New India Assurance Co. Ltd. : Dhani Devi vs Dhani Devi : New India Assurance Co. Ltd.

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2012 Supreme(Raj) 1476

RAJASTHAN HIGH COURT
Vineet Kothari, J.
Dhani Devi and Ors. - Appellants
Versus
New India Assurance Co. Ltd. and Ors. - Respondents
S.B. Civil Misc. Appeal Nos. 1097 of 2011, 1629 of 2011 and 1098 of 2011.
Decided On : 28-03-2012

Advocates:
For the Appellant-Insurance Company:Jagdish Vyas, Advocate.
For the Respondents-Claimants:Anil Bhandari, Advocate.

Headnote:
(a) Civil Procedure Code, 1908, Order 41 Rule 27 – the application was made for compensation against a motor vehicle accident – the insurance company opted to produce police made reports and site plans to show that it was the responsibility of the petitioner for causing of the accident – the Court has taken the documents on record and will decide the matter after hearing and going through the reports.
(b) Motor Vehicles Act, 1988 – S. 166 and 168 – a notice was issued under – S. 133 to the owner and the driver of the truck – it was observed that the number of trucks insured was not mentioned in the FIR – it was also zones that there were some proof regarding the involvement of the truck driver in the accident – the statement of the driver was corroborating the same and there is the denial of the truck driver later cannot we accepted – the suit was filed for a contributory negligence – the owner and the driver of the truck suddenly stop that truck in the middle of the road on the national highway and started to have a conversation with the opposite coming truck – Having no backlight the car could not see the truck in the night and rammed into the same causing the death of the two drivers in the car – it was held that there was no contributory negligence on the part of the driver of the car and it was the sole responsibility of the truck driver and his owner which caused the accident and the death of the two drivers in the car – the site plan was the made two days after the incident actually took place – the site plan did not show the alleged track which was said to have caused the accident – the statement of the eyewitness and the statement under – S. 133 was sufficient to prove that the truck driver was involved in the accident directly – the objection of the insurance company was not seen to be of any value and that's it was rejected – the tribunal did not consider the fact that the two deceased had some future prospects and also a family to take care – the High Court enhanced the compensation by 50% and also awarded an interest of 9% per annum. in view of Case of Sarla Verma, 2009(6) SCC 121 – the court in an attempt to fix the amount of compensation started to look into the matter and the income of the deceased – it was seen that both the deceased were income tax payers and they received income from their consultancy firm which was fluctuating income – the income was taken to be at two lakh including the tax liabilities and other personal expenditure the court used the multiplier of 10 and and not of 13 thus the amount of compensation allowed to the deceased was 13,10,000.

JUDGMENT

1. - The aforesaid appeals by Insurer-New India Assurance Company and cross objections by claimants are filed against the award of the Motor Accident Claims Tribunal-I, Jodhpur dated 15.04.2011 deciding claim petition No. 762/2008 (Smt. Kanta W/o Late Rajendra Gulecha), Claim petition No. 282/2010 (Sanjana Kothari v. Dhool Singh) and Claim petition No. 33/2009, (Dhani Devi W/o Late Vijay Singh v. Dhool Singh under Section 166 of the Motor Vehicles Act. 1988. In an accident which took place on 02.08.2008 at about 8.30 pm in the night near Village Bhavi on Bilara to Jodhpur road, two persons in Honda Car No. HR 26-AF-5280 being driven by Vijay Singh and accompanied by one Rajendra Gulecha rammed from back side in truck No. RJ 19-G-7257 being driven by owner-cum-driver Dhool Singh, non-applicant No. 1. The said truck was insured with appellant-non-applicant No. 2-New India Assurance Company, Jodhpur. On account of said accident, the occupants of the car, namely driver-Vijay Singh and occupant-Rajendra Gulecha died on the spot. Driver Vijay Singh was aged about 40 years and occupant Rajendra Gulecha was aged about 45 years. They were coming from Delhi to Jodhpur in the said car. On account of said death claimants-Smt. Kanta W/o Rajendra Gulecha and others filed claim petition No. 762/2008 and for the death of Vijay Singh, Smt. Dhani Devi and others filed claim petition No. 33/2009 and for the loss of property i.e. Car, owner-Sanjana Kothari filed claim petition No. 282/2010 and all the three claim petitions were decided by the learned Tribunal on 15.04.2011.

2. The insurer-New India Assurance Company has filed three appeals: CMA No. 1097/2011 (NIA v. Smt. Chani Devi and Ors.) , CMA No. 1629/2011 (MA v. Smt. Sanjana Kothari and Anr.) and CMA No. 2098/2011 (MA v. Smt. Kanta and Ors.) , whereas. Cross Objection No. 42/2011 (Smt. Dhani Devi and Ors. v. MA) , Cross Objection No. 44/2011 (Smt. Sanjana Kothari v. NIA) and Cross Objection No. 41/2011 (Smt. Kanta and Ors. v. NIA) have been filed by the claimants seeking enhancement of compensation awarded by the learned Tribunal.

3. Learned Tribunal awarded compensation for the death of Rajendra Gulecha to the extent of Rs. 26,16,900/- while deciding claim Case No. 762/ 2008 (Smt. Kanta and Ors. v. Dhool Singh) , Rs. 5,81,800/- for loss of property (Car No. HR 26-AF-5280) while deciding claim Case No. 282/2010 (Smt. Sanjana Kothari v. Dhool Singh and Rs. 17,12,750/- for the death of Vijay Singh while deciding claim case No. 33/2009 (Dhani Devi and Ors. v. Dhool Singh). The claim petition No. 33/2009 was filed seeking compensation to the extent of Rs. 66,87,000/- for the death of driver Vijay Singh, claim petition No. 762/ 2008 was filed seeking compensation for the death of Rajendra Gulecha to the extent of Rs. 4,35,75,000/- and claim petition No. 282/2010 was filed seeking compensation for loss of property (Honda Car No. HR-26-AF-5280) to the extent of Rs. 8,04,651/-.

4. The appellant Insurance Company in CMA No. 1097/2011 (NIA v. Dhani Devi) has also filed an interim application under Order 41 Rule 27 CPC for taking on record additional documents, which was not opposed and, therefore, same is allowed and the additional documents filed along with the said application were considered by this Court during the course of hearing.

5. Mr. Jagdish Vyas, learned counsel appearing for the appellant Insurance Company mainly raised the following contentions and grounds to assail the impugned award dated 15.04.2011:

(i) that since the car No. HR 26-AF-5280 being driven by Vijay Singh deceased rammed into the insured truck No. RJ-19-G-7257 from the back side and from the site plan produced along with the application under Order 41 Rule 27 CPC, it would appear that the driver of the car himself was solely responsible for the said accident, therefore, the claimants could not get any compensation in respect of death of driver of the car. However, this submission would not apply as far as occu

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2012 Supreme(Raj) 1476

RAJASTHAN HIGH COURTVineet Kothari, J.Dhani Devi and Ors. - AppellantsVersusNew India Assurance Co. Ltd. and Ors. - RespondentsS.B. Civil Misc. Appeal Nos. 1097 of 2011, 1629 of 2011 and 1098 of 2011.Decided On : 28-03-2012

Cases Referred (4)

RAJASTHAN HIGH COURT
Vineet Kothari, J.
Dhani Devi and Ors. - Appellants
Versus
New India Assurance Co. Ltd. and Ors. - Respondents
S.B. Civil Misc. Appeal Nos. 1097 of 2011, 1629 of 2011 and 1098 of 2011.
Decided On : 28-03-2012