Rajasthan High Court
Nand Kishore Sharma And Ors vs Geeta Ram And Ors on 24 February, 2023
Bench: Ashutosh Kumar
[2023/RJJP/003235]
HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
S.B. Civil Miscellaneous Appeal No. 1513/2006
1. Nand Kishore Sharma son of Late Shri Nathu Lal Sharma,
aged 57 years, Resident of Mahaveer Chowk, Bada Gawada, Old
Tonk, Tonk.
2. Smt. Santosh Devi wife of Nand Kishore Sharma, aged 50
years, Resident of Mahaveer Chowk, Bada Gawada, Old Tonk,
Tonk (Since Deceased)
2/1. Bhagwan Sahai Sharma S/o Nand Kishore
2/2. Kamlesh Sharma S/o Nand Kishore
2/3. Rani Sharma D/o Nand Kishore
All Resident of Mahaveer Chowk, Purani Tonk, Tonk (Raj.)
3. Kumari Minakshi D/o Late Shri Vishnu Kumar alias Gorya,
aged 4 years, minor through Natural Guardian Dadaji Nand
Kishore Sharma aged 50 years, Resident of Mahaveer Chowk,
Purani Tonk.
----Claimants-Appellants
Versus
1. Geeta Ram son of Kajod, Resident of Arniya Mal, Tonk.
2. Raj Kumar Son of Shri Chiranji Lal, C-65, Agra Road,
Khandelwal Nagar, Jaipur.
3. The New India Insurance Company Ltd., Transport Nagar,
Jaipur.
----Respondents-Non-Claimants
For Appellant(s) : Mr. Anil Yadav on behalf of
Mr. Vimal Kumar Jain
For Respondent(s) : Ms. Karishma Soni on behalf of
Mr. Shiv Lal Meena
HON'BLE MR. JUSTICE ASHUTOSH KUMAR
Order
Date of Reserved :: 10/02/2023
Date of Pronouncement :: 24/02/2023
1. The present civil misc. appeal has been filed by the
appellants-claimants under Section 173 of the Motor Vehicle Act,
[2023/RJJP/003235] (2 of 8) [CMA-1513/2006]
1988 (for short, 'the Act of 1988'), against the judgment and
award dated 16.01.2006 passed by the learned Additional District
Judge (Fast Track) No.3, Tonk (hereinafter referred to as the
'Tribunal') in MAC Case No.920/2005, praying for enhancement of
the compensation awarded by the learned Tribunal.
2. Brief facts of the case are that on 03.05.2004 at about 9 P.M.
Shyam Babu, Vishnu Kumar and Manoj Kumar were standing on
Kota-Jaipur National Highway near a petrol pump. At that time,
the offending vehicle, a truck bearing no. RJ-14-1G-5764, came
from Kota side in high speed. The driver of the truck was driving
the truck negligently. The abovementioned persons who were
standing on the road, tried to save themselves but since the truck
was in high speed it ran them over. In the incident Vishnu Kumar
died on the spot and Manoj sustained some injuries. On this, FIR
No.75/2004 was registered and after investigation, a charge-sheet
for the offences punishable under Sections 279, 337, 338, 304A
IPC and 134/187 of the Act of 1988 was presented in the Court
against Geeta Ram who was the driver of the offending vehicle.
3. Dependent of the deceased filed the claim petition bearing
no.920/2005 for claiming compensation under Section 166 of the
Act of 1988. In that claim petition, driver and owner of the
offending vehicle were also made non-applicants. They did not file
any reply to the claim petition and only Insurance Company
contested the matter. The Tribunal decided the claim petition vide
impugned order dated 16.01.2006. The total amount of
Rs.62,250/- as compensation was awarded to the appellants,
[2023/RJJP/003235] (3 of 8) [CMA-1513/2006]
against which this appeal for enhancement of the compensation
has been preferred.
4. The learned Tribunal in its judgment, was of the opinion that
the deceased was also negligent in this case because he was
standing on the National Highway at 9 P.M. Adopting this line of
reasoning, the contributory negligence of the deceased was
assessed to be 25% by the learned Tribunal. Since the deceased
was a bachelor of about 28 years, the learned Tribunal applied the
multiplier of 8, on the basis of average age of the parents of the
deceased.
5. Learned counsel for the appellants have contended that the
learned Tribunal has erred in assessing the contributory
negligence of the deceased because the deceased was not at all
negligent vis-à-vis the incident. It has also been contended that
the learned Tribunal has erred in quantifying the income of the
deceased. It is contended that, assessing the notional annual
income of the deceased as Rs.15,000/-, based on second schedule
of the Act of 1988 is erroneous. It has been averred that the
deceased was a Pandit and was earning money by performing
religious rituals. He is also said to have been working in a Tent
House. It has been submitted by the appellants that, the income
of the deceased should have been considered to be Rs.10,000/-
P.M. The appellants pray that the appeal be allowed and
compensation awarded by the Tribunal must be enhanced.
6. Learned counsel for the appellants has placed reliance upon
the following judgments:
[2023/RJJP/003235] (4 of 8) [CMA-1513/2006]
1. National Insurance Company Limited vs. Pranay Sethi
and Ors.: 2017(16) SCC 680.
2. Janabai WD/O Dinkarrao Ghorpade & Ors. vs. M/s
I.C.I.C.I. Lambord Insurance Company Lt.: Civil Appeal
(Arising out of SLP (Civil) No.21077 of 2019), dated
10.08.2022.
3. Rajwati @ Rajjo & Ors. vs. United India Insurance
Company Ltd. & Ors.: Civil Appeal No.8179 of 2022 (Arising
out of Special Leave Petition (C) No.30754 of 2019), dated
09.12.2022.
