Rajasthan High Court - Jodhpur

The New India Assurance Company ... vs Smt. Kamla Devi And Ors on 29 April, 2021

Bench: Devendra Kachhawaha

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT

JODHPUR.

S.B. Civil Misc. Appeal No. 36/2001.

The New India Assurance Company Ltd., Through - its legally constituted authority, Divisional Manager, Divisional Office-I, Abhay Chambers, Jalori Gate, Jodhpur.

----Appellant Versus

1. Smt. Kamla Devi W/o Late Shri Lala Ram

2. Khiya Ram S/o Late Shri Lala Ram (Minor)

3. Prem S/o Late Shri Lala Ram (Minor)

4. Viram S/o Late Shri Lala Ram (Minor)

5. Sohan Lal S/o Late Shri Lala Ram (Minor)

6. Suresh S/o Late Shri Lala Ram (Minor)

7. Miss Sugan D/o Late Shri Lala Ram (Minor) Minors are represented through their natural guardian mother Smt. Kamla Devi (Respondent No.1).

8. Smt. Tulsi Devi W/o Shri Kalu Ram All By Caste-Meghwal, Residents of Boranada, Tehsil & District-Jodhpur.

----CLAIMANTS

9. Shri Bheem Ji Bhai S/o Shri Devi Ji Bhai Thakkar, Resident of Barnorsi, Police Station, Barani, District - Palanpur, Gujarat (Driver).

10. Arvind S/o Shri Shankar Lal Thakkar, Resident of -

Mithiroher, Tehsil - Anjar, Distt.-Kuchchh, Gujarat (Owner).

Connected With S.B. Civil Cross Objections No. 38/2001 IN S.B. CIVIL MISC. APPEAL NO. 36/2001.

                                              (2 of 23)               [CMA-36/2001]




The New India Assuarance Company Ltd.
                                                                    ... Appellant
                                       Vs.
Smt. Kamla Devi & Others.
                                                                 .... Respondents
                                        ...

CROSS-OPBJECTORS/APPLICANTS/RESPONDENTS/CLAIMANTS:

1. Smt. Kamla Devi W/o Late Shri Lala Ram

2. Khiya Ram S/o Late Shri Lala Ram (Minor)

3. Prem S/o Late Shri Lala Ram (Minor)

4. Viram S/o Late Shri Lala Ram (Minor)

5. Sohan Lal S/o Late Shri Lala Ram (Minor)

6. Suresh S/o Late Shri Lala Ram (Minor)

7. Miss Sugan D/o Late Shri Lala Ram (Minor)

8. Smt. Tulsi Devi W/o Shri Kalu Ram

All by caste Meghwal, r/o Boranada, Tehsil & District-Jodhpur.

Respondents-cross-objectors No. 2 to 7 are minors through their natural guardian and mother Smt. Kamla Devi, respondent -cross-objector No.1.

Versus

NON-CROSS-OBJECTORS/NON-APPLICANTS:

1. The New India Assurance Company Ltd., Divisional Office, Abhay Chambers, Jalori Gate, Jodhpur.

2. Bheem Ji Bhai S/o Shri Devi Ji Bhai, by caste Thakkar, r/o Barnorsi, Police Station, Barai, District - Palanpur (Gujarat).

3. Arvind S/o Shri Shankar Lal, by caste Thakkar, r/o Mithiroher, Tehsil - Anjar, Distt.-Kutchh (Gujarat).

For Appellant(s) : Mr. Jagdish Vyas, for the Insurance Company.

For Respondent(s) : Mr. Ayush Gehlot & Mr. Prashant Panwar, for the claimants.

                                            (3 of 23)            [CMA-36/2001]




      HON'BLE MR. JUSTICE DEVENDRA KACHHAWAHA

                                Judgment

Judgment reserved on ::           25/03/2021
Judgment pronounced on ::                29/04/2021

The present Civil Misc. Appeal (No. 36/2001) is directed

against the judgment and award dated 09.10.2000 passed by the

Motor Accident Claims Tribunal (I), Jodhpur in Claim Case No.

86/1996 titled as "Smt. Kamla Devi & Ors. Vs. Bheem Ji Bhai &

Ors." whereby, the Tribunal has awarded a sum of Rs.5,22,000/- in

favour of the claimants, while holding the appellant Insurer liable

for payment of the entire award amount.

The prayer clause as made in this appeal is as follows:-

"It is, therefore, most respectfully prayed that this appeal may kindly be allowed and the impugned judgment and award dated 09.10.2000 passed by MACT (I), Jodhpur in MACT Claim No. 86/96 may kindly be set-aside and the claims petition may kindly be dismissed as against the appellant company with costs throughout. Any other relief to which the appellant company may be entitled, may kindly be granted in its favour."

