The New India Assurance Company ... vs Rajni W/O Late Roop Singh
2022 Latest Caselaw 6426 Raj/2

      HIGH COURT OF JUDICATURE FOR RAJASTHAN
                  BENCH AT JAIPUR

         S.B. Civil Miscellaneous Appeal No. 2187/2019

The   New   India        Assurance       Company          Limited,     having     its
Registered & Head Office at 87, Mahatma Gandhi Road, Fort,
Mumbai-400001 and having its Regional Office at Second Floor,
South Block, Nehru Place, Tonk Road, Jaipur through its
Constituent Attorney
                                                                     ----Appellant
                                    Versus
1.    Rajni W/o Late Roop Singh, Aged About 31 Years,
      Resident Of Village-Hingota, Tehsil Baseri At Present Bai
      Ka Bag, Tehsil, Bari, District Dholpur Rajasthan
2.    Jyoti D/o Late Roop Singh, Aged About 10 Years,
      Resident Of Village-Hingota, Tehsil Baseri At Present Bai
      Ka Bag, Tehsil, Bari, District Dholpur Rajasthan
3.    Deeksha D/o Late Roop Singh, Aged About 8 Years,
      Resident Of Village-Hingota, Tehsil Baseri At Present Bai
      Ka Bag, Tehsil, Bari, District Dholpur Rajasthan
4.    Vivek S/o Late Roop Singh, Aged About 6 Years, Resident
      Of Village-Hingota, Tehsil Baseri At Present Bai Ka Bag,
      Tehsil, Bari, District Dholpur Rajasthan
5.    Anuradha D/o Late Roop Singh, Aged About 4 Years And 6
      Months, Resident Of Village-Hingota, Tehsil Baseri At
      Present      Bai    Ka    Bag,      Tehsil,      Bari,     District    Dholpur
      Rajasthan
6.    Dheeraj S/o Late Roop Singh, Aged About 3 Years 2
      Months,       Resident Of Village-Hingota, Tehsil Baseri At
      Present      Bai    Ka    Bag,      Tehsil,      Bari,     District    Dholpur
      Rajasthan
7.    Mankaur W/o Late Patiram, Aged About 70 Years,
      Resident Of Village-Hingota, Tehsil Baseri At Present Bai
      Ka    Bag,     Tehsil,      Bari,      District       Dholpur         Rajasthan
      (Claimants No. 2 To 6 Are Under Guardianship Of Mother
      Rajni)
8.    Veeri Singh S/o Tulua, Resident Of Gopalpura, Muraina,
      At Present Village Vidarpur, Tehsil Bari District Dholpur
      Rajasthan (Owner)
                                                                 ----Respondents

                                         (2 of 5)                   [CMA-2187/2019]


                             Connected With

S.B. Civil Miscellaneous Appeal No. 2224/2019 The New India Assurance Company Limited, Having Its Registered And Head Office At 87, Mahatma Gandhi Road, Fort Mumbai-400001 And Having Its Regional Office At Second Floor, South Block, Nehru Place, Tonk Road, Jaipur Through Its Constituent Attorney

----Appellant Versus

1. Kamla W/o Shivram, Aged About 41 Years, Resident Of Vilage, Hingota,tehsil Baseri, At Present Bai Ka Bag, Tehsil Bari District Dholpur Rajasthan

2. Veeri Singh S/o Tulua, Resident Of Gopalpur, Muraina, At Present Village, Vidarpur, Tehsil Bari, District Dholpur Rajasthan (Owner)

----Respondents

For Appellant(s) : Mr. Sanjay Singhal for Insurance Company For Respondent(s) : Mr. D.K. Garg Mr. Deepak Sharma for Mr. M.K. Kaushik

HON'BLE MR. JUSTICE ANOOP KUMAR DHAND

Judgment

29/09/2022

Both the misc. appeals arise out of common judgment

and award passed by the Motor Accident Claims Tribunal, Dholpur

(for short 'the tribunal'), hence same are being decided together

by a common judgment.

Both the misc. appeals have been filed by the appellant

Insurance Company against the impugned judgment and award

dated 18.2.2019 passed by the tribunal, by which the claim

petitions filed by the claimants were allowed and the appellant-

(3 of 5) [CMA-2187/2019]

Insurance Company has been directed to pay compensation

determined by the tribunal.

