Rajasthan High Court - Jodhpur

Bhanwar Lal vs Smt. Kalawati And Ors on 4 October, 2021

Bench: Vinit Kumar Mathur

(1 of 8) [CMA-2383/2016]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Misc. Appeal No. 2383/2016

Bhanwar Lal s/o Nathu Lal Khatik, aged 52 years, r/o Vijanwas, P.S. Dabok, District Udaipur.

----Appellant Versus

1. Smt. Kalawati w/o Basanti Lal Pujari,

2. Basanti Lal Pujari s/o Ganesh Lalji Pujari, r/o C-36 Haridas ji ki Magri, Mulla Talai, Dist. Udaipur (Raj.)

---claimants

3. Lachchi Ram s/o Panna Lal Gameti, r/o Chodach Phalan, Lehnga, P.S. Khamnore Dist Rajsamand.

----driver

4. HDFC Ergo, General Insurance Co. Ltd. through Manager, HDFC Ergo, Regional Office, C-89 Upasana Tower, Subhash Marg, C-scheme, Jaipur

----Insurer

----Respondent Connected With S.B. Civil Misc. Appeal No. 1419/2016

1. Smt. Kalawati w/o Basanti Lal Pujari, aged about 43 years,

2. Basanti Lal Pujari s/o Ganesh Lalji Pujari, aged about 45 years, both are r/o 36 Haridas ji ki Magri, Mulla Talai, Dist. Udaipur (Raj.)

----Appellant Versus

1. Lachi Ram s/o Panna Lal Gameti, r/o Chodach Phalan, Lehnga, P.S. Khamnore Dist Rajsamand.

Driver

2. Bhanwar Lal s/o Nathu Lal Khatik, r/o Vijanwas, P.S. Dabok, District Udaipur.

Owner

3. HDFC Ergo, General Insurance Co. Ltd. through Manager, HDFC Ergo, Regional Office, C-89 Upasana Tower, Subhash Marg, C-scheme, Jaipur insurer

----Respondent

For Appellant(s) : Mr. RS Mankad Mr. GS Rathore For Respondent(s) : Mr. J.C. Vyas

HON'BLE MR. JUSTICE VINIT KUMAR MATHUR

Judgment

04/10/2021

Since, both these appeals arise out of the common

judgment, therefore, the same are being disposed of finally by this

common judgment.

(2 of 8) [CMA-2383/2016]

The present appeals arise out of the Judgment and Award

dated 21.03.2016 passed by the Motor Accident Claims Tribunal

No.1, Udaipur, in MACT Claim Case No. 75/2014 whereby, the

claimants were awarded a sum of Rs. 8,25,000/- on account of

the death of Khushboo in the accident which occurred on

24.09.2013.

The learned Tribunal after framing the issues, evaluating the

evidence on record and hearing learned counsel for the parties

decided the claim petition of the claimants.

Heard learned counsel for the parties.

The appeal bearing No. 2383/2016 preferred by Bhanwar Lal,

who is the owner of the vehicle involved in the accident, assailed

the findings recorded by the Tribunal on Issue No. 2.

Learned counsel for the appellant submits that the Tribunal

committed an error while recording the finding that the tractor

trolley was being used for the commercial purposes, the insurance

cover of the tractor trolley was only for the purpose of using the

same for the agriculture purposes but, the said tractor trolley at

the time of accident was used for commercial purpose, therefore,

the Insurance Company is liable to pay the compensation. Learned

counsel further submits that even as per the insurance policy, the

third party risk was covered and the Insurance Company is liable

to satisfy the payment of compensation in the present case and,

therefore, the liability to pay the compensation cannot be fastened

upon the appellant. He further submits that even as per the

testimony of NW-1 Nitin, who was an Officer of the Insurance

Company, it has come on record that the tractor trolley at the time

of accident was not used for the commercial purposes. He further

submits that evaluation of the evidence on record further shows

(3 of 8) [CMA-2383/2016]

that it cannot be said with certainty that the tractor trolley at the

time of accident was being used for commercial purposes. Thus,

learned counsel submits that the liability to pay the compensation

was wrongly fastened on the present appellant, who is the owner

of the tractor trolley. He, therefore, prays that the finding

recorded by the Tribunal on Issue No. 2 is erroneous and the same

is required to be quashed and set aside.

