HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Miscellaneous Appeal No. 2616/2012
1. Asha W/o Late Shri Ramavatar @ Ramgopal, aged about
19 years.
2. Bhawna D/o Late Shri Ramavatar @ Ramgopal, aged
about 3 years.
3. Somoti W/o Shri Pradhan Singh, aged about 46 years.
4. Pradhan Singh S/o Chandrabhan Singh, aged about 47
years.
All R/o Village Chak Utra, Teh. And Distt. Bharatpur.
----Appellants
Versus
1. Naresh Kumar S/o Shiv Charan, R/o Village Tehra Lodha,
Post Chichana, Tehand Distt. Bharatpur (Driver Cum
Registered Owner Of the Vehicle)
2. Virendra Singh S/o Brajendra Singh, R/o Village Nagla
Hathipura, Post Peepla, Teh And Distt. Bharatpur (Insurer
Of Motorcycle).
3. Iffco Tokio General Insurance Company Ltd., 8, Kataiva
Bhawan, M.i. Road, Jaipur
----Respondents
For Appellant(s) : Ms. Chelsi Gangwal for
Mr. Prateek Sharma through VC
For Respondent(s) : Mr. Ritesh Jain through VC
HON'BLE MR. JUSTICE BIRENDRA KUMAR
Judgment Reserved on : 01/02/2022
Judgment Pronounced on : 03/02/2022
1. In this appeal under Section 173 of the Motor Vehicles Act, 1988, the appellants are wife, minor daughter and parents of Late Ramavatar @ Ramgopal, a victim of motor vehicle accident. The appellants had brought MAC Case No.134/2011 before the Motor (Downloaded on 03/02/2022 at 09:33:07 PM) (2 of 9) [CMA-2616/2012] Accident Claims Tribunal, Bharatpur. By the impugned judgment and award dated 06.04.2012, the learned Tribunal awarded Rs.3,21,600/- against claim of Rs.80,35,000/-. The appellants are not satisfied with the calculation and quantum of compensation decided.
2. The case and claim of the appellants is that on 22.11.2009 the deceased was going on his Motor Cycle bearing Registration No.RJ-05-SB-4065. At about 5:30 PM, when he reached near Village Udera, Police Station Fatehpur Sikri, a rash and negligent motor cycle bearing Registration No. RJ-05-5M-4022 came from ahead, dashed and caused death of Ramgopal, during treatment.
A Police case was registered on the statement of uncle of the deceased who was travelling along with the father of the deceased namely, Pradhan Singh AW/2. After investigation, the police submitted charge sheet against Naresh Kumar, the owner of the offending vehicle. The Post Mortem Report would reveal that the cause of death was injury at the head of the deceased. The claimants stated that at the time of death deceased was aged about 22 years. He was an AC Mechanic and was self-earning person. By repairing Air Conditioners and installing it on the request of the customers the deceased was earning Rs.12,000/- per month.
3. The respondent-Naresh Kumar appeared before the Tribunal and contested the claim stating that his vehicle was never involved in the accident as claimed by the claimants, moreover, even if, it is assumed that his vehicle was involved, the liability goes to respondent No.3-IFFCO Tokio General Insurance Company Ltd. with whom the vehicle was insured.
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4. The respondent No.3 put a defense that the offending vehicle was being used in violation of the terms and conditions of the policy. It was a case of contributory negligence as has been held by the Tribunal. As per site plan, the place of accident was mid of the road, hence both the vehicles were not on their proper track at the time of accident. Learned counsel contends that the order of the Tribunal does not suffer from any defect.
5. Learned counsel for the appellants Ms. Chelsi Gangwal contends that there was overwhelming unrebutted evidence of the wife of the deceased AW-1 Asha, the father of the deceased AW-2 Pradhan Singh and a businessman dealing with AC etc. who was examined as AW-3 Lalit Kumar that the deceased had monthly earning of Rs.12,000/-. However, the learned Tribunal took a pedantic approach of the matter that since no documentary proof of income of the deceased was produced, the notional income of Rs.3,000/- per month was taken as multiplicand.
