Rajasthan High Court

Smt Pushpa Chamoli vs Pradeep Singh on 21 April, 2022

Bench: Anoop Kumar Dhand

      HIGH COURT OF JUDICATURE FOR RAJASTHAN
                  BENCH AT JAIPUR

         S.B. Civil Miscellaneous Appeal No. 1645/2007

1. Smt. Pushpa Chamoli wife of late Colonel Girish Kumar
Chamoli.
2. Master Kartikei Chamoli aged 15 years.
3. Master Himanshu Chamoli aged 13 years.
    Both son of late Colonel Girish Kumar Chamoli, Claimants
No.2 & 3 are minor through its natural/gaurdian/mother Smt.
Pushpa Chamoli.
      Resident of, C/o Virendra Kandwal, 1900, Laxmibai Nagar,
New Delhi - 110023, and through power of attorney Satveer
Singh son of late Mamchand, 483/5, Pratap Lines, Jaipur Cantt.


                                                  ----Appellants/Claimants.
                                  Versus
1. Pradeep Singh son of Rajendra Singh, resident of village &
Post, Jeerota Khurd, tehsil & Distt. Dausa. (Owner of Jeep No.RJ-
29P-478).
2. Gopal Lal Sharma son of Shri Ramji Lal Sharma, resident of
Khari Kothi, Distt. Dausa. (Driver).
3. National Insurance Company           Limited, through its Sr.
Divisional Manager, Division Office, M.I. Road, Jaipur. (insurer of
Jeep)
                                      ----Respondents/defendanrts

4. Shri I.D. Chamoli son of Shri R.D. Chamoli, aged 75 years. (father of deceased)

5. Smt. Gyatri Devi wife of Shri I.D. Chamoli aged 68 years. (Mother of deceased).

Performa-respondents Connected With S.B. Civil Miscellaneous Appeal No. 992/2007 The National Insurance Company Ltd., Jeevan Nidhi (II nd Floor), Ambedkar Circle, Bhawani Singh Road, Jaipur.

----Non-applicant-Appellant Versus

1. Smt. Pushpa Chamoli W/o Late Colonel Girish Kumar Chamoli.

2. Karitkey Chamoli S/o Late Colonel Girish Kumar Chamoli, aged 12 years. Minor through mother and natural guardian.

3. Himanshu Chamoli S/o Late Colonel Girish Kumar Chamoli, aged 10 years. Minor through mother and natural guardian.

All are C/o Virendra Kandwal, 1900 Laxmibai nagar, New Delhi-110023 through power of attorney Satvir Sing S/o late Mamchand 483/5 Pratap lines, Jaipur cantt.

(2 of 7) [CMA-1645/2007]

----Non-Claimants/Respondent

4. Pradeep Singh S/o Rajendra Singh r/o village and post Jirota Khurd, tehsil and distt. Dausa. Owner vehicle Jeep No.RJ-29-P-

478.

5. Gopal Lal Sharma S/o Shri Ramjilal Sharma r/o Khari Kothi, Distt. Dausa. Driver Jeep No.RJ-29-P-478.

Non-Claimants/Respondents

6. Shri I.D. Chamoli S/o Shri R.D. Chamoli aged 72 years.

7. Smt. Gayatri Devi W/o Shri I.D. Chamoli aged 65 years.

Performa Non-Claimants/Respondents

For Appellant(s) : Mr. Ram Singh Rathore (Appellant in CMA No. 1645/2007) Mr. R.P. Vijay (Appellant in CMA No. 992/2007) For Respondent(s) : Ms. Pakhi Chandaliya for Mr. Tej Prakash Sharma

HON'BLE MR. JUSTICE ANOOP KUMAR DHAND

Order

21/04/2022

Both these appeals arise out of a common judgment and

award dated 19.01.2007 passed by the Motor Accident Claims

Tribunal cum Additional District and Sessions Judge, Fast Track

No.3, Jaipur, District Jaipur (for short 'the Tribunal') by which the

claim petition filed by the claimants was allowed and the

Insurance Company was directed to pay compensation of Rs.

34,52,000/- to the claimants.

The Tribunal after framing the issues, evaluating the

evidence available on record and hearing counsel for the parties,

decided the claim petition of the claimants awarding compensation

to the tune of Rs. 34,52,000/- under various heads in favour of

the claimants.

The claimants have submitted the appeal for enhancement of

the award on the ground that not a single penny towards future

(3 of 7) [CMA-1645/2007]

prospects has been awarded and even under the conventional

heads no suitable amount has been awarded in the light of the

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

National Insurance Company Ltd. v. Pranay Sethi & Ors. :

(2017) 16 SCC 680. Before deciding the appeal submitted by the

claimants, it is necessary to decide the appeal filed by the

Insurance Company.

Counsel for the appellant Insurance Company clinchingly

argued that instant case is a case of contributory negligence and

the accident has occurred due to sole negligence of the deceased.

In support of the contentions counsel for the appellants has placed

reliance on the site plan prepared by the investigating agency

during the course of investigation when the accident occurred.

Counsel for the appellant Insurance company stated that Mark "X"

is the place where the accident has occurred which indicates that

the driver of the offending vehicle was driving the vehicle on right

side of the road from Dausa to Jaipur, while the deceased was

driving the Gypsy in a rash and negligent manner while coming

from Jaipur to Dausa and he collided gypsy with the offending

vehicle. Hence, the accident has occurred due to sole negligence

of the deceased.

