Smt Resham And Anr vs Dhara Singh And Ors
2022 Latest Caselaw 4432 Raj/2

      HIGH COURT OF JUDICATURE FOR RAJASTHAN
                  BENCH AT JAIPUR

         S.B. Civil Miscellaneous Appeal No. 2601/2015

1. Smt Resham wife of Abhay Singh,aged 42 years.
2. Abhay Sing son of Munshi, aged 47 years.
 Both resident of Gram Banjaro Ki Dhani, Tan Vidrakha, Post
Baman    Baroda,     Thana        Sadar,        Gangapur          City,   District
Sawaimadhopur.
                                                                   ----Appellants
                                  Versus
1. Dhara Singh son of Vishram, resident of Kherli, Thana
Bamanbas, District Sawaimadhopur (Raj.)
(driver of tractor registered No.RJ-25RA-2286)
2. Dharam Singh son of Rambaksh, resident of Gram Vidrakha,
Post Baman Baroda, Thana Sadar Gangapur City, District
Sawaimadhopur (Raj.)
(Owner of tractor registered No.RJ-25RA-2286)
3. Branch Manager, The New India Insurance Company Ltd.,
Near Prem Mandir Cinema, Sawaimadhopur (Raj.)
(Insurance Company of tractor registered No.RJ-25RA-2286)
                                                                ----Respondents

Connected With S.B. Civil Miscellaneous Appeal No. 2549/2015 New India Assurance Company Ltd., through Jaipur Regional Office, Iind Floor, South Block, Nehru Palace, Tonk Road, Jaipur 302015 (Insurance Company of tractor registered No.RJ-25RA-2286)

----Appellant Versus

1. Smt Resham wife of Abhay Singh,aged 42 years.

2. Abhay Sing son of Munshi, aged 47 years. Both resident of Gram Banjaro Ki Dhani, Tan Vidrakha, Post Baman Baroda, Thana Sadar, Gangapur City, District Sawaimadhopur.

----Respondents/claimants

3. Dhara Singh son of Vishram, resident of Kherli, Thana Bamanbas, District Sawaimadhopur (Raj.) (driver of vehicle)

4. Dharam Singh son of Rambaksh, resident of Gram Vidrakha,

(2 of 6) [CMA-2601/2015]

Post Baman Baroda, Thana Sadar Gangapur City, District Sawaimadhopur (Raj.) (Owner of vehicle)

----respondent-non-claimants

For Appellant(s) : Mr. Raunak Dixit for claimants For Respondent(s) : Mr. Hari Krishan Sharma

HON'BLE MR. JUSTICE ANOOP KUMAR DHAND

Judgment

04/07/2022

Both the misc. appeals arise out of a common judgment,

hence same are being decided together.

In Civil Miscellaneous Appeal No. 2601/2015

Instant appeal has been preferred by the appellant-claimants

against the judgment and award dated 10.04.2015 passed by the

Motor Accident Claims Tribunal, Gangapur City (Rajasthan) (for

short 'the Tribunal') in MAC case No.40/2011 whereby claim

petition filed by the claimants-appellants was allowed and a sum

of Rs.3,90,000/- was awarded as compensation on account of

death of Mahesh in the accident which occurred on 12.02.2011.

Learned Tribunal after framing the issues and evaluating the

evidence on record and after hearing counsel for the parties,

decided the claim petition of the claimants and awarded

compensation to the tune of Rs. 3,90,000/- under various heads

in favour of the claimants.

Learned counsel for the appellants-claimants submits that at

the time of the accident, the age of the deceased was 25 years.

He further submits that though in the claim petition, the age of

the deceased was mentioned as 23 years but in the post mortem

report, his age was mentioned as 25 years and even the Tribunal

(3 of 6) [CMA-2601/2015]

has determined the age of the deceased as 25 years. But, without

any basis, the multiplier of 15 has been applied. He further

submits that as per the judgment of Hon'ble Apex Court in the

case of Sarla Verma v. Delhi Transport Corporation : (2009)

6 SCC 121, the multiplier of 18 should have been applied in the

present case. He further submits that no amount has been

awarded towards future prospects in the light of judgment of

Hon'ble Supreme Court in the case of National Insurance

Company Ltd. Vs. Pranay Sethi reported in AIR 2017 SC

5157. He therefore, prays that recomputation of the award in the

present case may be done in the light of judgments referred

above.

Per contra, learned counsel for respondent-Insurance

Company submits that the Insurance Company is not liable to

make any payment of compensation as the deceased was

travelling in a trolley and no separate premium was taken and the

trolley was not insured. He further submits that no illegality has

been committed by the Tribunal while applying the multiplier of

15. He further submits that the driver of the vehicle was not

having the license to ply the commercial vehicle. Hence, the

Insurance Company is not liable to may any sort of compensation

to the claimants-appellants.

