Rajasthan High Court - Jodhpur

Bhanwari Devi And Ors vs Nationalins. Co. And Ors on 10 April, 2023

Bench: Kuldeep Mathur

[2023/RJJD/009005]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Misc. Appeal No. 307/2003

1. Bhanwari Devi W/o Late Gangadhar.

2. Nuna Ram S/o Goruram.

3. Smt. Nanu Devi W/o Nuna Ram.

4. Jora Ram S/o Nuna Ram.

All by caste Jat, residents of Village Lunchh, Tehsil Ratangarh, District Churu.

----Appellants Versus

1. National Insurance Company Ltd., 8390, Roshanoma Road, through its Branch Manager, Panch Shati Circle, Sardulganj, Bikaner and Divisional Office at Residency Road, Jodhpur.

2. Harendra Singh S/o Shri Vajir Singh, R/o E-224, Tagore Garden, New Delhi.

3. Angrej S/o Hariya by caste Manas (Choudhary) R/o Chabaria Police Station, Chabaria, District Chamba (H.P.).

                                                                 ----Respondents


For Appellant(s)           :    Mr. Ayush Gehlot
For Respondent(s)          :    Mr. Lalit Parihar



            HON'BLE MR. JUSTICE KULDEEP MATHUR

                                 Judgment

10/04/2023

The present misc. appeal has been filed under Section 173 of

the Motor Vehicles Act, 1988 against the judgment and award

dated 03.08.2002 passed by the learned Judge, Motor Accident

Claims Tribunal, Ratangarh (hereinafter referred to, 'the Tribunal')

in Civil Misc. Claim No.77/1998 whereby the Tribunal partly

allowed the claim petition and awarded Rs.3,98,000/- as

compensation to the appellants/claimants and exonerated the

respondent-Insurance Company from its liability.

[2023/RJJD/009005] (2 of 8) [CMA-307/2003]

The appellants/claimants being aggrieved and dissatisfied

with the compensation awarded to them by the Tribunal vide its

judgment and award dated 03.08.2002 have preferred the present

misc. appeal praying for enhancement of the compensation

amount.

Briefly stated facts of the case are that appellant No.1 is wife

of deceased-Gangadhar Choudhary whereas appellant Nos.2 and 3

are mother and brother of deceased-Gangadhar Choudhary. In the

claim petition preferred before the Tribunal, it was pleaded that on

27.09.1998, the deceased-Gangadhar Choudhary, aged about 23

years was hit by a tanker bearing No.DL-1G-0396, which was

being driven rashly and negligently by one Shri Angrej son of

Hariya. It was further pleaded in the claim petition that in the road

accident which occurred on 27.09.1998, deceased-Gangadhar

Choudhary died on the spot. As per the claim petition, the

deceased was a young and healthy person and used to earn

Rs.4,000/- per month. The appellants/claimants in the claim

application filed under Section 166 of the Motor Vehicles Act,

prayed that compensation to the tune of Rs.31,72,000/- may be

awarded in their favour.

The Insurance Company in its reply before the Tribunal

pleaded that at the time of unfortunate accident in which

deceased-Gangadhar Choudhary died, the tanker No.DL-1G-0396

was being driven rashly and negligently by the driver (Angrej S/o

of Hariya) without having a valid and effective driving license. The

Insurance Company pleaded that since there was fundamental

breach of the terms and conditions of the insurance policy in

question, the claim made by appellants/claimants was not

[2023/RJJD/009005] (3 of 8) [CMA-307/2003]

payable. It was further pleaded that at the time of accident, driver

of the tanker was not driving the vehicle in connection with his

employment under respondent No.2 i.e. Harender Singh-owner of

the vehicle.

It is apposite to note here that the driver of the offending

vehicle (Angrej Singh) and owner (Harinder Singh) did not appear

before learned Tribunal thus, learned Tribunal vide order dated

03.11.1999 initiated ex-parte proceedings against them.

After hearing the parties, the Tribunal came to the conclusion

that the accident occurred on account of rash and negligent

driving by the driver of the tanker but the Insurance Company has

successfully proved that the driver was not having valid license

and thus, it was not liable for the payment of compensation as

claimed by the appellants/claimants. The Tribunal vide its

judgment and award dated 03.08.2002 while absolving Insurance

Company from the liability to pay compensation to

appellants/claimants, held the owner and driver of tanker No.DL-

1G-0396 jointly and severally liable for the compensation to the

tune of Rs.3,48,000/- in favour of the appellants/claimants.

Learned counsel for the appellants/claimants submitted that

the impugned judgment and award suffers from gross illegality as

the Tribunal failed to take into consideration the correct monthly

income of the deceased. It was further submitted that the

component of rise in income of the deceased-Gangadhar

Choudhary by future prospects while evaluating the compensation

awarded to the claimants has not been taken into consideration by

the Tribunal. Learned counsel placed reliance on the judgment of

Hon'ble the Supreme Court in the case of National Insurance

[2023/RJJD/009005] (4 of 8) [CMA-307/2003]

Company Limited Vs. Pranay Sethi & Ors. reported in (2017)

AIR (SC) 5157.

Lastly, it was argued that the principle of 'pay and recover'

will apply and compensation awarded has to be paid by the

Insurance Company who may recover it later. To strengthen the

argument, judgment of Parminder Singh Vs. New India

Assurance Company Limited & Ors. reported in (2019) 7 SCC

217 was cited before the Court.

Per contra, learned counsel for the Insurance Company

submitted that the Tribunal after thorough examination of the

evidence and documents placed before it, had recorded a finding

of fact that at the time of accident, the driver was not having a

valid license. Learned counsel submitted that when it is

established that the driver was not having a valid license, no

liability to pay compensation could be fastened upon the

Insurance Company and thus, the Tribunal vide its judgment and

award dated 03.08.2002 had rightly absolved the respondent-

Insurance Company from the liability to pay compensation.

