Rajasthan High Court

Lali vs Namo Narain (2023:Rj-Jp:26451) on 3 October, 2023

Bench: Ashutosh Kumar

[2023:RJ-JP:26451]

        HIGH COURT OF JUDICATURE FOR RAJASTHAN
                    BENCH AT JAIPUR

                S.B. Cross Objection (Civil) No.04/2013

1. Smt. Lali wife of Late Shri Nathu Ram, aged 41 years
2. Shankar S/o Late Shri Nathu Ram, aged 23 years
3. Prithviraj S/o Late Shri Nathu Ram, aged 21 years
4. Raju S/o Late Shri Nathu Ram, aged 11 years
5. Rakshak S/o Late Shri Nathu Ram, aged 4 years
   Appellant Nos.4 to 5 are minors through their natural guardian
   and mother Smt. Lali W/o Late Shri Nathu Ram.
   All b/c Kharwal, R/o village Tilana, P. S. Nasirabad, District
   Ajmer.
                                                     ----Appellants/Claimants
                                    Versus
1. Namo Narain Meena @ Ram Narayan Meena S/o Shri Jauhari
Lal Meena, R/o Meeno Ka Mohalla, Neenad, P. S. Harmada, Tehsil
Amer, District Jaipur.
2. Smt. Lakshmi Devi Meena W/o Late Shri Lalaram, R/o Village
Neenad, Ward No.70, P. S. Harmada, Tehsil Amer, District Jaipur.
                                                             ----Cross-Objectors
3. The United India Insurance Company Limited, Regional Office,
Vishal Chamber, Tonk Road, Jaipur through Regional Manager.
                                           ----Respondents/Non-Claimants

Connected With S.B. Civil Miscellaneous Appeal No. 627/2012

1. Smt. Lali wife of Late Shri Nathu Ram, aged 41 years

2. Shankar S/o Late Shri Nathu Ram, aged 23 years

3. Prithviraj S/o Late Shri Nathu Ram, aged 21 years

4. Raju S/o Late Shri Nathu Ram, aged 11 years

5. Rakshak S/o Late Shri Nathu Ram, aged 4 years Appellant Nos.4 to 5 are minors through their natural guardian and mother Smt. Lali W/o Late Shri Nathu Ram. All b/c Kharwal, R/o village Tilana, P. S. Nasirabad, District Ajmer.

----Appellants/Claimants Versus

1. Namo Narain Meena @ Ram Narayan Meena S/o Shri Jauhari Lal Meena, R/o Meeno Ka Mohalla, Neenad, P. S. Harmada, Tehsil Amer, District Jaipur.

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2. Smt. Lakshmi Devi Meena W/o Late Shri Lalaram, R/o Village Neenad, Ward No.70, P. S. Harmada, Tehsil Amer, District Jaipur.

3. The United India Insurance Company Limited, Regional Office, Vishal Chamber, Tonk Road, Jaipur through Regional Manager.

----Respondents/Non-Claimants

For Petitioner(s) : Mr. Gaurav Sharma in Cross Objection No.04/2013.

Mr. Sandeep Mathur in Civil Misc.

Appeal No.627/2012 For Respondent(s) : Ms. Archana Mantri for Insurance Company

HON'BLE MR. JUSTICE ASHUTOSH KUMAR Order 03/10/2023

S. B. Civil Misc. Appeal No.627/2012 :

1. As the appeal and cross-objection involve common question

of facts and law, they are being decided by the instant common

order.

2. The instant appeal has been filed by the appellants -

claimants under Section 173 of the Motor Vehicles Act, 1988

against the judgment and award dated 04.11.2011 passed by

Judge, Motor Accident Claims Tribunal, Jaipur City, Jaipur

(hereinafter referred to as the 'Tribunal') in MAC Case

No.978/2009, whereby the learned Tribunal has partly allowed the

claim petition filed by the appellants-claimants (hereinafter

referred to as the 'claimants') and awarded a compensation of

Rs.4,40,000/- in favour of the claimants.

3. The claimants submitted a claim petition claiming

compensation of Rs.58,04,000/-. After hearing learned counsel for

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the parties, decided the claim petition of the claimants and passed

the impugned judgment and award. Hence, the present appeal.

4. Learned counsel for the claimants contended that the

learned Tribunal has erred in passing the impugned judgment by

awarding the compensation on a lower side. Learned Tribunal

assessed the income of the deceased only at Rs.3510/- per

month, whereas the deceased by doing the work of loading and

unloading stones was earning Rs.9,000/- per month.

5. Learned counsel further contended that the learned Tribunal

has also erred in not awarding future prospects, as the deceased

was 46 years of age at time of accident and he was self employed

and, therefore, the claimants are entitled for 25% future

prospects.

