Rajasthan High Court - Jodhpur
The New India Assurance Co. Ltd vs Smt. Pankaj Mehta And Ors on 25 October, 2024
Author: Nupur Bhati
Bench: Nupur Bhati
[2024:RJ-JD:42011]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Misc. Appeal No. 2666/2017
1. Smt. Jubeda, Widow Of Late Sikandar Khan,
2. Jafar, Son Of Rasul Khan, All By Caste Musalman,
Residents Of Ward No. 24, Opposite Nagar Palika, Balotra,
District Barmer.
3. Sahania, Daughter Of Late Sikandar Khan,
4. Aprudeen, Son Of Late Sikandar Khan,
5. Aman, Son Of Late Sikandar Khan,
6. Hasan, Son Of Late Sikandar Khan, Appellant Nos. 2 To 5
Minor, Through Their Natural Guardian Mother Smt.
Jubeda, Appellant No.1
7. Smt. Sahida Bano, Wife Of Shri Rasul Khan,
8. Rasul Khan Son Of Ali Khan Since Deceased, Name
Deleted Due To Death During Trial Of Claim Petition
9. Gulshan, Daughter Of Rasul Khan,
10. Raksha, Daughter Of Rasul Khan, Minor Through Her
Natural Guardian Smt. Sahida Bano, Appellant No.6
----Appellants
Versus
1. Pawandeep Singh, Son Of Shri Jasvinder Singh, By Caste
Jat Sikh, Resident Of 276, Patwar Khane Wali Gali, Old
City, P.s. Kotakpura, District Faridkot, Punjab. Alternate
Address C/o New Bikaner Punjab Haryana Roadline, Shop
No.5, Plot No. 32, Sector 9/c, Gandhidham, Kacch
Gujarat. ........owner
2. Kuldeep Singh, Son Of Shri Sukhman Singh, By Caste Nai
Sikh, Resident Of E2/1240, Guru Tegbahadur Singh
Nagar, P.s. Kotakpura, District Faridkot Punjab Driver
3. The New India Assurance Company Limited, Through Its
Divisional Manager, Abhay Chambers, Jalori Gate,
Jodhpur. .......insurer
----Respondents
Connected With
S.B. Civil Misc. Appeal No. 2665/2017
1. Smt. Vimla Devi, Widow Of Late Shri Gopilal Alias Gopa
Ram,
2. Miss Divya, Daughter Of Late Shri Gopilal Alias Gopa
Ram,
3. Manoj, Son Of Late Shri Gopilal Alias Gopa Ram,
(Downloaded on 26/10/2024 at 11:18:53 PM)
[2024:RJ-JD:42011] (2 of 33) [CMA-2666/2017]
4. Anil Kumar, Son Of Late Shri Gopilal Alias Gopa Ram,
5. Smt. Parmeshwari Devi, Wife Of Shri Hem Raj,
6. Hem Raj, Son Of Shri Ranchod,
7. Yashpal, Son Of Shri Hem Raj Paliwal, Appelant Nos. 2
And 3 Minor, Through Their Natural Guardain Mother Smt.
Vimla Devi, Appellant No.1., All By Caste Paliwal Brahmin,
Residents Of Village Nawai, P.s. Pachpadra, District
Barmer.
----Appellants
Versus
1. Pawandeep Singh, Son Of Shri Jasvinder Singh, By Caste
Jat Sikh, Resident Of 276, Patwar Khane Wali Gali, Old
City, P.s. Kotakpura, District Faridkot, Punjab. Alternate
Address C/o New Bikaner Punjab Haryana Roadline, Shop
No.5, Plot No. 32, Sector 9/c, Gandhidham, Kacch
Gujarat. ........owner
2. Kuldeep Singh, Son Of Shri Sukhman Singh, By Caste Nai
Sikh, Resident Of E2/1240, Guru Tegbahadur Singh
Nagar, P.s. Kotakpura, District Faridkot Punjab Driver
3. The New India Assurance Company Limited, Through Its
Divisional Manager, Abhay Chambers, Jalori Gate,
Jodhpur. .......insurer
----Respondents
S.B. Civil Misc. Appeal No. 2667/2017
1. Smt. Pankaj Mehta, Widow Of Late Shri Bharat Mehta,
2. Adesh Mehta, Son Of Late Shri Bharat Mehta,
3. Shreyansh Mehta, Son Of Late Shri Bharat Mehta,
4. Smt. Pawni Devi, Wife Of Shri Ranjeet Mal,
5. Ranjeet Mal, Son Of Shri M.r. Mehta, All By Caste Jain,
Residents Of 32, Green Park, Pali.
----Appellants
Versus
1. Pawandeep Singh, Son Of Shri Jasvinder Singh, By Caste
Jat Sikh, Resident Of 276, Patwar Khane Wali Gali, Old
City, P.s. Kotakpura, District Faridkot, Punjab. Alternate
Address C/o New Bikaner Punjab Haryana Roadline, Shop
No.5, Plot No. 32, Sector 9/c, Gandhidham, Kacch
Gujarat. ........owner
2. Kuldeep Singh, Son Of Shri Sukhman Singh, By Caste Nai
Sikh, Resident Of E2/1240, Guru Tegbahadur Singh
Nagar, P.s. Kotakpura, District Faridkot Punjab Driver
(Downloaded on 26/10/2024 at 11:18:53 PM)
[2024:RJ-JD:42011] (3 of 33) [CMA-2666/2017]
3. The New India Assurance Company Limited, Through Its
Divisional Manager, Abhay Chambers, Jalori Gate,
Jodhpur. .......insurer
----Respondents
S.B. Civil Misc. Appeal No. 3367/2017
The New India Assurance Company Limited, T.p. Claim Hub,
Divisional Office, Abhay Chambers, Jalori Gate, Jodhpur Through
Its Authorized Representative.
----Appellant
Versus
1. Smt. Jubeda Bano W/o Late Sikandar Khan,
2. Pawandeep S/o Jaivindra Singh, Jat Sikh, R/o 276, Patwar
Khan Lane, Old City, P.s. Kotakpura, Faridkot Punjab.
Second Addrsss C/o New Bikaner Punjab Haryana Road
Line, Shop No.5, Plot No. 32, Sector 9/c, Gandhi Dham,
Kutch, Gujarat. - Owner
3. Kuldeep Singh S/o Sukhman Singh Nai, Sikh, R/o E-
2/1240, Guru Tegbahadur Singh Nagar, P.s. Kotakpura,
District Faridkot Punjab. - Driver
4. Mst. Shahniya D/o Late Sikandar Khan Minor
5. Aaprudeen S/o Late Sikandar Khan Minor
6. Aman S/o Late Sikandar Khan Minor
7. Hasan S/o Late Sikandar Khan Minor, Minors Are
Represented Through Their Next Frient Mother Smt.
Jubeda Bano.
8. Smt. Shahida Bano W/o Rasool Khan,
9. Mst. Gulsan D/o Rasool Khan, Minor
10. Mst. Raksha D/o Rasool Khan, Minor, Minors Are
Represented Through Their Next Frient Mother Smt.
Shahida Bano. All By Caste Muslim, Resident Of 24,
Opposite Nagar Parishad, Balotra.
11. Jafar S/o Rasool Khan, By Caste Muslim, Resident Of 64,
Sindhi Muslim Basti, Masuriya, Jodhpur.