Learned counsel submitted that the principle of 'pay and recover'

will not apply in the facts and circumstances of the present case.

Lastly, it was submitted that the judgment and award passed by

the Tribunal is just and proper and the same does not call for any

interference.

Heard learned counsel for the parties and perused the

material available on record.

The Hon'ble Supreme Court in the case of Parminder

Singh (supra) has held as under:-

7. On the issue of liability to pay the compensation awarded, we affirm the view taken by the High Court that

[2023/RJJD/009005] (5 of 8) [CMA-307/2003]

the Respondent - Insurance Company is absolved of the liability to bear the compensation, as evidence has been produced from the office of the Regional Transport Office to prove that the drivers of the two offending trucks were driving on the basis of invalid driving licenses. It is also relevant to note that the owners and drivers of the offending trucks have not appeared at any stage of the proceedings, including this Court.

7.1. This Court in Shamanna & Ors. v. The Divisional Manager, The Oriental Insurance Co. Ltd. & Ors., held that if the driver of the offending vehicle does not possess a valid driving license, the principle of 'pay and recovery' can be ordered to direct the insurance company to the pay the victim, and then recovery the amount from the owner of the offending vehicle.

7.2. We deem it just and fair to direct the Respondent - Insurance Company to pay the enhanced amount of compensation as indicated in Para. 6 above, to the Appellant within a period of 12 weeks from the date of this judgment. The Respondent - Insurance Company is directed to make out a Demand Draft in the name of the Appellant, which can be used for his care for the rest of his life. The Respondent - Insurance Company is entitled to recovery the amount from the owners and drivers of the two offending trucks.

8. The Civil Appeal is allowed in the aforesaid terms. All pending Applications, if any, are accordingly disposed of. Ordered accordingly."

Similarly, Hon'ble the Supreme Court in the case of

Shamanna & Ors. Vs. The Divisional Manager, the Oriental

Insurance Company Limited & Ors. reported in (2018) 9 SCC

650 held that if the driver of the offending vehicle does not

possess a valid driving license, the principle of 'pay and recover'

can be ordered to direct the Insurance Company to pay the victim

and then recover the same from the owner of the offending

vehicle.

This Court while dealing with a similar eventuality in the case

of Baksha Ram vs. Ladu Singh and Ors. (S.B. C.M.A.

No.626/2002), decided on 16.09.2019, held that the principle of

'pay and recover' is applicable in the cases where the driver of the

vehicle is not in possession of a valid driving license.

[2023/RJJD/009005] (6 of 8) [CMA-307/2003]

In the present case, the issues of accident and of raising the

liability had been decided by the Tribunal after taking into

consideration all the evidence on record and the same have not

been assailed before this Court by any of the respondents.

The Hon'ble Apex Court and this Court in the above cited

judgments have clearly laid down that even if a driver of the

vehicle does not possess a valid license, the Insurance company

has to be liable to pay and then recover amount from the owner of

the vehicle. The principle of 'pay and recover' is thus, fully

applicable in the present case.

It is evident from the record of the case that no documentary

evidence was produced by the appellants/claimants to prove the

monthly income of the deceased to be ₹4000 per month. It is a

settled law that in the absence of positive documentary evidence

or salary certificate, the minimum wages notification should

generally be applied as a yardstick to determine the income of the

deceased.

In the considered opinion of this Court, the Tribunal rightly

determined the monthly income of the deceased to be Rs.2,100/-

per month by keeping in view the notifications prescribing

minimum wages, issued by the Government from time to time.

The compensation awarded by the Tribunal by applying minimum

wages prevalent at the relevant time i.e. Rs.70 per day in favour

of the appellants/claimants does not suffer from any infirmity

whatsoever.

In the case of Pranay Sethi (supra), Hon'ble the Supreme

Court was pleased to hold that if the deceased was self-employed

or a person on a fixed salary and his age is between 21-25 years,

[2023/RJJD/009005] (7 of 8) [CMA-307/2003]

then the multiplier of 18 should be applied in respect of claims

filed under Motor Vehicles Act and the future prospects would be

paid to the tune of 50% of the established income. The amounts

awarded on account of other heads are also required to be

changed and the amount of compensation in the present case is

required to be computed as under:-

S.No.                             Heads                                    Amount (Rs.)
  1.    Monthly Income                                                2,100/-
  2.    40% of the actual income as adjustment for future             840/-
        prospects.
  3.    Monthly income + 40% for future prospects                     2,940/-
  4.    1/4 of income as deduction towards personal expenses          (735/-)

5. Annual Income after deduction towards personal expenses 2,205 x 12= 26,460/-

  6.    Age multiplier                                                26,460 x18 =4,76,280/-
  7.    Conventional heads namely Funeral Charges, Loss of            70,000/-
        consortium and Loss of Estate
  8.    Total Compensation                                            5,46,280/-
  9.    Amount awarded by the Tribunal                                3,98,000/-
 10.    Enhanced amount                                               1,48,280/-

In light of the above observations and considering the

tabular computation, the appeal is allowed in part. The total motor

accident compensation of Rs.3,98,000/- awarded by the learned

Tribunal to the claimants/appellants is increased by Rs.1,48,280/-

to reach a new total of Rs.5,46,280/-. The enhanced amount of

compensation shall be paid within two months along with interest

@ 6% p.a. from the date of filing of claim petition. The proportion

and disbursement shall remain same as ordered by the learned

Tribunal and the amount of compensation is modified to the above

extent.

[2023/RJJD/009005] (8 of 8) [CMA-307/2003]

However, the 'pay and recover' principle shall apply, the