National Insurance Co Ltd vs Smt Bhanwari Devi And Others ...
2023 Latest Caselaw 4107 Raj/2

[2023:RJ-JP:28793]

        HIGH COURT OF JUDICATURE FOR RAJASTHAN
                    BENCH AT JAIPUR

            S.B. Civil Miscellaneous Appeal No. 1277/2013

National Insurance Co Ltd, having its registered Office at 3,
middleton street, kolkata, west bengal- 700071, having its
divisional office at bajaj road, jatia baazar, sikar and having its
Regional office at ''Jeevan nidhi'', 2nd Floor, Bhawani singh road,
Jaipur-302005, Jaipur- through its constituent attorney.
                                                                 ----Appellant
                                    Versus
01. Smt. Bhanwari devi @ santra W/o late sh. Ratan lal, aged
about 41 years, R/o Malkeda, tehsil and district sikar, rajasthan.
02. Anita D/o Late sh. Ratan lal, aged about 19 years
03. Sunita D/o late Sh. Ratan lal, aged about 17 years
04. Laxmi D/o Late Sh. Ratan lal, aged about 15 years
05. Maina D/o Late Sh. Ratan lal, aged about 11 years
06. Santosh D/o Late Sh. Ratan lal, aged about 9 years
07. Dalip S/o Late Sh. Ratan lal, aged about 6 years
08. Ekta D/o Late Sh. Ratan lal, aged about 4 years
Respondents no. 3 to 8 being minor, through natural guardian

and mother Smt. Bhanwari devi 2 Santra W/o Late Ratan lal, R/o Malkeda, tehsil and district sikar, Rajasthan

09. Smt. Prem devi W/o Mangla Ram, aged about 73 years, R/o Malkeda, tehsil and district sikar, Rajasthan

-----Claimants/Respondents

10. Subhash singh S/o Sh. Amar singh, aged about 31 years, R/o Preetampuri, Neem ka thana, District Sikar, Rajasthan (Driver Tanker No. RJ-23-GA-2423)

11. Radheyshyam kanodia S/o Hanuman Prasad, R/o M/s Kanodia Oil store, Neem ka thana, District Sikar, Rajasthan through Power of attorney holder Sh. Rakesh Kanodia S/o Sh. Radheyshyam, R/o M/s kanodia Oil Store, Neem ka thana, District Sikar, Rajasthan (Owner Tanker No. RJ-23-GA-2423)

----Non-Claimants/Respondent

For Appellant(s) : Mr. V. P. Mathur For Respondent(s) : Mr. Chandra Shekar for Ms. Soniya Saini

[2023:RJ-JP:28793] (2 of 6) [CMA-1277/2013]

HON'BLE MR. JUSTICE ASHUTOSH KUMAR

Order

24/08/2023

1. The present civil misc. appeal has been filed by the

appellant-Insurance Company under Section 173 of the Motor

Vehicles Act, 1988 (for short 'the Act of 1988') against the

judgment and award dated 05.02.2013 passed by the Judge,

Motor Accident Claims Tribunal, Sikar (for short 'the Tribunal') in

MACT Case No.287/2010 whereby an amount of Rs.12,79,000/-

has been awarded as compensation to the claimants.

2. Brief facts of the case are that one Ratan Lal was going on

his motorcycle on 09.06.2010 towards his village Malkeda. At that

time, driver of the Tanker bearing No.RJ-23-GA-2423 (offending

vehicle) drove the tanker in rash and negligent manner and hit the

motorcycle of Ratan Lal by which he sustained fatal injuries and

subsequently died.

3. The claimants-respondents filed claim petition before the

learned Tribunal. After considering the facts and circumstances of

the case and evaluating the evidence available on record, the

learned Tribunal has awarded compensation to the tune of

Rs.12,79,000/- in favour of the claimants.

4. Aggrieved by the impugned judgment and award of the

learned Tribunal, the Insurance Company has filed this appeal on

the ground that the learned Tribunal has decided the claim petition

against the respondent only on the basis of charge-sheet filed

against the driver of the offending vehicle.

5. Learned counsel for the appellant submitted that learned

Tribunal has erred in not considering the contributory negligence

[2023:RJ-JP:28793] (3 of 6) [CMA-1277/2013]

on the part of the deceased himself. Learned counsel contended

that the driver of the offending vehicle was holding a driving

license to drive the commercial vehicle only whereas the offending

vehicle was being used to transport hazardous

substance/chemical. Therefore, the driver of the offending vehicle

should have had a driving license to drive the vehicle used for

transportation of hazardous substance and in absence of it the

Insurance Company is not liable to pay any sort of compensation.