Opposing the arguments raised by counsel for the appellant-

Insurance Company, learned counsel for the claimants submitted

that statement of eye witness AW-4 Kishan Lal was recorded

before the Tribunal in which he has specifically stated that he was

travelling in a Jeep No. RJ-29P-478 and driver of the said Jeep was

driving the vehicle in a rash and negligent manner. In spite of his

request to drive the vehicle slow, the driver was driving the

vehicle in a fast speed. He further stated in his examination-in-

(4 of 7) [CMA-1645/2007]

chief that the driver of the Jeep No. RJ-29P-478 drove the vehicle

on the wrong side and caused accident with the Military Gypsy

bearing registration No. 99 B 6041. Counsel for the claimants

further submits that the detailed cross-examination was done with

this witness but not a single line was asked from this witness that

the deceased was either liable or responsible for causing the

accident. Hence, by no stretch of imagination it can be believed

that the instant case is a case of contributory negligence and

deceased was liable for causing the accident.

Heard counsel appearing for the parties.

I have considered the submissions made at the Bar and gone

through the judgment and award dated 19.01.2007 as well as the

relevant record of the case.

For appreciation of arguments on issue No.1, a close scrutiny

of the site plan as well as the statements of the witnesses is

done. The fact that the Gypsy was coming from the opposite

direction and it has been proved that the accident has occurred at

the site marked as "X" in the site plan which is almost the mid

part of the road and apart from the site plan the statement of the

eye-witness AW-4 Kishan lal cannot be disbelieved who was

travelling in the offending vehicle as a passenger and who has

categorically stated in his statement that driver of the offending

vehicle was driving the vehicle in a rash and negligent manner in

very high speed and no cross-examination in this regard was done

by the Insurance Company to prove the fact that the deceased

was driving the vehicle in a rash and negligent manner and the

deceased was either liable or responsible for causing the accident.

Thus, on a conjoint reading of the documents, evidence and

after appreciation of the site plan, I am of the view that the

(5 of 7) [CMA-1645/2007]

findings recorded by the Tribunal do not suffer from any infirmity

and it can safely be presumed that the driver of the offending

vehicle was driving the Jeep in a rash and negligent manner and

that is why the charge-sheet was submitted against him for the

offence under section 304-A IPC.

Had there been any contributory negligence of the deceased

or the deceased was liable and responsible for causing the

accident, then the Police after investigation might have submitted

charge-sheet against him also but it is not the situation in the

instant case. Hence, the findings recorded by the Tribunal on issue

No.1 are affirmed and the appeal filed by the Insurance Company

(CMA No. 992/2007) stands dismissed and stay application as

well as all pending application(s) also stand dismissed.

Now this Court is coming to the issue raised by the

claimants in their appeal for enhancement of compensation.

Learned counsel for the appellants claimants submits that

the deceased was 44 years of age at the time of accident. Counsel

further submits that future prospects have not been awarded to

the claimants in the light of the judgment delivered by the

Hon'ble Apex Court in the case of Pranay Sethi (supra). Counsel

also submits that under the conventional head also suitable

compensation has not been awarded.

Per contra, learned counsel for the Insurance Company

submits that the Tribunal while deciding the claim petition has

correctly taken into consideration the factors while calculating the

amount of compensation in this case on the anvil of evidence

produced before it. Thus, the judgment dated 19.01.2007 passed

by the Tribunal does not call for any interference by this Court.

(6 of 7) [CMA-1645/2007]

Learned counsel for the Insurance Company, however, is not

in a position to controvert the submissions made by the learned

counsel for the claimants with respect to re-computation of the

award in the present case in the light of the judgment of the

Hon'ble Apex Court in the case of Pranay Sethi (supra).

I have considered the submissions made at the Bar and gone

through the record of the instant appeal submitted by the

claimants.

Admittedly, the deceased was 44 years of age at the time of

accident and while calculating the future prospects the law laid

down by the Hon'ble Apex Court in the case of Pranay Sethi

(supra) has not been taken into consideration. As per the

judgment of Pranay Sethi (supra) and looking to the age of the

deceased, the claimants are entitled to get 30% future prospects

and suitable compensation under the conventional heads.

Thus, the award is re-computed as under:

Monthly income                    Rs. 23,175/-
Annual income                     Rs. 23175 x12 = Rs.2,78,100/- per
                                  annum

                                  2,78,100 X 15 = Rs.41,71,500/-
Deduction 1/3rd                   Rs.41,71,500/- - Rs. 13,90,500/-
                                  = Rs. 27,81,000/-

Add 30 per cent towards Rs.27,81,000/- + Rs. 8,34,300/-

future prospects        = Rs. 36,15,300/-
Add    general       expenses Rs. 70,000/-
(conventional)
Total compensation                Rs. 36,15,300+70,000
awardable                         =Rs. 36,85,300/-
Less amount awarded by the Rs. 36,85,300/-                   -   Rs.34,52,000/-   =
Tribunal                   Rs.2,33,300/-
Enhanced amount of                Rs. 2,33,300/-
compensation

Thus, an amount of Rs. 2,33,300/- is enhanced in the

present case. The respondent-Insurance Company is directed to

(7 of 7) [CMA-1645/2007]

pay the enhanced amount of Rs.2,33,300/- in addition to the

amount already awarded by the Tribunal vide judgment dated

19.01.2007 within a period of two months from today. The

enhanced amount shall carry interest @ 6% per annum from the

date of filing the claim petition till the actual payment is made.

It is further ordered that out of the enhanced amount, the

Tribunal shall disburse a sum of Rs. 50,000/- in the Saving Bank

Account of the claimants-appellants and the balance amount of

the enhanced compensation be invested in any Nationalized Bank