Reliance G.I.C.Ltd vs Santra Devi And Ors
2022 Latest Caselaw 14883 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Misc. Appeal No. 2193/2012

Reliance General Insurance Co Ltd Dhiru Bhai Ambari Group Reg Office, 19 Reliance Centre Valchand Heerachand Marg, Balard Estate, Mumbai.

                                                                   ----Appellant
                                    Versus
1. Santra Devi W/o Kishore Ram                }
2. Manak Ram s/o Poosa Ram                    }         All b/c Chowkidar
3. Soni Devi w/o Manak Ram                    }        r/o Dhaneria , Tehsil
4. Bhagirath s/o Kishore Ram                  }        Jaitaran, Distt. Pali

Respondent no. 4 minor through his mother and natural guardian Santra Devi respondent no. 1

--Petitioners-Respondents

5. Shravan Kumar s/o Bhakar Ram @ Bhagirath b/c Vishnoi r/o Tilwasni, P.S. Bilara, District Jodhpur

6. Bhanwar Lal s/o Bhakar Ram @ Bhagirath b/c Vishnoi, r/o Tilwasni P.S. Bilara, district Jodhpur (Raj.)

--Non-Petitioners-Respondents

Connected With S.B. Civil Misc. Appeal No. 2314/2012

1. Santra Devi w/o Kishore Ram, Age-22

2. Manak Ram s/o Pusaram, Age-45

3. Soni Devi w/o Manak Ram, Age-44

4. Bhagirath s/o Kishore Ram, Age- 10

All by caste Chowkidar, r/o Dhaneriya, Tehsil Jaitaran, District Pali Appellant no. 4 is minor through her natural guardian Mother Santra Devi (Appellant no.1)

----Appellant Versus

1. Shrawan Kumar s/o Bhakar Ram @ Bhagirath, by caste Bishnoi, r/o Tilwasani, Police Station, Bilara,

(2 of 10) [CMA-2193/2012]

District Jodhpur. (Driver of Truck- RJ-19-GA-221)

2. Bhanwar Lal s/o Bhakar Ram @ Bhagirath, by caste Bishnoi, r/o Tilwasani, Police Station, Bilara, District Jodhpur. (Owner of Truck- RJ-19-GA-221)

3. Reliance General Insurance Co. Ltd., Dheerubhai Ambani Group, Regd. Office 19, Reliance Center, Walchand Heerachand Marg, Balard Estate, Mumbai. (Insurance Co.of Truck- RJ-19-GA-221)

----Respondent

For Appellant(s) : Mr. Vishal Singhal, for the Insurance company For Respondent(s) : Mr. Ravi Panwar, for the claimants Mr. S.K. Sankhla, for the owner of vehicle

HON'BLE MR. JUSTICE MANOJ KUMAR GARG

Judgment

REPORTABLE 19/12/2022

Instant appeals have been filed under section 173 MV Act of

the Motor Vehicles Act, 1988 against the judgment and award

dated 04.06.2012 passed by learned Judge, MACT Jaitaran,

District Pali in Claim Case no. 82/2009, whereby the learned

Judge, MACT Cases has partly allowed the claim petition of the

claimants for a sum of Rs.3,93,000/- along with simple interest @

7.5% per annum from the date of filing of the claim petition and

on account of violation of the condition of permit by the owner of

the Truck, the appellant Insurance Company was directed to pay

the awarded amount to the claimants and, thereafter, recover the

same from the owner. The claimants has filed the appeal for the

(3 of 10) [CMA-2193/2012]

enhancement of the award amount whereas, the Insurance

company has challenged the award.

Succinctly stated, facts of the case are that a claim petition

was filed by the respondents no. 1 to 4 before the Motor Accident

Claims Tribunal, Jaitaran District Pali, stating therein that on

17.05.2009, when the deceased Kishore Ram and Mahendra were

travelling on motor cycle driven by one Om Prakash from Jaitaran

towards Anandpur Kalu, when near Banjakudi they were hit by

one Truck 409 no. RJ-19-GA-221which was coming from opposite

direction which was being driven by its driver respondent no. 5

Shravan Kumar in highly rash and negligent manner resulting into

taking place of the accident in which all the 3 persons riding on

motor cycle namely Om Prakash (driver of motor cycle) and

Kishore Ram and Mahendra (pillion riders of the motor cycle)

sustained injuries who succumbed to injuries.

The respondents no.5 and 6 who were the driver and

registered owner of the offending vehicle respectively filed reply to

the claim petition and stated that the accident was caused due to

the negligence of the driver of the motor cycle as the motor cycle

has gone on the middle of the road as a result of which the truck

coming from the opposite direction hit the motor cycle for which

no liability could be fastened on the driver of the truck. It was also

pleaded by the respondents that since the vehicle was insured

with the insurance company, the liability to pay compensation is

upon the insurance company.

