Smt Munni Kanwar And Another vs Pramod Kumar And Others
2022 Latest Caselaw 3655 Raj/2

     HIGH COURT OF JUDICATURE FOR RAJASTHAN
                 BENCH AT JAIPUR

        S.B. Civil Miscellaneous Appeal No. 2709/2013

National Insurance Company Limited Through Its Authorised
Signatory, Jaipur Regional Office, Jeevan Nidhi, 2Nd Floor,
Bhawani Singh Road, Jaipur - 302005 Raj. Insurer Of Crane No.
Rj-14/ea-0161
                                      ----Appellant/Non-claimant No.3
                                 Insurer of Crane No.RJ-14/EA-0161
                                Versus
1.    Pushp Kanwar W/o Late Ram Singh Shekhawat, R/o A-12,
      Murti Nagar, Meenawala, Sirsi Road, Jaipur Raj.
2.    Prahlad Singh S/o Hari Singh,               R/o A-12, Murti Nagar,
      Meenawala, Sirsi Road, Jaipur Raj.
3.    Munni Kanwar W/o Hari Singh, R/o A-12, Murti Nagar,
      Meenawala, Sirsi Road, Jaipur Raj.
4.    Hari Singh S/o Surjan Singh, R/o A-12, Murti Nagar,
      Meenawala, Sirsi Road, Jaipur Raj.
                                              ----Respondents/Claimants

5. Pramod Kumar S/o Ved Ram, R/o Nangla Dhika Kalan, Police Station Chipramau, District Farukhabad U.P.

respondent/non-claimant No.1 Driver Of Crane No. Rj-14/EA-0161

6. Sunita Sharma W/o Avdhesh Kumar Sharma, R/o 294, Vardhman Nagar-B, 80 Feet Road, Police Station Shyam Nagar, Jaipur Raj.

----Respondent/non-claimant No.2 Owner Of Crane No. Rj-14/EA-0161

connected with

S.B. Civil Miscellaneous Appeal No. 1267/2014

1. Smt. Munni Kanwar W/o Hari Singh, R/o A-12, Murti Nagar, Meenawala, Sirsi Road, Jaipur

2. Hari Singh S/o Shri Surjan Singh, R/o A-12, Murti Nagar, Meenawala, Sirsi Road, Jaipur

----Appellants Versus

(2 of 10) [CMA-2709/2013]

1. Pramod Kumar S/o Shri Vedram, R/o Nangla Dheeka Kalan, Police Station Chipramau, District Farukkabad, U.p. - Driver Crane No. Rj.14.ea.0161

2. Smt. Sunita Sharma W/o Shri Avdhesh Kumar Sharma, R/o 294, Vardhman Nagar- B, 80 Feet Road, Police Station Shyam Nagar, Jaipur -Owner Crane No. Rj.14.ea.0161

3. National Insurance Company Limited, Divisional Office, Narain Singh Circle Jaipur -Insurance Company Crain No. Rj.14.ea.0161

----respondents/non-claimants

4. Smt. Pushp Kanwar Widow Of Shri Ram Singh W/o Surendra Singh Shekhawat, By Caste Rajput, R/o Gudha Gaur Ji District Jhunjhunu, At Present Khandi, Jaipur - Jodhpur Highway, Jodhpur

----respondent/claimant No.1

5. Prahlad Singh S/o Shri Hari Singh, By Caste Rajput, R/o A-12, Murti Nagar, Meenawala, Sirsi Road, Jaipur

----proforma respondent/claimant No.2

For Appellant(s) : Mr. Sandeep Jain for appellant in CMA No.2709/2013 and for respondent No.3 in CMA No.1267/2014 For Respondent(s) : Mr. Hem Singh Rathore for appellants in CMA No.1267/2014 and for respondent Nos.3 & 4 in CMA No.2709/2013 Mr. Vinay Mathur for Sunita-owner of crane No.RJ-14/EA-0161 Mr. Mahendra Singh for Smt. Pushp Kanwar claimant No.1

HON'BLE MR. JUSTICE ANOOP KUMAR DHAND

Judgment

10/05/2022

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

hence same are being decided together.

In Civil Miscellaneous Appeal No. 2709/2013

(3 of 10) [CMA-2709/2013]

Instant appeal has been preferred by the appellant-

Insurance Company against the judgment and award dated

15.07.2013 passed by the Motor Accident Claims Tribunal, Jaipur

Metropolitan, Jaipur (for short 'the Tribunal') in MAC case

No.25/2010 whereby claim petition filed by the claimants-

respondents was partly allowed and a sum of Rs.14,25,775/- was

awarded as compensation.

Counsel for the appellant-Insurance Company submitted that

the appellant is not liable to make payment of compensation to

the claimant-respondent for the reason that the vehicle in

question was insured under an 'Act Only' Policy and as per the

terms and conditions of the policy and also as per the

endorsement of IMT Nos.47 and 40, the premium of 2WC

Employees i.e. Rs.50/- was taken.

