Smt Asha And Others vs Naresh Kumar And Others
2022 Latest Caselaw 1227 Raj/2

      HIGH COURT OF JUDICATURE FOR RAJASTHAN
                  BENCH AT JAIPUR

         S.B. Civil Miscellaneous Appeal No. 2616/2012

1.     Asha W/o Late Shri Ramavatar @ Ramgopal, aged about
       19 years.
2.     Bhawna D/o Late Shri Ramavatar @ Ramgopal, aged
       about 3 years.
3.     Somoti W/o Shri Pradhan Singh, aged about 46 years.
4.     Pradhan Singh S/o Chandrabhan Singh, aged about 47
       years.
       All R/o Village Chak Utra, Teh. And Distt. Bharatpur.
                                                                  ----Appellants
                                   Versus
1.     Naresh Kumar S/o Shiv Charan, R/o Village Tehra Lodha,
       Post Chichana, Tehand Distt. Bharatpur (Driver Cum
       Registered Owner Of the Vehicle)
2.     Virendra Singh S/o Brajendra Singh, R/o Village Nagla
       Hathipura, Post Peepla, Teh And Distt. Bharatpur (Insurer
       Of Motorcycle).
3.     Iffco Tokio General Insurance Company Ltd., 8, Kataiva
       Bhawan, M.i. Road, Jaipur
                                                                ----Respondents

For Appellant(s)         :     Ms. Chelsi Gangwal for
                               Mr. Prateek Sharma through VC
For Respondent(s)        :     Mr. Ritesh Jain through VC



          HON'BLE MR. JUSTICE BIRENDRA KUMAR

Judgment Reserved on                           :                01/02/2022

Judgment Pronounced on                         :                03/02/2022

1. In this appeal under Section 173 of the Motor Vehicles Act,

1988, the appellants are wife, minor daughter and parents of Late

Ramavatar @ Ramgopal, a victim of motor vehicle accident. The

appellants had brought MAC Case No.134/2011 before the Motor

(2 of 9) [CMA-2616/2012]

Accident Claims Tribunal, Bharatpur. By the impugned judgment

and award dated 06.04.2012, the learned Tribunal awarded

Rs.3,21,600/- against claim of Rs.80,35,000/-. The appellants are

not satisfied with the calculation and quantum of compensation

decided.

2. The case and claim of the appellants is that on 22.11.2009

the deceased was going on his Motor Cycle bearing Registration

No.RJ-05-SB-4065. At about 5:30 PM, when he reached near

Village Udera, Police Station Fatehpur Sikri, a rash and negligent

motor cycle bearing Registration No. RJ-05-5M-4022 came from

ahead, dashed and caused death of Ramgopal, during treatment.

A Police case was registered on the statement of uncle of the

deceased who was travelling along with the father of the deceased

namely, Pradhan Singh AW/2. After investigation, the police

submitted charge sheet against Naresh Kumar, the owner of the

offending vehicle. The Post Mortem Report would reveal that the

cause of death was injury at the head of the deceased. The

claimants stated that at the time of death deceased was aged

about 22 years. He was an AC Mechanic and was self-earning

person. By repairing Air Conditioners and installing it on the

request of the customers the deceased was earning Rs.12,000/-

per month.

3. The respondent-Naresh Kumar appeared before the Tribunal

and contested the claim stating that his vehicle was never

involved in the accident as claimed by the claimants, moreover,

even if, it is assumed that his vehicle was involved, the liability

goes to respondent No.3-IFFCO Tokio General Insurance Company

Ltd. with whom the vehicle was insured.

(3 of 9) [CMA-2616/2012]

4. The respondent No.3 put a defense that the offending vehicle

was being used in violation of the terms and conditions of the

policy. It was a case of contributory negligence as has been held

by the Tribunal. As per site plan, the place of accident was mid of

the road, hence both the vehicles were not on their proper track at

the time of accident. Learned counsel contends that the order of

the Tribunal does not suffer from any defect.

5. Learned counsel for the appellants Ms. Chelsi Gangwal

contends that there was overwhelming unrebutted evidence of the

wife of the deceased AW-1 Asha, the father of the deceased AW-2

Pradhan Singh and a businessman dealing with AC etc. who was

examined as AW-3 Lalit Kumar that the deceased had monthly

earning of Rs.12,000/-. However, the learned Tribunal took a

pedantic approach of the matter that since no documentary proof

of income of the deceased was produced, the notional income of

Rs.3,000/- per month was taken as multiplicand.

