Heera Singh And Others vs Shiv Sharan And Others
2022 Latest Caselaw 6658 Raj/2

      HIGH COURT OF JUDICATURE FOR RAJASTHAN
                  BENCH AT JAIPUR

          S.B. Civil Miscellaneous Appeal No. 2293/2014

1. Heera Singh son of Sh. Shyochandram
2. Premlata Devi wife of Sh. Hera Singh
3. Ajay Kumar son of Sh. Heera Singh
4. Pradeep Singh, son of Heera Singh
all residents of Village Jetpur, Post Kuhadwas, Tehsil Buhana, at
present   H.   No.D-8-1A,       Khetri      Nagar,       District   Jhunjuhunu,
Rajasthan
                                                     ----Appellants/claimants
                                   Versus
1. Shivsharan Agarwal son of Lt. Sh. Banupratap Agarwal, Block
No.87, Plot No.23, Nehru nagar, East Bhilai, District Durg
Chhatisgarh.
2. Ganshyam Soni son of Sh. Padam Lal Soni, resident of Bajrang
Chowk, Krishna Nagar, Supella, Bihali at present Ram Nagar,
Supella Near Shakuntala School, Supella, Billai District Durg,
Chhatisgarh.
3. The New India Assurance Company Ltd., through Manager,
Nehru Place Tonk Road, Jaipur.
                                          ----Respondents/non-claimants

Connected With S.B. Civil Miscellaneous Appeal No. 1291/2014 New India Assurance Co Ltd, having its registered and head office at 87, Mahatama Gandhi Road, Fort Mumbai and its Regional Office at Nehru Place Tonk Road, Jaipur.

----Appellant Versus

1. Heera Singh son of Sh. Shyochandram

2. Premlata Devi wife of Sh. Hera Singh

3. Ajay Kumar son of Sh. Heera Singh

4. Pradeep Singh, son of Heera Singh all residents of Village Jetpur, Post Kuhadwas, Tehsil Buhana, at present H. No.D-8-1A, Khetri Nagar, District Jhunjuhunu, Rajasthan

5. Shivsharan Agarwal son of Lt. Sh. Banupratap Agarwal, Block No.87, Plot No.23, Nehru nagar, East Bhilai, District Durg Chhatisgarh. (Insured and Owner)

(2 of 7) [CMA-2293/2014]

6. Ganshyam Soni son of Sh. Padam Lal Soni, resident of Bajrang Chowk, Krishna Nagar, Supella, Bihali at present Ram Nagar, Supella Near Shakuntala School, Supella, Billai District Durg, Chhatisgarh. (Driver)

----Respondent

For claimants(s) : Mr. Bhanu Prakash, Advocate For Insurance : Mr. Ram Singh Rathore, Advocate Company For non-claimants : Mr. Ram Sharan Sharma, Advocate

HON'BLE MR. JUSTICE ANOOP KUMAR DHAND

Judgment

14/10/2022

Civil Miscellaneous Appeal No. 2293/2014:-

Heard on application under Section 5 of the Limitation Act for

condonation of delay in filing the appeal.

Application stands allowed for the reasons stated therein.

Delay in filing the appeal is hereby condoned.

With the consent of the parties, the arguments have been

heard, at this stage.

Both these appeals have been submitted against the

judgment and award dated 10.01.2013 passed by the Court of

Motor Accident Claims Tribunal-cum-Additional District Judge,

Khetri, Rajasthan (for short 'the Tribunal') in claim case

No.138/2010, by which the claim petition filed by the claimants

was allowed and the Insurance Company was directed to pay

compensation to the tune of Rs.8,33,016/- to the claimants with

interest @ 6% from the date of filing the claim petition. It has

been further directed that if the amount of compensation not paid

to the claimants within a period of three months, then the

claimants were entitled to get interest @9% per annum.

(3 of 7) [CMA-2293/2014]

Counsel for the Insurance Company submits that instant

case is a case of contributory negligence on the part of the

deceased. He submits that the deceased was negligent in driving

the vehicle and the accident has taken place in the mid of the road

and the Tribunal has seriously erred in deciding issue No.1 by

holding that the accident has occurred due to rash and negligent

driving of respondent No.2. Counsel submits that while assessing

the income of the deceased, the Tribunal has determined the

income of the deceased as Rs.6600/-, while the gross pay of the

deceased at the time of accident was Rs.5871/-.

Counsel submits that the accident occurred on 25.09.2010

and the pay slip (Ex.46) for the month of September, 2010 of the

deceased indicates that his salary was Rs.5871/- per month. He

submits that the income of the deceased has been assessed on

higher side. He further submits that the deceased was a trainee

officer, even then the future prospects to the tune of 50% has

been awarded, while the deceased was not holding a permanent

job, so, the claimants are entitled to get future prospects to the

tune of 40% only. He prayed that under these circumstances, the

interference of this Court is warranted.

