The Oriental Insurance Co. Ltd vs Kali Devi
2021 Latest Caselaw 11266 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Misc. Appeal No. 97/2021

The Oriental Insurance Co. Ltd., 537-B Bhansali Tower Residency Road, Jodhpur

----Appellant Versus

1. Kali Devi W/o Shyam Lal, Madara, Sakrawas, Tehsil Railmagra, Dis. Rajsamand

2. Ratan Lal S/o Shyam Lal, Madara, Sakrawas, Tehsil Railmagra, Dis. Rajsamand

3. Yogesh Chandra S/o Shyam Lal, Madara, Sakrawas, Tehsil Railmagra, Dis. Rajsamand

4. Dilip Kumar S/o Shyam Lal, Madara, Sakrawas, Tehsil Railmagra, Dis. Rajsamand

5. Smt Meena D/o Shyam Lal, Madara, Sakrawas, Tehsil Railmagra, Dis. Rajsamand

6. Ram Lal S/o Moola Ji, Madara, Sakrawas, Tehsil Railmagra, Dis. Rajsamand

7. Lal Singh S/o Bhopal Singh Rajput, Chatraji Ka Gurha, Tehsil Amet, Dis. Rajsamand

8. Sohan Singh S/o Jalam Singh Rajput, Aaidana Tehsil Amet, Dis. Rajsamand

----Respondents

For Appellant(s) : Mr. Jagdish Vyas.

For Respondent(s) : Mr. Sandeep Saruparia.

HON'BLE MR. JUSTICE ARUN BHANSALI

Order

22/07/2021

This appeal is directed against judgment & award dated

21.10.2020 passed by the Motor Accident Claims Tribunal,

Rajsamand, whereby the Tribunal has awarded a sum of

(2 of 8) [CMA-97/2021]

Rs.31,60,096/- as compensation alongwith interest @ 8.5% per

annum from the date of application.

The application for compensation was filed by the claimants-

wife, children and father of one Shyam Lal, inter alia, with the

averments that on 24.10.2019 at about 5.30 PM Shyam Lal was

riding on motor cycle while returning from his duty at Peepal,

Tehsil Kumbhalgarh to his house Madara, Tehsil Relmagra when on

National Highway No.8, the offending motor cycle being driven by

respondent No.1 rashly and negligently, struck the motor cycle

from behind, resulting in Shyam Lal suffering grievous injuries, to

which, he succumbed. It was indicated that the deceased was

aged 55 years and was Class-IV employee with the Panchayat

Samiti and used to earn Rs. 20,000/- per month and on account of

his untimely death, a compensation to the tune of Rs. 64,50,000/-

was claimed.

The application was contested by driver and owner of the

vehicle claiming that the accident did not occur due to rash and

negligent driving. It was claimed that the deceased himself was

responsible for the accident. In the alternative, it was indicated

that as the vehicle was insured, the Insurance Company is liable

for compensation.

Insurance Company also filed its reply and claimed that the

accident did not occur from the insured vehicle, as the driver was

not in possession of valid and effective driving licene, which is

violation of policy conditions, the Insurance Company was not

liable for payment of compensation.

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

two witnesses were examined and 24 documents were exhibited.

(3 of 8) [CMA-97/2021]

The respondents - Driver, Owner and Insurance Company did not

lead any evidence.

After hearing the parties, the Tribunal came to the conclusion

that the accident occurred on account of rash and negligent

driving by driver of the offending motor cycle, the driver was in

possession of valid driving licence and as such, there was no

violation of any policy conditions.

Based on Form GA55-A and the pay-slip (Exhibit - 23 & 22

respectively) of the deceased, the Tribunal, by relying on

judgment in the case of National Insurance Company Ltd. v.

Pranay Sethi & Ors.: (2017) 16 SCC 680, assessed the

compensation at Rs. 31,60,096/- and passed award as noticed

hereinbefore.

It is submitted by learned counsel for the appellant that the

accident occurred on 24.10.2019 at about 5.30 PM and the FIR

was lodged on the next day i.e. 25.10.2019, wherein the FIR was

lodged against an unknown vehicle. The nature of injuries, which

were indicated in the postmortem report indicates injuries on

chest and forehead. The witness AW-2 Devilal, who has been

relied on by the Tribunal for coming to the conclusion regarding

involvement of the vehicle in question, cannot be relied on

inasmuch as, he has claimed that despite witnessing the accident,

he did not report to the police in this regard and after 3-4 days,

when he saw the police standing at the site of accident and was

inquiring around, he indicated about the accident having occurred

from the insured vehicle and due to rash and negligent driving by

driver of the motor cycle. Such nature statement, on face of it,

could not have been relied on by the Tribunal in absence of any

other material to support the involvement of the vehicle and,

(4 of 8) [CMA-97/2021]

therefore, the finding recorded by the Tribunal in this regard

cannot be sustained.

Further submissions have been made that reliance placed on

the response of the Owner and Driver in response to notice under

Section 133 of the Motor Vehicles Act, 1988 ('the Act'), cannot

form the basis for concluding the involvement of the vehicle.

Learned counsel further emphasized that the Tribunal, while

awarding the compensation has calculated the income of the

deceased by taking the actual income without deducting the

amount of income-tax, which on account of quantum of income

should have been deducted. Further, the rate of interest awarded

is excessive.

Submissions were made that in case, the plea regarding non-

involvement is not accepted, the compensation deserves to be

modified and the rate of interest deserves to be reduced.

Learned counsel for the respondents-claimants supported the

award impugned. It was submitted that from the written

statement of Owner and Driver, it is apparent that the accident

occurred from the insured vehicle, wherein only a bald denial was

made, however, in the additional plea, allegations were made

against the deceased that he was responsible for the accident,

which clearly proves that the accident occurred from the vehicle in

question.

