Manohar Lal vs Prabhu
2022 Latest Caselaw 7828 Raj/2

        HIGH COURT OF JUDICATURE FOR RAJASTHAN
                    BENCH AT JAIPUR

            S.B. Cross Objection (Civil) No. 39/2002

1. Manohar Lal son of Ram Niwas aged about 41 years.
2. Radhey Shyam son of Manohar Lal aged about 22 years
Both resident of Todabhim, District Karauli (Raj.)
                                                                ----Petitioners
                                   Versus
1. Prabhu son of Nanga aged about 26 years, R/o Shahadpur,
Tehsil Mahuka, District Dausa (Raj.)
2. Ram Chara
3. Ranjan
4. Gandhi
(S.No.2 to 4 are sons of Shri Barbeer, R/o Kamalpura, Tehsil
Weir, District Bharatpur (Raj.)) (owner of tractor No.RJ-05-R-
4379)
5. The New India Assurance Company Ltd. Divisional Officer at
Chhawani Road Kota (Raj.) having its Regional Office at Nehru
Place, Tonk Road, Jaipur, through its Regional Manager.
                                                               ----Respondent

Connected With S.B. Civil Miscellaneous Appeal No. 2294/2000

1. Manohar Lal son of Ram Niwas aged about 41 years.

2. Radhey Shyam son of Manohar Lal aged about 22 years Both resident of Todabhim, District Karauli (Raj.)

----Petitioners Versus

1. Prabhu son of Nanga aged about 26 years, R/o Shahadpur, Tehsil Mahuka, District Dausa (Raj.)

2. Ram Chara

3. Ranjan

4. Gandhi (S.No.2 to 4 are sons of Shri Barbeer, R/o Kamalpura, Tehsil Weir, District Bharatpur (Raj.)) (owner of tractor No.RJ-05-R- 4379)

5. The New India Assurance Company Ltd. Divisional Officer at Chhawani Road Kota (Raj.) having its Regional Office at Nehru Place, Tonk Road, Jaipur, through its Regional Manager.

                                                               ----Respondent



                                           (2 of 7)                   [XOBJC-39/2002]



For Petitioner(s)           :    Mr. Sunil Jain, Adv.
For Respondent(s)           :    Mr. Gamesh Joshi, Adv. for
                                 Mr. S.R. Joshi, Adv.


           HON'BLE MR. JUSTICE BIRENDRA KUMAR
                                      Order
Reserved On                                                       17/11/2022
Pronounced On                                                     15.12.2022

1. On 16.09.2000, the Motor Accident Claim Tribunal, Hindaun

City (Raj.) made an award of Rs.2 lakhs in favour of the appellants

of S.B. Misc. Appeal No.2294/2000. The award was made in Claim

Case No.58/1999 for death caused in motor vehicle accident to

Prem Devi aged about 38 years.

2. The above named appellants are not satisfied with the

quantum of award, hence, this appeal under Section 173 of the

Motor Vehicle Act, 1988.

3. The liability to pay the award amount was on the Insurer-The

New India Insurance Company Ltd. The Insurer has put the cross-

objection No.39 of 2002 above.

4. The claimant's case is that victim-Prem Devi along with other

family members was travelling on a Jeep on 14.01.1999. A rash

and negligent Tractor bearing registration No.RJ-05-R-4379

dashed against the Jeep causing injury and death of Prem Devi

and injuries to other family members including Kumari Aashu,

Priya etc. The claim in respect of the victim of death as well as of

injureds was decided by the common judgment and award dated

16.09.2000.

5. The respondents No.1 to 4, the owners and the Driver filed

their written statement and stated that no such accident took

place, especially by the referred Tractor. Moreover, the Owner of

the Tractor had already sold it, prior to the date of accident to one

(3 of 7) [XOBJC-39/2002]

Shri Ram Saini and the seized Tractor was released in favour of

Shri Ram Saini. Therefore, Shri Ram Saini was necessary party in

the claim proceeding. They further asserted that on the date of

accident on 14.01.1999 neither the Tractor was in possession of

the owner nor Mr. Prabhu was Driver of the said Tractor.