Brief facts of the case leading to this appeal are that on the

fateful day, i.e., 09.08.1995, the husband of the respondent Smt.

Kamla Devi and father of the minor children, namely, Lala Ram

along with one pillion rider (Sukhram) at around 5:00 p.m. were

going from Balotra to Pachpadra on the motorcycle bearing

registration number R.N.M. 7327 and when they reached near a

temple of Lord Mahadevji then, a tanker bearing registration

(4 of 23) [CMA-36/2001]

number G.J.-12/T-7848 came in front of the motorcycle which was

driven by the non-applicant No.1 rashly and negligently and

suddenly coming from wrong side, collided with the motorcycle. As

a result of the collusion, motor riders, namely, Lalaram and

Sukhram received serious injuries and succumbed to death on the

spot. The motorcycle was completely destroyed. The clothes were

also destroyed in the accident. It was alleged that the deceased

(Lalaram) was 37 years in age. He allegedly earned Rs. 12,000/-

per month by involving himself in various types of work. The non-

applicant No.1 was the driver and the non-applicant No.2 was the

owner and the non-applicant No.3 was the insurer of the offending

vehicle. It was alleged that all the non-applicants were liable to

pay the compensation jointly and severally. An amount of

Rs.20,00,000/- was claimed as compensation under various

heads.

The learned Tribunal proceeded ex-parte against the non-

applicants No. 1 and 2.

In the written statement filed on behalf of the non-applicant

No.3 (insurer), it was alleged that the claimants have claimed

huge amount of compensation without any basis. It was alleged

that the accident was not occurred due to negligence on the part

of the driver of the offending tanker. On the contrary, it was

alleged that the accident in question was occurred by the

negligence on the part of driver of the motorcycle. It was also

alleged that the tanker was driven by the driver, who was not

holding the valid license and thereby, violation of the terms of the

policy was alleged. Therefore, in these circumstances, the Insurer

is not liable to pay the compensation. It was further alleged that

the driver of the motorcycle was also not holding the valid license

(5 of 23) [CMA-36/2001]

and, therefore, for this reason, the Insurer is not liable to pay the

compensation.

After hearing the arguments advanced on behalf of learned

counsel for the parties, as many as four issues were framed by the

Tribunal which reads as under:-

(1) vk;k iz"uxr~ okgu Vsadj la[;k [email protected]&7848 ds pkyd foi{kh la[;k&,d ds }kjk fnukad 9-8-95 dks ckyksrjk ls ipinjk dh vksj 3&4 fdeh0 nwj mDr okgu dks mis{kk @ mrkoysiu ls pyk dj dh xbZ nq?kZVuk esa vkbZ pksVksa ds ifj.kkeLo:i ykykjk dh e`R;q gqbZ \ (2) vk;k mDr okgu pkyd rc mDr okgu Lokeh foi{kh la[;k&nks ds fu;kstu esa gksdj mlh ds fgrkFkZ ,oa ykHkkFkZ dk;Z dj jgk Fkk \ (3) vk;k foi{kh la[;k rhu chek dEiuh }kjk vius fyf[kr dFku dh izkjfEHkd vkFkhZLrohZ ,oa fo"ks'k dFku ds en~ns utj chek dEiuh vius nkf;Ro ls eqDr gks ldrh gS ugha rks bldk izHkko gS \

(4) vk;k nkosnkj vius nkos esa vafdr iz"uxr~ jkf"k ;k vU;

U;k; lEer~ jkf"k ik ldrs gS gkWa rks dkSu dkSu nkosnkj fdruh jkf"k fdl fdl foi{kh ,oa fdl izdkj ls ik ldrs gS \

In support of their claim, the claimants have recorded the

statements of PW-1 Kamla & Tikmaram as PW-2 and exhibited as

many as 16 documents, viz., FIR (Ex.1), Report of Accident

(Ex.1), Recovery Memo. of motorcycle (Ex.3), Chargesheet (Ex.4),

Memo. of site (Ex.5), Site Plan (Ex.6), Recovery Memo. of tanker

(6 of 23) [CMA-36/2001]

(Ex.7), Memo. of dead-body (Ex.8), Panchnama of dead-body

(Ex.9), Postmortem report (Ex.10), MTO Report (Ex.11), MTO

Report of motorcycle (Ex.12), Notice (Ex.13), RC of Motorcycle

(Ex.14), Receipts issued by the Department of Mines & Geology

(Ex.15 & Ex.16).

No evidence was produced on behalf of the non-applicants.

Issue No.1 regarding negligence was decided by the Tribunal

in the manner that the accident in question was occurred due to

negligence on the part of driver of the tanker in which Lalaram

was died but at the same time, the Tribunal also observed that in

the accident in question, some negligence was also on the part of

the driver of the motorcycle.

