Rajasthan High Court - Jodhpur
Smt. Chunni Devi And Ors vs Rajesh Kumar And Ors. ... on 8 October, 2024
Author: Nupur Bhati
Bench: Nupur Bhati
[2024:RJ-JD:41170]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
S.B. Civil Misc. Appeal No. 625/2016
United India Insurance Company Ltd., Delhi Gate, Udaipur
through Deputy Manager, United India Insurance Company Ltd.,
2nd Floor, 74-A, Bhati N-Plaza, Main Pal Road, Jodhpur.
----Appellant.
Versus
1. Smt. Chunni Devi w/o late Narendra Kumar,
2. Ms. Sushila Kumari d/o late Narendra Kumar, minor
through mother Smt. Chunni Devi
3. Manish Kumar s/o Late Narendra Kumar, minor through
mother Smt. Chunni Devi
4. Avinash Kumar s/o Late Narendra Kumar, minor through
mother Smt. Chunni Devi
5. Smt. Amba Devi w/o Shri Shankerlal,
6. Shri Shankerlal s/o Dhannaji,
7. Ms. Vimla Kumari d/o Shri Shankerlal,
8. Ms. Pushpa Kumari d/o Shri Shankerlal, minor through her
father Shri Shankerlal
[All r/o Singhatwada, Post-Singhatwada (Jawar Mines),
Tehsil - Sarada, District Udaipur.]
9. Shri Rajesh Kumar s/o Shri Vishnu Das Vaishnav, r/o
Korkhanda, P.S. Dowada, Tehsil & District Dungarpur (Raj.)
10. Shri Mahipal Singh s/o Shri Moti Singh Sisodiya, r/o 2-B-
31, H.B. Colony, Banswara (Raj.).
----Respondents.
Connected With
S.B. Civil Misc. Appeal No. 527/2016
United India Insurance Company Ltd., Delhi Gate, Udaipur
through Deputy Manager, United India Insurance Company Ltd.,
2nd Floor, 74-A, Bhati N-Plaza, Main Pal Road, Jodhpur.
----Appellant
Versus
1. Logar s/o Punjaji, r/o Oda Fala Dagala, Post-Singhatwada,
Tehsil Sarada, District Udaipur.
2. Shri Rajesh Kumar s/o Vishnu Das Vaishnav, r/o
(Downloaded on 10/10/2024 at 09:33:44 PM)
[2024:RJ-JD:41170] (2 of 13)
Korkhanda, P.S. Dowada, Tehsil & District-Dungarpur (Raj.)
3. Shri Mahipal Singh s/o Shri Moti Singh Sisodiya, r/o 2-B-
31, H.B. Colony, Banswara (Raj.).
----Respondents.
S.B. Civil Misc. Appeal No. 2341/2016
Shyamlal s/o Nawlaji aged 30 years, r/o Bagurva Post-Ajbara
Tehsil-Sarada, District Udaipur.
----Appellant
Versus
1. Rajesh Kumar s/o Vishnudas Vaishnav r/o Korkhanda, PS-
Dovda, Tehsil District-Doongarpur (Raj.) (Driver)
2. Mahipal Singh s/o Motisingh Sisodiya r/o 2 B 31 HB
Colony, Banswara (Raj.) (Owner)
3. United India Insurance Company Ltd. through Divisional
Manager, UIICL Delhi Gate, Udaipur (Raj.) (Vehicle
Insurance Company).
----Respondents.
S.B. Civil Misc. Appeal No. 1178/2016
1. Smt. Chunni Devi w/o late Narendra Kumar,
2. Ms. Sushila Kumari d/o late Narendra Kumar, minor
through mother Smt. Chunni Devi
3. Manish Kumar s/o Late Narendra Kumar, minor through
mother Smt. Chunni Devi
4. Avinash Kumar s/o Late Narendra Kumar, minor through
mother Smt. Chunni Devi
5. Smt. Amba Devi w/o Shri Shankerlal,
6. Shri Shankerlal s/o Dhannaji,
7. Ms. Vimla Kumari d/o Shri Shankerlal,
8. Ms. Pushpa Kumari d/o Shri Shankerlal, minor through her
father Shri Shankerlal
[All r/o Singhatwada, Post-Singhatwada (Jawar Mines),
Tehsil - Sarada, District Udaipur.]
9. Shri Rajesh Kumar s/o Shri Vishnu Das Vaishnav, r/o
Korkhanda, P.S. Dowada, Tehsil & District Dungarpur (Raj.)