6. The Insurer filed written statement stating therein that the

Driver had no valid driving license therefore there is violation of

terms and conditions of the insurance policy. There was

contributory negligence of the Driver of the Jeep also. Therefore,

the owner of Jeep should also be held liable to pay compensation.

Moreover, the claimants are not dependents of the victim of death,

as such they are not entitled for any compensation.

7. The Tribunal has not assigned any reason as to why lump

sum compensation of Rs.2 lakhs was payable for death of Smt.

Prem Devi.

8. Learned counsel for the appellants submits that deceased

Smt. Prem Devi was earning Rs.3000 to 3500/- per month as she

was engaged in sewing the clothes and was proving her services

as home maker. Learned Tribunal should have adopted multiplier

method and the appropriate multiplicand should have been

multiplied with multiplier of 15 considering the age of Smt. Prem

Devi.

Learned Tribunal erred in not allowing anything for future

prospects of skilled Smt. Prem Devi as held in the case of National

Insurance Company Ltd. Vs. Pranay Sethi & Ors. reported in

(2017) 16 SCC 680.

Learned counsel contends that the Tribunal has not awarded

anything for loss of consortium or for funeral expenses.

(4 of 7) [XOBJC-39/2002]

9. In the cross-objection, the Insurer raised grievance that the

learned Tribunal has not assigned any reason as to why even Rs.2 lakhs

should be awarded to the claimants. There was no evidence of the

details of the earnings of the deceased. Multiplier method has not

been adopted, as such the impugned award suffers from

arbitrariness. The finding recorded by the Tribunal in respect of

Issues No.1 and 3 are erroneous.

10. It is worth to note at the outset that none of the respondents

have led any evidence in support of their defence put forward.

Therefore, the facts pleaded by them stands not proved.

The claimants examined three witnesses PW-1-Manohar Lal,

who is one of the claimant and husband of deceased; PW-2-

Radheysham, who is son of the deceased; PW-3-Smt. Mukti,

widow mother of Manohar Lal, who was also travelling in the same

Jeep and had sustained injuries. For the incident aforesaid FIR

No.15/1999 was registered with Police Station Bhusawar for

offences under Sections 279, 337, 304-A IPC. A copy of the FIR,

postmortum report of Smt. Prem Devi, Inquest report, site plan

prepared regarding place of incident and charge-sheet submitted

by the Police against the Driver of the offending Tractor have been

brought on record and are marked as exhibits.

11. PW-1-Manohar Lal deposed that Smt. Prem Devi was his

wife. She died on 14.01.1999 in an accident. The witness along

with his family members was going on a Jeep to take holy dip in

Ganga. On the Jeep besides PW-1, late Prem Devi, PW-2-

Radheshyam and PW-3-Smt. Mukti, the mother of PW-1 and grand

children of PW-1 were also there. Near Ullupura Village a rash and

negligent Tractor came to the wrong side and dashed against the

Jeep, as a result Smt. Prem Devi fell down and sustained injuries

(5 of 7) [XOBJC-39/2002]

and died in the accident. Kumari Aashu, Priya and Smt. Mukti also

sustained injuries. Kumari Aashu had sustained fracture on her

thigh. The owner of the Jeep lodged the case with the Police

Station. Smt. Prem Devi was aged about 35 years at the time of

death. Besides being a home maker, she was engaged in sewing

clothes and from sewing clothes, she was earning Rs.1000/- to

Rs.1200/- per month.

During cross examination of the witness, detailed manner of

accident and negligence of the Driver of the Tractor was disclosed.

The witness had specifically stated that he had no documentary

account of income of Smt. Prem Devi. The witness stated that he

is a labour and both husband and wife were dependent of each

other. Claimant appellant No.2-Radheyshyam was not dependent

of Smt. Prem Devi.