----Respondents
S.B. Civil Misc. Appeal No. 3371/2017
The New India Assurance Company Limited, T.p. Claim Hub,
Divisional Office, Abhay Chambers, Jalori Gate, Jodhpur Through
Its Authorized Representative.
----Appellant
Versus
(Downloaded on 26/10/2024 at 11:18:53 PM)
[2024:RJ-JD:42011] (4 of 33) [CMA-2666/2017]
1. Smt. Vimla Devi W/o Shri Gopilal @ Goparam,
2. Mst. Divya D/o Shri Gopilal @ Goparam Minor
3. Manoj S/o Shri Gopilal @ Goparam Minor, Minors Are
Represented Through Their Natural Guardian Mother Smt.
Vimla Devi.
4. Smt. Parmeshwari Devi W/o Shri Hemraj,
5. Hemraj S/o Shri Ranchhod, All By Caste Paliwal,
Residents Of Village Nawai, Tehsil Pachpadara, District
Barmer.
6. Anil Kumar S/o Sh. Gopilal @ Goparam Now Major,
Resident Of Apex Hostal, Kuri Bhagtasani, Jodhpur.
7. Yashapl S/o Shri Hemraj Paliwal, Resident Of A-231,
Shastri Nagar, Jodhpur.
8. Pawandeep S/o Jaivindra Singh, Jat Sikh, R/o 276, Patwar
Khan Lane, Old City, P.s. Kotakpura, Faridkot Punjab.
Second Addrsss C/o New Bikaner Punjab Haryana Road
Line, Shop No.5, Plot No. 32, Sector 9/c, Gandhi Dham,
Kutch, Gujarat. - Owner
9. Kuldeep Singh S/o Sukhman Singh Nai, Sikh, R/o E-
2/1240, Guru Tegbahadur Singh Nagar, P.s. Kotakpura,
District Faridkot Punjab. - Driver
----Respondents
S.B. Civil Misc. Appeal No. 3372/2017
The New India Assurance Company Limited, T.p. Claim Hub,
Divisional Office, Abhay Chambers, Jalori Gate, Jodhpur Through
Its Authorized Representative.
----Appellant
Versus
1. Smt. Pankaj Mehta W/o Late Bharat Mehta
2. Aadesh S/o Late Bharat Mehta Minor
3. Shreyansh S/o Late Bharat Mehta Minor, Minors Are
Represented Through Their Natural Guardian Mother Smt.
Pankaj Mehta All Resident Of 32, Green Park, Pali.
4. Smt. Pawani Devi W/o Late Shri Ranjeet Mal Mehta
5. Ranjeet Mal S/o Shri M.r. Mehta, Both Resident Of A-108,
Shastri Nagar, Jodhpur.
6. Pawandeep S/o Jaivindra Singh, Jat Sikh, R/o 276, Patwar
Khan Lane, Old City, P.s. Kotakpura, Faridkot Punjab.
Second Addrsss C/o New Bikaner Punjab Haryana Road
Line, Shop No.5, Plot No. 32, Sector 9/c, Gandhi Dham,
Kutch, Gujarat. - Owner
(Downloaded on 26/10/2024 at 11:18:53 PM)
[2024:RJ-JD:42011] (5 of 33) [CMA-2666/2017]
7. Kuldeep Singh S/o Sukhman Singh Nai, Sikh, R/o E-
2/1240, Guru Tegbahadur Singh Nagar, P.s. Kotakpura,
District Faridkot Punjab. - Driver
----Respondents
For Appellant(s) : Mr. Anil Bhandari for Claimants
Mr. Dinesh Choudhary for Claimants
Mr. Jagdish Vyas for Ins. Company
For Respondent(s) : Mr. Amardeep Lamba for Owner &
Driver
HON'BLE DR. JUSTICE NUPUR BHATI
JUDGMENT
Reserved on: 15/10/2024 Pronounced on: 25/10/2024
1. The civil misc. appeal nos. 3367/2017, 3371/2017 and 3372/2017 have been preferred by the appellant-Insurance Company under Section 173 of the Motor Vehicles Act, 1988 (hereinafter as 'the Act') assailing the judgment and award dated 22.06.2017 passed by learned Judge, Motor Accident Claims Tribunal, Jodhpur Mahanagar (hereinafter as 'the learned Tribunal') in MAC Case Nos. 13/2015, 15/2015 and 14/2015 and whereby the learned Tribunal partly allowed the claim petitions filed by the respective claimants under Section 166 of the MV Act and awarded compensation of Rs. 72,04,298/-, Rs. 12,70,360/- and Rs. 61,20,455/- respectively in favour of respective claimants along with interest @6 % p.a. from the date of filing the respective claim petitions, while fastening the liability upon the respondent/owner and respondent/driver of the offending vehicle along with the appellant/Insurance Company, jointly and severally.
(Downloaded on 26/10/2024 at 11:18:53 PM) [2024:RJ-JD:42011] (6 of 33) [CMA-2666/2017]
2. The S.B. Civil Misc. Appeal Nos. 2666/2017, 2665/2017 and 2667/2017, seeking enhancement, have been filed by the respective respondents/claimants assailing the judgment and award dated 22.06.2017 passed by the learned Tribunal in MAC Case Nos. 13/2015, 15/2015 and 14/2015 respectively. Since all these appeals arise from the same accident, and both the insurance company as well as the claimants in the respective claim petitions have preferred the appeals, therefore, for the sake of convenience, the claimants in S.B. Civil Misc. Appeal No. 2666/2017 and S.B. Civil Misc. Appeal No. 3367/2017 would be referred to as claimants-1, the claimants in S.B. Civil Misc. Appeal No. 2665/2017 and S.B. Civil Misc. Appeal No. 3371/2017 would be referred to as claimants-2 and the claimants in S.B. Civil Misc. Appeal No. 2667/2017 and S.B. Civil Misc. Appeal No. 3372/2017 would be referred to as claimants-3 when referred to in context of their respective claim petition and as 'the claimants' when referred to cumulatively. Also, the insurance company, as it is same in all the appeals, would be referred to as the insurance company for the sake of convenience.
3. Briefly stated the facts of the case are that on 08.09.2014, Sikandar Khan, Gopilal@Goparam, Mahaveer Singh and Bharat Mehta were travelling in the car bearing registration no. RJ19 temperory 183688 (hereinafter as 'the car') from Balotara to Loonkaransar and at around 7:00 AM- 7:30AM the truck-trolla bearing registration no. GJ12AT9222 (hereinafter as 'the offending vehicle'), which was being driven rashly and negligently by Kuldeep Singh (hereinafter as 'the respondent/driver') came from the opposite side and dashed into the car. As a result of the (Downloaded on 26/10/2024 at 11:18:53 PM) [2024:RJ-JD:42011] (7 of 33) [CMA-2666/2017] accident all the four persons travelling in the car died on the spot. The FIR no. 86/2014 (Ex.1) was lodged and the police after investigation filed chargesheet (Ex.2) against the respondent/driver under Section 279,304A, IPC. Subsequently, the MAC case no. 13/2015 was filed by the claimants-1 under Section 166 of the Act claiming compensation on account of the death of Sikandar Khan (hereinafter as 'the deceased-1'), the MAC case no. 15/2015 was filed by the claimants-2 under Section 166 of the Act claiming compensation on account of the death of Gopilal (hereinafter as 'the deceased-2') and the MAC case no. 14/2015 was filed by the claimants-3 under Section 166 of the Act claiming compensation on account of the death of Bharat Mehta (hereinafter as the deceased-3) before the learned tribunal.