Counsel for the appellant further submitted that in the claim

petition the claimants-respondents themselves have mentioned

that the deceased Ram Singh was working as a Helper Technician

upon the crane, while in the FIR, this status was not mentioned.

Counsel further submitted that perusal of the ITR Ex. 16,

indicates that the deceased Ram Singh was a salaried person

working with M/s Speedline Motors Pvt. Ltd., hence, the Insurance

Company is not liable to make the payment of compensation as no

premium was taken.

In this regard, he further submitted that bare perusal of the

Insurance Policy indicates that this policy covers IMT

endorsements No.47 and 40 and as per IMT endorsement No.40,

the legal liability to pay is confined to driver/conductor

and/cleaner employed in connection with the operation of motor

vehicle. So, the Tribunal has committed gross illegality in fastening

(4 of 10) [CMA-2709/2013]

liability upon the Insurance Company to make the payment of

compensation to the claimants-respondents.

Per contra, learned counsel for respondent No.6 i.e. owner of

the vehicle submitted that the insurance policy i.e. Ex.NA-1 is a

comprehensive policy and it covers the liability of the Insurance

Company to make payment of compensation for the death of

helper technician. He further submitted that in the reply, it was

specifically mentioned that the deceased was working as a Helper

Technician on the crane, belonging to respondent No.6. And, the

term Helper Technician is also covered in the IMT endorsement

No.40 and the Tribunal has not committed any illegality in

fastening liability upon the Insurance Company to make the

payment of compensation to the claimant-respondents.

Learned counsel for respondent No.6 further submitted that

as per Section 2dd of the Employees Compensation Act, 1923 (for

short 'the Act of 1923') the word employee means a person who is

a person recruited as driver, helper, mechanic, cleaner or in any

other capacity in connection with the motor vehicle.

In rebuttal, learned counsel for the appellant-Insurance

Company submitted that amendment in Section 2dd (II)(C) was

made by the way of substitution by Act of 45 of 2009 and the

same came into force w.e.f. 18.01.2010, while the accident was

occurred on 20.12.2008, hence, the amendment to Section 2dd

(II)(C) is not having any retrospective application in the present

case.

Learned counsel for the claimants-respondents also opposed

the arguments raised by counsel for the Insurance Company, but

not in a position to controvert the submissions made by counsel

for the Insurance Company.

(5 of 10) [CMA-2709/2013]

Heard. Considered the arguments of both sides.

Bare perusal of the Insurance Policy (Ex. NA-1) clearly

indicates that this policy was an 'Act Only' Policy and the premium

of 2WC Employees was taken and as per the IMT Endorsement, it

covers the liability of the Insurance Company to the extent of the

endorsement Nos.47 and 40. IMT No.40 deals with the legal

liability to pay the driver and/conductor and or cleaner employed

in connection with the operation of motor vehicle.

From a bare perusal of the IMT No.40, it is clear that the

liability is confined to driver and/conductor and or cleaner, who are

employed in connection with operation of motor vehicle.

Here in the instant case, this is not the case of the

claimants-respondents that the deceased was working in the

capacity of driver and/conductor and or cleaner of the vehicle

belonged to respondent No.6.

In the claim petition, the claimants-respondents have

mentioned the status of the deceased as Helper Technician

working with the owner of the vehicle i.e. respondent No.6, but

perusal of the Income Tax Returns submitted by the claimants-

respondents shows that the status of the deceased was mentioned

as a salaried person working with M/s Speedline Motors Pvt. Ltd.

So, the claimants themselves have nowhere stated that the

deceased was working as a Helper Technician. There is conflicting

versions of the claimants and the respondent No.6 about the

status of the deceased.

Be that it as may, in any case the status of the deceased was

not mentioned that he was working in the capacity of the driver

and/conductor and or cleaner employed in connection with the

operation of the motor vehicle.

(6 of 10) [CMA-2709/2013]

So far as, the contention raised by counsel for respondent

No.6 with regard to Amendment of Section 2 of the Act of 1923 is

concerned, the same came into force w.e.f. 18.01.2010 and the

accident was occurred on 20.12.2008 and the legislature has not

made this amendment applicable with retrospective effect, hence,

the Tribunal has committed an error in not accepting the

contentions put forth by counsel for the Insurance Company.

So, the findings recorded on issue No.3 is modified with a

direction to the Insurance Company to make the payment of

compensation to the claimants-respondents and recover the same

from the owner of the vehicle.

With the above observations, the appeal stands disposed of.