Learned counsel further contends that the learned Tribunal has wrongly deducted 40% of the income for contributory negligence of the deceased ignoring the testimony of the eye- witnesses that the accident took place when the deceased was on his right track and the offending vehicle reached there to cause accident. Learned counsel contends that the Tribunal has wrongly placed reliance on site plan Ex-2, which is a sketch drawn with a pen without any photograph etc. and the author of the Ex-2, was not produced before the Tribunal. Learned counsel contends that the Tribunal has not made any award considering the future prospect of the deceased nor proper award has been made under (Downloaded on 03/02/2022 at 09:33:07 PM) (4 of 9) [CMA-2616/2012] conventional heads for funeral expenses, loss of estate and loss of consortium.
6. AW-2 Pradhan Singh, is an eye-witness of the occurrence as he was just behind the deceased on another motor cycle at the time of occurrence. The witness is specific that the rash and negligent offending vehicle came and dashed against the motor cycle of the deceased when the deceased was on his proper track. The accident resulted in head injury to Ramgopal consequently he died during the course of his treatment in Agra Hospital. The witness specifically denied that the accident was a "head on collision" rather the accident took place on the track side of the deceased. The learned Tribunal has believed the testimony of PW- 2 for accepting the occurrence of accident and disbelieved DW-1 Naresh Kumar and DW-2 Atar Singh that the accident was not caused by the offending vehicle. Therefore, there was acceptable evidence of eye-witness before the Tribunal that the accident took place in the side of the track of the deceased and not on the mid of the road nor was result of a head on collision. The learned Tribunal fell in error to rely on Ex.2 which is a site plan drawn with a pen showing that the accident took place in the mid of the road. The author of the plan never turned up before the Tribunal to give opportunity to the claimant to cross-examine, moreover, the site plan which was drawn subsequent to the accident cannot be taken to disbelieve the testimony of the eye-witness.
In United India Insurance Company Ltd. Vs. Smt. Sugni Devi & Ors. disposed of on 24.08.2019 by a bench of this Court and relied upon by the learned counsel for the appellant, the Court had occasion to consider identical defense made on behalf of the (Downloaded on 03/02/2022 at 09:33:07 PM) (5 of 9) [CMA-2616/2012] insurance company that the site plan showed that the accident was result of contributory negligence. Even photographs of the site plan was produced before the Court, however, the Court declined to accept the same as evidence holding that no significance could be attached to the photographs as it is a matter of common knowledge that after the accident, the vehicle do not remain in the same position in which the same was at the time of accident.
7. In the present case, there is no photographs of the site plan nor the author who had prepared the site plan Ex.-2 appeared before the Court. In my view, the Tribunal has committed error of appreciation of evidence and in fact, it is not a case of contributory negligence.
8. The learned Tribunal has assigned no reason to disbelieve the evidence of AW-1 Asha, wife of deceased who deposed that the deceased was earning Rs.12,000/- per month and he used to give the money to her to meet out the family expenses; similar is the statement of the father of the victim AW-2 Pradhan Singh and AW-3 Lalit Kumar on monthly income of victim. PW-3 produced documents to support that he is a registered licensee businessman and deals in electronics such as Fridge, AC etc. He stated that the deceased was attached with another agency involved in repairing and installation of AC etc. He was getting work from his business also. Therefore, only for the reason that a self-earning person could not produce the document of his income, the deposition of the witnesses conversant with the income of the deceased should not have been ignored.
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9. In National Insurance Company Limited Vs. Pranay Sethi and Others, reported in (2017) 16 Supreme Court Cases 680, the Hon'ble Supreme Court held that "Section 168 of the Act deals with the concept of "just compensation" and the same has to be determined on the foundation of fairness, reasonableness and equitability on acceptable legal standard because such determination can never be in arithmetical exactitude. It can never be perfect. The aim is to achieve an acceptable degree or proximity to the arithmetical precision on the basis of material brought on the record in an individual case. In a case of death, the legal heirs of the deceased cannot expect a windfall. Simultaneously, the compensation granted cannot be an apology for compensation."
"It is a well-accepted norms that money cannot substitute a life lost but an effort has to be made for grant of just compensation having uniformity in approach. There has to be a balance between the two extremes, that is, a windfall and the pittance, a bonanza and the modicum."