Regarding issue Nos.2 & 3, the burden to prove these issues

was on the Insurance Company but as no evidence was led by

insurer, this issue was decided against the insurer.

Issue No. 4 regarding entitlement of the claimants to get the

amount of compensation, after a detailed deliberation by the

Tribunal, this was decided in favour of the claimants. As a result of

decision on all the issues, lastly, the Tribunal has awarded a sum

of Rs.5,22,000/- in favour of the claimants and held the insurance

company liable for payment of the compensation.

The award portion of the judgment and award dated

09.10.2000 is reproduced here as under:-

-: vokMZ :-

21/ izkFkhZx.k ds i{k esa rFkk foi{khx.k ds fo:} 5]22][email protected]& :i;s dk vokMZ la;qDr o i`Fkd i`Fkd :i ls ikfjr fd;k tkrk gS A mDr vokMZ dh jkf"k ij izkFkhZx.k rkjh[k vkosnu 13&12&96 ls rkjh[k olqyh rd 12 izfr"kr

(7 of 23) [CMA-36/2001]

izfr o'kZ dh nj ls C;kt Hkh izkIr djus ds vf/kdkjh jgsaxs ! iwoZ esa vnk dh xbZ jkf"k 50][email protected]& :i;s de djus ij vc izkFkhZx.k 4]78][email protected]& :i;s izkIr djus ds vf/kdkjh jgsaxs A mDr jkf"k esa ls izkFkhZ la[;k&1 dks 2]00][email protected]& :i;s ns; gksaxs ftlesa ls mldks 20][email protected]& udn fn;s tk;s rFkk "ks'k jkf"k mlds uke ls fdlh jk'Vªh;d`r cSad esa de ls de 3 o'kZ vFkok viuh bPNkuqlkj lkof/k tek ;kstuk ds rgr tek djk fn;s tkos ftl ij vxj og pkgs rks =Sekfld C;kt cSad ls izkIr djus dh vf/kdkjh.kh jgsxh A izkFkhZ la[;k 2 ls 7 izR;sd dks :i;s 37][email protected]&] 37][email protected]& :i;s ns;

gksaxs tks vo;Ld gksus ds dkj.k mudks ns; jkf"k tfj;s ekrk izkFkhZ la[;k &1 ds }kjk fdlh jk'Vªh;d`r cSad esa muds o;Ld gksus rd dh vof/k ds fy;s lkof/k tek ;kstuk ds rgr tek djk fn;s tkos ftl ij vxj os pkgs rks ekrk ds tfj;s =Sekfld C;kt cSad ls izkIr dj ldsaxsA izkFkhZ la[;k&8 dks 50][email protected]& :i;s ns; gksaxs rFkk mlesa ls mldks 10][email protected]& udn rFkk "ks'k jkfZ"k mlds uke ls fdlh jk'Vªh;d`r cSad esa de ls de 3 o'kZ vFkok viuh bPNkuqlkj lkof/k tek ;kstuk ds rgr tek djk fn;s tkos ftl ij vxj og pkgs rks =Sekfld C;kt cSad ls izkIr dj ldsxh ! foIk{kh la[;k&3 vokMZ dh frFkh ls ,d ekg ds Hkhrj Hkhrj mDr jkf"k ds vnkrk pSd tks fd izkFkhZx.k ds uke ds gksaxs bl U;k;kf/kdj.k esa okLrs Hkqxrku gsrq tek djoks bl gsrq vokMZ dh udy lEcfU/kr chek dEiuh dks okLrs ikyukFkZ gsrq Hksth tkosA^^

Feeling aggrieved against the judgment and award dated

09.10.2000, the appellant-insurer of the offending tanker has filed

the Misc. Appeal (No.36/2001).

(8 of 23) [CMA-36/2001]

The CMA No. 36/2001 was admitted for consideration by this

Court on 11.01.2001 and execution of the impugned award was

stayed on the condition of appellant depositing 50% of the award

amount.

On 19.07.2006, the interim order granted by this Court on

11.01.2001 was confirmed till disposal of the appeal and the stay

application was disposed of.

Upon receiving the notices of this appeal, the claimants have

filed the cross-objections (No. 36/2001). While narrating the

whole story of passing of the award, the claimants have explained

the age, occupation, dependency etc. of the deceased and prayed

for enhancing the amount of compensation to the tune of

Rs.20,00,000/- instead of Rs. 5,22,000/- as awarded by the

learned Tribunal vide impugned judgment and award.

For ready reference, the prayer clause as made by the

claimants in the cross-objections is reproduced here as under:-

"It is therefore respectfully prayed that cross- objection may kindly be allowed and award under appeal may kindly be enhanced to the extent amount claimed with interest at the rate of 18% per annum from the date of accident till realisation with cost throughout."

Heard learned counsel for the parties.