Learned counsel, however, is not in a position to controvert

the submissions made by counsel for the appellant with respect to

recomputation of the award in the present case in the light of

judgment of Hon'ble Supreme Court in the case of Sarla Verma

(supra) and Pranay Sethi (supra).

(4 of 6) [CMA-2601/2015]

I have considered the submissions made at Bar and gone

through the judgment and award dated 10.04.2015 as well as the

other relevant documents available on record.

Admittedly, the deceased was 25 years of age at the time of

accident, so, the Tribunal was not right in applying the multiplier

of 15 in the present case. In view of judgment of Hon'ble Supreme

Court in the case of Sarla Verma (supra), the multiplier of 18

should have been applied in the present case, while calculating the

award.

Further, the amount to the extent of 40% is required to be

added in the light of judgment of Hon'ble Supreme Court in the

case of Pranay Sethi (supra). Thus, the award is recomputed as

under:-

Income of deceased as Rs. 1750 x 12 = 21000/-

assessed by the Tribunal
(after deducting personal
expenses)
Multiplier to the applied         18
                                  =Rs. 3,78,000/-

Add 40 % towards future Rs.3,78,000/- + 1,51,200/-

prospects               = 5,29,200/-
Add towards      conventional Rs.70,000/-
heads
Total           compensation Rs.5,99,000/-
awardable

Compensation awarded by Rs.3,90,000/-

Tribunal          (Including
Rs.75,000/-         towards
conventional heads)

Less amount awarded by the Rs. 5,99,000/- - Rs. 3,90,000/-

Tribunal                   Rs. 2,09,000/-
Enhanced amount of                Rs.2,09,000/-
compensation

In view of the above, the appellants would be entitled to get

a further sum of Rs. Rs.2,09,000/-. Insurance company is directed

to pay additional amount of Rs. Rs.2,09,000/- within a period of

(5 of 6) [CMA-2601/2015]

two months from the date of receipt of certified copy of this order.

The enhanced amount shall carry 6% interest from the date of

filing of claim petition till the actual payment is made.

Consequently, the appeal is disposed of in the above terms.

In Civil Miscellaneous Appeal No. 2549/2015

Heard.

Counsel for the appellant-Insurance Company submits that

the Tribunal has grossly erred in fastening liability on the

Insurance Company as the trolley was not insured. Counsel

further submits that the driver of the offending vehicle was not

having any license to ply the commercial vehicle. In support of his

contentions, he has placed reliance on the judgments of Hon'ble

Apex Court in the case of Kulwant Singh Vs. OIC Ltd. Reported

in 2014(2) ACTC SC 1195, NIC Vs. Kusum Roy reported in

ACC 2006 SC 19 and OIC Vs. Angad Kol & Ors. Reported in

2009 DNJ SC 949.

Lastly, he argued that under these circumstances, the

Insurance Company may be exonerated from its liability to make

any payment of compensation.

Counsel for the claimants-respondents opposed the

arguments raised by counsel for the appellant-Insurance Company

and submitted that the Tribunal while deciding the claim petition

of the claimants has correctly taken into consideration all the

relevant prevailing judgments of Hon'ble Supreme Court as well as

of this Court. He further submits that it is incorrect on the part of

the Insurance Company to say that the deceased was sitting in the

trolley. He submits that as per the record, the deceased was

(6 of 6) [CMA-2601/2015]

standing on the right side of the road and the accident has been

caused by the driver of the offending vehicle, so, the arguments

raised by the counsel for the Insurance Company has no force.

He further submits that the Tribunal has not committed any

illegality in deciding issue No.4.

I have considered the submissions made at the Bar and gone

through the judgment as well as other material available on

record.

It is not in dispute that the deceased was standing on the

right side of the road and the accident has been caused by the

driver of the offending vehicle by plying the vehicle in a rash and

negligent manner. It is incorrect on the part of the Insurance

Company to say that the deceased was sitting in the trolley

attached to the tractor. Even otherwise, it is a well settled

proposition of law that the trolley is a part of tractor and no

separate insurance is required. The judgments submitted by the

counsel for the appellant-Insurance company are not applicable in

the facts of this case. There is no illegality in the order passed by

the Tribunal while deciding issue No.4.

Hence, the appeal is dismissed being devoid of merits.

Stay application and all pending applications, if any stand

disposed of.

(ANOOP KUMAR DHAND),J

HEENA GANDHI /43-44

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