Rajasthan High Court - Jodhpur

Bhagwati Lal And Anr vs Tabasum And Ors on 2 February, 2021

Bench: Vinit Kumar Mathur

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Misc. Appeal No. 221/2007

1. Bhagwatilal S/o Champalal Jat, age about 45 years,

2. Narayanlal S/o Udailal Dangi, age about 40 years, Both r/o Dabok Choraya, Girwa Udiapur

----Appellant Versus

1. Smt. Tabusam W/o Mohd. Sabbir

2. Ms. Sabana Bano D/o Mohammed Sabbir

3. Irfan S/o Mohammed Sabbir

4. Heena Bano D/o Mohammed Sabbir, respondent Nos. 03-04 are ,minors through mother respondent No. 01. All R/o 481, Champapura, Hathipole, Gali No. 9, Udaipur (Raj.)

5. Chokharam S/o Dhula Vadera, R/o Asligarh Fala Khetiya, P.s Nai, Tehsil Girwa, District Udaipur (Raj.) (Driver).

6. Smt. Batul Begham W/o Mohammed Rashid, R/o 90, Raza Colony, Mulla Talai, Udaipur (Raj.) (Vehicle Owner Tempo No. Rj27/ P 4787).

7. The United Insurance Company Limited, Through Branch Manager, Bapu Bazar, Udaipur (Raj.) (Insurer)

----Respondents Connected With S.B. Cross Objection (Civil) No. 63/2020

1. Smt. Tabusam W/o Mohd. Sabbir

2. Ms. Sabana Bano D/o Mohammed Sabbir

3. Irfan S/o Mohammed Sabbir

4. Heena Bano D/o Mohammed Sabbir All R/o 481, Champapura, Hathipole, Gali No. 9, Udaipur (Raj.)

----Appellants Versus

1. Bhagwatilal S/o Champalal Jat, age about 45 years,

2. Narayanlal S/o Udailal Dangi, age about 40 years, Both r/o Dabok Choraya, Girwa Udiapur

3. Chokharam S/o Dhula Vadera, R/o Asligarh Fala Khetiya, P.s Nai, Tehsil Girwa, District Udaipur (Raj.) (Driver).

4. Smt. Batul Begaum W/o Mohammed Rashid, R/o 90, Raza Colony, Mulla Talai, Udaipur (Raj.) (Vehicle Owner Tempo No. Rj27/ P 4787).

5. The United Insurance Company Limited, Through Branch Manager, Bapu Bazar, Udaipur (Raj.) (Insurer)

(2 of 6) [CMA-221/2007]

----Respondents

For Appellant(s) : Mr. Sandeep Saruparia For Respondent(s) : Mr. UCS Singhvi Mr. T. Gupta

HON'BLE MR. JUSTICE VINIT KUMAR MATHUR

Judgment

02/02/2021

The present appeal and the cross objection arise out of the

same judgment and award passed by the Motor Accident Claims

Tribunal, Udaipur on 14.02.2006 in Claim Case No.326/2005

(1056/2004).

With the consent of the counsel for the parties, the matters

are heard and disposed of finally.

The brief facts of the case are that on 29.09.2003, an

accident took place in which Mohd. Asif who was the driver of the

Tempo died. The accident occurred between Tempo No.RJ 27-P-

4787 and JCB No. RJ 27-E-1868. In the circumstances, the

appellants preferred a claim petition before the Tribunal and the

Tribunal after framing the issues adjudicated the claim petition

and awarded a sum of Rs.3,73,600/-. The said award of

compensation is to be recovered from the present appellants who

are the owners of the JCB.

Shri Sandeep Saruparia, learned counsel for the appellants

while assailing the validity of the judgment dated 14.02.2006

submitted that the findings of the Tribunal on issue Nos.3 and 5

are incorrect. He submits that the Tribunal has held that since the

driver of the JCB was not holding the requisite driving licence for

driving the same, the Insurance Company cannot be held liable.

(3 of 6) [CMA-221/2007]

He submits that in view of the judgment of Hon'ble the Supreme

Court in the case of Mukund Dewangan V/s Oriental

Insurance Company Limited reported in (2017) 14 SCC

663, wherein it has been held that if a person is holding a licence

for driving the Light Motor Vehicle then if the

transport/commercial is weighing less than 7500 Kg., the driving

licence granted by the authority for driving transport/commercial

Motor Vehicle will be a valid licence for the same. He submits that

in view of the judgment of Hon'ble Supreme Court, the Insurance

Company in the present case will be liable to compensate the

claimants.

Thus, in view of the judgment passed by Hon'ble the

Supreme Court in the case of Mukund Dewangan (supra), the

present appellants cannot be held liable to compensate the claim

of the claimants.