10. Shri Mahipal Singh s/o Shri Moti Singh Sisodiya, r/o 2-B-
31, H.B. Colony, Banswara (Raj.).
(Downloaded on 10/10/2024 at 09:33:44 PM)
[2024:RJ-JD:41170] (3 of 13)
----Appellants
Versus
1. Rajesh Kumar s/o Vishnudas Vaishnav r/o Korkhanda, PS-
Dovda, Tehsil District-Doongarpur (Raj.) (Driver)
2. Mahipal Singh s/o Motisingh Sisodiya r/o 2 B 31 HB Colony,
Banswara (Raj.) (Owner)
3. United India Insurance Company Ltd. through Divisional
Manager, UIICL Delhi Gate, Udaipur (Raj.) (Vehicle
Insurance Company).
----Respondents
For Appellant(s) : Mr. Devendra Sharma representing
the claimant/appellant
For Respondent(s) : Mr. Lalit Parihar, associate to Mr.
Sanjeev Johari, Sr. Advocate,
representing the respondent No.3-
insurance company.
Mr. Bharat Singh Rathore
representing the respondent No.2-
Owner.
HON'BLE DR. JUSTICE NUPUR BHATI
Order
08/10/2024
1. At the risk and cost of learned counsel for the appellant,
service of notice upon respondent No.1-Driver, is dispensed with.
2. By way of these misc. appeals, the appellants have
challenged the legality and validity of the judgment/award dated
26.11.2015 passed by the learned Judge, Motor Accident Claims
Tribunal, Salumber, district Udaipur ('learned Tribunal') in MAC
Cases Nos.395/2012, 396/2012 and 397/2012, whereby the
learned Tribunal awarded quantum of compensation in favour of
the claimants and held non-claimants i.e. Driver, Owner and
Insurer of the offending vehicle, liable to pay the said amount
jointly and severally.
[2024:RJ-JD:41170] (4 of 13)
3. Since these appeals arise out of same controversy as well as
the same judgment/award dated 26.11.2015, therefore, the same
are being decided by this common order.
4. The relevant background facts of the case are that on
17.01.2012 at about 2.00 PM, Shri Narendra Kumar (deceased
husband of the claimant No.1-Chunni Devi in SBCMA
No.1178/2016), Shyamlal (appellant/claimant in SBCMA
No.2341/2016) and one Shri Logar, after parking motorcycle near
Jaisamand Veerpura Badabaag, were standing and talking with
each other. A car bearing registration No.RJ-03-TA-0777, driven by
one Rajesh Kumar (driver), coming from Salumber in a rash and
negligent manner, hit them from behind and as a result whereof,
they received grievous injuries. For the treatment, all of them
were rushed to Bhupal General Hospital, Udaipur and on
19.01.2012, during the treatment, Shri Narendra Kumar expired
and Shyamlal and Logar were grievously injured.
5. An FIR No.12/2012 came to be lodged at the Police Station
Sarada, Udaipur for the offences punishable under Sections 279,
337, 338 and 304-A IPC. Claim petitions were filed on behalf of
the injured persons and the deceased wherein, Rajesh Kumar
(driver), Mahipal Singh (owner) and the insurance company were
held liable to pay the compensation.
6. Respondent/non-claimants denied the averments contained
in the claim petitions and stated that since the vehicle was insured
with the insurance company, therefore, the insurance company is
liable to pay the amount of compensation.
7. The appellant-Insurance Company filed reply and denied the
averments of the claim petitions as well as of respondents/non-
[2024:RJ-JD:41170] (5 of 13)
claimants and submitted that the accident did not take place from
the vehicle in question but occurred due to the negligence of
Narendra Kumar, Shyamlal and Logar.
8. As per the pleadings, learned Tribunal framed four issues:
"1. आया दिनां क 17.01.2012 को अप्रार्थी संख्या 1 राजेश
कुमार के द्वारा वाहन संख्या आर.जे.27 टी.ए. 0777 को
गफलत व लापरवाही से चलाने के कारण दु र्घ टना हुई जिसके
फलस्वरूप नरे न्द्र कुमार की मृत्यु हो गई एवं श्यामलाल व लोगर
घायल हुए ? ..प्रार्थीगण
2. आया प्रार्थीगण क्लेम में बताई गई राशि रूपये
79,95,000/- श्रीमती चुन्नीदे वी, रूपये 460500/- श्यामलाल
एवं 865000/- लोगर या अन्य कोई राशि प्रतिकर में विपक्षीगण
से पाने के अधिकारी है । यदि हां तो कितनी व किस-किस से व
किस कदर ? ...प्रार्थीगण
3. आया विपक्षीगण द्वारा जवाब में उठाई गई आपत्तियों के
आधार पर विपक्षीगण का कोई दायित्व नही ं है ? ....अप्रार्थीगण
4. दादरसी?"
