the award. The enhanced amount shall carry 8% interest from the date of filing of claim petition till the actual payment is made.
19. The other terms and conditions of the impugned judgment and award shall remain the same.
20. Consequently, the appeal is partly allowed. (Downloaded on 11/11/2023 at 08:29:52 PM)
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22. Pending application(s), if any, also stand(s) disposed of. S. B. Civil Cross Objection No.04/2013 :
1. Learned counsel for the cross-objectors-respondent Nos.1 & 2 (hereinafter referred to as the 'cross-objectors') submits that the application (No.181/2013) under Section 5 of the Limitation Act for condonation of delay in filing the cross-objection has wrongly been filed, as the cross-objection has been filed within the prescribed time.
2. In view of the above, learned counsel for the cross-objectors does not want to press the application.
3. Accordingly, the present application (No.181/2013) is dismissed as not pressed.
4. Brief facts of the present case are that a claim petition was filed by the appellants-claimants, on account of death of Shri Nathu Ram, who died in a motor accident occurred on 09.04.2009 for claiming compensation of Rs.58,04,000/- before the Motor Accident Claims Tribunal, Jaipur City, Jaipur (hereinafter referred to as the 'Tribunal').
5. The cross-objector-respondent No.1-driver and cross-
objector-respondent No.2-owner of the tractor and respondent No.3 - Insurer filed their written statements to the claim petition.
6. After evaluating the evidence available and hearing both the parties, the learned Tribunal partly allowed the claim petition vide order dated 04.11.2011 and awarded compensation to the tune of Rs.4,40,000/- in favour of the claimants.
7. However, while deciding the claim petition the learned Tribunal exonerated the Insurance Company from its liability on the ground of breach of policy condition treating tractor-trolley as (Downloaded on 11/11/2023 at 08:29:52 PM) [2023:RJ-JP:26451] (8 of 10) [XOBJC-4/2013] the 'goods carriage/transport vehicle' whereas the driver of the same was holding the driving license of L.M.V.
8. Heard learned counsel for the parties and perused the material available on record.
9. So far as the contention of learned counsel for the cross- objectors regarding exonerating the Insurance Company from its liability is concerned, the learned Tribunal while deciding Issue No.3 has held that driver of the offending vehicle did not possess driving license (DL) to drive the commercial vehicle and simply possess driving license to drive LMV only, therefore, the learned Tribunal has exonerated the Insurance Company from its liability and directed the Insurance Company to pay the interim award to the claimants and then to recover the same from the owner of the offending vehicle. In this regard, the Hon'ble Supreme Court in the case of Mukund Dewangan reported in (2017) 14 SCC 663 had held as follows :
"(i) 'Light motor vehicle' as defined in section 2(21) of the Act would include a transport vehicle as per the weight prescribed in section 2(21) read with section 2 (15) and 2(48). Such transport vehicles are not excluded from the definition of the light motor vehicle by virtue of Amendment Act No.54/1994.
(ii) 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 (Downloaded on 11/11/2023 at 08:29:52 PM) [2023:RJ-JP:26451] (9 of 10) [XOBJC-4/2013] enumerated above. A licence issued under section 10(2)(d) continues to be valid after Amendment Act 54/1994 and 28.3.2001 in the form.
(iii) The effect of the amendment made by virtue of Act No.54/1994 w.e.f. 14.11.1994 while substituting clauses (e) to (h) of section 10(2) which contained "medium goods vehicle" in section 10(2)(e), medium passenger motor vehicle in section 10(2)(f), heavy goods vehicle in section 10(2)(g) and "heavy passenger motor vehicle" in section 10(2)(h) with expression 'transport vehicle' as substituted in section 10(2)(e) related only to the aforesaid substituted classes only. It does not exclude transport vehicle, from the purview of section 10(2)(d) and section 2(41) of the Act i.e. light motor vehicle.
(iv) The effect of amendment of Form 4 by insertion of "transport vehicle" is related only to the categories which were substituted in the year 1994 and the procedure to obtain driving licence for transport vehicle of class of "light motor vehicle" continues to be the same as it was and has not been changed and there is no requirement to obtain separate endorsement to drive transport vehicle, and if a driver is holding licence to drive light motor vehicle, he can drive transport vehicle of such class without any endorsement to that effect.
10. In the case in hand the driver of the offending vehicle was having valid and effective driving license to drive the offending vehicle, in light of judgment of Hon'ble the Supreme Court in the case of Mukund Dewangan (supra). Therefore, the findings of the learned Tribunal with regard to exonerating the Insurance Company from its liability and giving directions to the Insurance Company to pay the compensation to the claimants and recover the same from the owner of the offending vehicle is set aside and the respondents i.e. driver, owner and Insurance Company are jointly and severely liable to pay the compensation. (Downloaded on 11/11/2023 at 08:29:52 PM)
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11. In view of the discussions aforesaid, the impugned judgment and award dated 04.11.2011 passed by the Tribunal is modified to the aforesaid extent.
12. Accordingly, the cross-objection is partly allowed.
(ASHUTOSH KUMAR),J A. ARORA /-22 & 23 (Downloaded on 11/11/2023 at 08:29:52 PM) Powered by TCPDF (www.tcpdf.org)