Back
2011 Supreme(Raj) 403
2011(2) CCR 978 (Raj.)
(Rajasthan High Court)
Jaipur Bench
National Insurance Co. Vs. Thana Ram & Ors. (Sharma, J.)
HON'BLE MAHESH CHANDRA SHARMA, J.
National Insurance Co. Ltd.
Versus
Thana Ram & Ors.
S.B. Civil Misc. Appeal Nos. 1949, 1946, 1947, 1948, 1950 & 1951 of 2008, decided on 02.05.2011
V.P. Mathur, for Appellant-Insurance Co.;
Bharat Saini & Ajay Gupta and V.D. Gathala, for Claimants
POINT DECIDED
(1) Collusion between tractor and jeep. Finding of negligence against tractor, insurer of tractor is liable;
(2) Age of deceased was 30 years. Multiplier of 18 awarded.
(3) Age of deceased 35 years. Multiplier of 17 with deduction of 1/4 for personal expenses.
Headnote:(a) Motor Vehicles Act, 1988, Secs. 168 & 173 — Head on collusion between Tractor and jeep — Three passenger of jeep died and three suffered injuries — Six claim petition — Different award passed — Finding of negligence against Tractor — Liability of payment imposed on insurer of Tractor — Appeal — Contention that both offending vehicles were equally liable for accident — Police filed chargesheet against both vehicles — Held — Accident occurred only on account of rash and negligent driving of Tractor is also to be proved from evidence of eye witnesses and site map prepared by the police — Finding of MACT cannot be said to be perverse — Contention of Insurance Company cannot be accepted. (Para 10)
¼d½ eksVj ;ku vf/kfu;e] 1988] /kkjk 168 ,oa 173 & VªsDVj ,oa thi ds chp vkeus lkeus dh VDdj & thi ds rhu ;k=h ejs ,oa rhu pksVxzLr gq;s & N% nkok ;kfpdk & fHkUu-fHkUu vf/kfu.kZ; ikfjr fd;s x;s & ykijokgh dk fu"d"kZ VªsDVj ds fo:) & Hkqxrku dk nkf;Ro VªsDVj ds chekdrkZ ij vf/kjksfir fd;k x;k & vihy & rdZ fd nksuksa fyIr okgu leku :i ls nq?kZVuk gsrq nk;h Fks & iqfyl us vkjksi i= nksuksa okguksa ds fo:) is'k fd;s & vf/kfu/kkZfjr & nq?kZVuk flQZ VªsDVj ds xQyr ,oa ykijokgh ls pykus ds dkj.k ?kVh iqfyl }kjk cuk;k x;k ekSdk uD'kk ,oa p{kqn'khZ lkf{k;ksa ds lk{; ls Hkh izekf.kr gksrk gS & eksVj nq?kZVuk nkok vf/kdj.k dk fu"d"kZ izfrdwy ugha dgk tk ldrk & chek daiuh dk rdZ Lohdkj ugha fd;k tk ldrkA ¼in la[;k 10½
(b) Motor Vehicles Act, 1988, Secs. 168 & 173 — Claim petition — Deceased was of 26 years — Compensation — Tribunal awarded Rs. 4,50,000/- deducted 1/4 for personal expenses — Challenged by insurer — Contention that one third should be deducted — Held — Tribunal determined the age of deceased to be 30 years on the basis of post mortem report — Multiplier of 18 applied — Future prospect of deceased not taken into consideration by tribunal, therefore, contention of appellant is liable to be rejected — Awarded amount cannot be said to be excessive. (Para 12)
