Rajasthan High Court - Jodhpur

Smt. Pani Devi @ Panki And Ors vs Mool Ram And Ors on 10 April, 2023

Bench: Kuldeep Mathur

[2023/RJJD/009008]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Misc. Appeal No. 354/2003 National Insurance Company Limited, Bapu Bazar, Udaipur through Senior Divisional Manager, National Insurance Company Limited, Residency Road, Jodhpur ----Appellant

Versus

1. Smt. Pani Devi @ Panki w/o Late Shri Govind Ram. by caste Meghwal, resident of village Rohichakalla. Tehsil Luni, District Jodhpur.

2. Prakash s/o Shri Govind Ram, minor, through natural guardian mother Smt. Pani Devi @ Panki w/o Late Shri Govind Ram, by caste Meghwal, resident of village Rohichakalla, Tehsil Luni, District Jodhpur.

3. Manju d/o Shri Govind Ram, minor, through natural guardian mother Smt. Pani Devi @ Panki w/o Late Shri Govind Ram, by caste Meghwal, resident of village Rohichakalla, Tehsil Luni, District Jodhpur.

4. Papparam s/o Shri Govind Ram, minor, through natural guardian mother Smt. Pani Devi @ Panki w/o Late Shri Govind Ram, by caste Meghwal, resident of village Rohichakalla, Tehsil Luni, District Jodhpur..

5. Hemaran s/o Shri Govind Ram, minor, through natural guardian mother Sat. Pani Devi @ Panki w/o Late Shri Govind Raw, by caste Meghwal, resident of Village Rohichakalla.

6. Smt. Suwa Devi w/o Late Shri Neema Ranji. resident of village Rohichakalla, Tehsil Luni, District Jodhpur.

..Claimants/Applicants.

7. Moolaram s/o Shri Durgaramji, by caste Meena, resident of village Kot Solakiya, Tehsil Desuri, Police Station Khiwada, District Pali at present resident of Plot No.456. Mahaveer Nagar Sageeriya, Police Station Basani, District Jodhpur.

..Driver of Truck No.RJ-22/G-0796

8. Shri Rugaram s/o Shri Rajaramji, by caste Meena, resident of Kot Solakiya, Tehsil Desuri, District Pali.

[2023/RJJD/009008] (2 of 7) [CMA-354/2003 & CMA- 631/2003]

..Owner of Truck No.RJ-22/6-0796.

----Respondents Connected With

S.B. Civil Misc. Appeal No. 631/2003

1. Smt. Pani Devi @ Panki wife of Late Shri Govind Ram, aged 30 years

2. Prakash son of Late Shri Govind Ram, aged 13 years,

3. Manju daughter of Late Shri Govind Ram, aged 11 years,

4. Pappa Ram son of Late Shri Govind Ram, aged 8 years,

5. Hema Ram son of Late Shri Govind Ram, aged 5 years,

-Appellant Nos. 2 to 5 are minors through their natural guardian (mother) Smt. Pani Devi, @ Panki wife of Late Shri Govind Ram,

6. Smt. Suwa Devi wife of Late Shri Neema Ram, aged 73 years

- all by caste Meghwal & residents of village Rohicha Kalla, Tehsil-Luni, Distt. Jodhpur. ----Appellants/Claimants Versus

1. Shri Moolaram son of Shri Durga Ram, by caste Meena, resident of village Kot Solankiya, Tehsil-Desuri, Police Station Khiwada, District Pali At present resident of Plot No.456. Mahaveer Nagar Sageeriya, Police Station Basani, District Jodhpur.

2. Shri Ruga Ram son of Shri Rajaram, by caste Meena, resident of Kot Solankiya, Tehsil-Desuri, District Pali.

3. National Insurance Company Limited, A company registered under the Companies Act, 1956, through its Branch Manager, Bapu Bazar, Udaipur. ----Respondents

For Appellant(s) : Mr. Himanshu Maheshwari For Respondent(s) : Mr. Sanjeev Johari, Sr. Advocate assisted by Mr. Lalit Parihar

[2023/RJJD/009008] (3 of 7) [CMA-354/2003 & CMA- 631/2003]

HON'BLE MR. JUSTICE KULDEEP MATHUR

Judgment

10/04/2023

These two appeals are arising out of the same judgment and

award rendered by the learned Judge, Motor Accident Claims

Tribunal (First), Jodhpur (hereinafter referred to, 'the Tribunal') on

25.01.2003 in Civil Misc. Claim No.66/2000, while dealing with a

the particular accident which occurred on 01.07.1999, wherein the

Tribunal partly allowed the claim petition and awarded

Rs.3,44,000/- as compensation to the appellants/claimants.

The CMA No.354/2003 is filed by Insurance Company praying

to set aside the judgment and award dated 25.01.2003 or in

alternative, fastening of complete liability on respondent Nos.7

and 8.

The CMA No.631/2003 is preferred by Smt. Pani Devi & Ors.

seeking enhancement of compensation as well as interest to be

awarded thereupon.

The first CMA No.354/2003 has been filed by the Insurance

Company on the ground that the driver (respondent No.7) of the

truck bearing No.RJ-22-G-0796 to which deceased-Govind Ram

met with an accident on 01.07.1999 was not possessing valid

driving license thus, there was breach of the policy conditions. It

has been prayed that appeal against judgment and award dated

25.01.2003 may be accepted and the judgment and award dated

25.01.2003 may be set aside.