Learned counsel Mr. Jagdish Vyas appearing on behalf of the

appellant - Assurance Company stated that a bare look at the site

inspection report (Ex.-6) would show that the deceased Lala Ram

was driving his motorcycle on wrong side of the road whereas the

tanker was plying on its correct side, but still deceased Lala Ram

(9 of 23) [CMA-36/2001]

collided with the tanker which resulted into his death. While

deciding issue No.1, the learned Tribunal considered the site

inspection report and held that the tanker driver alone was not

negligent and there was also contributory negligence of

motorcycle driver Lala Ram (deceased). In such circumstances,

the learned Tribunal ought to have deducted the proportionate

amount of compensation but while deciding issue No.1, it appears

that the findings on issue No.1 lost sight of the learned Tribunal

which resulted into such erroneous judgment and award. Learned

counsel also stated that the learned Tribunal has gravely erred in

awarding huge amount as compensation in favour of the claimants

without any basis. The findings as recorded by the learned

Tribunal are contrary to material available on record and

therefore, are liable to be quashed. Learned counsel further stated

that without there being any proof regarding income from mining

activities, the learned Tribunal has gravely erred in assessing the

monthly income of the deceased from mining at Rs.2,500/-.

Learned counsel appearing for the Insurance Company

further stated that admittedly, at the time of accident, the

deceased Lalaram was driving the motorcycle and going on Balotra

- Pachpadra road and the offending vehicle was coming from

Pachpadra to Balotra road. As per Exhibit-6, site plan, and

Exhibit-5, detailed memo. of site inspection, accident took place at

the place marked "A" which is situated in the little right side from

the centre point/middle of the road. He further stated that looking

to the size of the vehicle Tanker required more space on the road

whereas the motorcycle required small space. As per evidence

available on record, road width is 18 feet and according to AW-2

Tikmaram, at the time of accident, there was no other vehicle on

(10 of 23) [CMA-36/2001]

the road, therefore, ample space was available to the rider of the

motorcycle but despite of that, motorcycle was driven by the

deceased Lalaram at the little right side from the centre point of

road which is wrong side, therefore, accident took place due to

negligence of the deceased Lalaram himself. He further stated as

per impugned judgment and award, while deciding issue No.1, the

learned Tribunal admitted that as per site plan, upto some extent,

motorcycle driver was also negligent but despite of that, without

any reason, the contributory negligence of the motorcycle driver

(deceased) was not attributed by the learned Tribunal.

So far as income of the deceased is concerned, learned

counsel for the Insurance Company stated that no documentary

evidence to prove the income of the deceased Lalaram has been

produced before the learned Tribunal but despite of that, at

internal page number 7 of the impugned judgment and award, the

learned Tribunal has assessed the income of the deceased Lalaram

at Rs. 2,500/- per month. He further stated that since there was

no proof regarding definite income of the deceased Lalaram,

therefore, as per the prevalent rate of minimum wages on

01.01.1995, the income of the deceased ought to have been

considered at Rs. 884/- per month. Lastly, he requested that the

appeal of the Insurance Company may kindly be allowed and the

impugned award may kindly be modified as per the above-

mentioned grounds.

In support of his contentions, learned counsel for the

appellant Insurance Company has referred to and relied upon the

following judgments which are as under:-

                                               (11 of 23)                  [CMA-36/2001]



(1)       In the case of Oriental Insurance Company Limited

          (The) Vs.      Meena Variyat & Ors., reported in MACD

          2007 (1) (SC) 390;

(2)       In the batch of appeals led by S.B. Civil Misc. Appeal No.

342/1995 titled as "United India Insurance Co. Ltd.

Vs. Hamu Ram & Ors., reported in 2004 R.A.R. 308

(Raj.);

(3) In the case of Oriental Insurance Co. Ltd. Vs.

Premlata Shukla & Ors., reported in MACD 2007 (1)

(SC) 600;

(4) In the case of RSRTC Vs. Balbeer Singh & Anr.,

reported in 2009 R.A.R. 146 (Raj.); and

(5) In the case of New India Assurance Company Vs.

Yogesh Devi & Ors., reported in (2012) 3 Supreme

Court Cases 613.

Per contra, learned counsel appearing on behalf of the

claimants/respondents/cross-objectors stated that as per

observations made by the learned Tribunal, no evidence was

adduced by the Insurance Company, therefore, un-controverted

evidence led on behalf of the claimants ought to have been

accepted. Learned Tribunal has wrongly assessed the income of

the deceased Lalaram at Rs. 2,500/- per month only whereas, as

per evidence adduced on behalf of the claimants, deceased

Lalaram was performing mining works, contract works for

construction of road and buildings as well as performing

agricultural works and thereby earning total Rs.12,000/- per

month. In these circumstances, the income of the deceased

Lalaram may kindly be assessed as per evidence led on behalf of

(12 of 23) [CMA-36/2001]

the claimants. While relying upon the judgment of Hon'ble the

Supreme Court rendered in the batch of appeals led by Civil

Appeals Nos. 4945-46/2013 titled as "Jiju Kuruvila & Ors.

