Magma H.D.I. General Insurance ... vs Smt. Shubhla W/O Late Shri ...
2023 Latest Caselaw 693 Raj/2

                                        REPORTABLE
      HIGH COURT OF JUDICATURE FOR RAJASTHAN
                  BENCH AT JAIPUR

            S.B. Civil Miscellaneous Appeal No. 1239/2019

Magma H.D.I. General Insurance Company Ltd., 81, Hill Road,
Ramnagar, Nagpur-440010 Maharastra, Second Address 207,
208, Kamal Ratan Chamber, M.i. Road, Opposite G.p.o., Jaipur,
Having Its Regional Office At Third Floor, Prestige Tower, Near
Amarpali Circle, Vaishali Nagar, Jaipur Through Its Constituted
Attorney.
                                                                   ----Appellant
                                   Versus
1.    Smt. Shubhla W/o Late Shri Vijendra Singh, Aged About
      41 Years, R/o Vill. Cheechdoli, Post Bhadunda Khurd, Via
      Islampur, District Jhunjhunu (Raj.).
2.    Akansha D/o Late Shri Vijendra Singh, Aged About 15
      Years, Claimants-Respondents Are Minor Through Their

Natural Guardian Mother Smt. Shubhla W/o Late Shri Vijendra Singh, Aged About 41 Years, R/o Vill. Cheechdoli, Post Bhadunda Khurd, Via Islampur, District Jhunjhunu (Raj.).

3. Ashish S/o Late Shri Vijendra Singh, Aged About 13 Years, Claimants-Respondents Are Minor Through Their Natural Guardian Mother Smt. Shubhla W/o Late Shri Vijendra Singh, Aged About 41 Years, R/o Vill. Cheechdoli, Post Bhadunda Khurd, Via Islampur, District Jhunjhunu (Raj.).

4. Mahendra Singh S/o Late Shri Sanwalram, Aged About 63 Years, R/o Vill. Cheechdoli, Post Bhadunda Khurd, Via Islampur, District Jhunjhunu (Raj.).

5. Smt. Santosh W/o Shri Mahendra Singh, Aged About 58 Years, R/o Vill. Cheechdoli, Post Bhadunda Khurd, Via Islampur, District Jhunjhunu (Raj.).

6. Ramdev S/o Shri Laxmanram, R/o Vill. And Post Toliyasar, Police Station Molasar, Tehsil Deedwana, District Nagaur, Second Address B-11, Sundar Apartment, Behind Gomti Hotel, Netaji Nagar, Bhandara Road, Nagpur. Pin-440008 (Driver And Registered Owner Of Car No. Mh-49-B-6665)

----Respondents

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For Appellant(s) : Mr. Virendra Agarwal with Ms. Chalsi Gangwal For Respondent(s) : Mr. Vinay Mathur

HON'BLE MR. JUSTICE BIRENDRA KUMAR

JUDGMENT

Judgment reserved on : 30.11.2022

Judgment pronounced on : 20.01.2023

Cases referred -

(i.) Surinder Kumar Arora & Anr. Vs. Dr. Manoj Bisla & Ors., reported in MACD 2012 (SC) 126.

(ii.) Orintal Issurance Company Limited Vs. Meena Variyal, (2007) 3 SCC 428.

(iii.) Cholamandalam General Insurance Company Limited vs. Smt. Badami & Ors., reported in 2018 (2) RAR 587 (Raj.). (iv.) Pushpabai Parshottam Udeshi and Ors vs. Ranjit Ginning and Pressing Company Limited and Anr., reported in 1977(2) SCC 745. (v.) Rajasthan State Road Transport Corporation vs. Nand Kishore and Ors, reported in 2002 ACJ 1564.

(vi.) United India Insurance Co. Ltd. Vs. Smt. Shyami Devi reported in 2020 (4) DNJ 922.

(vii.) Bimla Devi & Ors. Vs. Himachal Road Transport Corpn. & Ors. reported in (2009) 13 SCC 530.