4. The respondent/driver and Pawandeep Singh (hereinafter as 'the respondent/owner') of the offending vehicle filed their reply to the claim petitions and averred that the accident happened due to the rash and negligent driving of the driver of the car and not that of the offending vehicle. It was averred by them in their reply to the claim petitions that the driver of the car, while trying to overtake one other vehicle, dashed into the offending vehicle.
5. The insurance company in its reply to the claim petitions challenged the claim petitions on the ground of jurisdiction while averring that the learned tribunal does not have the jurisdiction to try the claim petitions. Further, the appellant/insurance company averred in their reply to the claim petition that the accident occurred due to the rash and negligent driving of the driver of the car at a high speed. It was also averred by the Insurance company in their reply that the car dashed into the rear side of the (Downloaded on 26/10/2024 at 11:18:53 PM) [2024:RJ-JD:42011] (8 of 33) [CMA-2666/2017] offending vehicle, which was in a stationary position on the road due to the heavy fog, therefore, the claim petitions should be dismissed.
6. On the basis of the pleadings of the parties, the learned tribunal framed five issues which are reproduced as under:
"1- vk;k fnukad 08@09@2024 dks le; lqcg 7&7-30 cts ;k mlds yxHkx LFkku ckyksrjk ls yw.kdj.klj tkus okyh vke lM+d ij "kksHkklj pkSjkgs ls FkksM+k igys vizkFkhZ la[;k 02 us Vªd Vªksyk la[;k th-ts- 12&,-Vh 9222 dks rst xfr o ykijokgh ls pykdj dkj la[;k vkj-ts-&19&VSEijsjh 183688 dks xyr lkbM esa tkdj VDdj ekjh ftl dkj.k fldUnj "kku] xksihyky o Hkjr esgrk dh e`R;q gks xbZ \ 2- D;k mDr okgu dk mDr pkyd cjoDr nq?kZVuk] fookfnr okgu dks okgu Lokeh foi{kh la[;k ,d dh tkudkjh @lgefr @fu;kstu@ fgrkFkZ esa pyk jgk Fkk\ 3- vk;k foi{kh chek dEiuh dh tokcnkos esa vafdr vkifRr;k¡ lkFkZd gSa] ;fn gk¡] rks D;k mDr {kfriwfrZ jkf"k vnk djus ds fy;s ftEesnkj ugha gS\ 4- D;k [email protected] izfrdj jkf"k izkIr djus ds vf/kdkjh gSa] ;fn gk¡] rks fdl fdl foi{kh ls fdruh fdruh jkf"k\ 5- vuqrks'kA"
7. The claimants examined four witnesses namely- Pankaj"
Mehta (AW-1), Hemraj (AW-2), Jubeda Bano (AW-3) and Jafar (AW-4) and produced 23 documentary evidences (from Ex.1 to Ex.23). However, no evidence was produced by the insurance company.
8. The claimants contended before the learned tribunal that the accident occurred due to the negligence of the respondent/driver of the offending vehicle for which the FIR (Ex.1) was lodged on the same day at around 3:15 PM and the police after the investigation submitted Final Report (Ex.2) against the respondent/driver of the offending vehicle. It was further contended by the claimants before the learned tribunal that all the witness have deposed that the accident occurred due to the rash (Downloaded on 26/10/2024 at 11:18:53 PM) [2024:RJ-JD:42011] (9 of 33) [CMA-2666/2017] and negligent driving of the respondent/driver of the offending vehicle and the appellant/insurance company failed to produce any evidence to refute the same.
9. On the other hand, it was contended by the insurance company before the learned tribunal that the claimants have proved the negligence of the respondent/driver of the offending vehicle however, they have not produced any document to prove such negligence on the part of the respondent/driver of the offending vehicle, therefore, solely on the basis of the final report(Ex.2) the negligence of the respondent/driver cannot be said to be proved.
10. After hearing all the parties and perusing the material available on the record, the learned tribunal partly allowed the claim petitions filed by the respective claimants and awarded compensation of, Rs. 72,04,298/- (in MAC case no. 13/2015), Rs. 12,70,360/- (in MAC case no. 15/2015) and Rs. 61,20,455/- (in MAC case no. 14/2015) along with interest@ 6 % p.a. from the date of filing the claim petition, while fastening the liability upon the respondent/owner, the respondent/driver of the offending vehicle along with the appellant/Insurance Company, jointly and severally.
11. Aggrieved by the same the appellant/insurance company has preferred S.B. C.M.A. nos. 3367/2017, 3371/2017 and 3372/2017 challenging the impugned award passed in the MAC case nos. 13/2015, 15/2015 and 14/2015 respectively. On the other hand, the claimants-1 have preferred S.B. C.M.A. no. 2666/2017, the claimants-2 have preferred S.B. C.M.A. no. 2665/2017 and the claimants-3 have preferred S.B. C.M.A. no. 2667/2017 challenging (Downloaded on 26/10/2024 at 11:18:53 PM) [2024:RJ-JD:42011] (10 of 33) [CMA-2666/2017] the impugned award passed in the MAC Case nos. 13/2015, 15/2015 and 14/2015 respectively.
12. The learned counsel appearing on behalf of the appellant/insurance company submitted that the learned tribunal has erred in deciding the issue no.1 (with respect to the negligence of the respondent/driver of the offending vehicle) solely on the basis of the final report (Ex.2) while ignoring the fact that the Site plan or site inspection memo has not been produced by the claimants. He further submitted that, although it is well settled that the documents prepare by the police during the discharge of their official duty are admissible in the evidence however, the Final report prepared by the police is not binding upon the learned tribunal and the learned tribunal has to decide the claim on the basis of the material produced before it. He further submitted that in the present case the claimants have failed to discharge their burden to prove that the accident occurred due to the negligence of the respondent/driver of offending vehicle, which is sine qua non to sustain a claim petition under Section 166 of the Act. For this submission he placed reliance on the judgment of the Hon'ble Supreme Court in Oriental Insurance Co. Ltd. v. Meena Variyal, (2007) 5 SCC 428 (para 27). Oriental Insurance Co. Ltd. v. Premlata Shukla, (2007) 13 SCC 476(para 10).
13. The learned counsel appearing on behalf of the appellant/insurance company further submitted that an application under Order 41 Rule 27, Code of Civil Procedure, 1908 has also been filed by the appellant/insurance company for bringing on record the Site plan, site inspection memo prepared by the police (Downloaded on 26/10/2024 at 11:18:53 PM) [2024:RJ-JD:42011] (11 of 33) [CMA-2666/2017] and also the photographs of the spot of the accident taken by the police in all the appeals preferred by the appellant/insurance company. By placing reliance upon the site plan, site inspection memo and the photographs of the spot of the accident, he submitted that it is evident from these documents that the offending vehicle was being driven by the respondent/driver in the correct lane however, the car, which was being driven at a high speed which is evident from marks of break on the road as visible in the photographs taken by the police, crossed the center line of the road into the wrong side and dashed into the offending vehicle as shown in the site plan prepared by the police. He further submitted, while relying on the photographs of the spot of the accident and the site plan, that the car was being driven at such high speed that its position changed into the direction from which it was coming. He further submitted, that the offending vehicle was being driven in its correct lane as the offending vehicle capsized beside its correct lane which is evident from the photographs of the spot of the accident. Thus, he submitted, while placing reliance on these documents that it was the car driver who was negligent in causing the accident and not the respondent/driver of the offending vehicle.