9. Oral as well as documentary evidences were produced by the
claimants to prove their case whereas, no oral as well as
documentary evidence was led by the non-claimants/respondents.
10. After hearing both the parties, the learned Tribunal partly
allowed the claim petitions filed by the claimants by awarding
quantum of compensation in their favour and thus, being
dissatisfied from the same, the appellants herein have preferred
these misc. appeals.
11. Learned counsel for the appellant-Insurance Company
submits that the learned Tribunal has erred in fastening
contributory negligence only 30% liability upon the claimants,
inasmuch as the deceased as well as the injured claimants who
suffered injuries on account of the said accident, were standing on
the said highway and talking to each other while their own vehicle
was parked and was facing towards Udaipur, i.e. the wrong side.
[2024:RJ-JD:41170] (6 of 13)
12. Learned counsel for the appellant-Insurance Company also
submits that the road on which the accident took place was State
Highway No.53 and that the driver of the offending vehicle had
applied brakes well before 8-10 feet from the spot of the accident,
as observed in the Naksha-Mauka, pointing towards the fact that
the driver of the offending vehicle had taken all the steps possible
in his capacity to avoid the untoward incident. He also submits
that the vehicle which was parked beside the deceased along with
the injured-claimants who suffered injuries, was damaged only
from the front and there was no damage on the back-side of the
vehicle, which adds to the possibility that it was the negligence of
the deceased that their vehicle bearing registration No.RJ-27-SE-
1509, was parked on the wrong side and they were standing
beside the said vehicle on the State Highway, without exercising
proper care and caution and therefore, the learned Tribunal ought
to have considered 50% contributory negligence on part of the
deceased as well as the injured claimants, who had been injured
during the said accident.
13. Per contra, learned counsel for the claimants vehemently
opposes the submissions advanced by the counsel representing
the insurance company and submits that the said accident took
place on account of rash and negligent driving of the driver of the
offending vehicle, which was insured with the Insurance Company
and thus, the appeal filed by the appellant-Insurance Company
warrants rejection. He, thus, urges, that the impugned judgment/
award passed by the learned Tribunal is just and proper and thus,
the same need not be reduced.
[2024:RJ-JD:41170] (7 of 13)
14. I have heard and considered the submissions advanced at
Bar and have carefully gone through the material available on
record.
15. The precise question before this Court for adjudication of
these appeals is that whether the learned Tribunal was right in
attributing 30% deduction towards contributory negligence upon
the deceased and injured claimants for causing the accident or
not.
16. This Court finds that the learned Tribunal has categorically
observed that the vehicle carried by the deceased Shri Narendra
Kumar along with the injured claimants viz. Shyamlal and Logar,
who have suffered injuries, was facing Udaipur, i.e. it was on the
wrong side of the road. It is also seen that the learned Tribunal
has also taken into consideration the fact that the road on which
the accident had occurred was a State Highway and thus, it was
negligence on part of the deceased and the injured claimants who
were standing and talking on middle of the State Highway. Thus,
this Court concurs with the finding of the learned Tribunal that
indeed it was negligence on account of the deceased and the
injured claimants, who stood on the road and that too a State
Highway, where it is only plausible that the vehicles would ply at a
high speed.
17. Furthermore, upon perusal of the Site-Plan (Exhibit-4), it
bears noting that the learned Tribunal has observed that the driver
of the offending vehicle had applied brakes well in advance, i.e. 8-
10 feet before the site of accident and the marks of the brakes so
applied by the driver of the offending vehicle, have been clearly
demarcated by the dotted lines, which start much before the site
[2024:RJ-JD:41170] (8 of 13)
of accident, which is demarcated as 'A' in the Site-Plan (Exhibit-4).
Thus, a bare perusal of the Site-Plan (Exhibit-4) makes it clear
that the driver of the offending vehicle had taken all possible and
precautionary steps to prevent the said accident, however, looking
into the fact that the road on which the accident had occurred,
was a State Highway and that, the vehicles that are being plied on
the said road, would reasonably be driven at a higher speed in
comparison to the vehicles that are plied in a crowded area and
thus, it would be only reasonable that even after applying the
brakes, it would not be entirely possible to prevent the accident,
looking into the peculiar facts and circumstances of this case.