Kunjujamma Mohan & Ors., reported in (2013) 9 Supreme

Court Cases 166, learned counsel for the cross-objectors argued

that in absence of any direct or corroboratory evidence, no

interference can be drawn as to contributory negligence on the

part of the deceased Lalaram on the basis of site plan. He further

stated that at the time of accident, the deceased Lalaram was 37

years old. He further stated that no benefit of future prospects

has been considered by the learned Tribunal and as the deceased

was 37 years in age at the time of accident, therefore, as per the

judgment rendered by Hon'ble the Supreme Court in the batch of

appeals led by S.L.P. No. 25590/2014 titled as "National

Insurance Company Ltd. Vs. Pranay Sethi", decided on

30.10.2017, the award may kindly be modified considering some

amount towards future prospects. Lastly, learned counsel

appearing on behalf of the claimants/respondents/cross-objectors

requested that the cross-objections filed in the appeal of the

Insurance Company may kindly be accepted and accordingly, the

award may kindly be modified accordingly. Lastly, learned counsel

for the claimants stated that the claimants are also entitled to get

additional amount towards consortium and loss of love & affection.

In support of his contentions, learned counsel appearing on

behalf of the respondents/claimants has referred to and relied

upon the following judgments:-

(1) In the case of United India Insurance Company Vs.

Satyendra Kaur, reported in 2020 (2) R.A.R. 153 and

(13 of 23) [CMA-36/2001]

(2) In the case of Smt. Sangeeta Devi & Ors. Vs.

Samma Ram & Ors., S.B. Civil Misc. Appeal No.

35/2014, decided on 17.09.2016.

Having given a thoughtful consideration to the submissions

advanced by both the sides and upon perusal of the impugned

judgment & award, including the case law cited on behalf of both

the sides, this Court is of the opinion that the award as made by

the Tribunal is required to be modified, while partly allowing both,

the appeal of the Insurance Company and the cross-objections of

the claimants.

In the case of Oriental Insurance Co. Ltd. Vs. Meena Variyat

(supra), it was held that if petition under Section 166 of the Motor

Vehicles Act is filed by the claimants then, burden of proof,

establishing negligence of driver or owner of the vehicle involved

in the accident, lies upon the claimants.

In the case of United India Insurance Co. Ltd. Vs. Hamu

Ram & Ors. (supra), it was held that, "if the document is certified

copy of the public document, it need not be proved by calling a

witness." It was further held by this Court that, "other relevant

documents prepared by the police of the doctor, while discharging

official duty are admissible in evidence without there being a

formal proof."

In the case of Oriental Insurance Co. Ltd. Vs. Premlata

Shukla & Ors.. (supra), Hon'ble the Apex Court was of the view

that, "once a part of the contents of the document is admitted in

evidence, the party bringing the same on record cannot be

permitted to turn round and contend that the other contents

contained in the rest part thereof had not been proved."

(14 of 23) [CMA-36/2001]

In the case of RSRTC Vs. Balbeer Singh & Anr. (supra), this

Court has held that, "while a man may lie, circumstances do not".

It is pertinent to mention here that the circumstances of that case

are upto some extent similar to the facts and circumstances of the

present case. In that case, accident took place at the middle of

the road and 5 to 8 feet space exists between edge of road and

left side of jeep and bus was standing on its correct side and edge

of road which is proved from the photographs and corroborated

by site plan and, therefore, 25% negligence of the bus driver and

75% negligence of the jeep driver was held by this Court;

whereas, in the present case, sole negligence of the bus driver

was attributed by the Tribunal below. In the present case, accident

took place near the centre point of the road although sufficient

space was available in the left side of the motorcycle but the

tanker in question was not driven on the edge of the road and

sufficient space was available on the left side of the tanker which

was coming from the opposite direction but the tanker driver did

not take the tanker off the road whereas he was able to take the

tanker off the road and could avoid the accident. As per evidence

available on record, as per Exhibit-6, description of site plan,

accident was occurred at the place marked "A", motorcycle and

tanker were dragged from place "A" and stopped after about 75

feet and after accident, both the vehicle were found on the

eastern side of the road which is right side for the offending

tanker; position of the dead bodies, eye-witness, trees etc. were

also mentioned in that site plan. As per both the documents

(Exhibit-5 & 6), at the time of accident, motorcycle was driven in

wrong side and it is an admitted position as per the statement of

AW-2 Tikmaram that at the time of accident, there was no other

(15 of 23) [CMA-36/2001]

vehicle on road except to motorcycle and tanker; motorcycle can

easily pass from right side. Therefore, in my humble opinion, in

the present case also, deceased motorcycle rider Lalaram is held

25% negligent and the tanker driver is held 75% negligent for the

accident in the present case.