¼[k½ eksVj ;ku vf/kfu;e] 1988] /kkjk 168 ,oa 173 & nkok ;kfpdk & e`rd 26 o"kZ dk Fkk & izfrdj & vf/kdj.k us O;fDrxr [kpsZ gsrq 1@4 dVkSrh djrs gq, 4]50]000@- #i;s vf/kfuf.kZr fd;s & chekdrkZ }kjk pqukSrh & rdZ fd ,d frgkbZ dVkSrh fd;k tkuk pkfg;s & vfHkfu/kkZfjr & vf/kdj.k us 'ko ijh{k.k izfrosnu ds vk/kkj ij e`rd dh vk;q 30 o"kZ gksuk fu/kkZfjr fd;k & 18 dk xq.kd iz;qDr fd;k & vf/kdj.k }kjk e`rd dh Hkkoh izR;k'kk fopkj esa ugha fy;k x;k vr% vihykFkhZ dk rdZ fujLr gksus ;ksX; gS & vf/kfuf.kZr jkf'k vR;f/kd ugha dgh tk ldrhA ¼in la[;k 12½
(c) Motor Vehicles Act, 1988, Secs. 168 & 173 — Motor accident — Death of 35 years person — Compensation — Tribunal awarded Rs. 4,77,180/- deducting less than 1/4 for personal expenses — Challenged by insurer — Contention that as per ruling of Apex Court, one third should be deducted for personal expenses — Held — Tribunal rightly applied multiplier of 17 as per age — Contention of appellant is liable to be rejected as MACT not considered the future prospects of deceased — Less than 1/4 rightly deducted looking to the number of dependents — Awarded compensation amount can not be said to be excessive, therefore, confirmed. (Para 13)
¼x½ eksVj ;ku vf/kfu;e] 1988] /kkjk 168 ,oa 173 & eksVj nq?kZVuk & 35 o"khZ; O;fDr dh e`R;q & izfrdj & vf/kdj.k us O;fDrxr [kpsZ gsrq 1@4 ls de dVkSrh djrs gq, 4]77]180@- #i;s vf/kfuf.kZr fd;s & chekdrkZ }kjk pqukSrh & rdZ fd f'k[kj U;k;ky; ds LFkkfir fu;e ds vuqlkj O;fDrxr [kpZ gsrq ,d frgkbZ dVkSrh fd;k tkuk pkfg;s & vfHkfu/kkZfjr & vf/kdj.k us vk;q ds vuqlkj 17 dk xq.kd lgh iz;qDr fd;k & vihykFkhZ dk rdZ fujLr gksus ;ksX; gS D;ksafd vf/kdj.k us e`rd dh Hkkoh izR;k'kk fopkj ugha fd;k & vkfJrksa dh la[;k dks ns[krs gq, 1@4 ls de lgh dVkSrh fd;k x;k & vf/kfuf.kZr izfrdj jkf'k vR;f/kd ugha dgh tk ldrh vr% iq"V fd;kA
¼in la[;k 13½
(d) Motor Vehicles Act, 1988, Secs. 168 & 173 — Motor accident — Death of 39 years person — Compensation — Tribunal awarded Rs. 4,05,000/- deducting 1/4 for personal expenses and applying multiplier of 16 — Challenged by insurer — Contention that one third should be deducted as per ruling of Apex Court — Held — Tribunal rightly applied the multiplier of 16 as per age — Tribunal not taken into consideration the future prospect of deceased, therefore, contention of appellant is liable to be rejected — Awarded compensation amount cannot be said to be excessive therefore, confirmed. (Para 14)
¼?k½ eksVj ;ku vf/kfu;e] 1988] /kkjk 168 ,oa 173 & eksVj nq?kZVuk & 39 o"khZ; O;fDr dh e`R;q & izfrdj & vf/kdj.k us O;fDrxr [kpsZ gsrq 1@4 dVkSrh djrs gq, ,oa 16 dk xq.kd iz;qDr djrs gq, 4]05]000@- #i;s vf/kfuf.kZr fd;s & chekdrkZ }kjk pqukSrh & rdZ fd f'k[kj U;k;ky; ds LFkkfir fof/k ds vuqlkj ,d frgkbZ dVkSrh fd;k tkuk pkfg;s & vfHkfu/kkZfjr & vf/kdj.k us vk;q ds vuqlkj 16 dk xq.kd lgh iz;qDr fd;k & vf/kdj.k us e`rd dh Hkkoh izR;k'kk fopkj esa ugha fy;k vr% vihykFkhZ dk rdZ fujLr fd;s tkus ;ksX; gS & vf/kfuf.kZr izfrdj jkf'k vR;f/kd ugha dgh tk ldrh vr% iq"V fd;kA ¼in la[;k 14½