Learned counsel further contends that the learned Tribunal

has wrongly deducted 40% of the income for contributory

negligence of the deceased ignoring the testimony of the eye-

witnesses that the accident took place when the deceased was on

his right track and the offending vehicle reached there to cause

accident. Learned counsel contends that the Tribunal has wrongly

placed reliance on site plan Ex-2, which is a sketch drawn with a

pen without any photograph etc. and the author of the Ex-2, was

not produced before the Tribunal. Learned counsel contends that

the Tribunal has not made any award considering the future

prospect of the deceased nor proper award has been made under

(4 of 9) [CMA-2616/2012]

conventional heads for funeral expenses, loss of estate and loss of

consortium.

6. AW-2 Pradhan Singh, is an eye-witness of the occurrence as

he was just behind the deceased on another motor cycle at the

time of occurrence. The witness is specific that the rash and

negligent offending vehicle came and dashed against the motor

cycle of the deceased when the deceased was on his proper track.

The accident resulted in head injury to Ramgopal consequently he

died during the course of his treatment in Agra Hospital. The

witness specifically denied that the accident was a "head on

collision" rather the accident took place on the track side of the

deceased. The learned Tribunal has believed the testimony of PW-

2 for accepting the occurrence of accident and disbelieved DW-1

Naresh Kumar and DW-2 Atar Singh that the accident was not

caused by the offending vehicle. Therefore, there was acceptable

evidence of eye-witness before the Tribunal that the accident took

place in the side of the track of the deceased and not on the mid

of the road nor was result of a head on collision. The learned

Tribunal fell in error to rely on Ex.2 which is a site plan drawn with

a pen showing that the accident took place in the mid of the road.

The author of the plan never turned up before the Tribunal to give

opportunity to the claimant to cross-examine, moreover, the site

plan which was drawn subsequent to the accident cannot be taken

to disbelieve the testimony of the eye-witness.

In United India Insurance Company Ltd. Vs. Smt. Sugni

Devi & Ors. disposed of on 24.08.2019 by a bench of this Court

and relied upon by the learned counsel for the appellant, the Court

had occasion to consider identical defense made on behalf of the

(5 of 9) [CMA-2616/2012]

insurance company that the site plan showed that the accident

was result of contributory negligence. Even photographs of the

site plan was produced before the Court, however, the Court

declined to accept the same as evidence holding that no

significance could be attached to the photographs as it is a matter

of common knowledge that after the accident, the vehicle do not

remain in the same position in which the same was at the time of

accident.

7. In the present case, there is no photographs of the site plan

nor the author who had prepared the site plan Ex.-2 appeared

before the Court. In my view, the Tribunal has committed error of

appreciation of evidence and in fact, it is not a case of

contributory negligence.

8. The learned Tribunal has assigned no reason to disbelieve

the evidence of AW-1 Asha, wife of deceased who deposed that

the deceased was earning Rs.12,000/- per month and he used to

give the money to her to meet out the family expenses; similar is

the statement of the father of the victim AW-2 Pradhan Singh and

AW-3 Lalit Kumar on monthly income of victim. PW-3 produced

documents to support that he is a registered licensee businessman

and deals in electronics such as Fridge, AC etc. He stated that the

deceased was attached with another agency involved in repairing

and installation of AC etc. He was getting work from his business

also. Therefore, only for the reason that a self-earning person

could not produce the document of his income, the deposition of

the witnesses conversant with the income of the deceased should

not have been ignored.

(6 of 9) [CMA-2616/2012]

9. In National Insurance Company Limited Vs. Pranay

Sethi and Others, reported in (2017) 16 Supreme Court

Cases 680, the Hon'ble Supreme Court held that "Section 168 of

the Act deals with the concept of "just compensation" and the

same has to be determined on the foundation of fairness,

reasonableness and equitability on acceptable legal standard

because such determination can never be in arithmetical

exactitude. It can never be perfect. The aim is to achieve an

acceptable degree or proximity to the arithmetical precision on the

basis of material brought on the record in an individual case. In a

case of death, the legal heirs of the deceased cannot expect a

windfall. Simultaneously, the compensation granted cannot be an

apology for compensation."