14. The learned counsel appearing on behalf of the appellant/insurance company has also challenged the quantum of compensation as awarded by the learned tribunal. He submitted with respect to the S.B.CMA No. 3367/2017 that the learned tribunal has erred in awarding future prospect @50% despite the fact that the deceased-1 was not in a permanent job. He further submitted with respect to the S.B.CMA No. 3367/2017 that the (Downloaded on 26/10/2024 at 11:18:53 PM) [2024:RJ-JD:42011] (12 of 33) [CMA-2666/2017] learned tribunal has erred in awarding consortium to the brother (Respondent no.9/Jafar in S.B.CMA No. 3367/2017) and sisters (Respondent nos.7 and 8 in S.B. CMA No. 3367/2017) of the deceased-1 as they are not legal heirs of the deceased-1 in view of the fact that the wife and children of the deceased-1 are parties in the claim petition. He also challenged the quantum of compensation awarded under the head of consortium. He further submitted that as on the filing of the claim petition the father of deceased-1 was alive therefore, only the wife (Respondent no.1/Jubeda in S.B.CMA No. 3367/2017), children (Respondent nos.2 to 5 in S.B.CMA No. 3367/2017) and the mother(Respondent no.6/Shahida in S.B.CMA No. 3367/2017) of the deceased-1 could be considered as the dependents on the deceased-1, thus, the learned tribunal has rightly made the deduction of 1/4 on account of the personal expenses of the deceased-1 and for this submission he placed reliance on the judgment of the Hon'ble Supreme Court in Sarla Verma.
15. He further submitted with respect to the S.B.CMA No. 3372/2017 that the income of the deceased-3 as mentioned in the Ex.8 (ITR for AY 2013-14) filed prior to the date of accident is from the sale of lands and thus, cannot be considered as regular income for determination of compensation and for this submission he placed reliance on the judgment of the Hon'ble Supreme Court in New India Assurance Co. Ltd. v. Yogesh Devi, (2012) 3 SCC 613 (para 12 and 13). He also challenged the quantum of compensation awarded by the learned tribunal under the head of consortium.
(Downloaded on 26/10/2024 at 11:18:53 PM) [2024:RJ-JD:42011] (13 of 33) [CMA-2666/2017]
16. He further submitted with respect to the S.B.CMA No. 3371/2017 that the learned tribunal has erred in awarding future prospect @50% despite the fact that the deceased-2 was not in a permanent job. He further challenged the quantum of compensation as awarded under the head of loss of consortium by the learned tribunal. He further submitted that father (Respondent no.5/Hemraj in S.B.CMA No. 3371/2017) of deceased-2 and brother (Respondent no.7/Yashpal in S.B.CMA No. 3371/2017) of the deceased-2 could not be considered to be dependent on the deceased-2, thus, the learned tribunal has rightly made the deduction of 1/4 on account of the personal expenses of the deceased-2 looking to the number of the dependents (Respondent nos. 1 to 4 and Respondent no. 6) i.e., 5 and for this submission he placed reliance on the judgment of the Hon'ble Supreme Court in Sarla Verma v. DTC, (2009) 6 SCC 121.
17. Per contra, the learned counsel appearing on behalf of the claimants-1 in S.B.CMA No. 2666/2017 submitted that the personal expenditure should be 1/5 looking to the number of the dependants i.e., 9 and for this he placed reliance on the judgment of the Hon'ble Supreme Court in National Insurance Co. Ltd. v. Birender, (2020) 11 SCC 356(para 12 to 22). He further submitted that the learned tribunal has erred in awarding meager amount under the heads of consortium and loss of estate. He also challenged the interest as awarded by the learned tribunal and prayed for interest @9% and for this submission he placed reliance on the judgment of the Hon'ble Supreme Court in Kumari Kiran v. Sajjan Singh, (2015) 1 SCC 539 (para 21). (Downloaded on 26/10/2024 at 11:18:53 PM) [2024:RJ-JD:42011] (14 of 33) [CMA-2666/2017]
18. The learned counsel appearing on behalf of the claimants-2 in S.B.CMA No. 2665/2017 submitted that the application under Order 41 Rule 27, Code of Civil Procedure, 1908 has been filed by the claimants-2 to bring on record the Income Tax Return for the assessment year 2012-13 wherein the income of the deceased-2 has been mentioned as Rs.1,78,234/- per annum. He submitted that it was not produced before the learned tribunal as at that time claimants-2 could not procure the same and prayed that income of the deceased-2 be assessed as per the Income Tax Return for the assessment year 2012-13. He further, placed reliance on the statement of the Hemraj (AW2), who is the father of the deceased-2, to submit that all the seven appellants/claimants in S.B.CMA No. 2665/2017 were dependent on the deceased-2 therefore, the learned tribunal has erred in making deduction of 1/4 instead of 1/5 looking to the number of the dependants i.e., 7. He further challenged the quantum of the compensation awarded under the heads of loss of consortium and loss of estate. He also challenged the interest as awarded by the learned tribunal and prayed for interest @9% and for this submission he placed reliance on the judgment of the Hon'ble Supreme Court in Kumari Kiran v. Sajjan Singh, (2015) 1 SCC 539 (para 21).
19. The learned counsel appearing on behalf of the claimants-3 in S.B.CMA No. 2667/2017 submitted that the submission made by the learned counsel appearing on behalf of the insurance company with respect to the income of the deceased-3 is devoid of any merit as the deceased-3 was engaged in construction business also and was deriving income from it. He further (Downloaded on 26/10/2024 at 11:18:53 PM) [2024:RJ-JD:42011] (15 of 33) [CMA-2666/2017] submitted that the learned tribunal has erred in not considering the income of the deceased-3 from other sources i.e., Rs.46,540/- while assessing the income of the deceased-3 as after his death there has been loss of this income and also the learned tribunal has not given any reason for not considering this part of the income despite the fact that it was included in the ITR(Ex.8) for the Assessment Year 2013-14 and also mentioned in Ex.10, which is the Intimation under Section 143(1) of the Income Tax Act, 1961 dated 08.01.2014. He further challenged the quantum of compensation awarded under the heads of loss of consortium and loss of estate. He also challenged the interest as awarded by the learned tribunal and prayed for interest @9% and for this submission he placed reliance on the judgment of the Hon'ble Supreme Court in Kumari Kiran v. Sajjan Singh, (2015) 1 SCC 539 (para 21).