(viii.) Sunita & Ors. Vs. Rajasthan State Road Transport Corporation & Anr., reported in AIR 2019 SC 994. (ix.) Mangla Ram Vs. Oriental Insurance Company Limited and Ors., reported in (2018) 5 SCC 656.

(x.) United India Insurance Co. Ltd. Vs. Shila Datta (2011) 10 SCC

509. (xi.) Asha Devi & Ors. Vs. Assistant Director State Insurance and Ors. reported in 2021 ACJ 2679.

(xii.) Shyam Sunder vs. State of Rajasthan, reported in (1974) 1 SCC 690.

(xiii.) Oriental Insurance Company Limited Vs. Meena Variyal, reported in (2007) 3 SCC 428.

(xiv.) National Insurance Company Ltd. vs. Chamundeswari & Ors., reported in 2021 (11) SCALE 593.

(xv.) Dulcina Fernandes vs. Joaquim Xavier Cruz, reported in 2013 (10) SCC 646.

(xvi.) Rajasthan State Road Transport Corporation vs. Nand Kishore and Ors, reported in 2002 ACJ 1564.

(xvii.) Mukesh vs. Pradeep Kumar & Ors., 2016 (2) R.A.R. 507 (Raj.).

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1. The insurer of the offending vehicle has brought this appeal

under Section 173 of the Motor Vehicles Act, 1988 (hereinafter

referred to as the Act) challenging the award dated 22.1.2019

made in claim case No. 186/2016 by the Motor Accident Claims

Tribunal, Jhunjhunu whereby the learned Tribunal awarded

compensation of Rs. 65,94,000/- in favour of respondents No. 1 to

5 along with interest of 7.5% per annum from the date of filing of

the claim petition. Respondents No. 1 to 5 had claimed Rs.

2,72,70,000/-. The owner-cum-driver of the vehicle, respondent

No.6, did not contest the claim case nor appeared in this appeal.

In the circumstance, the defence available to respondent No.6

was/is available to the appellant also.

2. The case and claim of the respondent-claimants is that on

21.4.2016, Vijendra Singh, the husband of claimant Smt. Shubhla

and parent of claimant-respondents No. 2 and 3 as well as son of

respondent No.4 and 5, was travelling in a Swift Dezire Car

bearing Registration No. MH-49-B-6665. The owner-cum-driver of

the Car was rash and negligent and lost balance, as a result

whereof the motor vehicle accident took place. The driver and

Vijendra both sustained injuries. Vijendra died in the hospital.

At the time of his death, Vijendra was a Teacher Grade III,

aged 35 years and he was earning Rs. 32,000/- per month. Only

the appellant contested the claim case.

3. The appellant denied the averments made in the claim

petition and pleaded that the driver had no driving licence. There

is delay in lodging of the FIR. Charge-sheet has been submitted

in collusion with the police. The vehicle was being driven in

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contravention of the terms and conditions of the insurance policy.

Excess and exorbitant amount has been claimed by the claimants.

4. Mr. Virendra Agarwal, learned counsel for the appellant

strenuously contends that in a claim petition under Section 166 of

the Motor Vehicle Act, the claimants must plead and prove the

negligence of the driver as well as involvement of the vehicle.

Since no eye-witness of the accident has been examined, the

accident caused by rash and negligent driving or involvement of

the vehicle ensured with the appellant remained unproved.

Learned counsel for the appellant has placed reliance on the

judgment of the Hon'ble Supreme Court in Surinder Kumar

Arora & Anr. Vs. Dr. Manoj Bisla & Ors., reported in MACD

2012 (SC) 126.

In Arora's case (supra) the Hon'ble Apex Court referred its

earlier judgment in Oriental Insurance Company Limited Vs.