"It is a well-accepted norms that money cannot substitute a

life lost but an effort has to be made for grant of just

compensation having uniformity in approach. There has to be a

balance between the two extremes, that is, a windfall and the

pittance, a bonanza and the modicum."

10. Jagdish Vs. Mohan and Others reported in (2018) 4 SCC

571 was a case of injury in a Motor Vehicle Accident, which

resulted in permanent disablement. In that case, the victim was a

Carpenter and the claimant stated that he has income of

Rs.6,000/- per month. In the absence of documentary evidence,

the Tribunal took the monthly income of the appellant at

Rs.4050/-. The Hon'ble Supreme Court did not accept the

approach of the Tribunal and in para 12 of the judgment recorded

as follows:-

(7 of 9) [CMA-2616/2012]

"12. Having regard to these principles, it would be now appropriate to assess the case of the Appellant for enhancement of compensation. The accident took place on 24 November 2011. The Appellant was a skilled carpenter and self-employed. The claim of the Appellant that his earnings were Rs. 6,000/- per month cannot be discarded. This claim cannot be regarded as being unreasonable or contrary to a realistic assessment of the situation on the date of the accident."

11. This Court has no hesitation to accept that the claim of the

income of the deceased as Rs.12,000/- per month was proved by

the unrebutted evidence on the record and in absence of any

contrary evidence, the said amount should not have been reduced

only for the reason that there was no documentary evidence in

proof of the income. Thus, the loss of dependency is calculated as

Rs.12,000X12 months=1,44,000/-. The Tribunal has rightly

deducted ¼th for personal expenses of the deceased considering

the number of dependents. After deduction of ¼ th from the

aforesaid amount, the remainder is Rs. 1,08,000/-. The Tribunal

has rightly used multiplier of 18 considering the age of the

deceased, his wife and minor child. Thus, the loss of dependency

is calculated as (Rs.1,08,000/-)X18=Rs.19,44,000/-. The Tribunal

has not allowed anything for the future prospect of the deceased.

Considering the settled principles of law in Pranay Sethi (supra)

case as well as in United India Insurance Co. Ltd. Vs.

Satinder Kaur @ Satwinder Kaur & Ors., decided on

30.06.2020 by the Hon'ble Supreme Court, even a self-employed

victim of accident is entitled for some enhancement against future

prospects. The Hon'ble Supreme Court decided 40% as future

prospect for the age group of the deceased in the present case

who was a self-employed. On addition of 40%, the amount comes

(8 of 9) [CMA-2616/2012]

to Rs. 25,21,600/-. Besides the aforesaid, the claimants are

entitled for Rs. 15,000/- as loss to the estate and Rs.15,000/- for

funeral expenses. The wife of the deceased, the minor daughter of

the deceased and the parents of the deceased would separately be

entitled for Rs. 40,000/- for loss of consortium, their separate

entitlement for loss of consortium is already settled in Magma

General Insurance Co. Ltd. Vs. Nanu Ram and Ors. reported

in (2018) 18 SCC 130. Thus, under the conventional head, the

appellants would be entitled for Rs.1,50,000/-, the total payable

compensation comes to Rs.26,71,600/- (Rupees Twenty Six lacs

Seventy One Thousand and Six Hundred)

12. The aforesaid amount minus already paid would be payable

by the Insurer within three months to the claimants along with

interest of 9% per annum, failing which the aforesaid interest

would be payable till the realization of the whole due amount. The

1/3rd share of the minor daughter shall be deposited in some

Fixed Deposit Scheme and shall be spent for education and

betterment of the minor as and when occasion arises on the order

of the Court only.

13. It is made clear that guidelines in Sarla Verma's case and

Pranay Sethi's cases as well as in subsequent cases, to reach at

the "just compensation" would be applicable in the matter of

accident which took place prior to the aforesaid judgments as well

as in the matter of adjudication made by the Tribunal prior to that

judgment. In United India Insurance Co. Ltd. Vs. Satinder

Kaur and Ors., decided on 30.06.2020 accident took place in the

year 1998 and award was made in the year 2001, however, the

Hon'ble Supreme Court enhanced the award considering the

(9 of 9) [CMA-2616/2012]

settled guidelines in the subsequent judgments to reach at "just

compensation". Likewise the Tribunal was required to decide "just

compensation" without being swayed away by the quantum of

claim made by the claimants.

14. The appeal stands allowed to the aforesaid extent.

(BIRENDRA KUMAR),J

PCG/RAJAT KUMAR/

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