6. Learned counsel further submitted that the learned Tribunal

has erred in determining the income of the deceased as Rs.1 lac

per annum, as no proof of earning has been produced before it.

Learned counsel submitted that in such situation, the income of

the deceased cannot be assessed to be more than notional income

i.e. Rs.15,000/- per month. Thus, the appeal may be allowed and

the impugned judgment and award of the learned Tribunal may be

quashed and set aside.

7. Per contra, learned counsel for the respondents-claimants

submitted that there is no infirmity in the judgment and award of

learned Tribunal and there is no merit in the appeal, therefore, the

same be dismissed.

8. Heard learned counsel for the parties and perused the

material available on record.

9. Firstly, we will consider the submissions of learned counsel

for the appellant to the effect that the driver of the offending

vehicle did not possess a driving license to drive the vehicle

carrying hazardous substance/chemical, therefore, on the ground

of valid and effective driving license there is breach of policy and

the Insurance Company is not liable to pay the compensation.

[2023:RJ-JP:28793] (4 of 6) [CMA-1277/2013]

10. It is true that offending vehicle is a 'hazardous

substance/chemical carrying vehicle'. The learned Tribunal in the

impugned judgment has discussed this fact in detail and held that

at the time of accident the offending vehicle was empty and there

was no substance in the tanker/offending vehicle, which is clear

from the seizure memo of offending vehicle (Ex.7). Therefore, it is

insignificant whether driver of the offending vehicle was having

driving license to drive the vehicle having hazardous substance or

not.

11. This finding of the learned Tribunal is cogent and well

reasoned which needs no interference by this Court.

12. Had the hazardous chemical/substance such as 'kerosene'

etc being transported at the time of accident then the position

would have been somewhat different but as discussed above at

the time of accident the offending vehicle was not carrying

hazardous chemical/substance and, therefore, no question of

breach of policy on the basis of valid and effective driving license

arises. Therefore, this objection of the appellant-Insurance

Company is not sustainable.

13. The impugned judgment has also been assailed by way of

this appeal on the ground of quantum. In this case the deceased

was said be to earning Rs.25,000/- per month but as per the

impugned judgment, no corroborative evidence to support this

fact was produced. Thus, the learned Tribunal has rightly not

believed on the averments of claimants-respondents. The learned

Tribunal has determined income of the deceased as Rs.1 lac. The

occupation of the deceased has been told to collect sales tax for

the firm Girdhari Lal & Company. Therefore, the deceased is to be

[2023:RJ-JP:28793] (5 of 6) [CMA-1277/2013]

treated as a skilled labour. The learned Tribunal has assessed the

income of the deceased annually, taking into consideration his age

and future prospects, which cannot be said to be on a higher side.

14. Furthermore, the claimants-respondents, includes the wife,

children and mother of the deceased. The total dependent of the

deceased are 9 in number. The dependents are entitled to get

spousal consortium, parental consortium and filial consortium

respectively @ Rs.40,000/- each as per the judgments of

National Insurance Company Limited Vs. Pranay Sethi &

Ors. reported in (2017) 16 SCC 680 United India Insurance

Company Ltd. Vs. Satinder Kaur @ Satvinder Kaur & Anr.

reported in (2021) 11 SCC 780 and Magma General

Insurance Co. Ltd Vs. Nanu Ram @ Chuhru Ram & Ors

reported in (2018) 18 SCC 130, whereas the learned Tribunal

has awarded Rs.20,000/- to the wife of the deceased and

Rs.40,000/- total to the children and mother of the deceased.

15. As per the judgment of Pranay Sethi (supra), Rs.15,000/-

were to be awarded to the claimants-respondents under the head

of loss of estate, whereas the learned Tribunal has awarded only

Rs.3000/-, therefore, as per the above discussions it cannot be

said that the learned Tribunal has awarded compensation on a

higher side to the claimants-respondents on the ground of

quantum of the compensation

16. In view of the discussions made above, this Court finds no

merit in the present appeal and the same is thus, dismissed.

[2023:RJ-JP:28793] (6 of 6) [CMA-1277/2013]

17. Stay application too stands dismissed accordingly.

(ASHUTOSH KUMAR),J

A. ARORA /13.

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