The appellant insurance company filed its reply and

submitted that the accident took place on account of negligent of

the driver of the motor cycle and not on account of any negligence

on the part of the driver of the Truck. The appellant also took plea

(4 of 10) [CMA-2193/2012]

that the driver of the truck was not having valid and effective

driving license and as such the insurance company was not liable

to make payment of any compensation to the claimants. It was

also pleaded by the insurance company that the truck in question

was being driven without permit which was a violation of condition

of policy and as such the insurance company was not liable to pay

any compensation.

In support of the claim petition, the claimants produced AW-

1 Multan, AW-2 Santra Devi and AW-3 Mangla Ram and exhibited

11 documents. Whereas, the insurance company produced NAW-1

Ghanshyam Singh and exhibited 2 documents.

The learned Judge, MACT cases after taking into

consideration the entire facts of the case decided issue no.1 and 2

partly in favor of the claimants by holding that since it was head

on collision between the offending vehicle and the motor cycle and

3 persons were sitting on the motorcycle, therefore, the liability of

the driver of the motor cycle to the extent of 25% shall be

fastened and the remaining liability of 75% shall be fastened on

the driver of the Truck.

Issue no. 4 related to the objections of the insurance

company regarding its non-liability of making payment of

compensation to the claimants on account of the Truck being plied

in violation of policy conditions as no permit of the Truck was

produced by the owner of the vehicle, even though the vehicle

weight was of 9600 kilogram, however, no permit was produced

by the owner of the vehicle. Therefore, adverse inference was

drawn against the owner of the vehicle that the offending vehicle

was being plied without valid permit for which insurance company

could not be held liable. However, by applying the principle laid

(5 of 10) [CMA-2193/2012]

down in the case of Swaran Singh, the liability of making the

payment of compensation to the claimants at the first instance

was fastened upon the appellant insurance company which can

later recover the same from the owner of the offending vehicle.

On the issue of quantum of compensation, the learned

Judge, MACT Cases assessed the monthly income of the deceased

to be Rs.3,000/- per month and considered the age of the

deceased Kishore Ram to be 24 years, applied the deduction of

1/4 by considering the dependants to be 4 in number upon the

deceased. The loss of income was thus arrived at a sum of

Rs.4,59,000/-. Apart from the above some, the Tribunal awarded

Rs.5000/- towards funeral expenses, Rs.20,000/- to the wife of

the deceased towards loss of consortium, Rs.20,000/- to the son

of the deceased towards loss of love and affection, Rs.10,000/-

each to the parents of the deceased. The total amount was thus

arrived at a sum of Rs.5,24,000/-. Since the negligence of the

offending vehicle was assessed at 75% and the negligence of the

motor cycle was assessed at 25%, the total award amount for

which the claimants were entitled was arrived at Rs.3,93,000/

along with interest @ 7.5% per annum from the date of filing of

the claim petition.

Mr. Vishal Singhal learned counsel for the Insurance

Company submitted that the Insurance company has challenged

the award mainly on the ground that even though issue no.4 was

decided in favour of the appellant company, still the learned

Judge, MACT cases has directed the insurance company to first

pay the awarded amount to the claimants and thereafter to

recover the same from the owner. Since the violation of permit

was held proved by the Tribunal, the insurance company deserved

(6 of 10) [CMA-2193/2012]

to be exonerated completely. The other ground on which the

appeal was preferred was that since the accident took place in the

middle of the road, negligence of the driver of the motor cycle

could not be less than 50% and on that basis deduction of 50%

from the award amount should have been made while passing the

award in favour of the claimants. Lastly the quantum of

compensation was also challenged by the company that the

amount awarded in other heads is excessive and as per the

Second Schedule, the amount awarded in other heads is limited

i.e. for funeral expenses Rs.2,000/-, for loss of consortium

Rs.5,000/- and for loss of estate Rs.2,500/- can only be awarded,

whereas, the learned Tribunal has awarded Rs.65,000/- in other

heads. The deduction of 1/4th is also not justified as the

maximum deduction permitted as per the Second Schedule

appended to the Motor Vehicles Act is 1/3rd in case of fatal

accident claims which the victim would have incurred towards

maintaining himself had he been alive.

Per contra, learned counsel for the claimants Mr. Ravi Panwar

submits that the amount awarded by the learned Tribunal is

already on the lower side and the same is liable to be enhanced as

the deceased was pillion rider of the motor cycle which was driven

by its driver Om Prakash. Therefore, it was the case of composite

negligence as far as deceased Kishore Ram is concerned and as

such the reduction of total award amount to the tune of 25% was

not justified and the claimants are entitled for complete award

amount. The claimants though did not dispute the pay and

recovery order granted by the learned Tribunal. Learned counsel

for the claimants placed reliance on the decision of Hon'ble

Supreme Court in the case of 'Amrit Paul Singh Vs. Tata AIG

(7 of 10) [CMA-2193/2012]

General Insurance Co.Ltd. & Ors.' reported in (2018) 7 SCC 558

and 'Khenyei Vs. New India Assurance Company Ltd. & Ors.'

reported in (2015) 9 SCC 273.

The owner of the vehicle who is represented by Mr. S.K.

Sankhla, Advocate submitted that both the appeals are liable to be

dismissed as the finding recorded by the learned Tribunal cannot

be faulted out.