20. The learned counsel appearing on behalf of the claimants in all the respective appeals submitted, while reading out para no.28 of the reply filed by the insurance company to the claim petitions before the learned tribunal, that the insurance company took a specific plea before the learned tribunal that the car dashed into the offending vehicle which was stationary on the road however, before this court, the insurance company has raised a totally new and contrary ground that the respondent/driver was driving the offending vehicle on the correct lane and the driver of the car rashly and negligently came from the opposite direction towards the wrong lane and dashed into the offending vehicle. Thus, the insurance company cannot take a totally different plea before this court at the appellate stage for the first time which was not even (Downloaded on 26/10/2024 at 11:18:53 PM) [2024:RJ-JD:42011] (16 of 33) [CMA-2666/2017] taken before the learned tribunal and that too on the basis of evidence for which it had laid no foundation in the pleadings before the learned tribunal. For this submission he placed reliance on the judgment of the Hon'ble Supreme Court i n Kaushik Narsinhbhai Patel v. S.J.R. Prime Corpn. (P) Ltd., 2024 SCC OnLine SC 1762(para 18 and 20).
21. The learned counsel appearing on behalf of the claimants in all the respective appeals submitted that the plea raised by the learned counsel appearing on behalf of the insurance company that the learned tribunal has erred in deciding the issue no.1 (with respect to the negligence of the respondent/driver of the offending vehicle) is devoid of any merit as no evidence was tendered by the insurance company and also the respondent/driver and respondent/owner of the offending vehicle was not examined by the insurance company before the learned tribunal, therefore, the tribunal after perusing the material available record has given a reasoned finding that the respondent/driver of the offending vehicle was negligent. He also made the submission that the site plan was prepared after almost 27 hours (on 09.09.2014) from the time of accident(08.09.2014). He further placed reliance on the following judgments: Sunita v. Rajasthan SRTC, (2020) 13 SCC 486(para 36) and Vimla Devi v. National Insurance Co. Ltd., (2019) 2 SCC 186(para 20), Shyama Devi And Ors vs Nemi Chand And Ors. [S.B. CMA 878 of 2012, Rajasthan High Court(Principal Bench, Jodhpur) decided on 07.09.2020](para 27).
22. In rebuttal, the learned counsel appearing on behalf of the insurance company submitted that the insurance company has nowhere admitted the negligence of the respondent/driver of the (Downloaded on 26/10/2024 at 11:18:53 PM) [2024:RJ-JD:42011] (17 of 33) [CMA-2666/2017] offending vehicle. He further submitted that the respondent/driver and respondent/owner in their reply to the claim petitions specifically stated that the car being driven rashly and negligently dashed into the offending vehicle which was going in its correct lane of the road. He also submitted that even if there would not have been any written statement from the non-claimants then too the burden lies on the claimants to establish that the accident occurred due to the negligence of the respondent/driver of the offending vehicle. He placed reliance on the site plan, photographs of the spot of accident taken by the police which show tyre mark on the road. He placed reliance on the following judgment: United India Insurance Co. Ltd. v. Pawan Tikkiwal, 2007 SCC OnLine Raj
75.
22. Heard the parties and perused the material available on record.
23. This court deems it appropriate to first decide the applications (Application no. 813/2018 in S.B.CMA 3371/2017, Application no. 814/2018 in S.B.CMA 3372/2017 and Application no. 815/2018 in S.B.CMA 3367/2017) filed by the insurance company under Order 41 Rule 27, CPC for taking on record certified copies site plan, site inspection memo and the photographs of the spot. And on the other hand, the claimants-2 have also filed application no. 1754/2017 in S.B. CMA No.3371/2017 to bring on record the Income tax return for assessment year 2012-13 (Intimation under Section 143(1) of the Income Tax Act, 1961). This court finds that Order 41 Rule 27, CPC 27 reads as under:
(Downloaded on 26/10/2024 at 11:18:53 PM)
[2024:RJ-JD:42011] (18 of 33) [CMA-2666/2017] "Production of additional evidence in Appellate Court.--(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if --
(a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or (aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or]
(b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined. (2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission."
Thus, it is evident from the bare perusal of the above-cited provision that the parties to an appeal shall not be entitled to produce additional evidence in the appellate court, unless the the court finds that the reason for not producing such evidence falls in the categories fall within the clauses as mentioned in clause (a) to
(b) of sub-rule (1) of Rule 27.
23.1 This court with respect to the applications (Application no. 813/2018 in S.B.CMA 3371/2017, Application no. 814/2018 in S.B.CMA 3372/2017 and Application no. 815/2018 in S.B.CMA 3367/2017) filed by the insurance company, finds that the reasons stated by the insurance company to show its inability to produce (Downloaded on 26/10/2024 at 11:18:53 PM) [2024:RJ-JD:42011] (19 of 33) [CMA-2666/2017] certified copies site plan, site inspection memo and the photographs of the spot are not tenable inasmuch as these documents could not have been said to be such that insurance company was not aware about these or could not produce them even after exercising due diligence as these documents are of such nature that any insurance company would be equipped with the resources to procure them. Also, the applications filed by the insurance company do not state any reason for its faliure to produce these documents before the learned tribunal except the reason that it could not produce these documents inadvertently. Thus, the insurance company has not been able to make out a case for allowing these applications as provided under Order 41 Rule 27, CPC, therefore, this court is of the view that these applications cannot be allowed. Accordingly, the applications (Application no. 813/2018 in S.B.CMA 3371/2017, Application no. 814/2018 in S.B.CMA 3372/2017 and Application no. 815/2018 in S.B.CMA 3367/2017) as filed by the insurance company are rejected.
23.2 Now as far as the application no. 1754/2017 in S.B. CMA No.3371/2017 as filed by the claimants-2 is concerned this court finds force in the contention of the counsel appearing on behalf of the claimants-2 that the claimants-2 were not able to procure the Income tax return for assessment year 2012-13 (Intimation under Section 143(1) of the Income Tax Act, 1961) as a grieving family, which was mourning the loss of their bread winner, cannot be expected to be in a position so as to collect or procure these documents. Further, this court is of the view that in the interest of justice the application can be allowed to determine 'just (Downloaded on 26/10/2024 at 11:18:53 PM) [2024:RJ-JD:42011] (20 of 33) [CMA-2666/2017] compensation' that should be awarded to the claimants-2 looking to the beneficial nature of the Act. Thus, application no. 1754/2017 in S.B. CMA No.3371/2017 as filed by the claimants-2 to bring on record the Income tax return for assessment year 2012-13 (Intimation under Section 143(1) of the Income Tax Act, 1961) is allowed.
24. Now the issues that emerge before this court for deciding the controversy in the present case are as under:
I. Whether the tribunal has rightly held the Respondent/driver of the offending vehicle negligent in causing the accident?
II. Whether the impugned award passed in the respective claim petitions deserves to be modified?
Issue-I:
25. Now coming to the first issue, it is a well settled position of law that the initial burden to prove the negligence of the offending vehicle lies on the claimants, however, the standard of proof to discharge such burden is preponderance of probability and not proof beyond reasonable doubt as have been held by the Hon'ble Supreme court in the case of Sunita v. Rajasthan SRTC, (2020) 13 SCC 486, the relevant paragraph of the aforesaid judgement is as under:
"22. It is thus well settled that in motor accident claim cases, once the foundational fact, namely, the actual occurrence of the accident, has been established, then the Tribunal's role would be to calculate the quantum of just compensation if the accident had taken place by reason of negligence of the driver of a motor vehicle and, while doing so, the Tribunal would not be strictly bound by the pleadings of the parties. Notably, while deciding cases arising out of motor vehicle accidents, the standard of proof (Downloaded on 26/10/2024 at 11:18:53 PM) [2024:RJ-JD:42011] (21 of 33) [CMA-2666/2017] to be borne in mind must be of preponderance of probability and not the strict standard of proof beyond all reasonable doubt which is followed in criminal cases."