In the case of New India Assurance Company Limited Vs.

Yogesh Devi & Ors. (supra), it was held by Hon'ble the Supreme

Court that as per the claimants, the deceased was owner of the

three mini buses, driver and agriculturist and earning more than

Rs. 35,000/- per month and it was specifically contended that the

deceased was earning Rs.3,900/- per month as a driver of buses

and was handed over Rs.3,500/- per month to his wife,

respondent No.1. While dealing with the claim petition, the

Tribunal has awarded a sum of Rs.10,00,000/- as compensation in

favour of the claimants which was enhanced by the High Court to

Rs.30,72,000/- on appeal, treating the notional income of the

deceased as Rs.24,000/- per month. In that case, although the

income of the deceased out of agricultural lands would still accrue

to his family and likewise, the income derived out of three buses

would also still accrue to the family but it was accepted that the

respondents-claimants needed someone to manage the

agricultural lands and three mini buses, therefore, payment made

for Manager and driver for the three buses would be the loss of

income to the respondents-claimants. Although, no evidence was

adduced to show loss of income in this respect, despite of that,

Hon'ble the Supreme Court computed the compensation treating

the salary to be given to the Manager of the buses as Rs.10,000/-

per month and for the driver as Rs,3,900/-, thus, the total loss of

income sustained by the respondents-claimants was calculated at

(16 of 23) [CMA-36/2001]

Rs.13,900/- per month. Although, no direct evidence, as to what

would be the quantum of compensation, was adduced on behalf of

the claimants, despite of that, looking to the facts and

circumstances of that case, Hon'ble the Apex Court, while making

a reasonable conjecture that somebody is to be employed for the

purpose of managing the business of the three minibuses, the

amount of compensation towards loss of income was altered to

Rs.26,68,800/- (Rs.13,900/- x 12 x 16), while maintaining the

rest of the judgment and award.

The above cited judgment in the case of New India

Assurance Company Limited Vs. Yogesh Devi & Ors. was relied

upon by the Insurance Company in support of the argument that,

no loss of income for mines (quarry) and agriculture have been

caused to the claimants, as income from both the assets would

still accrue to the family of the deceased. Upon considering the

ratio of the judgment, in my humble opinion, as decided by

Hon'ble the Apex Court, the claimants have to spend more money

for managing both the mining operations and agricultural works by

deploying some other persons and the money incurred in payment

of salary for those persons, would be the loss of income to the

claimants. Therefore, after considering all the relevant factors, this

Court has assessed the compensation towards loss of income to

the claimants at Rs.4,000/- per month.

Regarding issue No.1, I am principally agree with the ratio

decided by Hon'ble the Supreme Court as rendered in the case of

Jiju Kuruvila & Ors. Vs. Kanjujamma Mohan & Ors. (vide

Head Note D, para 20.6) (supra) wherein, it was held by

Hon'ble the Supreme Court that, in absence of any direct or

corroborative evidence, no inference can be drawn as to

(17 of 23) [CMA-36/2001]

contributory negligence on the part of victim merely on basis of

such "scene mahazar" (i.e., site plan) but the facts of the above

case are not similar to the facts of the present case. In that case,

findings were made on the basis of Exhibit-2 "scene mahazar"

(i.e., site plan) which was not suggested any rash and negligent

driving on the part of the deceased and Ex. A/5 clearly suggested

that the deceased had consumed liquor but on the basis of the

same, no definite finding can be given to the effect that the

deceased was driving the vehicle (car) rashly and negligently at

the time of accident; and Ex. B/2 "scene mahazar" (i.e., site plan)

and Ex.5 postmortem report cannot take the place of oral

evidence. In the cited case, the site plan was not properly

prepared by Police officials but in the present case, Exhibit-6, site

plan, and Exhibit-5, detailed memo. of site inspection, both the

documents were prepared by the police official while discharging

official duty, as per the legal requirements, marks of tyres of

tanker, position of eye witness was also shown and as per the site

plan and the marks pointed out that the tanker was driven rashly

and negligently and as per statement of eye witness Tikmaram,

that no other vehicle was on the road at the time of accident

except to tanker and motorcycle and accident took place at the

centre point of the road and more than sufficient space was

available for motorcycle in his own side. Having regard to the

above-mentioned exhibits, the statement of AW-2 Tikmaram

cannot be accepted as a whole.