Per contra, learned counsel for the respondent - Insurance

Company submits that the finding recorded by the Tribunal on

Issue No. 2 does not suffer from any infirmity as it had come on

record that at the time of accident, the tractor trolley was filled

with the quarry stones and while taking a turn when one of the

stones fell on Khushboo and caused fatal injuries resulting into her

death. Thus, according to the learned counsel for the Insurance

Company, the tractor at the time of accident was not being used

for the agricultural purposes and therefore, the Insurance

Company is not liable to pay the compensation.

I have considered the submissions made at the Bar and gone

through the Judgment dated 21.03.2016 as well as the other

relevant record of the case.

The finding recorded by the Tribunal on Issue No. 2 to the

effect that the tractor was being used for commercial purposes,

therefore, the appellant is liable to pay the compensation does not

appear to be just and proper in the wake of the evidence which

has come on record, more particularly, the insurance policy which

was placed on record. As per the insurance policy, the third party

risk was covered and premium for the same was also charged by

the Insurance Company. Further, as per the statement of NW-1

(4 of 8) [CMA-2383/2016]

Nitin, it cannot be assumed that at the time of accident the tractor

trolley was being used for the commercial purposes.

The conjoint reading of evidence which was brought on

record shows that the tractor was being used only for the

agriculture purposes and as per the insurance policy since, the

third party risk was covered, the Insurance Company was liable to

satisfy the award in the present case. Further, it is also observed

that in view of the evidence brought on record, the violation of the

policy conditions are not made out in the present case. Therefore,

the finding arrived at by the Tribunal on issue No.2 is set aside

and the insurance Company is directed to make the payment of

compensation in the present case.

In view of the discussions made above, the appeal preferred

by the owner/appellant Bhanwar Lal is allowed and the respondent

- Insurance Company is directed to pay the amount awarded by

the Tribunal in the present case.

As far as, the appeal of the claimants for enhancement is

concerned, learned counsel has submitted that the Tribunal

committed an error while calculating the amount of compensation.

He further submits that it was specifically stated before the

Tribunal that at the time of the accident the deceased was 19

years of age and was running a beauty parlour from which the

monthly income of the deceased was Rs. 12,000/-. Learned

counsel further submits that as per the statement of AW-1 Basanti

Lal, it had come on record that the deceased was running a

beauty parlour and the income derived from the same was Rs.

12,000/- per month. However, the Tribunal was not justified in

reducing the same to Rs. 6,000/- per month. He further submits

that the Tribunal had taken into consideration the multiplier of 14

(5 of 8) [CMA-2383/2016]

taking into consideration the age of her parents, whereas, the

multiplier of 18 was required to be taken into consideration while

calculating the amount in the light of the judgment of Hon'ble the

Supreme Court in the case of National Insurance Company

Ltd. vs. Pranay Sethi reported in (2017) SC 5157.

Learned counsel submits that only an amount of Rs.

35,000/- was awarded towards the general damages, whereas, as

per the judgment of Hon'ble the Supreme Court in the case of

Pranay Sethi (supra), the same is required to be awarded as Rs.

70,000/-.

Per contra, learned counsel for the respondent - Insurance

Company vehemently submitted that the amount awarded by the

Tribunal is too excessive and being on the higher side, the same is

required to be reduced considerably. He further submits that there

is no credible evidence on record which shows that the deceased

was running a beauty parlour and the monthly income of Rs.