In the present case, the claimants have brought on record the FIR, seizure memo of the offending vehicle and also the chargesheet filed by the police against the respondent/driver of the offending vehicle. And the perusal of these documents makes out a prima facie case against the respondent/driver of the offending vehicle thus, the initial burden to prove the negligence on the part of the respondent/driver of the offending vehicle was discharged by the claimants on the touchstone of preponderance of probability.
However, the insurance company has neither produced any evidence nor examined the respondent/driver before the learned tribunal to assert that the accident did not occur due to the negligence of the offending vehicle. In fact, the insurance company took a specific plea that the offending vehicle was stationary on the road due to the fog and the car, being driven rashly and negligently, dashed into the rear side of the offending vehicle. Thus, the entire thrust of the arguments was on the point that the chargesheet cannot be the basis to prove the negligence of the respondent/driver.
However, it is important to note at this juncture that before this court the learned counsel appearing on behalf of the insurance company has taken a 180 degree opposite stand than taken before the learned tribunal and contended that the offending vehicle was moving on its correct side but the car came from the opposite side and dashed into the offending vehicle. This, court is (Downloaded on 26/10/2024 at 11:18:53 PM) [2024:RJ-JD:42011] (22 of 33) [CMA-2666/2017] of the view that the appellant/insurance cannot be allowed to take a totally new plea, which is contrary to the one taken before the learned tribunal, for the first time at appellate stage as the same would be against doctrine of estoppel which precludes a party from arguing or asserting something that contradicts what they have previously argued or asserted.
26. As far as the ground raised by the learned counsel on behalf of the insurance company that the chargesheet cannot be the sole basis to prove the negligence of the respondent/driver is concerned, this court finds that no evidence whatsoever was produced by the insurance company before the learned tribunal to demolish the prima facie case that was made out by the claimants.
27. At this juncture, this court finds it apposite to refer to the relevant case laws pertaining to the issue in the present case. This court finds that a coordinate bench of this court, while dealing with a similar matter where there were no eyewitness and the learned tribunal relied on the documents such as FIR, chargesheet, site inspection memo, site plan etc. to decide the issue of negligence against the driver of the offending vehicle therein, upheld the finding of the learned tribunal and observed that:
"In the present case, there is no indication to reflect that the investigating officer was ever called or any document whatsoever was led by the insurance company to refute the prosecution story. This Court takes note of the fact that once the documents prepared by the police authorities wherein challan was filed against the driver of the vehicle and which documents have been held to be admissible in evidence by this Court in R.S.R.T.C. vs. Nand Lal, ACTC (Downloaded on 26/10/2024 at 11:18:53 PM) [2024:RJ-JD:42011] (23 of 33) [CMA-2666/2017] 2001 (Raj.) 489, the burden shifted on the insurance company, owner and driver of the vehicle. The insurance company in the present case has not called any witnesses so as to question the implication of the vehicle in question. The learned Tribunal had no reason not to accept the story given by the claimants supported by the charge-sheet filed by the police. The charge-sheet filed by the police is an unrefuted document. The insurance company has made no efforts whatsoever to counter the same or to produce any documentary evidence or to call the investigating officer or any person, which could discharge the burden of proof which shifted upon the insurance company due to the preponderance of possibility. Thus, no interference is called for in the impugned judgment at the instance of the appellant insurance company."
Further, this court finds that the Hon'ble Supreme Court in Sunita v. Rajasthan SRTC, (2020) 13 SCC 486, while dealing with a similar factual matrix, has observed that:
"24. Reverting to the factual matrix, the actual occurrence of the accident between the motorcycle driven by Sitaram bearing Registration No. RJ 25 SA 6923 coming from one side and a bus belonging to Respondent 1 (the Rajasthan State Road Transport Corporation) bearing Registration No. RJ 26/PA 0042 coming from the opposite direction, is duly proved. The Tribunal has relied upon the uncontroverted evidence of witnesses AD 1 and AD 3, and the documents presented by them, especially FIR No. 247 of 2011 (Ext. 1) and charge-sheet (Ext. 2) against one Banwari Lal Bairwa (Respondent 2), charging him with offences under Sections 279, 337 and 304-A IPC and Sections 134/187 of the Act, to establish that on 28-10-2011 at around 7 a.m., Sitaram, along with pillion rider Rajulal Khateek, was riding on a motorcycle bearing No. RJ 25 SA 6923 from Village Bapuee to Chaut ka Barwad for Daug, to his sister, when, near Mahapura tri-section, Bus No. RJ 26/PA 0042 belonging to Respondent 1 (the Rajasthan State Road Transport (Downloaded on 26/10/2024 at 11:18:53 PM) [2024:RJ-JD:42011] (24 of 33) [CMA-2666/2017] Corporation) coming from the opposite direction hit the motorcycle from the front, resulting in the death of Sitaram.
25. The Tribunal had justly accepted the appellants' contention that the respondents did not challenge the propriety of the said FIR No. 247 of 2011 (Ext. 1) and charge-sheet (Ext. 2) before any authority. The only defence raised by the respondents to this plea was that the said FIR No. 247 of 2011 was based on wrong facts and was filed in connivance between the appellant complainants and the police, against which the respondents complained to the in-charge of the police station and the District Superintendent of Police but to no avail. Apart from this bald assertion, no evidence was produced by the respondents before the Tribunal to prove this point. The filing of the FIR was followed by the filing of the charge- sheet against Respondent 2 for offences under Sections 279, 337 and 304-A IPC and Sections 134/187 of the Act, which, again, reinforces the allegations in the said FIR insofar as the occurrence of the accident was concerned and the role of Respondent 2 in causing such accident. Be that as it may, the High Court has not even made a mention, let alone record a finding, of any impropriety against FIR No. 247/2011 (Ext. 1) or charge-sheet (Ext. 2) or the conclusion reached by the Tribunal in that regard. Yet, the FIR and charge-sheet has been found to be deficient by the High Court.
xxx
27. The Tribunal's reliance upon FIR No. 247/2011 (Ext. 1) and charge-sheet (Ext. 2) also cannot be faulted as these documents indicate the complicity of Respondent 2. The FIR and charge-sheet, coupled with the other evidence on record, inarguably establishes the occurrence of the fatal accident and also point towards the negligence of Respondent 2 in causing the said accident. Even if the final outcome of the criminal proceedings against Respondent 2 (Downloaded on 26/10/2024 at 11:18:54 PM) [2024:RJ-JD:42011] (25 of 33) [CMA-2666/2017] is unknown, the same would make no difference at least for the purposes of deciding the claim petition under the Act. This Court in Mangla Ram [Mangla Ram v. Oriental Insurance Co. Ltd., (2018) 5 SCC 656 : (2018) 3 SCC (Civ) 335 : (2018) 2 SCC (Cri) 819] , noted that the nature of proof required to establish culpability under criminal law is far higher than the standard required under the law of torts to create liability."
