Rajasthan High Court - Jodhpur
N.I.C.Ltd vs Shanta And Ors. (2024:Rj-Jd:42341) on 17 October, 2024
Author: Nupur Bhati
Bench: Nupur Bhati
[2024:RJ-JD:42341]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
S.B. Civil Misc. Appeal No. 241/2013
National Insurance Company Ltd., through its Legally
Constituted Authority, Divisional Office, 12 Residency Road,
Jodhpur.
----Appellant/Non-Claimant No.3
Versus
1. Shanta W/o Shri Ramchandra Mehta,
2. Ramchandra S/o Omkarlal Mehta,
3. Chandrakant S/o Ramchand Mehta,
Respondents No.1 to 3 all residents of Village Gol, Tehsil
Aaspur, District Dungarpur (Raj.)
--- Respondents No.1 to 3/claimants
4. Kayyum Ahmed S/o Aamir Mohd, Resident of Village
Negrad, Tehsil Ghatol, P.S. Kmera, District Banswada.
(Driver of vehicle)
---Respondent/Non-Claimant No.1
5. Sanat Kumar Jain S/o Shri Ratanlal Jain, Resident of Bus
Stand Ghatol, District Banswada (Raj.) (Owner of vehicle)
----Respondents
For Appellant(s) : Mr. Anil Kaushik.
For Respondent(s) : Mr. Bharat Singh, R-1 to 3 (claimants)
None present for R-4 & 5.
HON'BLE DR. JUSTICE NUPUR BHATI
Judgment
17/10/2024
1. The appellant/non-claimant No.3, Insurance Company has
preferred the instant misc. appeal under Section 173 of the M.V.
Act, 1988 challenging the judgment and award dated 01.12.2012
passed by learned Additional District Judge, Dungarpur in MAC
Case No.153/2011, whereby the learned Tribunal has awarded
[2024:RJ-JD:42341] (2 of 7) [CMA-241/2013]
compensation in favour of respondents No.1 to 3/claimants to the
tune of Rs.21,01,000/- along with interest @ 9% per annum from
the date of filing the claim petition i.e. 31.05.2011. All the non-
claimants were held jointly and severally liable to pay the
compensation amount.
2. Briefly stated, the facts of the case are that the respondents
No.1 to 3/claimants filed claim petition under Section 140/166 of
the M.V. Act, 1988 claiming compensation on account of death of
Sh. Niranjan, who died in an accident which took place on
23.04.2011. The claimants in the claim petition stated that on
23.04.2011 at about 07:00 pm, while deceased Niranjan was
coming from Aaspur to his home on his Motorcycle (RJ-12-MA-
1348), near Seth Motors, a Mini Truck (RJ-03-GA-1501) coming
from opposite direction, being plied by its driver/non-claimant
No.1 rashly and negligently, hit the Motorcycle of deceased, as a
result of which deceased Niranjan sustained injuries. The injured
was immediately taken to hospital at Aaspur, however, looking to
critical condition, he was referred to Udaipur, however, enroute he
died. A report of the accident was lodged at Police Station- Aaspur
being FIR No.86/2011, wherein after investigation, charge sheet
was filed against the driver of the offending vehicle. It was further
stated that at the time of accident, the deceased was 25 years of
age and he was working in a Printing Press and was earning
Rs.13,000/- per month. The claimants thus filed claim petition
claiming compensation of Rs.27,61,000/- under various heads.
3. On being served with the summons of the claim petition, the
respondents No.4 and 5 (driver and owner) filed their reply to the
claim petition while denying their liability. It was stated in the
[2024:RJ-JD:42341] (3 of 7) [CMA-241/2013]
reply that the accident occurred due to rash and negligent driving
of the deceased himelf.
4. On behalf of appellant/non-claimant No.3, reply to claim
petition was filed while denying the averments made in the claim
petition. An objection with regard to driver of the offending Mini
Truck not having valid and effect licence was also taken. On behalf
of appellant, it was also stated that owner of the vehicle was not
having a valid and effective route permit. Thus by filing the reply,
it was prayed that the insurance company is not liable to pay the
compensation.
5. As per the pleadings of the parties, the learned Tribunal
framed four issues for determination. In support of their claim
petition, the claimants examined AW.1 Ramchandra and one
Narayan as AW.2 and certain documents were also exhibited (Ex.1
to Ex.27). On behalf of non-claimants no evidence was led,
however, on behalf of appellant, Policy (Ex.A/1) was exhibited.
6. The learned Tribunal thereafter heard the counsel for the
parties and after considering the evidence produced, vide
judgment and award dated 01.12.2012 partly allowed the claim
petition and awarded compensation of Rs.21,01,000/- in favour of
claimants along with interest @ 9% p.a. from the date of filing the
claim petition and the liability thereof was fastened upon all the
non-claimants, jointly and severally.
7. A Coordinate Bench of this Court, after hearing counsel for
the appellant, vide order dated 27.02.2013 while admitting the
appeal granted an interim order that if the appellant deposits a
sum of Rs.7,00,000/- with the learned Tribunal along with interest
after taking into consideration the amount already deposited by it
[2024:RJ-JD:42341] (4 of 7) [CMA-241/2013]
under Section 140 and/or proviso to Section 173 of the Act of
1988 within a period of four weeks, the rest of the award was
stayed qua the appellant insurance company. The amount on
being deposited was ordered to be disbursed to the claimants in
terms of the award.