On the other hand, learned counsel for the claimants as well

as the counsel for the driver and owner opposed the arguments

raised by counsel for the Insurance Company.

Counsel for the claimants submits that the accident has

occurred at the place A, which is extreme left side of the road and

the driver i.e. respondent No. 2 was driving the offending vehicle

in a rash and negligent manner, who caused the accident and

thereafter, took the deceased and his vehicle to the place (Marked

(4 of 7) [CMA-2293/2014]

B) i.e. 10 feet away from the place of accident. While deciding

issue No.1, the Tribunal has held that the accident has occurred

solely because of negligent driving of respondent No.2. He submits

that the deceased was appointed on the post of Attendant-cum-

Technician at Steel Authority of India Limited at Bhilai and at the

time of his accident, his monthly salary was rs.6600/- per month.

Out of which, he was getting Rs.5871/- per month in hand and

rest of the amount was deducted under various heads by the

department and as the Steel Authority of India Limited is a

Government of India Undertaking, the Tribunal has rightly

considered the deceased as a permanent salaried person and has

rightly granted future prospects to the tune of 50%.

He further submits that at the time of accident, the deceased

was 27 years of age but the Tribunal was not right in applying the

multiplier of 13 looking to the average age of the parents of the

deceased. He submits that in the light of the judgment of Hon'ble

Supreme Court in the case of National Insurance Company

Ltd. Vs. Pranay Sethi reported in AIR 2017 SC 5157, the

multiplier of 17 should have been applied. Learned counsel

therefore prayed that under these circumstances, the impugned

award passed by the Tribunal is liable to be modified in the light of

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

Sethi (supra).

Heard the rival submissions of counsel for the parties and

perused the record.

This fact is not in dispute that the accident occurred on

25.09.2010. Perusal of the site plan Ex.7 indicates that, Mark A is

the place where the accident has occurred, which is the extreme

left side of the road and by driving the vehicle in a rash and

(5 of 7) [CMA-2293/2014]

negligent manner, the respondent No.2 (driver) has caused the

accident and thereafter, he took the deceased and his vehicle 10

feet away from the place of accident. Hence, the Tribunal has not

committed an error while deciding issue No.1 by holding that the

accident has occurred because of rash and negligent driving of

respondent No.2.

Perusal of the pay slips of the deceased, which are available

on record shows that the basis salary of the deceased was

Rs.6600/- per month and after making all necessary deductions

from the salary, net pay of Rs.4720/- was paid to the deceased by

the department at the time of his accident. Since the deceased

was working as a trainee on the post of Attendant-cum-Technician

with Steel Authority of India Ltd. at Bhilai, hence, his services

cannot be treated as self-employed and the Tribunal has not

committed an error in considering his income as Rs.6600/- per

month and by treating his services as permanent.

But the Tribunal was not right in applying the multiplier of

13, looking to the average age of parents of the deceased, while

the deceased was 27 years of age at the time of accident and

multiplier of 17 is required to be applied in view of the judgment

delivered in the case of Pranay Sethi (supra).

Thus, the award is recomputed as under:-

Annual income including future Rs.59,400/-

prospects   50%      and after
deducing personal expenses as
assessed by the tribunal

                                         =Rs.10,09,800/-

Loss of income as determined Rs.7,77,200/- by the tribunal Enhanced amount of Rs. 10,09,800/- -Rs.7,77,200/-

compensation                            =Rs.2,32,600/-


                                            (6 of 7)                     [CMA-2293/2014]

Hence, in view of the discussions made hereinabove, the

appeal filed by the claimants is partly allowed and the claimants

would be entitled to get a further sum of Rs.2,32,600/-.

While passing the award, the Tribunal has directed the

Insurance Company, in case the amount of compensation is not

paid to the claimants within a period of three months, then the

claimants would be entitled to get 9% interest from the date of

filing the petition.

Since, this appeal has been filed by the Insurance Company

within the statutory period of limitation, hence, the Insurance

Company cannot be made liable to pay interest @9%. It is made

clear that the amount of compensation be paid to claimants with

interest @6%. The enhanced amount also shall carry interest @

6% from the date of filing the claim petition till the actual

payment is made.

The appeal filed by the Insurance company is also partly

allowed.

The Insurance Company is directed to pay additional amount

of Rs.2,32,600/- within a period of two months from the date of

receipt of certified copy of this order. The enhanced amount shall

carry interest @ 6% from the date of filing the claim petition till

the actual payment is made.

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

Saving Bank Account of the claimants and the balance amount of

the enhanced compensation be invested in FDRs in any

Nationalised Bank for a period of three years and the interest

accrued on the deposit shall be paid to the claimants on monthly

basis.

(7 of 7) [CMA-2293/2014]

Both the appeals stand disposed of in the above terms.

All pending application(s) stand disposed of.

Record of the Tribunal be sent back forthwith.

(ANOOP KUMAR DHAND),J

HEENA GANDHI /42-43

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