Further submissions were made that the Insurance Company

did not lead any evidence whatsoever and apparently no

investigation in this regard was undertaken by the Insurance

Company and, therefore, just based on the fact that in the FIR,

the vehicle number was not indicated, cannot be a reason enough

(5 of 8) [CMA-97/2021]

to doubt the involvement of the vehicle and, therefore, the plea

raised in this regard, cannot be sustained.

Qua the plea raised by the Insurance Company regarding

compensation as well as rate of interest, learned counsel

supported the award impugned and submitted that the Tribunal

has awarded compensation based on the pay-slip of the deceased,

which cannot be disputed and the rate of interest awarded, did not

call for any interference and, therefore, the appeal filed by the

Insurance Company deserves dismissal.

I have considered the submissions made by learned counsel

for the parties and have perused the material available on record

as well as the record of the Tribunal.

It is not in dispute that the accident occurred on 24.10.2019

at about 5.30 PM and the FIR was lodged at 11.00 AM on

25.10.2019. In the FIR, the son of the deceased clearly indicated

that his father suffered injuries due to accident, he was taken to

hospital in 108 Ambulance, where he succumbed to his injuries

during treatment.

The mere fact that when the accident had occurred at 5.30 in

the evening and the FIR was lodged at next date at 11.00 AM and

the vehicle number was not indicated therein, cannot be a

conclusive proof regarding the non-involvement of the insured

vehicle. AW-2 Devilal, gave specific statement regarding the

happening of accident, the deceased suffering grievous injuries on

his head and chest, 108 Ambulance having been called and that

after the injured was sent in the Ambulance, he went home. His

indication that after 3-4 days when he saw the police making

inquiry at the accident spot, he indicated the fact of accident and

the involvement of the vehicle. For lack of any material cross-

(6 of 8) [CMA-97/2021]

examination on part of the Insurance Company and specific denial

by Devilal that he knew the deceased personally, there is no

reason not to believe the statement of Devilal in this regard.

The submissions made that the written statement and/or the

response to notice under Section 133 of the Act, cannot be made

the basis for implication of the insured vehicle, may have some

substance, however, in view of the evidence of AW-2 Devilal,

which as noticed hereinbefore, cannot be disbelieved for lack of

any material cross-examination or any contrary evidence produced

by the Insurance Company, the finding recorded by the Tribunal,

cannot be faulted.

Coming to the quantum of compensation awarded to the

claimants, the Tribunal based on income of the deceased as

reflected from pay-slip (Exhibit-22) and Form GA55-A (Exhibit-

23), assessed the income of the deceased at Rs.37,320/- per

month and assessed annual income at Rs. 4,47,840/- and after

adding 15% towards future prospects, assessed annual income at

Rs. 5,15,016/- and after deducting 1/3rd towards personal

expenses, assessed the loss of income at Rs. 3,34,344/- per year

and applying multiplier of 9, assessed the loss of income at

Rs. 30,90,096/- and after adding compensation towards general

damages, assessed the compensation at Rs. 31,60,096/-.

A look at the pay-slip of the deceased, indicates gross-pay of

the deceased at Rs. 37,320/- deductions under GPF, LIC, RPMF

and SIP at Rs. 4,639/- and net-pay at Rs. 32,681/-, however, as

the deductions under GPF, LIC, RPMF and SIP, cannot be deducted

from the income of the deceased, the same are of no

consequence. However, as the said pay-slip was for the month of

September only, it did not indicate the deduction of income-tax,

(7 of 8) [CMA-97/2021]

however, the Form GA55-A produced as Exhibit-23 for the financial

year 2018-19 indicated a deduction of income tax at Rs.7,817/-.

As such, apparently the Tribunal ignored the said deduction

towards income-tax at Rs. 7,817/- per annum, which amount,

should have been deducted from the annual income of the

deceased.

Further the award of interest @ 8.5% per annum from the

date of application also is apparently excessive looking to the

present rate of interest scenario and the fact that application was

filed on 30.11.2019 and came to be decided in a short time on

21.10.2020.

Consequently, the annual income of the deceased instead of

Rs. 4,47,840/- deserves to be calculated after deducting income-

tax of Rs. 7,817/- at Rs. 4,40,023/- and after adding 15% towards

future prospects i.e. Rs. 66,003/-, the annual loss of income

would be Rs. 5,06,026/-. Further, after deducting 1/3rd i.e.

Rs. 1,68,675/- towards personal expenses, the annual loss of

income would be Rs. 3,37,351/- and applying multiplier of 9, the

claimants would be entitled to a compensation of Rs. 30,36,159/-

towards loss of income and after adding Rs. 70,000/- towards

general damages, they would be entitled to a compensation of Rs.

31,06,159/- instead of Rs. 31,60,096/-. Further the claimants

would be entitled to interest @ 6% per annum from the date of

application i.e. 30.11.2019 till the date of actual payment.

In view of the above discussion, the appeal filed by the

appellant-Insurance Company is partly allowed. While the plea

regarding non-involvement of the vehicle is rejected, the

compensation awarded is modified from Rs. 31,60,096 to

Rs.31,06,159/- and the interest is reduced from 8.5% to 6% per

(8 of 8) [CMA-97/2021]

annum from the date of application till the date of actual payment.

The rest of the indications made in the award regarding bifurcation

of payment of compensation, would remain as it is except that

Smt. Kali Devi would be entitled to a sum of Rs.3,06,159/- in her

saving bank account instead of Rs.3,60,096/-, as directed by the

Tribunal.

(ARUN BHANSALI),J

11-PKS/-

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