United India Insurance Co. Ltd vs Maina
2022 Latest Caselaw 7404 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Misc. Appeal No. 549/2021

United India Insurance Co. Ltd., Through Its Manager (Legal Hub) Bhati Plaza Building Pal Road Jodhpur.

----Appellant Versus Respondent / Claimants

1. Maina W/o Paras Mal, Aged About 33 Years, By Caste Prajapat R/o 592, Shiv Colony Pali, District Pali (Rajasthan)

2. Hitesh S/o Late Paras Mal, Aged About 11 Years, By Caste Prajapat R/o 592, Shiv Colony Pali, District Pali (Rajasthan)

3. Gayatri D/o Late Paras Mal, Aged About 8 Years, By Caste Prajapat R/o 592, Shiv Colony Pali, District Pali (Rajasthan)

4. Choutha Ram S/o Bhanwar Lal, Aged About 55 Years, By Caste Prajapat R/o Dhakadi, Tehsil Sojat, District Pali (Raj).

5. Smt. Gawari W/o Choutha Ram, Aged About 50 Years, By Caste Prajapat R/o Dhakadi, Tehsil Sojat, District Pali (Raj). Respondent No.2 And 3 Being Minor So Represented Through Their Natural Guardian Respondent No.1 Smt. Maina Prajapat

Respondent / Non-Claimants

6. Shanker Lal S/o Jora Ram, Aged About 33 Years, By Cast Vishnoi R/o Gadari (Malio Ka Bera) Police Thana Bhopalgarh District Jodhpur (Raj)

7. Kamaljeet Singh Kheda S/o Harbansh Singh Kheda, By Caste Sikh R/o 55B Suraj Pole Behind Gurudwara Pali Marwar District Pali (Raj)

----Respondents Connected With S.B. Civil Misc. Appeal No. 678/2021

1. Maina Prajapat W/o Paras Mal, Aged About 37 Years, Dhakri, Tehsil Sojat, Dis. Pali

2. Hitesh S/o Paras Mal, Aged About 36 Years, Dhakri, Tehsil

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Sojat, Dis. Pali

3. Gayatri D/o Paras Mal, Aged About 12 Years, Dhakri, Tehsil Sojat, Dis. Pali

4. Choutha Ram S/o Bhanwar Lal, Aged About 59 Years, Dhakri, Tehsil Sojat, Dis. Pali

5. Ganwari W/o Choutha Ram, Aged About 54 Years, Dhakri, Tehsil Sojat, Dis. Pali

----Appellants Versus

1. Shankar Lal S/o Jora Ram, Gaderi (Maliyon Ka Bera) Police Station Bhopalgarh, Dis. Jodhpur

2. Kamaljeet Singh Khera S/o Harbans Singh Khera, 55-B, Surajpole, Behind Gurudwara, Pali Marwar, Dis. Pali

3. The United India Insurance Company Limited, Bhati N.

Plaza, Main Pal Road, Jodhpur Through Local Office The United India Insurance Company Limited, Mandiya Road, L.i.c. Building, Pali Dis. Pali

----Respondents

For Appellant(s) : Mr. N.K. Joshi for Insurance Company For Respondent(s) : Mr. Ravi Panwar, for claimants

HON'BLE MR. JUSTICE RAMESHWAR VYAS

Order

18/05/2022

Two appeals have been preferred under Section 173 of

Motor Vehicles Act, 1988 challenging the award dated 27.1.2021

passed by the Motor Accident Claims Tribunal, Pali in MACT Case

No.230/2017, whereby the learned Tribunal while allowing the

claim petition of the claimants, awarded Rs. 12,04,000/- as

compensation with interest @ 9% per annum.

Appeal No. 549/2021 has been filed by the non-

claimant - Insurance Company with the prayer to set aside the

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award and exonerate it from the liability imposed by the learned

Tribunal, whereas, Appeal No. 678/2021 has been filed by the

claimants for enhancement of the quantum of the award passed

by the learned Tribunal.

Since both the appeals arise out of the same award

passed by the Motor Accident Claims Tribunal, Pali, they are being

decided by this common order.