Meena Variyal, (2007) 3 SCC 428, which is being reproduced

below:

"...Therefore, the victim of an accident or his dependants have an option either to proceed under Section 166 the Act or under Section 163A the Act. Once they approach the Tribunal under Section 166 the Act, they have necessarily to take upon themselves the burden of establishing the negligence of the driver or owner of the vehicle concerned. But if they proceed under Section 163A the Act, the compensation will be awarded in terms of the Schedule without calling upon the victim or his dependants to establish any negligence or default on the part of the owner of the vehicle or the driver of the vehicle."

5. Learned counsel contends that the learned Tribunal has

relied upon documents of the criminal case of the incident i.e. FIR,

site plan, site inspection memo, vehicle inspection memo and post

mortem report without any direct evidence on the factum of

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accident due to rash and negligent driving. Learned counsel

submits that in Cholamandalam General Insurance Company

Limited vs. Smt. Badami & Ors., reported in 2018 (2) RAR

587 (Raj.), a Single Judge Bench of this Court held that in

absence of any eye-witness of the incident, the claimants failed to

prove and establish a case of rash and negligent driving. The court

reasoned that if the eye-witness would have come to the witness

box, the respondents would have got an opportunity to cross-

examine and test the veracity of the witness.

6. Mr. Vinay Mathur, the learned counsel for the claimant-

respondents contends that the claimants have specifically pleaded

that the accident took place due to rash and negligent driving of

the car. There is overwhelming evidence on record to prove that

the accident was due to rash and negligent driving by the driver.

Learned counsel contends that in Pushpabai Parshottam

Udeshi and Ors vs. Ranjit Ginning and Pressing Company

Limited and Anr., reported in 1977(2) SCC 745, there was no

eye-witness of the incident rather, evidence on record was of a

person who reached soon after the incident. The witness detailed

what he saw after the accident. The Hon'ble Supreme Court in

para 6 of the judgment stated as follows:

"The normal rule is that it is for the plaintiff to prove negligence but as in some cases considerable hardship is caused to the plaintiff as the true cause of the accident is not known to him but is solely within the knowledge of the defendant who. caused it, the plaintiff can prove the accident but cannot prove how it happened to establish negligence on the part of the defendant, This hardship is sought to be avoided by applying the principle of res ipsa loquitur. The general purport of the words res ipsa loquitur is that the accident "speaks for itself" or tells its own story. There are cases in which the accident speaks for itself so that it is sufficient for the plaintiff to prove the

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accident and nothing more. It will then be for the defendant to establish that the accident happened due to some other cause than his own negligence."

Learned counsel contends that identical issue was there

before a learned Single Judge of this Court in Rajasthan State

Road Transport Corporation vs. Nand Kishore and Ors,

reported in 2002 ACJ 1564. No eye-witness of the incident was

there in the claim case, however other materials were there.

Moreover, the driver who could have been the best witness to give

details about the incident whether it was due to rash and

negligent driving or due to some other cause, did not appear. In

para 7 and 8 of the judgment, the Court observed as follows:

"7. According to Section 74, Evidence Act, documents forming acts or records of the acts of public officers are public documents. Section 77 of the Evidence Act provides that the contents of public documents may be proved by producing their certified copies. In Madamanchi Ramappa v. Muthaluru Bojjappa AIR 1963 SC 1633, it has been observed by the Hon'ble Apex Court that if a document is certified copy of public document, it need not be proved by calling a witness.

8. Thus, it is well settled that strict provisions of the Evidence Act not to be insisted by the Tribunal on limited jurisdiction. The Tribunals while dealing with the cases for compensation arising out of motor vehicle accident are to follow such summary procedure as it thought fit and the certified copy of the F.I.R., inspection map and site inspection memo, panch-nama, injury report or the post-mortem report, as the case may be and, other relevant documents prepared by the police or the doctor while discharging official duty are admissible in evidence without there being a formal proof."