Heard the learned counsel for the parties. I have gone

through the record and perused the impugned judgment / award

passed by the learned Judge, MACT cases, Jaitaran, District Pali.

It is not disputed that the accident occurred on 17.05.2009

as a result of which Kishore Ram succumbed to injuries. The

vehicle was also insured with the insurance company. However, as

far as decision on issue no.1 is concerned, the learned Judge,

MACT cases while deciding issue no.1 held that both the vehicles

were negligent as the accident took place at the middle of the

road and there were 3 persons riding on the motor cycle,

therefore, the Tribunal held that there was 25% negligence of the

driver of the motor cycle and remaining 75% negligence was of

the driver of the Truck. Since with respect to the deceased Kishore

Ram it was the case of composite negligence as he was riding on

the motor cycle as the pillion rider and by applying the principle

provided in the judgment of Khenyei (supra) the deceased can

claim compensation from any of the vehicle i.e. either motor cycle

or the Truck. Moreover, the present claim was filed under section

163A of the MV Act which is based on the principle of no-fault

liability which provides that the claimant shall not be required to

plead or establish that the death or permanent disablement in

respect of which the claim has been made was due to any

(8 of 10) [CMA-2193/2012]

wrongful act or neglect or default of the owner of the vehicle or

vehicle concerned or of any other person. Thus, since the claim

was filed by the claimants u/s 163A of the MV Act, the reduction

of the claim of the claimants to the tune of 25% was not justified.

Since the owner/insurance company of the motor cycle was not

made party to the claim petition, the claimants are entitled to

claim the entire claim amount from the owner / insurance

company of the Truck. The finding on issue no.1 is thus decided

accordingly in favor of claimants and against the appellant

insurance company.

Secondly, as far as issue no.4 is concerned, i.e. even after

coming to the finding that since the vehicle was being driven in

violation of the policy condition as no permit was produced by the

owner of the vehicle, the learned Judge, MACT cases directed the

insurance company to make the payment of compensation at first

instance and thereafter recover the same from the owner of the

offending vehicle, the same is in line with the law laid down by the

Apex Court in the case of Swaran Singh (supra) as well as Amrit

Paul (supra), therefore, the direction of pay and recovery passed

by the learned Tribunal is not interfered by this court in the

appellate jurisdiction.

Thirdly, as far as the quantum of the award is concerned, on

the perusal of the award and the Second Schedule provided in the

MV Act, it is clear that the learned Judge, MACT cases has erred in

coming to the correct calculation of the compensation. Since the

award u/s 163A of the MV Act is Special provision as to payment

of compensation on structured formula basis, therefore, the

calculation is to be done on the basis of the Second Schedule. The

income of the deceased as pleaded was Rs.3,000/- per month and

(9 of 10) [CMA-2193/2012]

the age of the deceased was 24 years. Therefore, on the basis of

the Second Schedule the income of the deceased comes to

Rs.6,48,000/-. In the said income, a deduction of 1/3rd of the

amount is to be applied and the amount of loss of income thus

arrives at Rs. 4,32,000/-. Apart from the aforesaid amount, Rs.

2,000/- towards funeral expenses, Rs.5,000/- towards loss of

consortium and Rs.2,500/- towards loss of estate is to be

awarded. The total amount thus comes to Rs.4,41,500/-. Since

the learned Judge, MACT cases awarded a total sum of

Rs.3,93,000/- to the claimants, the claimants are entitled to

receive the enhanced amount of Rs.48,500/- along with interest @

7.5% per annum from the date of filing of the claim petition from

the owner / insurance company. Since the pay and recovery order

is already passed by the learned Tribunal and the same is affirmed

by this court, the insurance company is at obligation to make the

payment of enhanced amount of Rs.48,500/- to the claimants

along with interest @ 7.5% per annum from the date of filing of

the claim petition at first instance and is free to recover the same

from the owner of the offending vehicle.

Therefore, the result of the above discussion is that both the

appeals are disposed of in the following terms -

1. The contributory negligence of the deceased to the tune of

25% as assessed by the learned Judge, MACT cases is hereby

removed and 100% liability is fastened upon the Truck i.e. on the

owner / insurance company.

2. The pay and recovery order passed by the learned Judge,

MACT Cases, Jaitaran District Pali on account of violation of policy

condition as the offending vehicle was being plied without permit

is kept intact and the appeal of the insurance company is

(10 of 10) [CMA-2193/2012]

dismissed to the extent of challenging the pay and recovery order

of the learned Tribunal.

3. The award amount is recalculated as per the Second

Schedule and the claimants are entitled to the total award of

Rs.4,41,500/- as against the award amount of Rs.3,93,000/-.

Since there was no stay granted to the insurance company and

the entire award amount of Rs.3,93,000/- was already deposited

by the insurance company, the claimants are entitled to the

remaining amount of Rs.48,500/- along with interest @ 7.5% from

the date of filing of the claim petition. The appeal of the claimants

is thus accepted to this extent.

4. Both the appeals are thus disposed of and all the pending

applications are also disposed of.

(MANOJ KUMAR GARG),J 133-BJSH/-

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