In Civil Miscellaneous Appeal No. 1267/2014

Instant appeal has been preferred by the appellants (parents

of the deceased Ram Singh) against the judgment and award

dated 15.07.2013 passed by the Court of Motor Accident Claims

Tribunal, Jaipur Metropolitan, Jaipur in MAC case No.25/2010

whereby an amount of Rs.14,25,775/- was awarded as

compensation on account of death of Ram Singh in an accident

which occurred on 20.12.2008.

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. 14,25,775/- in favour of the

claimants.

Learned counsel for the appellants submits that after death

of the deceased, respondent No.4 Pushp Kanwar has remarried,

hence, she was not entitled to get any amount of compensation.

(7 of 10) [CMA-2709/2013]

He further submits that the age of the deceased was 25 years, but

without any basis, the Tribunal has determined his age as 27

years.

Learned counsel further submits that no amount towards

future prospects has been awarded in the light of the judgment

Hon'ble Supreme Court in the case of National Insurance

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

5157. Learned counsel therefore, prayed that recomputation of

the award in the present case may be done in the light of the

judgment of Hon'ble Supreme Court in the case of Pranay Sethi

(supra).

Per contra, learned counsel for the respondents Insurance

Company and owner of the vehicle opposed the arguments raised

by counsel for the appellant and submitted that the income of the

deceased has already been assessed at the higher side, hence, no

interference is required.

Counsel for the respondents jointly submit that the

respondent No.5 Prahlad Singh was brother of the deceased and in

any case, he cannot be treated as a dependant upon the

deceased, but the Tribunal has lost sight of this fact and by

treating him a dependant on deceased, made 1/4th deduction

towards personal expenses, while the 1/3rd deduction towards

personal expenses should have been made from the income of the

deceased.

Learned counsel for the respondents, however are not in a

position to controvert the submissions with regard to not awarding

future prospects to the claimants.

Learned counsel for respondent No.4/claimant No.1 Smt.

Pushp Kanwar submits that the claim petition was filed

(8 of 10) [CMA-2709/2013]

immediately after death of her husband and if at all she is

remarried, this will not affect her right of getting compensation.

Counsel for respondent No.4 further supported the

contentions raised by counsel for the appellant that amount

towards future prospects has been awarded by the Tribunal

without any valid reason.

I have considered the submissions made at Bar and gone

through the judgment dated 15.07.2013 as well as the other

relevant documents available on record.

Admittedly, the age of the deceased was mentioned as 27

years in the post mortem report and the claimants have not

submitted any documentary evidence in support of their

contentions with regard to the age of deceased. Hence, no

illegality has been committed by the Tribunal while determining

the age of deceased as 27 years.

So far as, the contentions raised by the respondents with

regard to the income of the deceased is concerned, the same has

been determined on the basis of ITRs submitted by the claimants

and there is no reason to disbelieve the same. The Tribunal was

not correct in deducting 1/4th amount towards personal expenses

of the deceased as the respondent No.5 cannot be treated as

dependant on the deceased as he is brother of the deceased.

Hence, 1/3rd deduction towards personal expenses should have

been made while calculating the award. Further, the amount under

the head of future prospects as 40% is required to be added in the

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

Pranay Sethi (supra).

So far as the contention with regard to grant of enhanced

compensation to the wife of the deceased is concerned, she has

(9 of 10) [CMA-2709/2013]

now been remarried and she has not submitted any appeal for

enhancement, hence, she is not entitled to get any amount in the

enhanced compensation.

Thus, the award is recomputed as under:-

Income of deceased as Rs. 1,10,100 X 17 = 18,71,700/- assessed by the Tribunal Add 40 % towards future Rs.18,71,700/- + 7,48,680/-

prospects = 26,20,380/-

Less 1/3rd towards personal = Rs. 26,20,380/- - Rs.8,73,460/- = expenses =Rs.17,46,920/-

Total Compensation towards Rs.17,46,920/- loss of income Loss of income as assessed Rs. 14,03,775/- by the Tribunal Less amount awarded by the Rs. 17,46,920/- - 14,03,775/-

Tribunal                   Rs. 3,43,145/-
Enhanced amount of                 Rs. 3,43,145/-
compensation

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

a further sum of Rs. 3,43,145/-. Insurance company is directed to

pay additional amount of Rs. 3,43,145/- within a period of 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. It is made clear that

the Insurance Company would be at liberty to recover the

enhanced amount from the owner of the vehicle i.e. respondent

No.2.

The learned Tribunal shall disburse Rs.50,000/- in the Joint

Saving Bank Account of the appellants and the balance amount of

the enhanced compensation be invested in any Nationalised Bank

for a period of three years and interest accrued on the deposit

shall be paid to the appellant-claimant on monthly basis.

(10 of 10) [CMA-2709/2013]

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

All pending application(s) stand disposed of.

Record of the Tribunal be sent back forthwith.

Registry is directed to place a copy of this judgment in the

connected matter.

(ANOOP KUMAR DHAND),J

HEENA GANDHI /13-14

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