Learned counsel for the respondents contends that the law

stated in Pushpabai Parshottam Udeshi and Rajasthan State

Road Transport Corporation (supra) were not brought before

the learned Single Judge who was hearing the case of

Cholamandalam General Insurance Company Limited

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(supra). Rather Cholamandalam's case was considered in

United India Insurance Co. Ltd. Vs. Smt. Shyama Devi

reported in 2020 (4) RLW 3346. In Shyama Devi's case, there

was no eye-witness of the incident before the Claim Tribunal

though other evidences were there wherein the learned Single

Judge observed in para 13 "once the documents prepared by the

police authorities wherein challan was filed against the driver of

the vehicles, the burden shifted on the owner and driver of the

vehicle and once they choose not to appear in the witness box,

the finding recorded by the Tribunal of drawing adverse inference

against them cannot be faulted with." Learned counsel contends

that since the respondents had not led any evidence in this case,

the principle of res ipsa loquitur was also applicable, hence the

impugned award requires no interference.

7. Now the point for consideration is whether the Tribunal has

erred in accepting the claim case in absence of examination of any

eye-witnesses to substantiate that the accident was due to result

of rash and negligent driving.

8. In Bimla Devi & Ors. Vs. Himachal Road Transport

Corpn. & Ors. reported in (2009) 13 SCC 530, there was no eye-

witnesses of the actual incident, the Hon'ble Supreme Court stated

in para 12 and 15 of the judgment as follows:

"12. While dealing with a claim petition in terms of Section 166 of the Motor Vehicles Act, 1988, a Tribunal stricto sensu is not bound by the pleadings of the parties; its function being to determine the amount of fair compensation in the event an accident has taken place by reason of negligence of that driver of a motor vehicle. It is true that occurrence of an accident having regard to the provisions contained in Section 166 of the Act is a sine qua non for entertaining a claim petition but that would not mean that despite evidence to the effect that death of the

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claimant's predecessor had taken place by reason of an accident caused by a motor vehicle, the same would be ignored only on the basis of a post mortem report vis-a-vis the averments made in a claim petition.

15. In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was necessary to be borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied. For the said purpose, the High Court should have taken into consideration the respective stories set forth by both the parties."

9. In Sunita & Ors. Vs. Rajasthan State Road Transport

Corporation & Anr., reported in AIR 2019 SC 994, the pillion

rider at the time of incident was not examined and for that reason

a bench of this Court set aside the award of the Tribunal. The

Hon'ble Supreme Court observed as follows:

"20. We have no hesitation in observing that such a hypertechnical and trivial approach of the High Court cannot be sustained in a case for compensation under the Act, in connection with a motor vehicle accident resulting in the death of a family member. Recently, in Mangla Ram Vs. Oriental Insurance Company Limited and Ors. reported in (2018) 5 SCC 656, this Court has restated the position as to the approach to be adopted in accident claim cases. In that case, the Court was dealing with a case of an accident between a motorcycle and a jeep, where the Tribunal had relied upon the FIR and charge-sheet, as well as the accompanying statements of the complainant and witnesses, to opine that the police records confirmed the occurrence of an accident and also the identity of the offending jeep but the High Court had overturned that finding inter alia on the ground that the oral evidence supporting such a finding had been discarded by the Tribunal itself and that reliance solely on the document forming part of the police record was insufficient to arrive at such a finding........"

10. In United India Insurance Co. Ltd. Vs. Shila Datta

(2011) 10 SCC 509, a three Judges Bench of the Hon'ble

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Supreme Court culled out certain propositions. Proposition Nos.

(ii) (v) and (vi) are relevant for the purpose which are being

reproduced below:

"(ii) The rules of pleadings do not strictly apply as the claimant is required to make an application in a form prescribed under the Act. In fact, there is no pleading where the proceedings are suo moto initiated by the Tribunal.

(v) Though the tribunal adjudicates on a claim and determines the compensation, it does not do so as in an adversarial litigation.

(vi)The Tribunal is required to follow such summary procedure as it thinks fit. It may choose one or more persons possessing special knowledge of and matters relevant to inquiry, to the assist it in holding the enquiry."