6. Learned counsel argued that learned Tribunal has wrongly

deducted 1/4 from the income of the deceased, as the appellant

Nos.1 to 5 are dependents upon deceased - Nathuram and,

therefore, 1/5 ought to be deducted from the income of the

deceased.

7. Learned counsel further contended that the learned Tribunal

has erred in awarding interest @ 7% per annum. It is settled law

that interest on the compensation amount ought to have been

awarded at least @ 12% per annum.

8. On the other hand, learned counsel for the respondent has

supported the impugned judgment and award and contended that

there is no merit in this appeal and the same be dismissed.

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9. Heard learned counsel for the parties and perused the

material available on record.

10. Learned Tribunal has observed that no evidence has been

produced to prove that the deceased, by doing the work of loading

and unloading of stones was earning Rs.9,000/- per month at the

time of accident. Therefore, learned Tribunal assessed the income

of the deceased as per the daily wages i.e. Rs.135/-, applicable on

the date of incident (09.04.2009) and calculated his monthly

income as Rs.3510/- (135x26).

11. In the opinion of this Court, the income of the deceased

should have been considered for 30 days not for 26 days.

Therefore, the findings of the learned Tribunal is to be modified in

this regard and the income of the deceased is assessed to be 4050

per month (135x30). Learned Tribunal has not added any amount

to the income of the deceased under the head of future prospects,

which was to be done in the light of judgment of National

Insurance Company Limited Vs. Pranay Sethi & Ors.

reported in (2017) 16 SCC 680.

12. In view of the abovementioned discussions and considering

to the age of the deceased to be 46 years at the time of incident,

an increment of 25% of the income for the future prospects, as

per the direction given in the case of Pranay Sethi (supra) is also

to be made. Thus, total monthly income of the deceased comes

out to be Rs.4050 (135 X 30) + 25% (Rs.1012/-) for future

prospects = Rs.5062/- per month for the purpose of calculating

the loss of income.

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13. It is an admitted fact that the deceased was survived by his

wife and four children. All the five persons were living in the same

house as family with the deceased and, therefore, 1/4 part from

the income of the deceased has rightly been deducted under the

head of personal expenses. Therefore, the net income of the

deceased comes to Rs.5062/- divided by 4 = Rs.1265 total

Rs.5062 - 1265 = Rs.3797/- per month.

14. In this case, the age of the deceased is found to be 46 years.

Therefore, as per judgment of Pranay Sethi (supra) the multiplier

of 13 is applicable in this case. After applying the multiplier of 13,

total amount quantified as the loss of dependency comes out to be

Rs.3797 x 12 x 13 = Rs.5,92,332/-.

15. Learned Tribunal has awarded lump sum amount of

Rs.25,000/- to the wife and children of deceased under the head

of consortium. As per the judgments of Hon'ble the Apex Court in

the case of of Pranay Sethi (supra), 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, the claimant-appellant-wife of

the deceased is entitled to get Rs.40,000/- under the head of

spousal consortium and appellant Nos.2 to 5, who are children of

the deceased, are also entitled to get Rs.40,000/- each under the

head of parental consortium.

16. Learned Tribunal has awarded a sum of Rs.4330/- for funeral

expenses, which needs to be enhanced to Rs.15,000/-. Further,

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Rs.15,000/- are also to be granted under the head of loss of

estate, as per the judgment of Pranay Sethi (supra).

17. So, judgment and award of the Tribunal is modified to the

extent as under:



  1.          Loss of Annual Income (as                    Rs.3797 x 12 x 13 =
              per   the  age      of   the                 Rs.5,92,332/-
              deceased, multiplier of 13).
  2.          Under the head of Spousal                    Rs.40,000/- each to the
              Consortium and Parental                      appellants
              Consortium                                   Total Rs.2,00,000/-
  3.          Funeral expenses                              Rs.15,000/-
  4.          Loss of estat                                 Rs.15,000/-
  5.          Total     amount                 of          Rs.8,22,332/-
              compensation
  6.          Less amount awarded by                       Rs.4,40,000/-
              the Tribunal
  7.          Enhanced     amount              of          (Rs.8,22,332-
              compensation                                 Rs.4,40,000=
                                                           Rs.3,82,332/-

18. In view of the above, the impugned judgment and award

dated 04.11.2011 passed by the Tribunal is modified to the

aforesaid extent. The claimants-appellants are entitled to get a

sum of Rs.8,22,332/- as compensation. Insurance Company is

directed to deposit enhanced amount of compensation with the

Tribunal within a period of two months from the date of receipt of

certified copy of this order. After deposition of the said amount,

the learned Tribunal is directed to disburse the same in terms of

the award. The enhanced amount shall carry 8% interest from the

date of filing of claim petition till the actual payment is made.

19. The other terms and conditions of the impugned judgment

and award shall remain the same.

20. Consequently, the appeal is partly allowed.

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22. Pending application(s), if any, also stand(s) disposed of.