(e) Motor Vehicles Act, 1988, Secs. 168 & 173 — Motor accident — Injury matter — Claim petition — Tribunal awarded Rs. 35,000/- as compensation with 9% interest challenged by insurer — Held — Tribunal assessed income of injured Rs. 3000/- monthly on the basis of casual work in absence of any proof regarding income — It is admitted fact that claimant could not earn for three month as he has remained on medical treatment and for some time admitted in Hospital therefore, determined 9000/- for loss of income Rs. 6000/- for one simple and one grievous injury and remaining amount in conventional heads — Awarded amount cannot be said perverse and interest also cannot be said to be excessive. (Para 15)
¼M+½ eksVj ;ku vf/kfu;e] 1988] /kkjk 168 ,oa 173 & eksVj nq?kZVuk & pksfVy ekeyk & nkok ;kfpdk & vf/kdj.k us 9% C;kt ds lkFk izfrdj ds :i esa 35]000@- #i;s vf/kfuf.kZr fd;s & chekdrkZ }kjk pqukSrh & vfHkfu/kkZfjr & vf/kdj.k us vk; ds lEcU/k esa fdlh izek.k ds vHkko esa vkdfLed dk;Z ds vk/kkj ij vkgr dh vk; 3000@- #i;s ekfld fu/kkZfjr fd;k & ;g Lohd`r rF; gS fd nkosnkj rhu ekg rd dek ugha ldk D;ksafd og dqN le; rd vLirky esa HkrhZ ,oa fpfdRldh; mipkj ij jgk vr% vk; dh gkfu gsrq 9000@- #i;s] ,d ljy ls ,d xaHkhj pksV gsrq 6000@- #i;s ,oa 'ks"k jkf'k ijaijkxr 'kh"kZdksa esa fu/kkZfjr fd;k & vf/kfuf.kZr jkf'k izfrdwy ugha dgh tk ldrh vkSj C;kt Hkh vR;f/kd ugha dgk tk ldrkA ¼in la[;k 15½
(f) Motor Vehicles Act, 1988, Secs. 168 & 173 — Motor accident — Injury matter — Claim petition — Tribunal awarded Rs. 38,000/- as one time compensation — Challenged by insurer — Held — Claimant produced medical expenses bill of Rs. 23,508/- — Looking to the expenses incurred by injury and the period remained in hospital, awarded amount cannot be said to be excessive — Award confirmed. (Para 16)
¼p½ eksVj ;ku vf/kfu;e] 1988] /kkjk 168 ,oa 173 & eksVj nq?kZVuk &pksfVy ekeyk & nkok ;kfpdk & vf/kdj.k us ,d eq'r izfrdj ds :i esa 38]000@- #i;s vf/kfuf.kZr fd;s & chekdrkZ }kjk pqukSrh & vfHkfu/kkZfjr & nkosnkj us 23]508@- #i;s dk fpfdRlk O;; fcy is'k fd;k & vkgr }kjk mBkbZ xbZ O;; ,oa vLirky esa jgus dh vof/k dks ns[krs gq, vf/kfuf.kZr jkf'k vR;f/kd ugha dgh tk ldrh & vf/kfu.kZ; iq"V fd;kA ¼in la[;k 16½
(g) Motor Vehicles Act, 1988, Secs. 142, 168 & 173 — Motor accident — Injury matter — Claim petition — Tribunal awarded Rs. 2,00,000/- as total compensation — Challenged by insurer — Held — Disability certificate shows 30/- disability due to loss of vision on right eye — Claimant produced medical expenses bill of Rs. 45580/- Salary certificate shows that claimant was drawing Rs. 9116/- monthly — Claimant remained on leave for about 3 month, therefore, loss of income would be Rs. 27500-/- — Tribunal awarded Rs. 2,00,000/- on all heads — Thus, awarded compensation amount cannot be said to be excessive looking to the nature of injury — Award confirmed — Contention of appellant rejected.