Per contra, learned counsel for the Insurance Company while

supporting the judgment dated 14.02.2006 submits that at the

time when the judgment was passed, the law prevailing was taken

note of by the Tribunal and therefore, same cannot be over

turned. However, learned counsel for the Insurance Company is

not in a position to dispute the fact of the judgment of the Hon'ble

Supreme Court in the case of Mukund Dewangan.

I have considered the submissions made at the Bar.

In view of the authoritative pronouncement of Hon'ble the

Supreme Court in the case of Mukund Dewangan (supra), the

findings recorded by the Tribunal on issue No.3 and 5 cannot be

sustained. Since the weight of JCB was less than 7500Kg., the

driver of the JCB who was holding the licence for driving the Light

Motor Vehicle was competent to drive the JCB and therefore, the

(4 of 6) [CMA-221/2007]

Insurance Company is liable to pay the compensation amount in

this case.

The findings of the Tribunal on issue Nos.3 and 5 are

therefore, modified and the respondent- Insurance Company is

directed to pay the amount of compensation in this case. The

amount already deposited by the appellants before the Tribunal in

view of the order passed by this Court on 26.2.2007 as well as the

amount deposited under Section 173 of the M.V. Act shall be

refunded to the appellants by the Insurance Company within a

period of six weeks from today. The amount so refunded by the

Insurance Company shall carry an interest @ 6% till the same is

paid.

As far as the cross objection filed by the claimants-

respondents is concerned, the same is barred by 1382 days.

Counsel for the claimants-respondents submits that an

application under Section 5 of the Limitation Act for condonation

of delay has also been filed. The application is not objected by the

counsel for the Insurance Company as well as counsel for the

owners.

For the reasons mentioned in the application, the same is

allowed. The delay of 1382 days in filing the cross objection is

condoned.

Learned counsel for the claimants submits that the Tribunal

has not computed the award in the light of the judgment of

Hon'ble the Supreme Court in the case of National Insurance

Company Limited V/s Pranay Sethi & Ors. reported in

(2017) 16 SCC 680 and therefore, very less amount has been

awarded in this case. Learned counsel submits that the deceased

Asif was 19 years of age at the time of accident and was earning

(5 of 6) [CMA-221/2007]

Rs.2700/- per month while working as driver of the Tempo which

was involved in the accident. He further submits that since there

are four family members dependent on the deceased, the Tribunal

should have taken the deduction of 1/4th instead of 1/3rd. He

further submits that no amount has been awarded towards the

future prospects and consortium of the mother.

Per contra, Mr. UCS Singhvi, learned counsel for the

Insurance Company submits that the Tribunal has taken into

consideration all the relevant factors and evidence produced on

record while computing the award. However, he is not in a position

to controvert the submission of the counsel for the claimants with

respect to the judgment of Hon'ble the Supreme Court in the case

of Pranay Sethi (supra).

Thus, in the considered opinion of this Court, the amount is

required to be recomputed in the light of the judgment of Hon'ble

the Supreme Court in the case of Pranay Sethi (Supra). The same

is recomputed as under:-



For            future 40% of Rs.2700                   Rs.1080- per month
prospects :-          (Income of
                      deceased)
Add: 2700/- + Rs.1080/-                                Rs. 3780/-/-

Amount to be deducted as Rs. 3780- 945 = Rs. spent on himself. 1/4th 2835/-

The age of deceased was 19 years therefore, a multiplier of

18 will be used in view of the judgment passed in the case of

Sarla Verma and others Vs. DTC and Ors. Reported in (2009) 6

SCC 12.

                                                                             (6 of 6)                     [CMA-221/2007]


                                   (I)    Compensation       due        to Rs.2835x12x18 Rs. 6,12,360/-
                                          death

                                   (II)   For the Loss of Estate                            (+)    Rs.      16,500/-

                                   (III) For Loss of Consortium                             (+)    Rs.      44,000/-

                                   (III) Funeral Expenses                                   (+)    Rs.      16,500/-

                                                                            Total                  Rs. 6,89,360/-

                                          Amount awarded by the                Tribunal       vide Rs. 3,73,600/-
                                          award dated 14.2.2006

                                                                     Enhanced amount Rs. 3,15,760/-

Thus, in view of the discussions made above, the Insurance

Company is directed to pay an amount of Rs.3,15,760/- to the

claimants over and above the amount so awarded by the Tribunal

vide judgment dated 14.2.2006 within a period of eight weeks

from today. It is made clear that 50% amount so deposited by the

appellants in this case has already been disbursed to the

claimants. The said amount will be adjusted and deducted from

the total amount which the Insurance Company is liable to pay.

The enhanced amount as ordered by this Court shall carry an

interest @ 6% till the payment is made. Record of the learned

Tribunal be sent back immediately.

The misc. appeal as well as the cross objections are