11. In Asha Devi & Ors. Vs. Assistant Director State

Insurance and Ors. reported in 2021 ACJ 2679, the Hon'ble

Supreme Court was considering the effect of no evidence of eye-

witnesses on the manner of accident. The driver of the tractor

which had caused the accident was not produced as a witness. The

Hon'ble Supreme Court said that the driver could have deposed in

respect of the manner of accident and to prove that he was not

negligent in driving the tractor. The Hon'ble Supreme Court said

that the doctrine of res ipsa loquitur will come into place as the

respondents have failed to discharge onus on them to prove that

the accident was not on account of any negligent driving of the

tractor. The Hon'ble Supreme Court relied on earlier judgment in

Shyam Sunder vs. State of Rajasthan, reported in (1974) 1

SCC 690.

12. From discussion above, it can succinctly be ruled that in a

claim case under Section 166 of the Motor Vehicles Act, the

claimant is required to prove the motor vehicle accident due to

rash and negligent driving of the offending vehicle. Strict rule of

pleadings and Indian Evidence Act would not apply in a summary

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proceeding before the Motor Accident Claims Tribunal. Production

of eye-witness to prove the aforesaid fact is not a sine qua non.

Other available evidences oral or documentary may be relied upon

to prove motor vehicle accident due to negligence of the driver.

Nature of such evidence would depend upon the facts of individual

case. On production of evidence by the claimant probabilising a

case of rash and negligent driving leading to accident, the burden

would shift on the driver/owner to prove that accident was

consequence of circumstances beyond control and knowledge of

the driver even after due care and caution was taken by the driver

to prevent the accident. On failure to discharge the burden by the

owner/driver, the principle of res ipsa loquitur would apply. Unless

the driver appears in the witness box, the insurer cannot contend

that the accident was not a result of rash and negligent driving, as

adverse inference would be drawn against the driver/owner that if

they would have appeared in the witness box, the evidence would

have gone against their case.

13. In the facts and circumstances of the case, the principle of

res ipsa loquitur is applicable as the cause of accident was within

primary knowledge of the driver who choose not to appear in the

witness box.

Therefore, the respondents failed to discharge their burden

to prove the manner of accident. Therefore, the appellant cannot

be permitted to assail the award of the Tribunal -on the ground of

non examination of any eye witness.

14. The claimants have brought on record, the FIR registered

with Nawa City Police Station bearing No. 69/2016 in respect of

the accident which are at Ex.1 and 5 respectively. After

investigation of the case, the police submitted charge-sheet which

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is Ex.2. The sole accused who is respondent No.6 herein faced trial

in Criminal Case No. 101/2016 and the trial resulted in conviction

by the judgment dated 6.12.2018, a copy of the judgment is on

record. Since it is a public document, the Court can look into it. In

the criminal trial, the prosecution eye witness No.1, Vikram Singh

and PW-2 Mukesh were examined. They deposed that on

21.4.2016, near Kaseda Bus stop, due to rash and negligent

driving of the Swift Desire Car, it jumped over a speed breaker,

and dashed against a pipal tree. The people assembled there and

took the two injured from out of the vehicle and in the hospital

Vijendra Singh was declared dead. The manner of incident

indicates that the driver was negligent in not slowing down the

speed of the vehicle at the braker. The Investigating Officer was

also examined in the criminal trial as a prosecution witness. Ex.4

is site inspection plan recorded by the Investigating Officer that

goes to show that the vehicle had jumped over the speed braker

and dashed against a tree. Ex. 5, the vehicle inspection report

shows that from the front side, the vehicle was damaged, its

glasses were torn. Ex.7 is the inquest report of Vijendra Singh.

Ex.12 is the post mortem report, the doctor has found head injury

and injuries on the ribs as cause of death. Ex. 13 is certificate of

Registration of the vehicle and Ex.14 is certificate of insurance the

vehicle with the appellant, covering third party risk as well.

15. No evidence has been brought on the record on behalf of the

appellant to improbablise the trustworthiness of evidence brought

by the claimants. A conjoint reading of the entire evidence

referred above would go to show that Mr. Vijendra Singh died in a

motor vehicle accident due to rash and negligent driving of the

Swift Dzire Car bearing Registration No. MH-49-B-6665.