In the case of Smt. Sangeeta Devi & Ors. Vs. Samma Ram &

Ors. (supra), it was held by this Court that, "it is not necessary

that in all cases where a claim is filed, the party is in possession of

documentary evidence regarding the income of the deceased." It

(18 of 23) [CMA-36/2001]

was also held that, "the income can also be proved by way of

producing oral evidence as well and same kind of guess work

based on the nature of business being conducted by the

deceased.......". It was further held by this Court that, "the

standard practice adopted by the Tribunal in cases of lack of

documentary evidence to take the minimum wages as the bench

mark for assessing the amount of compensation cannot be

appreciated/sustained." In that case, the income of the deceased

was assessed as Rs.10,000/- per month because of the fact that

the deceased was supporting the of four children, wife and

mother, the practice of awarding compensation by the Tribunal is

wholly unsustainable. In the present case also, the deceased was

supporting six children, wife and mother, in total eight claimants

were there in the family. Therefore, this argument raised on behalf

of the Insurance Company cannot be accepted that income of the

deceased must be assessed on the basis of minimum wages and

notional income cannot be assessed in absence of direct

evidence.

It is an admitted position by both the sides and record of the

Tribunal concerned that at the time of accident, the motorcycle

bearing registration number R.N.M. 7327 was driven by the

deceased Lalaram and he was going towards Pachpadra from

Balotra and the offending vehicle, i.e., the tanker bearing

registration number GJ-12-T-7848 was coming from Pachpadra to

Balotra. As per statement of AW-2 Tikmaram, road width was 18

feet on which accident took place and at the time of accident, no

other vehicle was present on the road; and as per Exhibit-6,

description of site plan, accident was occurred at the place marked

"A", motorcycle and tanker were dragged from place "A" and

(19 of 23) [CMA-36/2001]

stopped after about 75 feet and after accident, both the vehicle

were found on the eastern side of the road which is right side for

the offending tanker; position of the dead bodies, eye-witness,

trees etc. were also mentioned in that site plan. As per both the

documents (Exhibit-5 & 6), at the time of accident, motorcycle

was driven in wrong side and it is an admitted position as per the

statement of AW-2 Tikmaram that at the time of accident, there

was no other vehicle on road except to motorcycle and tanker;

motorcycle can easily pass from right side.

Although, the learned Tribunal, while deciding issue No.1 in

regard to negligence towards accident, admitted that as per site

plan, it appears that the driver of the motorcycle is also in fault

but despite of that, no contributory negligence was attributed by

the learned Tribunal without assigning any reason which is clearly

revealed from a bare perusal of the Exhibits-5 & 6 coupled with

the statement of AW-2 Tikmaram, who stated that at the time of

accident, there was no other vehicle on the road except

motorcycle and tanker bearing registration number GJ-12-T-7848

which was driven rashly and negligently came in wrong side and

hit the motorcycle, in my humble opinion, this portion of the

statement of AW-2 Tikmaram is not correct because as per

Exhibits 5 & 6 and as per above mentioned observations, if that

was the correct position then, after accident, tanker and

motorcycle including deceased persons were found in western side

of the road which is correct side for the motorcycle and wrong side

for the tanker but situation is totally opposite, the tanker,

motorcycle as well as the dead bodies of both the persons were

found on eastern side of the road. It is also pertinent to mention

here that as per statement of AW-2 Tikmaram and upon perusal of

(20 of 23) [CMA-36/2001]

the Exhibits-5 & 6, marks of tyres of tanker were present on the

road upto the extent of 20 feet and all the four tyres were found

situated below the road and pressed in soil, it shows that at the

time of accident tanker bearing registration number GJ-12-T-7848

was driven rashly. In conclusion, tanker was rashly driven by

respondent Bheemji Bhai and simultaneously, the motorcycle was

negligently driven by the deceased Lalaram, little on the right

from the centre point of the road, therefore, in my humble

opinion, the deceased Lalaram was also contributed negligent

towards the accident and looking to the facts and circumstances of

this case and the evidence available on record, documentary as

well as oral and as per judgment in the case of RSRTC Vs.

Balbeer Singh & Ors. (supra), particularly having regard to the

observations made in that judgment at pages 149 and 150, as

cited by the learned counsel for the Insurance Company himself,

25% negligence of the motorcycle rider, i.e., deceased Lalaram is

held. Whereas, 75% negligence of tanker driver namely, Bheemji

Bhai is totally established in the present case because if the tanker

was not driven by him rashly and negligently, he can very well

stopped the tanker and the motorcycle as well as deceased were

not dragged approximately 50 feet. Similarly, if the motorcycle

was driven in wrong side, i.e., little right side from the centre

point of road, motorcycle may not collided with tanker.