In the present case the claimants produced FIR (Ex.1), which was filed on same date as that of the accident, the chargesheet (Ex.2) filed against the respondent/driver of the offending vehicle, the seizure memo of the offending vehicle (Ex.3) to prove the negligence of the respondent/driver of the offending vehicle. However, the insurance company did not produce any evidence apart from contending that the chargesheet cannot be the sole basis to record a finding of negligence on the part of the respondent/driver of the vehicle. Moreover, the insurance company did not challenge the veracity of the Chargesheet (Ex.2) before the learned tribunal.
Thus, in absence of any contrary evidence being produced by the insurance company, the tribunal has rightly decided the issue pertaining to the negligence of the respondent/driver on the touchstone of preponderance of probability, while placing reliance upon the material available on record. Therefore, this court is inclined to answer the Issue no. I, as framed by this court in paragraph no. 24, in affirmative.
Issue-II:
(Downloaded on 26/10/2024 at 11:18:54 PM)
[2024:RJ-JD:42011] (26 of 33) [CMA-2666/2017]
28. Now coming to the Issue no. II, this court, with respect to S.B.CMA 2666/2017 (against the impugned award passed in MAC case no. 13/2015) finds that the amount awarded by the learned tribunal under the head of loss of estate(Rs. 2000/-) and funeral expenses (Rs. 25,000/-) deserves to be modified in the light of the judgment of the Hon'ble Supreme Court in National Insurance Co. Ltd. v. Pranay Sethi[(2017) 16 SCC 680] as Rs.18,150/- under both the heads respectively. Further, this court does not find force with the contention raised by the learned counsel on behalf of the claimants-1 regarding the deduction 1/5 instead of 1/4 to be made on account of personal expenses of deceased-1 as the father of deceased-1 was alive at the time of the accident thus, the brothers and sisters of the deceased-1, in absence of any evidence to the contrary, cannot be considered to be dependent on deceased-1. Thus, looking to the number of the dependants i.e., 6(Wife, 4 children and mother of deceased-1) the tribunal has rightly made deduction of 1/4 on account of personal expenses of deceased-1. Further, the future prospect @40% instead of @50% should be awarded, in light of the judgment of the Supreme Court in Pranay Sethi(Supra). Further, the contention of the learned counsel appearing on behalf of the insurance company that the learned tribunal has erred in awarding amount under the head of loss of consortium to the brother and sisters of the deceased-1 does not have any force in the light of the judgment of this Court in Shriram General Insurance Co. Ltd v. Jethamal and ors. :
[S.B. Civil Misc. Appeal No. 2811/2019, decided on 01.10.2024], wherein, this Court observed that consortium, being a non-pecuniary head, does not depend on the factor of (Downloaded on 26/10/2024 at 11:18:54 PM) [2024:RJ-JD:42011] (27 of 33) [CMA-2666/2017] dependency, therefore, it is awardable to the siblings of the deceased as well. The relevant paragraph of the aforesaid judgment passed by this Court is reproduced hereunder:
"28. This Court also finds that, contrary to the pecuniary heads, where factors such as dependency are important to ascertain the loss, the consortium, being a non-pecuniary head is not to be considered in the light of dependency of a claimant upon the deceased inasmuch as even the siblings, as in the present case, would be deprived of the love, care, affection and company of the deceased, which can not be quantified. Therefore, this Court deems it appropriate to grant compensation towards the head of consortium to the brother of the deceased also."
Thus, the consortium to all the claimants-2 in S.B.C.M.A. No.2666/2017 (against the impugned award passed in MAC case no.13/2015) should be Rs.48,400/- each in the light of the judgment of the Hon'ble Supreme Court in Pranay Sethi(Supra).
29. Further, this court with respect to S.B.C.M.A. No.2665/2017 (against impugned award passed in the MAC case no.15/2015) finds that the amount awarded by the learned tribunal tribunal under the head of loss of estate (Rs.2000/-) and funeral expenses (Rs.25,000/-) deserves to be modified in the light of the judgment passed by the Hon'ble Supreme Court in the case of Pranay Sethi(Supra) as Rs.18,150/- under both the heads respectively. Further, it is evident from the perusal of the document placed on record by the claimants-2 under Order XLI Rule 27, CPC, that the income of the deceased-2 has been mentioned as Rs.1,78,234/- per annum. Thus, the Income Tax Verification Form ['the ITR Form'] for the Assessment Year 2012-2013, which is a statutory (Downloaded on 26/10/2024 at 11:18:54 PM) [2024:RJ-JD:42011] (28 of 33) [CMA-2666/2017] document, has to be considered to assess the income of the deceased-2 and therefore, the annual income of the deceased-2 is assessed as Rs.1,78,234/-. Further, this court finds force in the contention of the learned counsel appearing on behalf the claimants-2, with respect to the deduction on account of the deceased-2 is concerned, inasmuch as Hemraj(AW2), who is the father of the deceased-2 stated in his statement as witness that all of his family member including him was dependent on the deceased-2 and during the cross examination of Hemraj (AW2) no question was raised to him to controvert the same thus, in light of the peculiar facts and circumstances and also in absence of any contrary evidence to the testimony of the statemen t of Hemraj (AW2), this court is of the view that all the seven family members of the deceased-2 has to be considered as dependent upon the latter in view of the judgment of the Hon'ble Supreme Court in Sarla Verma v. DTC, (2009) 6 SCC 121, wherein the Hon'ble Supreme Court has held that only in absence of any evidence to the contrary the father and siblings will not be considered as dependent on the deceased. The relevant paragraph of the aforesaid judgment is reproduced as under:
"30. .......Having considered several subsequent decisions of this Court, we are of the view that where the deceased was married, the deduction towards personal and living expenses of the deceased, should be one-third (1/3rd) where the number of dependent family members is 2 to 3, one-fourth (1/4th) where the number of dependent family members is 4 to 6, and one-fifth (1/5th) where the number of dependent family members exceeds six.
(Downloaded on 26/10/2024 at 11:18:54 PM) [2024:RJ-JD:42011] (29 of 33) [CMA-2666/2017]
31. Where the deceased was a bachelor and the claimants are the parents, the deduction follows a different principle. In regard to bachelors, normally, 50% is deducted as personal and living expenses, because it is assumed that a bachelor would tend to spend more on himself. Even otherwise, there is also the possibility of his getting married in a short time, in which event the contribution to the parent(s) and siblings is likely to be cut drastically. Further, subject to evidence to the contrary, the father is likely to have his own income and will not be considered as a dependant and the mother alone will be considered as a dependant. In the absence of evidence to the contrary, brothers and sisters will not be considered as dependants, because they will either be independent and earning, or married, or be dependent on the father."
Thus, the deduction on account of personal expense of the deceased-2 should be 1/5 looking to the number of the dependants i.e.,7. Thus, the consortium to all the claimants-2 in S.B.C.M.A. No.2665/2017 (against the impugned award passed in MAC case no.15/2015) should be Rs.48,400/- each in the light of the judgment of the Hon'ble Supreme Court in Pranay Sethi(Supra).
