Oriental Insurance Company ... vs Indra Devi
2021 Latest Caselaw 767 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Misc. Appeal No. 2394/2019 Oriental Insurance Company Limited, Branch Office 136, Chandel Complex Mandiya, Road, Pali Through Its Manager.

----Appellant Versus

1. Indra Devi W/o Late Shri Hari Ram @ Harish, Resident Of Village And Post Nimbli Urra Tehsil And District Pali.

2. Mahipal S/o Late Shri Hari Ram @ Harish, Minor Through Natural Guardian Mother Smt. Indra Devi Wife Of Late Shri Hari Ram @ Harish Resident Of Village And Post Nimbli Urra Tehsil And District Pali.

3. Aaliya D/o Late Shri Hari Ram @ Harish, Minor Through Natural Guardian Mother Smt. Indra Devi Wife Of Late Shri Hari Ram @ Harish Resident Of Village And Post Nimbli Urra Tehsil And District Pali.

4. Jeevraj S/o Late Shri Hari Ram @ Harish, Minor Through Natural Guardian Mother Smt. Indra Devi Wife Of Late Shri Hari Ram @ Harish Resident Of Village And Post Nimbli Urra Tehsil And District Pali.

5. Pusa Ram S/o Shri Ladu Ram (Since Deceased)., Resident Of Village And Post Nimbli Urra Tehsil And District Pali.

6. Smt. Kamla Devi W/o Shri Pusa Ram, Resident Of Village And Post Nimbli Urra Tehsil And District Pali.

7. Bhanwar Lal S/o Shri Pusa Ram, Resident Of Village And Post Nimbli Urra Tehsil And District Pali.

8. Kishan S/o Shri Pusa Ram, Resident Of Village And Post Nimbli Urra Tehsil And District Pali.

9. Gouri Lal S/o Shri Pusa Ram, Resident Of Village And Post Nimbli Urra Tehsil And District Pali.

10. Sadiq Khan S/o Shri Nihal Khan, Resident Of 61, Chiman Chouraha, Nimbada, Tehsil And District Pali. (Owner)

11. Ayub Khan Sindhi S/o Sadir Khan, 61, Chiman Chouraha, Nimbada, Tehsil And District Pali. (Driver)

----Respondents

For Appellant(s) : Mr. Mukul Singhvi.

Ms. Prateethi Singhvi.

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For Respondent(s)            :     Mr. Ravi Panwar with Mr. Rajpal
                                   Chouhan.


                HON'BLE MR. JUSTICE ARUN BHANSALI
                                    Judgment
12/01/2021

This appeal is directed against the judgment and award

dated 26.4.2019 passed by Motor Accident Claims Tribunal, Pali

('the Tribunal'), whereby, the Tribunal has awarded a sum of

Rs.25,62,000/- as compensation alongwith interest @ 9% per

annum from the date of application i.e. 17.1.2017.

The application for compensation was filed by the nine

claimants, who were wife, children, parents and brothers of one

Hari Ram, inter alia, with the submissions that Hari Ram was

going on motorcycle when the offending vehicle a Mahindra Jeep,

which was being driven rashly and negligently, collided with the

motorcycle, resulting in, grievous injuries to Hari Ram, to which,

he succumbed. It was claimed that the deceased was aged 28

years and was involved in grocery business, operating a flour mill

and he used to undertake agricultural operations and earned

Rs.21,500/- per month. Based on the said submissions,

compensation was sought to the tune of Rs.1,35,08,000/-.

The application was contested by the Insurance Company

questioning the avements made in the application. The other non-

claimants also filed reply and contested the claim.

The Tribunal framed four issues. On behalf of the claimants,

three witnesses were examined and 42 documents were

exhibited. On behalf of the non-claimants, no evidence was led.

After hearing the parties, the Tribunal came to the

conclusion that the accident occurred on account of rash and

(3 of 6) [CMA-2394/2019]

negligent driving by the driver of the Jeep. The defence raised by

the Insurance Company was negated.

While assessing the quantum of compensation, the Tribunal

came to the conclusion that from the evidence available on

record, the deceased was operating a flour mill and was involved

in agricultural operations and assessed the income of the

deceased at Rs.10,000/- per month, thereafter, adding Rs.4,000/-

towards future prospects, deducting 1/4 th towards personal

expenses and applying multiplier of 17, assessed the loss of

income at Rs.21,42,000/-. The Tribunal also awarded Rs.50,000/-

each to the seven claimants except for two major brothers i.e.

Rs.3,50,000/- as compensation towards loss of love & affection,

awarded Rs.40,000/- towards loss of consortium to the wife,

Rs.15,000/- towards funeral expenses and Rs.15,000/- towards

loss of estate and in all awarded a sum of Rs.28,62,000/-.