6,000/- was derived from the same. Learned counsel further

submits that in the statements of AW-1 Basanti Lal, who is the

father of the deceased it is stated that the deceased was a regular

student of second year and was attending the classes from

morning till 1'o clock. Further in the statement of AW-2 Garima,

who issued the certificate does not throw any light on the fact that

the deceased was earning Rs. 12,000/- per month as claimed by

the claimants. He, therefore, submits that the Tribunal committed

an error while considering the income of deceased as Rs. 6,000/-

per month. However, learned counsel for the respondent is not in

a position to controvert the submissions with respect to the

multiplier and the award of amount towards other conventional

(6 of 8) [CMA-2383/2016]

heads in the light of the judgment of Hon'ble the Supreme Court

in the case of Pranay Sethi (supra).

Learned counsel further submits that the interest awarded in

the present case is excessive and the same is required to be

reduced considerably in the light of the prevailing rate of interest

in the country.

Learned counsel for the respondent - Insurance Company

submits that the Tribunal had wrongly taken into consideration the

50% of the amount towards the loss of future prospects, whereas,

as per the judgment of Hon'ble the Supreme Court in the case of

Pranay Sethi (supra), an amount of 40% is required to be taken

into consideration towards the loss of future prospects.

I have considered the submissions made at the Bar and gone

through the Judgment dated 21.03.2016 as well as the other

relevant record of the case.

The fact that the deceased was running a beauty parlour is

made out from the statements of AW-1 Basanti Lal and AW-2

Garima. Besides the other evidence brought on record, the

amount taken into consideration by the Tribunal also in the opinion

of this Court is just and proper and therefore, the same does not

call for any interference by this Court. It is also noted that the

multiplier of 14 employed by the Tribunal is not correct as while

calculating the award considering the age of the deceased

multiplier of 18 should have been applied. It is also noted that the

amount towards the conventional heads is also to be taken as Rs.

70,000/- in the light of the judgment of Hon'ble the Supreme

Court in the case of Pranay Sethi (supra).

The Tribunal had also wrongly taken into consideration 50%

of the amount towards the loss of future prospects as the same

(7 of 8) [CMA-2383/2016]

was required to be taken as 40% as the age of the deceased at

the time of the accident was 19 years. The amounts awarded on

account of the other heads shall remain unchanged and the

amount in the present case is required to be computed as under:

For                future 40% of Rs.6,000/- Rs. 2400/-
prospects :-              p.m.
                          (Income        of
                          deceased)
Rs.6,000/- + Rs.24,00/-                                    Rs. 8,400/- p.m.

Amount to be deducted as spent on Rs. 8,400/- / 1/2 = Rs.

himself.                          4,200/-
Dependence Amount                                         Rs. 8,400-Rs.4,200=
                                                          Rs.4,200/-

The age of deceased was 19 years, therefore, a multiplier of 18

will be applied.

(I) Compensation due to 4200x18x12 Rs.9,07,200/-

death

(II) Medical Bills Rs. 31,648/-

(III) Attendant Charges                                            Rs. 2,000/-

(IV) Funeral Expenses                                              Rs. 15,000/-

(V)    Loss of Estate                                              Rs. 15,000/-

(VI) Loss of Consortium                                            Rs. 40,000/-

                                            Total                  Rs. 10,10,848/-

Less Amount awarded by the Tribunal                                Rs. 8,25,000/-

                                     Enhanced amount Rs. 1,85,848/-

The amount of interest 9% p.a. awarded by the Tribunal is

excessive and the same is modified to 7% p.a.

In view of the discussions made above, the appeal preferred

by the claimants is allowed and the respondent - Insurance

Company is directed to pay the entire amount including the

(8 of 8) [CMA-2383/2016]

amount awarded by the Tribunal vide its judgment and award

dated 21.03.2016 as well as the enhanced amount of

Rs.1,85,848/- (Rupees: One Lac Eighty Five Thousand Eight

Hundred Forty Eight Only) within a period of six weeks from today.

The amount of compensation so awarded shall be paid by the

Insurance Company with interest @ 7% p.a. from the date of filing