Rajasthan High Court - Jodhpur
Smt. Leela And Anr vs Smt. Sadhna Kothari And Ors on 25 March, 2021
Bench: Vinit Kumar Mathur
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Misc. Appeal No. 482/2003
1. Smt. Leela w/o Late Rajiya Caste Bhil R/o Shaker Kand Post
Lodiya, Tehsil Dhariyawad District Udaipur, Rajasthan
2. Shankar s/o Late Rajiya, Minor through Smt. Leela w/o Late
Rajiya R/o Shaker Kand Post Lodiya, Tehsil Dhariyawad District
Udaipur, Rajasthan
----Appellants
Versus
1. Smt. Sadhna Kothari w/o Shri Jayanti Lal Kothari, Santosh
Transport Ke Saamne, Commercial Area Dahod Road,
Banswara
2. Shri Jai Pal Singh S/o Harvir Singh R/o Narwali Tehsil Ghatol
District Banswara, Rajasthan
3. National Insurance Company, Divisional Office, 6 Bapu Bazaar
Udaipur
----Respondents
For Appellant(s) : Mr. P.R. Mehta through VC
For Respondent(s) : Mr. Jagdish Vyas
HON'BLE MR. JUSTICE VINIT KUMAR MATHUR
Judgment
25/03/2021
Heard learned counsel for the parties.
The present appeal has been preferred against the judgment
and award dated 08.01.2002 passed by Motor Accident Claims
Tribunal, Banswara in Claim Case No. 107/1996 whereby the
learned Tribunal awarded a sum of Rs. 1,54,000/- as
compensation in favour of the appellants-claimants on account of
the death of Rajiya in the accident which occurred on 31.03.1996.
Learned Tribunal after framing the issues, evaluating the
evidence on record and hearing learned counsel for the parties
decided the claim petition of the appellants-claimants.
(2 of 5) [CMA-482/2003]
Learned counsel for the appellants submits that the findings
of the Tribunal on Issue No.2 and 3, on the face of it, suffer from
error as the deceased was stated to be earning Rs.3,000/- per
month, whereas the Tribunal had taken into consideration only Rs.
1,500/- as monthly income of the deceased while computing the
award. He further submits that it came in the testimony of A.D.1
Smt. Leela that her husband was earning Rs.60 per day by
performing the work of Masonry and was earning about Rs.2,000/-
per month. In her statement, she also stated that the agricultural
income of the deceased was Rs.1,000/- per month, therefore,
learned counsel submits that the monthly income of the deceased
is required to be enhanced while computing the award in the
present case.
Learned counsel also submits that the deduction of the
amount on account of the contributory negligence to the extent of
1/3 is also not justified as it is of common knowledge that in the
rural areas of State of Rajasthan the persons, with or without the
permission of the driver or the conductor, sit on the roof of the bus
and, therefore, no fault can be found with them. Learned counsel,
in support of his contentions, relies upon the two judgments of the
coordinate Bench of this Court in the case of Sohanlal and
Ors.vs. Mangilal and Ors. decided on 03.12.2004 and in the
case of New India Assurance Company Limited vs. Smt.
Sarju Devi & Ors S.B. CMA No. 758/2007 decided on
01.12.2013.
Learned counsel further contended that no amount towards
the future prospects and general damages was awarded in the
light of the judgment of the Hon'ble Supreme Court in the case of
(3 of 5) [CMA-482/2003]
National Insurance Company Ltd. vs. Pranay Sethi reported in
(2017) SC 5157.
Per contra, learned counsel for the Insurance Company submits
that the findings of the Tribunal on Issue No. 2 do not suffer from any
infirmity and the Tribunal fairly assessed the income of the deceased as
Rs.1,500/- per month. He submits that even as per the testimony of
A.D.1 Smt. Leela, it is not clear that whether the deceased was holding
any land from which the agricultural income could be derived, therefore,
taking into consideration the totality of the facts and circumstances of
the present case, the Tribunal had correctly assessed the income of the
deceased as Rs.1,500/- per month.