Brief facts of the case are as under:

As per the claim petition filed by the legal

representatives of the deceased Parasmal, who died on 5.5.2017

at about 1:00 PM while engaging in work of unloading pipes being

carried out by Hydro Crane driven by the driver Shanker Lal -

non-claimant No.1. It is averred in the claim petition that driver of

the Crane committed negligence while unloading the pipes on

account of which upper portion of the pipe came in contact with

the electric lines. The deceased was holding the lower portion of

the pipes who was electrocuted. He died during the treatment in

the hospital. Claimants who are wife and three minor children and

mother of the deceased, filed claim petition against the driver of

the Crane as also against registered owner of the Crane and

insurer of the Crane i.e. United India Insurance Company.

As per reply of non-claimants, accident occurred on

account of negligence of Parasmal himself.

In reply, Insurance Company stated that the deceased

was employee of Contractor Vishnu Muglia, who avoided liability

with the connivance of police. FIR has been lodged after

manipulating the facts by which Crane driver and registered owner

were falsely involved. Crane was not involved in this accident. The

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deceased died on account of rolling of big pipes upon him. In

alternate, pleading of infringement of policy conditions was also

taken. The insurance company admitted the fact that this Crane

was insured with him for the period from 20.12.2016 to

19.12.2017.

Learned Tribunal after making inquiry, allowed the claim

petition and awarded Rs. 12,04,000/- with interest @ 9% per

annum for which all non-claimants were held responsible jointly

and severely. Learned counsel for the appellants has also drawn

attention of this Court towards the India Motor Tariff, 47 (here-in-

afterwards referred to as 'IMT-47').

Heard the learned counsel for the parties finally at

admission stage and perused the material available on record.

During the arguments, learned counsel for the

appellant submits that the deceased was employee of respondent

no.1 Kamaljeet Singh Khera. He died during the course of his

employment. Since deceased was not a third party, the insurance

company was not liable to indemnify the owner.

On the other hand, learned counsel for the respondent

has submitted that the deceased was not occupant in the vehicle.

He was also not in the employment of Kamaljeet Singh Khera. He

comes within the category of third party and the insurance

company of the insured Crane has been rightly held liable to pay

the compensation.

After perusal of the record, it reveals that in reply to

the claim petition, the insurance company has not raised any

objection regarding the deceased not coming in the category of

third party. In appeal memo also, this ground has not been taken

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as ground of appeal. In view of above facts, the appellant is not

permitted to raise this contention first time in this appeal.

Whether the deceased was a third party or not,

depends upon the fact that at the time of accident he was working

as an employee of the insured or not. Since, the insurance

company itself in its reply to the claim petition averred that the

deceased was labourer under Contractor Vishnu Muglia. Looking to

the defence raised by the insurance company, the contention

raised by it in this appeal cannot be termed as pure question of

law. Hence, this Court is unable to accept the contention of the

learned counsel for the appellant that the deceased was not a

third party.

Learned counsel for the appellant further submits that

the cause of death of deceased was electrocution, hence,

Electricity Board should have been made party. This contention of

the learned counsel for the appellant is also not acceptable. The

genesis of the accident was negligence on the part of the driver of

Hydro Crane. While unloading the pipes, the pipes came in contact

with the electricity wires due to which the deceased who was

facilitating the unloading of pipes came in touch of the pipes and

got electrocuted.

There is no substance in other grounds raised by the

learned counsel for the appellant in the memo of appeal.

Learned Tribunal after appreciating the evidence

determined the amount of compensation, which is just and fair.

Hence, the appeal filed by the Insurance Company is liable to be

dismissed.

Regarding appeal filed by the claimants for

enhancement of the quantum of compensation, the impugned

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judgment has been based on the evidence produced by the

parties. Learned Tribunal has awarded loss of consortium following

the law enunciated by Large Bench of the Hon'ble Supreme Court

in the case of National Insurance Company vs. Pranay Sethi

& Ors. : AIR 19 2017 SC 5157, which does not calls for any

interference. The quantum of compensation awarded by the

learned Tribunal as compensation is just and fair. There is no merit

in the appeal of the claimants, and the same is also liable to be

dismissed.

Accordingly, both the appeals being devoid of merit

stand dismissed.

(RAMESHWAR VYAS),J 22-Mak/-

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