Rajasthan High Court
Manoj Kumar And Anr vs Deendayal And Ors on 5 February, 2022
Bench: Birendra Kumar
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Miscellaneous Appeal No. 4358/2017
1. Manoj Kumar S/o Jagnaram, aged 36 years.
2. Smt. Sarita Devi W/o Manoj Kumar, aged 33 years.
All R/o Ward No. 1, Near Sohan Lal Duggad Ki Bagichi,
Fatehpur Distt. Sikar Raj.
----Appellants
Versus
1. Deendayal S/o Trilokaram, R/o Bari, Tehsil And Distt.
Sikar (Raj.)
(Driver Of Vehicle Mini School Bus No. RJ-23-PA-2644)
2. Gurukul Shikshan Sansthan, Harsawa Bada, Tehsil
Fatehpur, Distt. Sikar, Through Secretary Jagdish Prasad
S/o Keshardev, R/o Harsawa Bada, Tehsil Fatehpur, Distt.
Sikar (Raj.).
(Registered Owner Of Vehicle Mini School Bus No. RJ-23-
PA-2644)
3. Bharti Axa General Insurance Company Limited, First
Floor, The Ferns Icon Survey No. 28, After Akme Balet,
Doddanekundi, Of Outer Ring Road, Bangluru Karnataka
Through Local Branch Royal World, Flat No. 508, To 511,
Fifth Floor, Sansar Chandra Road, Jaipur, (Raj.). 302001
(Insurance Company Of Vehicle Mini School Bus No. RJ-
23-PA-2644).
----Respondents
For Appellant(s) : Mr. Akshat Choudhary through VC
For Respondent(s) : Mr. Rishipal Agarwal for Insurance
Co.through VC
Mr. Mukesh Bijarnia for the
respondents through VC
HON'BLE MR. JUSTICE BIRENDRA KUMAR
Judgment Reserved on : 02/02/2022
Judgment Pronounced on : 05/02/2022
REPORTABLE
(2 of 6) [CMA-4358/2017]
1. The claimants are not satisfied with the quantum of
compensation decided by the Motor Accident Claims Tribunal,
Sikar, in Accident Claim Case No. 56/14 (Transferred Case No.
60/2016). By the impugned award dated 05.07.2017, the learned
Tribunal awarded Rs.5,00,000/- (Rupees Five Lacs only)
compensation along with interest of 8% from the date of
presentation of the application for death of Gaurav Kumar aged
about 10 years in Motor Vehicle Accident. The appellants are
parents of Gaurav Kumar. They claim Rs.80,25000/- as
compensation.
2. The proved facts of this case is that on 08.11.2013 victim
Gauram Kumar was standing on the roadside along with his
Bicycle. At the same time a rash and negligent Mini Bus bearing
registration No. RJ 23PA 2644 dashed against Gurav Kumar
causing his instant death and smashed his Bicycle. After
investigation of Police case registered for the accident, the police
found that the driver of the vehicle was negligent. It is not
disputed that the vehicle was insured with respondent No.3-Bharti
Axa General Insurance Company Limited for the relevant period.
3. The insurer had contested the claim case on the ground of
contributory negligence of the deceased as well as violation of
terms and conditions of Insurance Policy as the driver was having
no licence to drive a Mini Bus.
Learned Tribunal has already rejected the claim of
contributory negligence alleged to be committed by the deceased
relying on the evidence of eye-witness No.2-Anil Kumar, who is
very specific that only the driver of the Mini Bus was negligent and
(3 of 6) [CMA-4358/2017]
rash, no other evidence of negligence of the deceased is available
on the record.
4. Mr. Akshat Choudhary, learned counsel for the appellants
contends that the Tribunal has relied upon the judgment of the
Hon'ble Supreme Court in Kishan Gopal and Another Vs. Lal
and others reported in (2014) 1 SCC 244 for allowing
compensation of Rs.5,00,000/-, however, the learned Tribunal
failed to notice the principles laid down in the aforesaid judgment
for choosing an appropriate multiplicand.