He further submits that the Tribunal correctly deducted the
amount towards the contributory negligence to the extent of 1/3 on
account of the fact that the deceased, at the time of accident, was
sitting on the roof of the bus. Learned counsel for the respondent relies
upon the judgments of this Court in the cases of Shanker Lal & Anr.
vs. Nand Lal Meena & Ors reported in 2006 RAR 280 and C.M.
RSRTC vs. Durga Ram & Ors. reported in MACD 2010 (1) (Raj.)
117.
However, learned counsel for the respondent-Insurance Company
is in agreement with the submissions of the counsel for the appellants
on the recalculation of the award in the terms of the judgment of the
Hon'ble Supreme Court in the case of National Insurance Company vs.
Pranay Sethi (supra).
I have considered the submissions made at the Bar and have
gone through the judgment dated 08.01.2002 as well as other relevant
record of the case.
The finding of the Tribunal on Issue Nos.2 and 3 with respect to
the income of the deceased is not required to be interfered with in view
(4 of 5) [CMA-482/2003]
of the fact that no documentary evidence was produced on record
showing the income of deceased from agricultural work. As far as the
income derived by the deceased by performing the casual nature of
work daily is concerned, as per the statement of A.D.1, it comes to
about Rs.1,800/- for 30 days. Even if the deceased was earning Rs. 60
per day, then if the amount is taken into consideration for 26 days, the
same will also come to around Rs.1,560/- per month, therefore, the
finding of the Tribunal that the deceased was earning Rs. 1,500/- per
month appears to be just and proper and same is, therefore, upheld.
The fact that the deceased was sitting on the roof of the bus is
admitted and therefore, the deduction on account of the contributory
negligence is required to be done in the present case in view of the
judgment of the coordinate Bench of this Court in the case of Shanker
Lal and Anr. vs. Nand Lal Meena and Ors. (supra) wherein the Court
held as under:-
"I have considered the statement of applicant witnesses
as well as non-applicant witnesses and also the finding of
the learned Tribunal. There is no dispute that deceased
was travelling while sitting on top of the bus. Whether he
was travelling with permission or without permission of
the conductor but still he himself took a risk for travelling
sitting on the top of the bus, therefore, no absolute
negligence can be attributed to the bus driver. If the
deceased would not have travelled sitting on the top of
the bus then the accident would not have taken place. In
the facts and circumstances of the present case, I do not
find any illegality or perversity in the findings recorded
by the Tribunal so far as issue No. 1 is concerned."
Thus, this Court feels that deduction of amount towards the
contributory negligence to the extent of 1/4 will meet the ends of
justice in this case.
In view of the discussions made above and in the light of the
judgment of Hon'ble Supreme Court in the case of National Insurance
(5 of 5) [CMA-482/2003]
Company vs. Pranay Sethi (supra), the amount in the present case is
recomputed as under :-
For future 40% of Rs.1,500/- Rs. 600/-
prospects :- (Income of
deceased)
Rs. 1,500/-+ Rs. 600/- Rs. 2,100/-
Amount to be deducted as Rs. 2,100/- / 1/3= Rs.
spent on himself. 700/-
Dependence Amount Rs. 2,100- Rs. 700=
Rs. 1400/-
(I) Compensation due to 1400 x 12 x 18 Rs. 3,02,400/-
death
(II) Other Conventional Heads Rs. 77,000/-
Total Rs. 3,79,400/-
(III) Less: Towards contributory negligence Rs. 94,850/-
(25%)
Total Rs. 2,84,550/-
(IV) Less:Amount awarded by the Tribunal Rs. 1,54,000/-
Enhanced amount Rs. 1,30,550/-
Accordingly, the present appeal is allowed. The respondent-
Insurance Company is directed to pay the enhanced amount of Rs.
1,30,550/- (Rs. One Lac Thirty Thousand Five Hundred Fifty Only) in
favour of the appellants-claimants in addition to the amount already
awarded by the Tribunal within a period of six weeks from today. The
enhanced amount shall carry interest @ 6% per annum from the date of
filing the claim petition, till the same is paid.
(VINIT KUMAR MATHUR),J
2-/VivekM/-
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