7. On the other hand, learned counsel appearing on behalf of
the Insurance Company has supported the award and judgment of
the Tribunal and contends that there is no merit in this appeal so
the same be dismissed.
8. An application was filed praying that the service of notice to
the respondent nos.1 and 2 be dispensed with. The same was
allowed and the service of notice to the respondent nos.1 and 2
was dispensed with.
9. Heard the learned counsel of both the parties and perused
the record.
10. Learned Tribunal in the impugned judgment has observed
that since the deceased was standing on National Highway No.12
at 9 p.m., he himself was negligent and that he had contributed to
the accident. His contributory negligence was assessed to be 25%
in the impugned judgment. It is pertinent to mention here that on
behalf of the driver of the offending vehicle, no reply was filed to
the claim petition. No evidence on behalf of the respondents was
[2023/RJJP/003235] (5 of 8) [CMA-1513/2006]
produced to prove the fact of contributory negligence on the part
of the deceased. Learned Tribunal on the basis of site plan Ex.3
has drawn the presumption of 25% contributory negligence of the
deceased. When we see the site plan, it is evident that on Kota-
Jaipur National Highway, the offending vehicle was coming from
Kota and going to Jaipur. The deceased has been shown to be
standing at the extreme side of the road which happens to be the
wrong side for a vehicle coming from Kota and going to Jaipur. It
is evident that the offending vehicle went extremely on the wrong
side and ran over the deceased. The fact that the offending vehicle
went on its wrong side and committed the accident has been
mentioned in the site plan. Therefore, in the opinion of this Court,
it is clear that the learned Tribunal has taken an erroneous view
regarding the contributory negligence on the part of the deceased.
11. Learned Tribunal has held that the claimants have failed to
prove the income of the deceased. The learned Tribunal, for the
purpose of calculating the loss of dependency, has relied upon the
second schedule of Section 163A of the Act of 1988. The learned
Tribunal has taken into account Rs.15000/- per annum as the
notional annual income of the deceased. Learned counsel for the
appellants has contended that the learned Tribunal has erred in
not believing the oral as well as documentary evidence produced
to prove the income of the deceased and has thus made a very
low estimate as to the annual income.
12. In the opinion of this Court, if the income of the deceased, as
alleged in the claim petition was not proved by the claimants, then
in order to calculate the loss of dependency, the learned Tribunal
[2023/RJJP/003235] (6 of 8) [CMA-1513/2006]
should have considered the income of the deceased to be
equivalent to the daily wages as applicable on the date of incident,
instead of taking into account the annual notional income.
Therefore, on this point also findings of the learned Tribunal is not
sustainable.
13. In this case the date of incident is 03.05.2004. At that time
daily wages of unskilled person was Rs.73/-. Treating the
deceased as an unskilled person his wages comes to be Rs.73/-
per day and Rs.2190/-P.M. This Court deems it proper to consider
this income for the purpose of calculating the loss of dependency.
In the abovementioned income, increment of 40% as to the future
prospects, as per the direction given in Pranay Sethi's case is also
to be made. Thus, total monthly income of the deceased comes
out to be 2190+ 40% future prospects = Rs.3066/- per month for
the purpose of calculating the loss of dependency.
14. In this case the learned Tribunal has applied the multiplier of
8 on the basis of average age of mother and father of the
deceased. As per judgment of the Hon'ble Apex Court in National
Insurance Company Limited vs. Pranay Sethi and Ors., it is
well settled that the multiplier is to be applied on the basis of the
age of the deceased. In this case the age of the deceased is found
to be 28 years. Therefore, as per judgment of Pranay Sethi
(supra) the multiplier of 17 is applicable in this case.
15. From the above discussion, we find that the deceased was
not negligent and did not contribute in the incident. Thus, no
question of any deduction from compensation on the basis of
contributory negligence arises.
[2023/RJJP/003235] (7 of 8) [CMA-1513/2006]
16. Multiplier of 17 is to be applied in this case on the basis of
the age of the deceased which is 28 years.
17. In conclusion to the above discussion it is held that the
income of the deceased on the date of the incident was Rs.73/-
per day i.e. Rs.2190/- P.M. Adding 40% under the head of future
prospects, it comes out to be Rs.3066/-P.M. The deceased was a
bachelor, therefore, 50% amount is to be deducted under the
head of personal expenses of the deceased. Consequently, the net
amount quantified as the of loss of dependency comes out to be
Rs.1533/- P.M. Now, as discussed above, when applying the
multiplier of 17, total amount quantified as the loss of dependency
comes out to be rupees 1533x12x17 = Rs.3,12,732/-. The
appellants are also entitled for Rs.70,000/- under the head of
general and non-pecuniary damages as directed in the case of
Pranay Sethi (supra). This damages under the head of 'general
and non-pecuniary damages' has been directed to be increased
10% every three years. Therefore, claimants are entitled to
Rs.77,000/- under the head of general and non-pecuniary
damages. Thus, the total compensation to which the appellants
are entitled to get comes out to be
Rs.3,12,732+77,000=Rs.3,89,732/-.
18. For the aforesaid reasons, the appeal filed by the claimants
is allowed. The impugned judgment passed by the learned
Tribunal is modified in terms of the above discussion. The total
amount receivable by the claimant is Rs.3,89,732/-. The
Insurance Company is directed to deposit the enhanced amount of
compensation alongwith interest @ 6% P.A. from the date of filing
[2023/RJJP/003235] (8 of 8) [CMA-1513/2006]
of the claim petition till its realization with the Tribunal within two
months from today. The amount already paid by the insurance
company in this case is to be adjusted.
(ASHUTOSH KUMAR),J
MADAN/6
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