Counsel for the appellant- Insurance Company submits

that there was contributory negligence on the part of the deceased

and to prove this fact, statement of the driver of the offending

vehicle i.e. NAW1-Sharif was recorded, who has categorically

stated in his statement that he after parking the vehicle on the

road side, went to discharge the call of nature and in the

meantime, the deceased came on a motor-cycle and dashed into

the vehicle. Counsel submits that the tribunal has discarded the

testimony of this witness for the reason that after investigation,

charge-sheet was submitted against him and the statements of

eye-witnesses namely; AW1-Rajni and AW2- Kamla were

recorded. Counsel submits that without recording any cogent

finding, the tribunal has decided the issue No.1 against the

appellant-Insurance Company. Counsel submits that under the

conventional heads etc., an amount of Rs.3,10,000/- has been

awarded in favour of the claimants. Counsel submits that in view

of the judgment delivered by the Hon'ble Apex Court in the case of

National Insurance Company Limited v. Pranay Sethi,

reported in AIR 2017 SC 5157, the claimants were entitled to

get in lump-sum an amount of Rs.70,000/-. Thus, interference of

this Court is warranted in the impugned judgment and award.

Learned counsel for the claimants opposed the

arguments advanced by the counsel for the appellant Insurance

Company and submits that while deciding the issue No.1, the

tribunal has taken into consideration the statements of the eye-

witnesses namely; AW1 Rajni and AW2 Rajni, who were present

on the spot when the accident occurred. Counsel submits that

(4 of 5) [CMA-2187/2019]

after the aforesaid accident, an FIR was registered against the

driver of the offending vehicle i.e. Sharif. Counsel submits that

even during the course of investigation, the police recorded the

statements of these witnesses under section 161 CrPC. So, there

is no reason to discard their testimony against the statement of

the driver of the offending vehicle. Counsel submits that the driver

of the offending vehicle is an accused in a criminal case in which

charge-sheet was submitted against him, so the defence taken by

him cannot be appreciated by this Court. Counsel submits that all

these facts were considered by the tribunal while deciding the

claim petitions. Hence, no interference of this court is warranted in

the impugned judgment and award.

Heard.

Considered the rival submissions and perused the

impugned judgment and award passed by the tribunal and also

the material available on the record.

This fact is not in dispute that the accident occurred on

7.6.2017 and the deceased sustained injuries and died on account

of the said injuries. In connection with the above incident, an FIR

was registered against the driver of the offending vehicle for the

offence under Sections 279 and 304A IPC and during the course of

investigation, statements of AW1-Rajni and AW2 Kamla were

recorded in which they themselves have claimed to be eye-

witnesses of the occurrence and on the basis of the same, charge-

sheet was submitted against the driver for the aforesaid offences.

The tribunal has taken into consideration the statements of these

witnesses and decided the issue No.1 by holding that it was a case

of rash and negligent driving of the offending vehicle and it was

not a case of contributory negligence on the part of the deceased.

(5 of 5) [CMA-2187/2019]

I find force in the contentions of the counsel for the

appellant- Insurance Company that an exorbitant amount of

Rs.2,80,000/- + Rs.30,000/- has been awarded in favour of the

claimants under the heads i.e. loss of consortium. As per the

Judgment of Pranay Sethi (supra), the claimants were entitled to

get a lump-sum amount of Rs.70,000/- only. Counsel for the

respondents/ claimants have not disputed the above settled

proposition of law as held by the Hon'ble Apex Court in the matter

of Pranay Sethi (supra). Thus, the misc. appeal No.2187/2019,

filed by the appellant Insurance Company stands partly allowed

and a sum of Rs.2,40,000/- (Rs. 3,10,000 - Rs. 70,000/-) is

reduced from the award amount i.e. Rs.66,86,700/- passed by the

tribunal. The tribunal is directed to refund an amount of

Rs.2,40,000/- to the appellant-Insurance Company along-with

interest within a period of two months from the date of receipt a

certified copy of this judgment.

The Misc. appeal No.2224/2019 filed by the appellant-

Insurance Company is dismissed.

The stay applications and all pending application/s, if

any also stand dismissed.

A copy of this judgment be placed in the connected

case file.

Registry is directed to send back the record of the case

to the concerned tribunal forthwith.

(ANOOP KUMAR DHAND),J

Sharma NK/33-34

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