8. Learned counsel appearing for the appellant- Insurance
Company submits that no evidence was produced by the claimants
that the deceased by doing offset and screen printing in the
printing press was earning Rs.13,000/- per month, however, the
learned Tribunal has assessed the monthly income of the
deceased as Rs.10,000/- per month. Learned counsel for the
appellant submits that at best, the deceased can be considered a
highly skilled person assuming that he was working in the printing
press. Learned counsel for the appellant further submits that there
was no loss of income as such, inasmuch as the printing press
which was being operated by the deceased, was being run by the
brother of deceased. Learned counsel for the appellant further
submits that deceased was unmarried and, therefore, 1/2
deduction ought to have been made, however, the learned
Tribunal has deducted 1/3 deduction, which is contrary to the law
laid down by Hon'ble Supreme Court in the case of Sarla Verma v.
Delhi Transport Corporation & Anr. : 2009 (6) SC 121. Learned
counsel for the appellant further submits that since the deceased
was not in permanent employment, therefore, the future
prospects awarded by the learned Tribunal at 50% is higher side
and the same ought to have been 40%.
9. On the other hand, learned counsel appearing for the
respondents/claimants vehemently opposed the submissions made
[2024:RJ-JD:42341] (5 of 7) [CMA-241/2013]
by counsel for the appellant. Learned counsel for the claimants
contended that the deceased was highly qualified in computer
applications, which the claimants proved by exhibiting Ex.18, 19
and 20. Learned counsel appearing for the claimants further
submits that the amount awarded by the learned Tribunal under
the non-pecuniary heads is also on lower side and the same ought
to have been enhanced.
10. I have considered the submissions made by counsel for the
parties at length and have perused the material available on
record.
11. This Court finds that there is no dispute that the deceased
was a highly qualified person, inasmuch as he had acquired
qualification in computer application and the claimants by
exhibiting Ex.21 proved that the deceased started a printing press
in the name and style of M/s Bhoomi Printers. This Court also finds
that this fact has not been denied by the insurance company that
the deceased was not running the printing press. Thus, in absence
of any counter to the submissions made by the claimants, in the
considered view of this Court, the learned Tribunal has rightly
considered the monthly income of the deceased at Rs.10,000/-.
This Court, however, finds considerable force in the contention
raised by counsel for the appellant that 1/2 deduction ought to
have been made instead of 1/3, as deducted by the learned
Tribunal, from the monthly income of the deceased as he was
unmarried. This Court finds that the father of the deceased, who
was examined as AW.1 has categorically deposed before the
learned Tribunal that he was posted as postman and was earning
Rs.7,000/-. Thus considering the testimony of AW.1, the father of
[2024:RJ-JD:42341] (6 of 7) [CMA-241/2013]
the deceased cannot be said to be dependent of the deceased.
Further, the younger brother of the deceased also cannot be said
to be dependent upon the deceased, he has to be considered
dependent upon the father at the time of accident.
12. This Court finds that the learned Tribunal has also erred in
awarding 50% towards future prospects, which looking to the
facts and circumstances of the case, more particularly when the
deceased was not working on permanent job, 40% future
prospects deserves to be granted, in view of law laid down by
Hon'ble Apex Court in the case of National Insurance Co. Ltd vs
Pranay Sethi : 2017 (16) SCC 680.
13. Though it is an appeal preferred by the insurance company,
however, taking into consideration the judgment passed by
Hon'ble Apex Court in the case of Ranjana Prakash v. Divisional.
Manager : (2011) 14 SCC 639, wherein the Hon'ble Apex Court
has held that even in an appeal by the insurer/owner, the
appropriate course for the High Court is to examine the facts and
by applying the relevant principles, determine the just
compensation and if the overall amount of the compensation is
being reduced under certain heads, it is open for the claimant to
defend the awarded compensation by pointing out the
errors/omissions in the award and as such the quantum of
compensation can be enhanced/awarded under other heads (if the
same deserves to been enhanced/awarded in those respective
heads) so as to set off such reduction, this Court finds that the
compensation awarded under the heads of funeral expenses and
consortium is also on lower side, which deserves to be suitable
enhanced in view of judgment passed by Hon'ble Apex Court in
[2024:RJ-JD:42341] (7 of 7) [CMA-241/2013]
the case of Pranay Sethi (supra). This Court also finds that no
amount under the head of loss of estate has been awarded by the
learned Tribunal, which this Court deems it appropriate and
hereby grants.
14. Accordingly, in view of above discussion, the instant misc.
appeal preferred by the appellants/claimants is partly allowed. The
judgment and award dated 01.12.2012 passed by learned
Additional District Judge, Dungarpur in MAC Case No.153/2011 is
partially modified and the claimants are thus held entitled to get
compensation of Rs.16,10,500/- instead of Rs.21,01,000/- along
with interest @ 9% p.a. and the amount to be reduced is
Rs.4,90,500/-. The afore-stated can be understood in the form of
calculation which is reproduced as under:-
S. No. Particulars Amount Amount re-
awarded by the quanitifed by
Tribunal this Court
1. Compensation under the head of loss of Rs.20,40,000/- Rs.14,28,000/-
income
10,000 + 4,000 (40% Future
Prospects)
14,000 - 7000 (1/2) = 7000 x 12 x 17
= 14,28,000.00
2. Consortium (Rs.48,400 x 3) Rs.55,000/- Rs.1,45,200/-
3. Loss of Estate Nil Rs.18,150/-
4. Funeral Expenses Rs.5,000/- Rs.18,150/-
5. Transportation Charges Rs.1000/- Rs.1000/-
Grand Total Rs.21,01,000/- Rs.16,10,500/-
Amount to be Reduced (Rs.21,01,000 - Rs.16,10,500) Rs.4,90,500/-
15. The amount of compensation already paid pursuant to the
interim order shall be taken into consideration/adjusted. No order
as to costs.
(DR. NUPUR BHATI),J
47-DJ/-
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