Appeals rejected. (Para 17)
¼N½ eksVj ;ku vf/kfu;e] 1988] /kkjk 142] 168 ,oa 173 & eksVj nq?kZVuk & pksfVy ekeyk & nkok ;kfpdk & vf/kdj.k us dqy izfrdj ds :i esa 2]00]000@- #i;s vf/kfuf.kZ; fd;s & chekdrkZ }kjk pqukSrh & vfHkfu/kkZfjr & fu%'kDrrk izek.k i= nkfguh vka[k esa n`f"V dh {kfr ds dkj.k 30% v'kDrrk n'kkZrk gS & nkosnkj us 45580@- #i;s dk fpfdRlk O;; fcy izLrqr fd;k & osru izek.k i= n'kkZrk gS fd nkosnkj 9116@- #i;s ekfld vkgfjr dj jgk Fkk & nkosnkj yxHkx 3 ekg rd vodk'k ij jgk vr% 27]500@- #i;s vk; dh gkfu gqvk gksxk & vf/kdj.k us lHkh 'kh"kZdksa ij 2]00]000@- #i;s vf/kfuf.kZr fd;s & bl izdkj] pksV dh izd`fr dks ns[krs gq, vf/kfuf.kZr izfrdj jkf'k vR;f/kd ugha dgh tk ldrh & vf/kfu.kZ; iq"V fd;k & vihykFkhZ dk rdZ fujLr fd;kA ¼in la[;k 17½
vihsysa fujLr dhA
2. The facts have been set out in the impugned judgment and hence I am not repeating the same here except wherever necessary.
3. Facts in brief are that on 11.8.2001, Gumanaram, Sitaram, Raghunath Prasad, Hanumanaram, Rampal and Pannalal were travelling in Jeep No. RJ 23 C 0864 and when they reached near Bus Stand Badalwas in Sikar District, Suddenly Tractor No. RJ 21R 7005 came from the front side in a rash and negligent manner hit the Jeep. In the accident Gumanaram, Sitaram and Raghunath Prasad suffered injuries and Hanumanaram, Rampal and Panna Lal died. Six claim petitions were filed. All the claim petitions were clubbed together and decided by the common award dated 31.1.2008.
4. The respondents 4 and 5,who are driver and owner of the Tractor have filed a written statement. It the written statement it was stated that there is no negligence of the Tractor and the Tractor was standing in a stationary condition on the side-by of the road and it was negligence of the jeep driver, which resulted into accident.
5. The Insurance Company filed reply to the claim petition and categorically denied the averments of the claim petitions and preliminary objection regarding maintainability of the claim petition was raised. It was submitted that no information was given either by the claimant or by the owners of both the vehicles to the appellant company regarding accident. It was stated that in the absence of valid and effective driving licence and the permit to ply the vehicle the appellant company is not liable to pay any compensation to the claimants for the violation so done by the owner of both the vehicles contrary to the provisions of the Act and the breach of policy conditions.
6. On the basis of the pleadings of the parties three issues were framed by the MACT. The claimants produced 8 witnesses and exhibited 180 documents. On behalf of the insurance company statements of Ranveer Singh and Rakesh Sharma were recorded. After hearing the arguments the MACT allowed the claim petitions vide the common award dated 31.1.2008 different compensations were awarded to the claimants.
7. The learned counsel for the appellant Insurance company argued that the MACT passed the award dated 31.8.2008 without considering the principles of natural justice in which the relevant proposition of public policy for plying the vehicle at a public place as defined in section 2 of the Motor Vehicles Act has not been taken note. The appellant insurance company raised a specific defence to the effect that the vehicle in which the claimants were travelling i.e. the jeep was equally negligent in the present case. It was evident from the exhibited documents itself that in the night time the vehicle jeep was being driven in a very low beem lights and moreover in a great speed and depsite warning and request being made to the driver of the said vehicle plied the jeep in a negligent manner, as a result of which the said accident has occurred. The MACT while deciding issue No. 1 has not taken into consideration the important aspect of the fact that the driver of the jeep was also charge sheeted as per Ex. 2. The MACT while deciding issue No. 1 seriously crept into error of law in not taking into consideration the aspect that the another vehicle i.e. the jeep on the record was also proved to be equally negligent but the manner in which the MACT decided issue No. 1 merely relying upon the site plan and the observations made to this effect are totally contrary to the provisions of law and the finding given to the effect that head on colusion between the vehicle is totally contrary to the material available on record. The learned counsel for the insurance company placed reliance on Bijoy Kumar Dugar vs. Bi