18. Moreover, upon perusal of the Site-Plan, this Court also finds
that the mark 'A' which indicates the site of accident and where
the deceased along with the respondent-claimants who suffered
injuries, were standing, is quite distant from the footpath that is
present along side the State Highway. This Court finds that even if
the deceased and the injured claimants who suffered injuries,
stopped the motorcycle to talk, they could have stood on the
footpath, rather than the State Highway to do so, and thus, it was
clear lack of caution on part of the deceased along with the
injured claimants who suffered injuries, which also contributed to
the accident equally.
19. This Court also finds that the learned Tribunal has also
observed that there were no signs of damage to the motorcycle
carried by the deceased and the injured claimants and the
motorcycle had been damaged only from the front-side, which
leads to the conclusion that the motorcycle was parked while
pointing towards Udaipur and thus, upon perusal of the Site-Plan
[2024:RJ-JD:41170] (9 of 13)
(Exhibit-4), it is seen that the said motorcycle was parked on the
wrong-side and thus, this Court concurs with the finding of the
learned Tribunal that the deceased along with the claimants, was
also negligent while parking the motorcycle on the wrong-side of
the State Highway, and then standing on the State Highway itself
to talk, at the time of accident. The Site-Plan (Exhibit-4) is
reproduced hereinbelow:
"uD"kk utjk
mifLFkr ekSrchjku o izkFkhZ dh ekStwnxh esa ?kVuk LFky dk fujh{k.k
fd;k tkrk gSA uD"kk utjh gLc tSy gSA
xxxxxx SITE MAP xxxxxx
bUMsDl
¼1½ ds LFkku LVsV gkbZos ckalokM+k ls mn;iqj okyk gSA ¼A½ LFkku
?kVuk LFky gS tgka e`rd o yksxj ";keyky ckrs dj jgs Fks tgka ls
VDdj yx ,DlhMsUV gqvk gS -----------dkj ds czsd fu"kku py ?kVuk
vk;s gq, FksA
¼2½ ds LFkku ve:n dk ckx NksVq [kka eqlyeku dk gSA
¼3½ ds LFkku QksjsLV foHkkx dh tehu gSA"
20. Thus, the question raised before this Court is answered
partly affirmative inasmuch as the learned Tribunal was justified
and correct in ascertaining the contributory negligence of the
deceased and the injured claimant who suffered the injury,
however looking into the fact that firstly, the deceased along with
the injured claimants who suffered the injuries, were standing on
the wrong-side of the State Highway; secondly, the deceased and
the injured claimants who suffered injuries, were standing and
talking on the road, even when there was a footpath carved along
side the State Highway, as seen from the Site-Plan (Exhibit-4);
and lastly, the Site-Plan (Exhibit-4) clearly indicates the marks
where the driver of the offending vehicle had applied brakes in
[2024:RJ-JD:41170] (10 of 13)
form of dotted lines, which starts 8-10 feet prior to the site of
accident, marked as 'A' and therefore, it is seen that the driver of
the offending vehicle had exercised due care to prevent the
accident but those efforts were not fructified and thus, taking into
consideration all these factors in toto, this Court deems it fit to
attribute contributory negligence on part of the deceased as well
as the injured claimants, Shyamlal and Logar to the extent of 50%
instead of 30%, as ascertained by the learned Tribunal.
21. In SBCMA No.2341/2016, learned counsel representing the
appellant/claimant-Shyamlal makes a limited submission that the
learned Tribunal has erred in law and facts of the case and
awarded meager compensation, to which, learned counsel
representing the Insurance Company opposes and submits that as
per Injury Report of Shyamlal (Exhibit-58), the appellant received
only two injuries which were simple in nature and therefore, the
learned Tribunal was correct in awarding compensation to the
appellant and the same does not requires any interference.
22. From a bare perusal of the impugned order dated
26.11.2015, this Court finds that the learned Tribunal after
perusing Exhibit-58 (Injury Report of the claimant), arrived at a
conclusion that during the accident, the appellant received only
two injuries which were simple in nature and thus the contention
of the appellant that he received numerous injuries during the
accident, holds no force, as there is no document on record which
proves this contention of the appellant. Thus, this Court finds that
the learned Tribunal was perfectly justified in awarding quantum of
compensation in favour of the appellant. However, looking into the
fact that since no appeal has been filed by the appellant-Insurance
[2024:RJ-JD:41170] (11 of 13)
Company against the claimant-Shyamlal, therefore, this Court
does not deem it appropriate to interfere in the issue of the
contributory negligence in this case. This Court is also conscious of
the fact that as the compensation awarded is meagre, the
Insurance Company has not preferred appeal against the claimant.