It is submitted by learned counsel for the appellant that the

Tribunal was not justified in awarding excessive compensation.

Submissions were made that the material produced on record did

not support the claim of the claimants pertaining to the income of

the deceased and, therefore, the notional income even as per

skilled workman could have been taken by the Tribunal, however,

a huge sum of Rs.10,000/- per month has been assessed as

income, which deserves to be modified.

Further submissions were made that the award of

Rs.50,000/- each to the seven claimants towards loss of love &

affection also cannot be sustained. It was further submitted that

the Tribunal has awarded excessive interest @ 9% per annum,

which also deserves to be modified.

(4 of 6) [CMA-2394/2019]

Reliance was placed on judgment of Hon'ble Supreme Court

in The New India Assurance Company Ltd. v. Smt. Somwati &

Ors.: Civil Appeal No.3093/2020 & other connected matters

decided on 7.9.2020.

Learned counsel appearing for the respondents - claimants

vehemently opposed the submissions. It was submitted that the

fact of agricultural operations and other income sources were duly

proved by producing witness AW/3 - Gurmeet Singh, on whose

land, the deceased was undertaking agricultural operations in

share, further exhibits 30/A, 33/A and 34/A to 38/A were

produced to indicate the fact that flour mill was being operated by

the deceased and, therefore, the assessment made by the

Tribunal cannot be faulted.

Further submissions have been made that though the

Tribunal has awarded Rs.50,000/- each to the seven claimants

towards loss of love & affection, which may not be sustainable in

light of judgment in Somwati (supra), they were entitled to

compensation towards loss of consortium in view of the same

judgment at Rs.40,000/- each and, therefore, to that extent

award impugned may be modified.

I have considered the submissions made by learned counsel

for the parties and have perused the material available on record.

The facts about the age of the deceased, entitlement

towards future prospects and the multiplier applied are not in

dispute. So far as the income assessed by the Tribunal is

concerned, the claimants claimed the income of the deceased at

Rs.20,000 - 25,000/-, however, the Tribunal by taking an

apparently balanced approach on account of evidence, oral and

(5 of 6) [CMA-2394/2019]

documentary, available on record pertaining to the fact that the

deceased was involved in agricultural operations and was running

a flour mill, has assessed the income at Rs.10,000/- per month,

which, in the circumstances of the case, cannot be said to be

excessive.

The important fact, which needs to be noticed, is the

number of dependents in the present case, which apparently are

at least six in numbers and, therefore, on that count also, the

assessment made, cannot be said to be excessive in the year

2016 when the accident took place.

So far as the submission made by learned counsel for the

appellant regarding assessment based on the notional income is

concerned, it is not in each case that the concept of notional

income has to be applied, on the said basis the compensation is

assessed in cases where there is no evidence available on record.

In the present case, in view of the evidence available on record, it

cannot be claimed that the claimants were entitled only to

notional income of the deceased. In view thereof, the finding of

the Tribunal in assessing the income of the deceased at

Rs.10,000/- per month cannot be faulted.

So far as the award of amount towards loss of love &

affection to the seven claimants is concerned, the said amount in

view of the judgment in the case of Somwati (supra), cannot be

sustained. However, in view of the same judgment in the case of

Somwati (supra), few of the claimants are entitled for award of

compensation towards loss of parental consortium and filial

consortium and to that extent, the award impugned deserves to

be modified and the claimants - Smt. Indra Devi, Mr. Mahipal, Ms.

(6 of 6) [CMA-2394/2019]

Aaliya, Smt. Kamla Devi and Mr. Jeevraj alone would be entitled

to compensation towards loss of consortium and, therefore,

instead of Rs.3,90,000/- towards loss of love & affection and

consortium, the claimants would be entitled to Rs.2,00,000/-.

So far as the rate of interest @ 9% per annum awarded by

the Tribunal is concerned, the said rate of interest in the year

2019 w.e.f. the date of filing application, is excessive and the

same also deserves to be modified to 7% per annum.

Consequently, the appeal filed by the appellant - Insurance

Company is partly allowed. The award impugned dated 26.4.2019

is modified to the extent that instead of a sum of Rs.25,62,000/-,

the claimants would be entitled to a compensation of

Rs.23,72,000/- alongwith interest @ 7% per annum from the

date of application i.e. 17.1.2018.

The amount to be disbursed to the claimants would also

stand modified, whereby, Mr. Bhanwar Lal, Mr. Kishan and Mr.

Gouri Lal would not be entitled to any compensation and four

claimants i.e. Mr. Mahipal, Ms. Aaliya, Smt. Kamla Devi and Mr.

Jeevraj would be entitled to Rs.10,000/- less than what has been

awarded by the Tribunal.

(ARUN BHANSALI),J 19-Sumit/-

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