HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Miscellaneous Appeal No. 2187/2019
The New India Assurance Company Limited, having its
Registered & Head Office at 87, Mahatma Gandhi Road, Fort,
Mumbai-400001 and having its Regional Office at Second Floor,
South Block, Nehru Place, Tonk Road, Jaipur through its
Constituent Attorney
----Appellant
Versus
1. Rajni W/o Late Roop Singh, Aged About 31 Years,
Resident Of Village-Hingota, Tehsil Baseri At Present Bai
Ka Bag, Tehsil, Bari, District Dholpur Rajasthan
2. Jyoti D/o Late Roop Singh, Aged About 10 Years,
Resident Of Village-Hingota, Tehsil Baseri At Present Bai
Ka Bag, Tehsil, Bari, District Dholpur Rajasthan
3. Deeksha D/o Late Roop Singh, Aged About 8 Years,
Resident Of Village-Hingota, Tehsil Baseri At Present Bai
Ka Bag, Tehsil, Bari, District Dholpur Rajasthan
4. Vivek S/o Late Roop Singh, Aged About 6 Years, Resident
Of Village-Hingota, Tehsil Baseri At Present Bai Ka Bag,
Tehsil, Bari, District Dholpur Rajasthan
5. Anuradha D/o Late Roop Singh, Aged About 4 Years And 6
Months, Resident Of Village-Hingota, Tehsil Baseri At
Present Bai Ka Bag, Tehsil, Bari, District Dholpur
Rajasthan
6. Dheeraj S/o Late Roop Singh, Aged About 3 Years 2
Months, Resident Of Village-Hingota, Tehsil Baseri At
Present Bai Ka Bag, Tehsil, Bari, District Dholpur
Rajasthan
7. Mankaur W/o Late Patiram, Aged About 70 Years,
Resident Of Village-Hingota, Tehsil Baseri At Present Bai
Ka Bag, Tehsil, Bari, District Dholpur Rajasthan
(Claimants No. 2 To 6 Are Under Guardianship Of Mother
Rajni)
8. Veeri Singh S/o Tulua, Resident Of Gopalpura, Muraina,
At Present Village Vidarpur, Tehsil Bari District Dholpur
Rajasthan (Owner)
----Respondents
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(2 of 5) [CMA-2187/2019]
Connected With
S.B. Civil Miscellaneous Appeal No. 2224/2019 The New India Assurance Company Limited, Having Its Registered And Head Office At 87, Mahatma Gandhi Road, Fort Mumbai-400001 And Having Its Regional Office At Second Floor, South Block, Nehru Place, Tonk Road, Jaipur Through Its Constituent Attorney
----Appellant Versus
1. Kamla W/o Shivram, Aged About 41 Years, Resident Of Vilage, Hingota,tehsil Baseri, At Present Bai Ka Bag, Tehsil Bari District Dholpur Rajasthan
2. Veeri Singh S/o Tulua, Resident Of Gopalpur, Muraina, At Present Village, Vidarpur, Tehsil Bari, District Dholpur Rajasthan (Owner)
----Respondents For Appellant(s) : Mr. Sanjay Singhal for Insurance Company For Respondent(s) : Mr. D.K. Garg Mr. Deepak Sharma for Mr. M.K. Kaushik HON'BLE MR. JUSTICE ANOOP KUMAR DHAND Judgment 29/09/2022 Both the misc. appeals arise out of common judgment and award passed by the Motor Accident Claims Tribunal, Dholpur (for short 'the tribunal'), hence same are being decided together by a common judgment.
Both the misc. appeals have been filed by the appellant Insurance Company against the impugned judgment and award dated 18.2.2019 passed by the tribunal, by which the claim petitions filed by the claimants were allowed and the appellant- (Downloaded on 30/09/2022 at 09:52:29 PM)
(3 of 5) [CMA-2187/2019] Insurance Company has been directed to pay compensation determined by the tribunal.