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16. Considering the settled legal principles above as well as

considering the material produced on record, the Court is of the

view that the materials available on record substantiate that the

motor vehicle accident took place due to rash and negligent

driving of the vehicle. The respondents have failed to discharge

their burden by examining the owner cum driver-respondent No.6.

Therefore, the principle of res ipsa loquitur would also apply.

17. Learned counsel for the appellant contends that wife of the

deceased namely Smt. Shubhla is not a dependent on the

deceased nor was a dependent on the date of the incident as she

was a teacher getting higher salary than her husband. Similarly,

Mr. Mahendra Singh, father of the deceased would not be

considered as a dependent on the deceased. Learned counsel

contends that even in Sarla Verma & ors. Vs. Delhi Transport

Corporation & Anr., (2009) 6 SCC 121, the Hon'ble Supreme

Court while considering the question of deductions for personal

expenses of the deceased held that when the deceased is survived

by parents, only mother would be considered to be a dependent

as the father is likely to have his own income.

18. The Court finds substance in the submissions of the learned

counsel for the appellant. Therefore, only two children who were

minors on the date of the incident and now must have attained

majority as well as the mother Smt. Santosh Devi are held to be

dependent on the deceased.

19. The deceased was born on 10.12.1981 vide certificate at

Ex.19. As such on the date of incident, he was aged between 31-

35 years, therefore, the learned Tribunal has correctly applied the

multiplier of 16 considering the judgment in Sarla Verma's case

(supra). This Court does not find any substance in the submission

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of learned counsel for the appellant that considering other

materials, the age of the deceased should be taken as 36 years,

and therefore, multiplier of 15 should have been applied.

20. The learned Tribunal considered the salary certificate of the

deceased vide Ex.16 and after excluding the House Rent

Allowances accepted other income for calculation of loss of

dependency which was Rs. 29,903/-. The learned Tribunal has

correctly added 50% for future prospects of the deceased. The

monthly income comes to Rs. 44,054/-. Since the deceased had

left only 3 dependents and the Tribunal has wrongly held that all

the 5 claimants were dependent of the deceased, the deduction

for personal expenses of the deceased shall be of 1/3rd and not

1/4th as held by the Tribunal. 1/3rd deduction is consistent with

the guidelines in Sarla Verma's case (supra). After deducting

1/3rd from 44,850/-, the amount comes to Rs. 29,903/-. This

amount is multiplied with 12 months and thereafter with multiplier

of 16. The total calculation would be Rs. 57,41,376/-. Under

customary head, the Tribunal had awarded Rs. 15,000/- for

funeral expenses, 15,000/- for loss to the estate and Rs. 5,000/-

for transportation of the dead body for post mortem and

thereafter for cremation, the same is hereby affirmed. The

Tribunal has awarded only Rs. 40,000/- for loss of spousal

consortium. Each of the claimants are entitled for the aforesaid

amount of Rs. 40,000/- separately for loss of filial consortium,

parental consortium and spousal consortium as held in Magma

General Insurance Company Ltd. Vs. Nanu Ram & ors.,

(2018) 18 SCC 130. The Court is not inclined to interfere with

the quantum of interest awarded by the Tribunal.

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21. The aforesaid amount shall be paid after deducting already

paid amount. Out of the total amount, 1/3rd would go to each of

the two children and the mother of the deceased. The amount of

Rs. 40,000/- shall equally go to all the 5 claimants. Since the

children must have attained the majority, uptil now, there is no

need for direction for deposit of the claim amount in the Fixed

Deposit Scheme in favour of the children as they would be, as of

now, mature enough to utilise the same for their benefit.

22. With the aforesaid modification in calculation of the amount

of compensation, this appeal stands dismissed as devoid of merit.

(BIRENDRA KUMAR),J

BRIJ MOHAN GANDHI /77

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