5. On the other hand, Mr. Rishipal Agarwal, learned counsel for
the insurer contends that the award is based on the judgment of
the Hon'ble Supreme Court in Kishan Gopal's case and no other
judgment has been brought on the record, hence, the
compensation awarded by the Tribunal is just and adequate
compensation. Therefore, this appeal for enhancement of the
compensation is not maintainable. Moreover, in the event of
violation of the terms of policy, the insurer is not liable to pay
compensation and even if the insurer is compelled to compensate
the claimants, they must have right to recover from the owner of
the offending vehicle.
6. It is settled by a catena of judicial pronouncements that if
there is violation of the terms of policy or for any other legal
cause, the insurer is not liable to cover the risk of insured, the
insurer would be entitled for reimbursement, from the insured, of
the compensation paid to the victim of the accident or the
dependent. Therefore, the right of recovery from the owner of the
(4 of 6) [CMA-4358/2017]
offending vehicle by the insurer shall be there in a separately
instituted proceedings.
7. While choosing a just multiplicand, the Hon'ble Supreme
Court in Kishan Gopal's case took into note that in the Second
Schedule to Section 163A of the Motor Vehicles Act, there is
provision for notional income for compensation to those who had
no income prior to the accident. The notional income was
Rs.15,000/- per annum. The Court noticed that in Lata Wadhwa
Vs. State of Bihar reported in (2001) 8 SCC 197, the children of
the age group of 10 to 15 had died in a Motor Vehicle accident.
The Court observed in Lata Wadhwa's case that loss of children
is irrecoupable and no amount of money could compensate the
parents. The Court considered an environment under which
children where brought up, and the multiplicand of Rs. 24,000/-
per annum was opted.
In para 38 of Kishan Gopal and Another Vs. Lal and
others reported in (2014) 1 SCC 244, the Hon'ble Supreme Court
has observed as follows:
"38. In our considered view, the aforesaid legal
principle laid down in Lata Wadhwa's case with all
fours is applicable to the facts and circumstances of
the case in hand having regard to the fact that the
deceased was 10 years' old, who was assisting the
Appellants in their agricultural occupation which is an
undisputed fact. We have also considered the fact
that the rupee value has come down drastically from
the year 1994, when the notional income of the non-
earning member prior to the date of accident was
fixed at Rs. 15,000/-. Further, the deceased boy, had
he been alive would have certainly contributed
substantially to the family of the Appellants by
working hard."
8. Thus, one of the important consideration was that the value
of the rupee had come down drastically from the year 1994. The
(5 of 6) [CMA-4358/2017]
accident took place in the year 1992 and the case of Kishan
Gopal was decided on 26.08.2013, multiplicand of Rs.30,000/-
per annum was allowed.
9. This Court takes judicial notice that the value of rupee is still
dwindling. Moreover, it has come in evidence that the victim was
going to market to purchase something. Evidently, he was actively
participating and cooperating the parents in their day to day
affairs according to his capacity. Therefore, in my view a
multiplicand of Rs.45,000/- per annum would not be exorbitant in
the background and prevailing socio-economic scenerio.
Considering the legal principles laid down in Sarla Verma's case
which was approved in National Insurance Company Limited
Vs. Pranay Sethi and Others, reported in (2017) 16
Supreme Court Cases 680, an appropriate multiplier would be
of 15. Thus, the loss of dependency is of Rs.6,75,000/-. In
Kishan Gopal's case the Hon'ble Supreme Court awarded
Rs.50,000/- under conventional head. Thereafter, in Magma
General Insurance Co. Ltd. Vs. Nanu Ram and Ors. reported
in (2018) 18 SCC 130, it was held that parents are also entitled
for compensation under head loss of filial consortium. Thus, under
conventional head Rs.40,000/- to each of the appellant, who are
parents of the deceased is payable for loss of consortium. Besides
the aforesaid, Rs.15,000/- for loss of estate and Rs.15,000/- for
funeral expenses are also payable. Thus, Rs.1,30,000/- is payable
under conventional head. Thus, total amount comes to Rs.
8,05,000/-, this amount be paid after deducting already paid
(6 of 6) [CMA-4358/2017]
amount by the insurer along with 8% interest from the date of
application as decided by the Tribunal.
10. The insurer shall have the right to raise his grievance for
reimbursement against the owner of the offending vehicle in an
appropriate proceedings, if a case for reimbursement is made out.
11. The appeal is allowed to the aforesaid extent.
(BIRENDRA KUMAR),J
Pcg
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