So far as the income of the deceased Lalaram is concerned,

AW-1 Kamla, wife of the deceased, categorically stated that at the

time of accident, her husband deceased Lalaram was 37 years in

age; he was performing contract works for construction of roads

and buildings and earning Rs.6000/- per month. She further

stated that from agricultural works, the deceased earned

(21 of 23) [CMA-36/2001]

Rs.4000/- per month and one mining quarry, situated in Barli,

which was in the name of her mother-in-law, was also operated by

her husband and he earned Rs.2000/- per month. In this manner,

she has supported the contentions regarding income that the

deceased was earning total Rs.12,000/- at the time of accident.

She further stated that the motorcycle of my husband was also

destroyed in the accident which costing at Rs.30,000/-. In

documentary evidence in support of that oral evidence, Exhibits

15 & 16, receipt of mining operations were also exhibited by this

witness. Although she admitted that the revenue record of

agricultural land was not produced and the statement of the

account which was maintained by her husband was also not

produced, for distribution of the amount to the labourers for the

contract works but it is an admitted position that the receipt of

dead rent (regarding mining) and receipt of octroi duty were

exhibited on record as Exhibits 15 & 16 respectively by AW-1 and

the same were not controverted by the Insurance Company. It is

also an admitted position that AW-1 Kamla stated that we have

15 bighas of revenue land, being cultivated by the deceased and

the as per judgment in the case of Smt. Sangeeta Devi & Ors.

Vs. Samma Ram (supra), therefore, considering the

circumstances, as noted hereinabove and cases cited by parties, in

my humble opinion, the Tribunal was not right in assessing the

income of the deceased Lalaram at Rs.2,500/- per month only at

the time of accident and the same is liable to be treated as

Rs.4,000/- per month. It is also an admitted position that nothing

was awarded by the Tribunal towards future prospects, therefore,

in my humble opinion, 40% future prospects deserves to be

allowed keeping in view the guidelines issued by Hon'ble the

(22 of 23) [CMA-36/2001]

Supreme Court in the case of National Insurance Co. Ltd. Vs.

Pranay Sethi (SLP No. 25590/2014, decided on

31.10.2017). Since, it is an admitted position that there are total

8 dependents upon the deceased, therefore, deduction of one-fifth

is applicable in the present case.

Accordingly, the loss of income deserves to be assessed in

the manner that by treating the monthly income of the deceased

Lalaram at the time of accident, at Rs.4000/-, further adding Rs.

1600/- (40% for future prospects), total income comes to Rs.

5,600/- and after deducting Rs. 1120/-, i.e., one-fifth towards

dependency, the net loss of income comes to Rs.4,520/- per

month and after applying multiplier of 15, as applied by the

Tribunal, the total amount under the head of loss of income comes

to Rs. 8,13,600/- [Rs. 4,520/- x 12 x 15].

Considering the guidelines issued in the above cited case of

Satyendra Kaur (supra), in the humble opinion of this Court, the

claimants, including wife and six children deserves to be held

entitle to get the compensation under this head also. Accordingly,

Rs. 40,000/- deserves to be allowed to wife for consortium and

Rs.40,000/- each to the six children of the deceased, amount to

Rs.2,40,000/- (Rs.40,000/- x 6) towards loss of love and affection

deserves to be allowed to the children of the deceased. Apart from

the above, this Court is also of the opinion that Rs.15,000/-

towards funeral expenses and Rs.15,000/- towards loss of estate

deserves also to be allowed in favour of the claimants. This Court

is further of the opinion that Rs.20,000/- deserves to be allowed

to the claimants for the reason that the Bullet motorcycle, driven

by the deceased at the time of accident was totally destroyed in

the accident.

(23 of 23) [CMA-36/2001]

In view of the above, the claimants are now held entitled to

get the amount of compensation as under:-

                                   1.    Loss of Income                    :     Rs. 8,13,600.00
                                   2.    Loss of love & affection          :     Rs. 2,40,000.00
                                   3.    Loss of consortium                :     Rs. 40,000.00
                                   4.    Loss of Estate                    :     Rs. 15,000.00
                                   5.    Funeral Expenses                  :     Rs. 15,000.00
                                   6.    Damage to motorcycle (Enfield
                                         make)                             :     Rs. 20,000.00
                                                                           -------------------------
                                                                                 Rs.11,43,600/-
                                                                           -------------------------

Since, this Court found the deceased Lalaram contributed

25% towards the accident in question, therefore, from the total

award of Rs.11,43,600/-, Rs.2,85,900/- (25% of Rs.11,43,600/-)

is liable to be deducted, thereby, now the payable amount of

compensation comes to Rs. 8,57,700/-.

In view of the above, Appeal of the Insurance Company and

Cross Objections of Claimants are partly allowed and the claimants

now held entitle to get the compensation in the sum of

Rs.8,57,700/- along with interest @ 6% from the date of

presentation of the claim petition, i.e.,13.02.1996, after taken into

consideration the amount, as already paid or deposited by the

Insurance Company, till the date of actual realisation. After