12. PW-2-Radheyshyam also supported the incident as an eye-

witness. The witness has specifically denied that the incident took

place due to negligence of the Jeep Driver. PW-3-Smt. Mukti has

deposed about the manner of accident and injuries to different

persons including the victim of death Smt. Prem Devi. There is

nothing in the cross examination of these witnesses to disbelieve

their presence at the time of incident nor any contrary evidence is

on the record including cross examination of these witnesses on

the point of quantum of income of Smt. Prem Devi. Insurance of

the Tractor with the respondent No.5-The New India Assurance

Company Ltd. is not disputed.

13. Learned Tribunal has come to the conclusion that claimants

have proved and established that Smt. Prem Devi died in motor

vehicle accident caused by the above referred Tractor due to rash

(6 of 7) [XOBJC-39/2002]

and negligent driving of the Tractor. The finding is consistent with

the material on the record. Hence, stands affirmed.

14. The Tribunal has erred in awarding lump sum amount of Rs.2

lakhs without adopting multiplier method to calculate, just and

reasonable compensation in the facts and circumstances of this

case.

15 Appellant-Radheyshayam was aged about 22 years on the

date of incident. He was already married person having children.

Therefore, Radhey Shyam cannot be considered as dependent of

Smt. Prem Devi. Hence, only dependent is her husband-Manohar

Lal, who is also a labour.

16. While, considering the claim for death of a housewife in the

case of Arun Kumar Agrawal & Anr. Vs. National Insurance

Company Ltd. & Ors. reported in (2010) 9 SCC 218, the

Hon'ble Supreme Court held that gratuitous services, rendered by

wife with true love and affection to children and husband,

managing household affairs cannot be equated with services

rendered by others. Therefore, it is not possible to quantify any

amount in lieu of services rendered by wife/mother to the family.

However, for award of compensation some pecuniary estimate has

to be made for services rendered by the victim of accident.

17. The claim of income of Rs.3000/- per month from skill of

sewing and looking after household affairs cannot be treated as

exorbitant unreasonable and unacceptable. The claim of income

cannot be discarded just for absence of documentary evidence of

such a meagre amount which does not come within the taxation

limit. Therefore, the income of the deceased is taken as

Rs.3,000/- per month especially when there is no challenge by the

respondents even by suggestion to the prosecution witnesses that

(7 of 7) [XOBJC-39/2002]

deceased was not engaged in sewing clothes. 50% of the income

is deductible against personal expenses of the deceased as only

her husband was dependent on her. On the remaining 50% i.e.

Rs.1500/-, the Tribunal should have awarded 40% as loss of

future prospects as held in the case of National Insurance

Company Ltd. Vs. Pranay Sethi (supra). Thus the payable

compensation would be Rs.15,00+600(40%) = 2100 X 12 months X 15

multiplier considering the age of the deceased. Besides the aforesaid,

Rs.40,000/- is payable for loss of espousal consortium and Rs.15,000/-

for funeral expenses.

18. There is no case of loss to the estate, hence, no amount is

payable under this head. Thus the calculation of payable compensation

comes to Rs.4,33,000/-. The Insurer shall pay the aforesaid amount,

minus already paid amount to claimant-Manohar Lal along with 6%

interest on the unpaid amount since the date of filing of the claim

petition within sixty days. It is made clear that if any amount has

already been paid to Radhey Shyam in pursuance of the order of the

Tribunal, the same shall not be recovered.

19. To the aforesaid extent, S.B. Civil Misc. Appeal No.2294/2000

stands allowed.

20. In view of the discussion made above, I do not find any merit in

the Cross Objection. The Cross Objection (Civil) No.39/2002 stands

dismissed. The Insurer would be at liberty to bring proceedings to

recover amount from the Owner of the Tractor, if the Insurer establishes

a case that there was violation of terms and conditions of the policy.

(BIRENDRA KUMAR),J

Sunita/-39-40

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