Counsel for the appellant- Insurance Company submits that there was contributory negligence on the part of the deceased and to prove this fact, statement of the driver of the offending vehicle i.e. NAW1-Sharif was recorded, who has categorically stated in his statement that he after parking the vehicle on the road side, went to discharge the call of nature and in the meantime, the deceased came on a motor-cycle and dashed into the vehicle. Counsel submits that the tribunal has discarded the testimony of this witness for the reason that after investigation, charge-sheet was submitted against him and the statements of eye-witnesses namely; AW1-Rajni and AW2- Kamla were recorded. Counsel submits that without recording any cogent finding, the tribunal has decided the issue No.1 against the appellant-Insurance Company. Counsel submits that under the conventional heads etc., an amount of Rs.3,10,000/- has been awarded in favour of the claimants. Counsel submits that in view of the judgment delivered by the Hon'ble Apex Court in the case of National Insurance Company Limited v. Pranay Sethi, reported in AIR 2017 SC 5157, the claimants were entitled to get in lump-sum an amount of Rs.70,000/-. Thus, interference of this Court is warranted in the impugned judgment and award.
Learned counsel for the claimants opposed the arguments advanced by the counsel for the appellant Insurance Company and submits that while deciding the issue No.1, the tribunal has taken into consideration the statements of the eye- witnesses namely; AW1 Rajni and AW2 Rajni, who were present on the spot when the accident occurred. Counsel submits that (Downloaded on 30/09/2022 at 09:52:29 PM) (4 of 5) [CMA-2187/2019] after the aforesaid accident, an FIR was registered against the driver of the offending vehicle i.e. Sharif. Counsel submits that even during the course of investigation, the police recorded the statements of these witnesses under section 161 CrPC. So, there is no reason to discard their testimony against the statement of the driver of the offending vehicle. Counsel submits that the driver of the offending vehicle is an accused in a criminal case in which charge-sheet was submitted against him, so the defence taken by him cannot be appreciated by this Court. Counsel submits that all these facts were considered by the tribunal while deciding the claim petitions. Hence, no interference of this court is warranted in the impugned judgment and award.
Heard.
Considered the rival submissions and perused the impugned judgment and award passed by the tribunal and also the material available on the record.
This fact is not in dispute that the accident occurred on 7.6.2017 and the deceased sustained injuries and died on account of the said injuries. In connection with the above incident, an FIR was registered against the driver of the offending vehicle for the offence under Sections 279 and 304A IPC and during the course of investigation, statements of AW1-Rajni and AW2 Kamla were recorded in which they themselves have claimed to be eye- witnesses of the occurrence and on the basis of the same, charge- sheet was submitted against the driver for the aforesaid offences. The tribunal has taken into consideration the statements of these witnesses and decided the issue No.1 by holding that it was a case of rash and negligent driving of the offending vehicle and it was not a case of contributory negligence on the part of the deceased. (Downloaded on 30/09/2022 at 09:52:29 PM)
(5 of 5) [CMA-2187/2019] I find force in the contentions of the counsel for the appellant- Insurance Company that an exorbitant amount of Rs.2,80,000/- + Rs.30,000/- has been awarded in favour of the claimants under the heads i.e. loss of consortium. As per the Judgment of Pranay Sethi (supra), the claimants were entitled to get a lump-sum amount of Rs.70,000/- only. Counsel for the respondents/ claimants have not disputed the above settled proposition of law as held by the Hon'ble Apex Court in the matter of Pranay Sethi (supra). Thus, the misc. appeal No.2187/2019, filed by the appellant Insurance Company stands partly allowed and a sum of Rs.2,40,000/- (Rs. 3,10,000 - Rs. 70,000/-) is reduced from the award amount i.e. Rs.66,86,700/- passed by the tribunal. The tribunal is directed to refund an amount of Rs.2,40,000/- to the appellant-Insurance Company along-with interest within a period of two months from the date of receipt a certified copy of this judgment.
The Misc. appeal No.2224/2019 filed by the appellant- Insurance Company is dismissed.
The stay applications and all pending application/s, if any also stand dismissed.
A copy of this judgment be placed in the connected case file.
Registry is directed to send back the record of the case to the concerned tribunal forthwith.
(ANOOP KUMAR DHAND),J Sharma NK/33-34 (Downloaded on 30/09/2022 at 09:52:29 PM) Powered by TCPDF (www.tcpdf.org)