23. As an upshot of the discussion made hereinabove, the misc.
appeals being SBCMAs Nos.625/2016 and 527/2016 preferred by
the appellant-Insurance Company is allowed and resultantly, this
Court attributes 50% negligence, upon deceased along with the
injured claimants, who suffered injuries on account of the said
accident and the misc. appeal preferred by the appellant-Shyamlal
being SBCMA No.2341/2016 stands dismissed, as the
compensation awarded by the learned Tribunal is just and proper.
24. Now, coming on to SBCMA No.1178/2016; learned counsel
representing the claimants submits that the quantum of
compensation awarded by the learned Tribunal in favour of the
claimants, is on a lower side and also, not a single penny has been
awarded towards future prospects and consortium to which,
learned counsel representing the insurance company opposes and
submits that the instant appeal warrants rejection.
25. This Court finds considerable force in the submissions of
learned counsel representing the claimants as the learned Tribunal
has erred in not awarding future prospects towards loss of income
incurred by the deceased and thus, the dependents are also
entitled to get compensation under the head of consortium in
accordance with the judgments rendered by the Hon'ble Apex
Court in the cases of National Insurance Co. Ltd v. Pranay
[2024:RJ-JD:41170] (12 of 13)
Sethi : [2017 (16) SCC 680] and Sarla Verma v. Delhi
Transport Corporation : AIR 2009 SC 3104.
26. Since there is no dispute on the factual matrix of the case
and along with the conclusion arrived at by this Court that the
award passed by the learned Tribunal warrants enhancement, this
Court directs counsel for the parties to jointly submit the
calculations in light of the judgments passed by the Hon'ble Apex
Court in cases of Pranay Sethi (supra) and Sarla Verma
(supra), the claimants are held entitled for enhancement
towards, future prospects and consortium, as explained in a
tabular form:-
Particulars Amount awarded by Amount awarded by the
Tribunal Court
Income of the deceased, Rs. 8,64,000/- Rs. 8,64,000/-
after applying the
multiplier of 16 (4,500 x 12
x 16)
Deducting ¼ towards Rs. 6,48,000/- Rs. 6,48,000/-
Personal Expenses
Adding 40% towards future Not awarded Rs. 9,07,200/-
prospects (6,48,000 + 40%
of 6,48,000) [A]
Consortium (48,400 x 8) [B] Rs. 1,00,000/- (wife) Rs. 3,87,200/-
+ Rs. 1,00,000/- (collectively
to the children)
+ Rs. [10,000 x3] (10,000
each for the mother and two
sisters of the deceased)
= Rs. 2,30,000/-
Funeral Expenses [C] Rs. 25,000/- Rs. 18,100/-
Loss of Estates [D] Rs. 5,000/- Rs. 18,100/-
Transport Expenses [E] Rs. 5,000/- Rs. 5,000/-
Medical Bills [F] Rs. 45,835/- Rs. 45,835/-
GRANDTOTAL Rs. 9,58,835/- Rs. 13,81,435/-
[A+B+C+D+E+F]
Reducing 50% on account of Rs. 6,71,200/-[G] Rs. 6,90,717.5/- [H]
contributory negligence
(50% of 13,81,435)
Enhanced amount Rs. 19,517.5/-
[2024:RJ-JD:41170] (13 of 13)
27. Accordingly, this misc. appeal being SBCMA No.1178/2016
preferred by the claimants is partly allowed. The judgment/award
dated 26.11.2015 passed by the learned Tribunal in MAC Case No.
396/2012, is enhanced and modified in the terms as stated above.
The claimants are entitled to an enhanced compensation of
Rs.19,517.5/- in the terms stated above from the respondent
Insurance Company in accordance with the directions of the
learned Tribunal. The enhanced amount shall carry interest as
awarded by the learned Tribunal from the date of filing the claim
petition till the date of deposit.
28. Any amount, if already paid, shall be adjusted accordingly.
Record be sent back forthwith. No order as to costs.
29. A copy of this order be placed in each file.
(DR. NUPUR BHATI),J
52-53 & 61-62-/Devesh Thanvi/-
Powered by TCPDF (www.tcpdf.org)
