Iffco Tokia General Insurance Co ... vs Smt Roshni Devi And Others ...
2023 Latest Caselaw 5222 Raj/2

[2023:RJ-JP:24978]

        HIGH COURT OF JUDICATURE FOR RAJASTHAN
                    BENCH AT JAIPUR

            S.B. Civil Miscellaneous Appeal No. 4628/2012

IFFCO-TOKIO General Insurance Company Ltd., Registered Office
At Iffco House, 3Rd Floor, 34, Nehru Place, New Delhi- 110019,
Having Its Regional Office At A-13, Third Floor, Near Khatipura
Turn, Hanuman Nagar, Vaishali Nagar, Jaipur-302021- Through
Its Constituent Attorney
                                                                    ----Appellant
                                    Versus
1.       Smt. Roshni Devi W/o Late Sh. Dhumi Lal @ Prashant By
         Caste Ahir, R/o Village Riwali, Tehsil Behror, District Alwar,
         Rajasthan
2.       Rohit S/o Late Sh. Dhumi Lal @ Prashant, By Caste Ahir
         Respondent No. 2 And 3 Being Minor, Through, R/o Village

Riwali, Tehsil Behror, District Alwar, Rajasthan

3. Mohit S/o Late Sh. Dhumi Lal @ Prashant, By Caste Ahir, R/o Village Riwali, Tehsil Behror, District Alwar, Rajasthan

4. Hari Singh S/o Sh. Prahalad, By Caste Ahir, R/o Village Riwali, Tehsil Behror, District Alwar, Rajasthan

5. Smt. Saraswati Devi W/o Sh. Hari Singh, By Caste Ahir, R/o Village Riwali, Tehsil Behror, District Alwar, Rajasthan

6. Kanwar Singh S/o Sh. Ghisa Ram, By Caste Brahmin, R/o Kayasa, Tehsil Behror, District Alwar Driver Cum Owner Vehicle No. Rj-32-Ga-2746

7. Vikram Singh S/o Sh. Hari Singh, By Caste Ahir, R/o Dumroli, Tehsil Behror, District Alwar, Rajasthan Owner Vehicle No. Rj-32-Ga-2746

----Respondents

For Appellant(s) : Mr. Ritesh Jain with Mr. Ram Dev Arya For Respondent(s) : Mr. Vinay Mathur with Mr. Vijay Mathur

[2023:RJ-JP:24978] (2 of 5) [CMA-4628/2012]

HON'BLE MR. JUSTICE ASHUTOSH KUMAR

Order

22/09/2023

1. The instant appeal has been filed by the appellant-Insurance

Company under Section 173 of the Motor Vehicles Act, 1973

against the judgment and award dated 03.08.2012 passed by

Judge, Motor Accident Claims Tribunal (Fast Track), Behror, District

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

No.81/2011, whereby the learned Tribunal has partly allowed the

claim petition filed by the respondent Nos.1 to 5 - claimants

(hereinafter referred to as the 'claimants') and awarded a

compensation of Rs.12,00,000/- in favour of the claimant.

2. The claimants submitted a claim petition claiming

compensation of Rs.46,29,000/-.

3. On the basis of pleadings of the parties, the learned Tribunal

framed the issues and evaluated the evidence on record. After

hearing learned counsel for 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 appellant - Insurance Company

submitted that the learned Tribunal has erred in passing the

impugned judgment and award. The amount of award passed by

the learned Tribunal is also on a higher side. There is no plausible

explanation regarding the delay in lodging the FIR. The claimants

have failed to discharge his burden to prove the question of

negligence/involvement. Hence, in the absence of testimony of

[2023:RJ-JP:24978] (3 of 5) [CMA-4628/2012]

any independent eye-witness, it cannot be said that the burden

has been discharged by the claimants.

5. Learned counsel also submitted that mere filing of the

charge-sheet against the driver of the insured vehicle is not

sufficient to hold that the involvement of the vehicle is proved and

it appears that the accident took place due to the negligence on

the part of the driver of the alleged vehicle and the FIR has been

lodged to get the compensation.

6. Learned counsel further submitted that while passing the

impugned judgment and award the learned Tribunal has

committed grave error to consider the monthly income of the

deceased @ Rs.10,000/-, when the income was never proved.

7. Learned counsel for the appellant prayed that the appeal

may be allowed and the impugned judgment and award passed by

the learned Tribunal may be quashed and set aside.

8. On the other hand, learned counsel for the claimants -

respondents supported the impugned judgment and award and

argued that there is no force in the appeal hence, it be dismissed.

9. Heard learned counsel for the appellant and perused the

material available on record.

10. This appeal has been filed by the Insurance Company on the

ground of contributory negligence and quantum, but no evidence

was produced on behalf of the Insurance Company.

11. It transpires from the perusal of the impugned judgment

dated 03.09.2012 passed by the learned Tribunal that the

deceased-Dhumilal has expired in the accident. At the time of

accident the deceased was 42 years of age and he was Manager

and Partner in Aravali Stone Crasher, Behor and earning

[2023:RJ-JP:24978] (4 of 5) [CMA-4628/2012]

Rs.10,000/- per month and in support of it, the claimants have

produced partnership-deed and three months' VAT Invoice, which

were fully notorized.

12. Relying upon the judgment of Hon'ble Supreme Court in the

case of Sarla Verma & Ors. Vs. Delhi Transport Corporation

& Ors. reported in (2009) 6 SCC 121, looking to the age of the

deceased as 47 years according to postmortem report has rightly

applied multiplier of 13. The deceased was survived by her four

dependents, therefore, under the head of personal expenses, the

learned Tribunal has rightly deducted 1/4 of the assessed income

of the deceased and thus, loss of income calculated by the learned

Tribunal was Rs.11,70,000/-.

13. Under the conventional head, the learned Tribunal has

awarded Rs.5000/- each which comes to Rs.25,000/- and for

funeral expenses Rs.5,000. It seems that learned Tribunal, for the

death of deceased - Dhumilal, has not awarded the compensation

on a very higher side. Therefore, the findings of the learned

Tribunal does not warrant any interference in this regard. Hence,

on the question of quantum there is no force in the appeal.

14. It was contended on behalf of the Insurance Company that

the FIR was lodged with a delay of one day and the involvement of

the vehicle has been made falsely. However, the learned Tribunal

has rightly negated the defence on the count that the witness

AW.2- Chajuram and witness AW.3- Virendra, who were eye-

witnesses of the case, have proved the involvement of the vehicle

during their oral testimony and charge-sheet has been filed

against the driver of the insured vehicle No.RJ-32-GA-2746. The

accident was occurred on 28.09.2008 at 7.00 pm in the evening

[2023:RJ-JP:24978] (5 of 5) [CMA-4628/2012]

and the FIR was lodged on 29.09.2008 at 8.00 am. Therefore, it

cannot be said that the FIR has been lodged falsely and belatedly

and hence, the finding of the learned Tribunal regarding Issue

Nos.1 to 3 is just and proper.

15. No interference is thus warranted and the present appeal is,

therefore, dismissed accordingly.

16. Stay application too stands dismissed.

(ASHUTOSH KUMAR),J

A. ARORA /-24

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