S. B. Civil Cross Objection No.04/2013 :

1. Learned counsel for the cross-objectors-respondent Nos.1

& 2 (hereinafter referred to as the 'cross-objectors') submits that

the application (No.181/2013) under Section 5 of the Limitation

Act for condonation of delay in filing the cross-objection has

wrongly been filed, as the cross-objection has been filed within the

prescribed time.

2. In view of the above, learned counsel for the cross-objectors

does not want to press the application.

3. Accordingly, the present application (No.181/2013) is

dismissed as not pressed.

4. Brief facts of the present case are that a claim petition was

filed by the appellants-claimants, on account of death of Shri

Nathu Ram, who died in a motor accident occurred on 09.04.2009

for claiming compensation of Rs.58,04,000/- before the Motor

Accident Claims Tribunal, Jaipur City, Jaipur (hereinafter referred

to as the 'Tribunal').

5. The cross-objector-respondent No.1-driver and cross-

objector-respondent No.2-owner of the tractor and respondent

No.3 - Insurer filed their written statements to the claim petition.

6. After evaluating the evidence available and hearing both the

parties, the learned Tribunal partly allowed the claim petition vide

order dated 04.11.2011 and awarded compensation to the tune of

Rs.4,40,000/- in favour of the claimants.

7. However, while deciding the claim petition the learned

Tribunal exonerated the Insurance Company from its liability on

the ground of breach of policy condition treating tractor-trolley as

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the 'goods carriage/transport vehicle' whereas the driver of the

same was holding the driving license of L.M.V.

8. Heard learned counsel for the parties and perused the

material available on record.

9. So far as the contention of learned counsel for the cross-

objectors regarding exonerating the Insurance Company from its

liability is concerned, the learned Tribunal while deciding Issue

No.3 has held that driver of the offending vehicle did not possess

driving license (DL) to drive the commercial vehicle and simply

possess driving license to drive LMV only, therefore, the learned

Tribunal has exonerated the Insurance Company from its liability

and directed the Insurance Company to pay the interim award to

the claimants and then to recover the same from the owner of the

offending vehicle. In this regard, the Hon'ble Supreme Court in the

case of Mukund Dewangan reported in (2017) 14 SCC 663 had

held as follows :

"(i) 'Light motor vehicle' as defined in section 2(21) of the Act would include a transport vehicle as per the weight prescribed in section 2(21) read with section 2 (15) and 2(48). Such transport vehicles are not excluded from the definition of the light motor vehicle by virtue of Amendment Act No.54/1994.

(ii) A transport vehicle and omnibus, the gross vehicle weight of either of which does not exceed 7500 kg.

would be a light motor vehicle and also motor car or tractor or a road roller, 'unladen weight' of which does not exceed 7500 kg. and holder of a driving licence to drive class of "light motor vehicle" as provided in section 10(2)(d) is competent to drive a transport vehicle or omnibus, the gross vehicle weight of which does not exceed 7500 kg. or a motor car or tractor or road-roller, the "unladen weight" of which does not exceed 7500 kg. That is to say, no separate endorsement on the licence is required to drive a transport vehicle of light motor vehicle class as

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enumerated above. A licence issued under section 10(2)(d) continues to be valid after Amendment Act 54/1994 and 28.3.2001 in the form.

(iii) The effect of the amendment made by virtue of Act No.54/1994 w.e.f. 14.11.1994 while substituting clauses (e) to (h) of section 10(2) which contained "medium goods vehicle" in section 10(2)(e), medium passenger motor vehicle in section 10(2)(f), heavy goods vehicle in section 10(2)(g) and "heavy passenger motor vehicle" in section 10(2)(h) with expression 'transport vehicle' as substituted in section 10(2)(e) related only to the aforesaid substituted classes only. It does not exclude transport vehicle, from the purview of section 10(2)(d) and section 2(41) of the Act i.e. light motor vehicle.

(iv) The effect of amendment of Form 4 by insertion of "transport vehicle" is related only to the categories which were substituted in the year 1994 and the procedure to obtain driving licence for transport vehicle of class of "light motor vehicle" continues to be the same as it was and has not been changed and there is no requirement to obtain separate endorsement to drive transport vehicle, and if a driver is holding licence to drive light motor vehicle, he can drive transport vehicle of such class without any endorsement to that effect.

10. In the case in hand the driver of the offending vehicle was

having valid and effective driving license to drive the offending

vehicle, in light of judgment of Hon'ble the Supreme Court in the

case of Mukund Dewangan (supra). Therefore, the findings of the

learned Tribunal with regard to exonerating the Insurance

Company from its liability and giving directions to the Insurance

Company to pay the compensation to the claimants and recover

the same from the owner of the offending vehicle is set aside and

the respondents i.e. driver, owner and Insurance Company are

jointly and severely liable to pay the compensation.

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11. In view of the discussions aforesaid, the impugned judgment