30. Further, this court with respect to S.B.C.M.A. No.2667/2017 (against impugned award passed in the MAC case no.14/2015) finds that the learned tribunal has erred in not considering the amount of Rs.46,540/- as mentioned under the head of 'income from other sources' in in Ex.10, which is the Intimation under Section 143(1) of the Income Tax Act, 1961 dated 08.01.2014 without assigning any reason. Further, this court does not find force in the contention raised by the learned counsel for the insurance company that the income of the deceased-3 as (Downloaded on 26/10/2024 at 11:18:54 PM) [2024:RJ-JD:42011] (30 of 33) [CMA-2666/2017] mentioned in ITR for Assessment Year 2013-14(Ex.8) being from sale of land cannot be considered as regular income, for the simple reason that reason that the ITR for Assessment Year 2013- 14 (Ex.8), being a statutory document can be relied upon to asses the income of the deceased as held by the Hon'ble Supreme Court in SMT. ANJALI & ORS. versus LOKENDRA RATHOD & ORS.[CIVIL APPEAL NO. 9014 OF 2022]. Thus, the annual income of the deceased-3 is reassessed as Rs.4,39,437/- after deducting the 'Total tax and interest payable' (Rs.22,212/-) from the 'Gross total income' (Rs.4,61,649/-). Also, the amount awarded to the claimants-3 under the head of consortium is modified to the extent of Rs.48,000/- each in the light of the judgment of the Hon'ble Supreme Court in Pranay Sethi(Supra). Further, the future prospect @40% instead of @50% should be awarded, in light of the judgment of the Supreme Court in Pranay Sethi(Supra). Also, the amount awarded under the head of loss of estate (Rs.2000/-) and funeral expenses (Rs.25,000/-) deserves to be modified in the light of the judgment passed by the Hon'ble Supreme Court in the case of Pranay Sethi(Supra) as Rs.18,150/- under both the heads respectively. Further, this court finds that the learned tribunal has applied the Multiplier of 15 even after determining the age of the deceased-3 as 35 years 2 months. However, this court, in light of the judgment of the Hon'ble Supreme Court in Shashikala v. Gangalakshmamma, (2015) 9 SCC 150 is of the view that the applicable multiplier should be of 16 as the deceased had not completed the age of 36 years as on the date of his death.
31. Further, the interest awarded by the learned tribunal in all the respective claim petitions is enhanced to 9%, while (Downloaded on 26/10/2024 at 11:18:54 PM) [2024:RJ-JD:42011] (31 of 33) [CMA-2666/2017] considering the Fixed Deposit Rates prevalent at the time of the filing of the claim petitions.
32. Thus, in view of the discussion in the above paragraphs, the amount of compensation as awarded by the learned tribunal in the respective claim petitions against which the appeals were preferred before this court are modified as under:
In S.B. CMA No.2666/2017 and S.B. CMA No.3367/2017 (against the impugned award passed in MAC Case Nos.
13/2015):
S.N Particulars Amount as Amount as
o. awarded by the awarded/modif
learned ied by this
tribunal court
1. (add) Compensation towards loss
of dependency:
3,61,950(annual) + 1,44,780
(future prospect @40%) -
Rs.69,22,298/- Rs.64,60,816/-
1,26,682 (1/4 deduction on
account of personal expenses) x
17 (Multiplier) = Rs.64,60,816/-
[A]
2. (add) Loss of Consortium 48,400
Rs. 2,55,000/- Rs.4,35,600/-
x 9 = 4,35,600/- [B]
3. (add) Funeral Expenses [C] Rs.25,000 /- Rs.18,150/-
4. (add) Loss of Estate [D] Rs.2,000/- Rs. 18,150/-
Gross Total [A]+[B]+[C]+[D] Rs.72,04,298/- Rs.69,32,716/-
[E] [F]
Reduced Amount [E]-[F] Rs.02,71,582/-
In S.B. CMA No.2665/2017 and S.B. CMA No.3371/2017 (against the impugned award passed in MAC Case Nos.
15/2015):(Downloaded on 26/10/2024 at 11:18:54 PM)
[2024:RJ-JD:42011] (32 of 33) [CMA-2666/2017] S.N Particulars Amount as Amount as o. awarded by the awarded/modif learned ied by this tribunal court
1. (add) Compensation towards loss of dependency:
1,78,234(annual) + 71,294
(future prospect @40%) - 49,906 Rs.10,08,360/- Rs.29,94,330/-
(1/5 deduction on account of
personal expenses) x 15
(Multiplier) = Rs.29,94,330/- [A]
2. (add) Loss of Consortium 48,400
Rs. 2,35,000/- Rs.3,38,800/-
x 7 = 3,38,800/- [B]
3. (add) Funeral Expenses [C] Rs.25,000 /- Rs.18,150/-
4. (add) Loss of Estate [D] Rs.2,000/- Rs. 18,150/-
Gross Total [A]+[B]+[C]+[D] Rs.12,70,360/- Rs.33,69,430/-
[E] [F]
Enhanced Amount [F]-[E] Rs.20,99,070/-
In S.B. CMA No.2667/2017 and S.B. CMA No.3372/2017 (against the impugned award passed in MAC Case Nos.
14/2015) S.N Particulars Amount as Amount as o. awarded by the awarded/modif learned ied by this tribunal court
1. (add) Compensation towards loss of dependency:
4,39,437(annual) + 1,75,775
(future prospect @40%) -
Rs.58,93,455/- Rs.65,62,272/-
2,05,070 (1/3 deduction on
account of personal expenses) x
16 (Multiplier) = Rs.65,62,272/-
[A]
2. (add) Loss of Consortium 48,400
Rs. 2,00,000/- Rs.2,42,000/-
x 5 = 2,42,000/- [B]
3. (add) Funeral Expenses [C] Rs.25,000 /- Rs.18,150/-
4. (add) Loss of Estate [D] Rs.2,000/- Rs. 18,150/-
Gross Total [A]+[B]+[C]+[D] Rs.61,20,455/- Rs.68,40,572/-
[E] [F]
(Downloaded on 26/10/2024 at 11:18:54 PM)
[2024:RJ-JD:42011] (33 of 33) [CMA-2666/2017]
Enhanced Amount [F]-[E] Rs.7,20,117/-
33. Therefore, in view of the discussion in the above paragraphs, the appeals preferred by the insurance company - S.B. C.M.A. nos. 3367/2017, 3371/2017 and 3372/2017 are partly allowed only to the extent of quantum of compensation and the appeals preferred by the respective claimants - S.B. C.M.A. no. 2666/2017, S.B. C.M.A. no. 2665/2017 and S.B. C.M.A. no. 2667/2017 are partly allowed.
34. Accordingly, the claimants in S.B. C.M.A. no. 2666/2017 are held entitled to the modified compensation of Rs.69,32,716/- along with interest @9%, the claimants in S.B. C.M.A. no. 2665/2017 are held entitled to the modified compensation of Rs.33,69,430/- and the claimants in S.B. C.M.A. no. 2667/2017 are held entitled to the modified compensation of Rs.68,40,572/-. The aforesaid amount shall be payable to the claimants in the respective appeals @9% from the date of filing of their respective claim petitions in the terms of the impugned award passed by the learned tribunal.
35. The amount of compensation if any paid or disbursed shall be adjusted.
36. Record be set back forthwith.
37. No order as to costs.
(DR.NUPUR BHATI),J 64-70-ajay/-
(Downloaded on 26/10/2024 at 11:18:54 PM) Powered by TCPDF (www.tcpdf.org)