The second CMA No.631/2003 has been filed by the

appellants stating inter alia that the deceased was working in

'chuna bhatti' and apart from aforesaid work, he was also

[2023/RJJD/009008] (4 of 7) [CMA-354/2003 & CMA- 631/2003]

involved in agricultural activities. The appellants have stated that

the deceased was earning Rs.6,000/- per month but the learned

Tribunal erroneously assessed his income at Rs.2,000/- per month

though, the respondents neither produced any evidence for

rebutting the income of the deceased nor cross examined the

appellants on the point of the monthly income. The appellants by

way of filing present appeal have prayed that the impugned

judgment and award dated 25.01.2003 may be modified and the

compensation may be enhanced suitably by following the law laid

down by Hon'ble the Supreme Court of India in the case of

National Insurance Company Limited Vs. Pranay Sethi &

Ors. reported in (2017) AIR (SC) 5157.

Heard learned counsel for the parties and perused the

material available on record.

Indisputably, deceased-Govind Ram on 01.07.1999 met with

an accident with a truck bearing No.RJ-22-G-0796, which was

driven by one Shri Moola Ram. Deceased-Govind Ram in the

aforesaid accident sustained severe injuries and died on

12.08.1999 while taking treatment in a hospital.

It is the case of the respondent-Insurance Company (CMA

No.354/2003) that in the absence of a valid license with the

driver, there was fundamental breach of the terms and conditions

of the insurance policy in question and hence, the claim made by

appellants/claimants was not payable. The learned Tribunal in its

judgment and award dated 25.01.2003 has decided issue No.2

framed in this regard against the respondents-Insurance

Company. Learned Tribunal in its judgment and award dated

25.01.2003 has recorded a finding of fact that the onus of proving

[2023/RJJD/009008] (5 of 7) [CMA-354/2003 & CMA- 631/2003]

the fact that the driver was not having a valid license for driving

the vehicle at the time of accident was upon Insurance Company,

which failed to discharge the same. The learned Tribunal has

further held that the objection with regard to wilful breach of the

conditions of the policy could not be establish by the Insurance

Company before it.

In the considered opinion of this Court, when insurer takes

the defense that the license of the driver at the time of accident

was invalid, the onus is then upon the Insurance Company to

prove the same by producing relevant documents and evidence.

The Insurer only with a view to avoid its liability cannot be

permitted to raise such a defense. The Tribunal has rightly held

that the Insurance Company had failed to prove/establish wilful

breach of the conditions of the insurance policy.

In view of aforesaid discussion, the CMA No.354/2003

preferred on behalf of the Insurance Company deserves to be

rejected and is accordingly dismissed.

The appeal filed by appellants/claimants (CMA No.631/2003)

submitting that the learned Tribunal had utterly failed to take into

consideration the correct monthly income of the deceased and

thus, the judgment and award dated 25.01.2003 suffers from

gross illegality. It was contended that the component of rise in

income of deceased-Govind Ram by future prospects, while

evaluating the compensation awarded to the claimants has not

been taken into consideration by the Tribunal. Reliance was placed

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

Pranay Sethi (supra).

[2023/RJJD/009008] (6 of 7) [CMA-354/2003 & CMA- 631/2003]

Indisputably, in the present case, no documentary evidence

was produced by the appellants/claimants to prove the monthly

income of the deceased to be ₹6000 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.

After going through the record, this Court is of the firm view

that in absence of salary certificate/documentary evidence being

produced by the appellants/claimants, the prevalent minimum

wage had rightly been considered by the Tribunal to determine

monthly income of the deceased to be ₹2,000, which does not

suffer from any illegality or perversity.

In view of the aforesaid, this Court has no hesitation in

accepting the monthly income of the deceased to be Rs.2,000/-.

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 26-30 years,

then the multiplier of 17 should be applied in respect of claims

filed under Motor Vehicles Act and the future prospects would be

paid to the tune of 40% 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                                                2,000/-
  2.    40% of the actual income as adjustment for future             8,00/-
        prospects.
  3.    Monthly income + 40% for future prospects                     2,800/-
  4.    1/3 of income as deduction towards personal expenses          (933.33/-)



                                    [2023/RJJD/009008]                       (7 of 7)     [CMA-354/2003 & CMA- 631/2003]

5. Annual Income after deduction towards personal expenses 1866.67 x 12= 22,400/-

                                     6.   Age multiplier                                                22,400 x17 =3,80,800/-
                                     7.   Conventional heads namely Funeral Charges, Loss of            70,000/-
                                          consortium and Loss of Estate
                                     8.   Total Compensation                                            4,50,800/-
                                     9.   Amount awarded by the Tribunal                                3,44,000/-
                                    10.   Enhanced amount                                               1,06,800/-

In light of the above observations and considering the

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

accident compensation of Rs.3,44,000/- awarded by the learned

Tribunal to the claimants/appellants is increased by Rs.1,06,800/-

to reach a new total of Rs.4,50,800/-. 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.

In view of aforesaid discussion, the CMA No.631/2003

preferred on behalf of the appellants/claimants is allowed in part.