10. Jagdish Vs. Mohan and Others reported in (2018) 4 SCC 571 was a case of injury in a Motor Vehicle Accident, which resulted in permanent disablement. In that case, the victim was a Carpenter and the claimant stated that he has income of Rs.6,000/- per month. In the absence of documentary evidence, the Tribunal took the monthly income of the appellant at Rs.4050/-. The Hon'ble Supreme Court did not accept the approach of the Tribunal and in para 12 of the judgment recorded as follows:-
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(7 of 9) [CMA-2616/2012] "12. Having regard to these principles, it would be now appropriate to assess the case of the Appellant for enhancement of compensation. The accident took place on 24 November 2011. The Appellant was a skilled carpenter and self-employed. The claim of the Appellant that his earnings were Rs. 6,000/- per month cannot be discarded. This claim cannot be regarded as being unreasonable or contrary to a realistic assessment of the situation on the date of the accident."
11. This Court has no hesitation to accept that the claim of the income of the deceased as Rs.12,000/- per month was proved by the unrebutted evidence on the record and in absence of any contrary evidence, the said amount should not have been reduced only for the reason that there was no documentary evidence in proof of the income. Thus, the loss of dependency is calculated as Rs.12,000X12 months=1,44,000/-. The Tribunal has rightly deducted ¼th for personal expenses of the deceased considering the number of dependents. After deduction of ¼ th from the aforesaid amount, the remainder is Rs. 1,08,000/-. The Tribunal has rightly used multiplier of 18 considering the age of the deceased, his wife and minor child. Thus, the loss of dependency is calculated as (Rs.1,08,000/-)X18=Rs.19,44,000/-. The Tribunal has not allowed anything for the future prospect of the deceased. Considering the settled principles of law in Pranay Sethi (supra) case as well as in United India Insurance Co. Ltd. Vs. Satinder Kaur @ Satwinder Kaur & Ors., decided on 30.06.2020 by the Hon'ble Supreme Court, even a self-employed victim of accident is entitled for some enhancement against future prospects. The Hon'ble Supreme Court decided 40% as future prospect for the age group of the deceased in the present case who was a self-employed. On addition of 40%, the amount comes (Downloaded on 03/02/2022 at 09:33:07 PM) (8 of 9) [CMA-2616/2012] to Rs. 25,21,600/-. Besides the aforesaid, the claimants are entitled for Rs. 15,000/- as loss to the estate and Rs.15,000/- for funeral expenses. The wife of the deceased, the minor daughter of the deceased and the parents of the deceased would separately be entitled for Rs. 40,000/- for loss of consortium, their separate entitlement for loss of consortium is already settled in Magma General Insurance Co. Ltd. Vs. Nanu Ram and Ors. reported in (2018) 18 SCC 130. Thus, under the conventional head, the appellants would be entitled for Rs.1,50,000/-, the total payable compensation comes to Rs.26,71,600/- (Rupees Twenty Six lacs Seventy One Thousand and Six Hundred)
12. The aforesaid amount minus already paid would be payable by the Insurer within three months to the claimants along with interest of 9% per annum, failing which the aforesaid interest would be payable till the realization of the whole due amount. The 1/3rd share of the minor daughter shall be deposited in some Fixed Deposit Scheme and shall be spent for education and betterment of the minor as and when occasion arises on the order of the Court only.
13. It is made clear that guidelines in Sarla Verma's case and Pranay Sethi's cases as well as in subsequent cases, to reach at the "just compensation" would be applicable in the matter of accident which took place prior to the aforesaid judgments as well as in the matter of adjudication made by the Tribunal prior to that judgment. In United India Insurance Co. Ltd. Vs. Satinder Kaur and Ors., decided on 30.06.2020 accident took place in the year 1998 and award was made in the year 2001, however, the Hon'ble Supreme Court enhanced the award considering the (Downloaded on 03/02/2022 at 09:33:07 PM) (9 of 9) [CMA-2616/2012] settled guidelines in the subsequent judgments to reach at "just compensation". Likewise the Tribunal was required to decide "just compensation" without being swayed away by the quantum of claim made by the claimants.
14. The appeal stands allowed to the aforesaid extent.
(BIRENDRA KUMAR),J PCG/RAJAT KUMAR/ (Downloaded on 03/02/2022 at 09:33:07 PM) Powered by TCPDF (www.tcpdf.org)