Rajasthan High Court - Jodhpur
The New India Assurance Co. Ltd vs Smt. Bhanwari And Ors. ... on 17 October, 2024
Author: Nupur Bhati
Bench: Nupur Bhati
[2024:RJ-JD:42313]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Misc. Appeal No. 683/2004
1. Smt. Bhawari Bai, w/o Ambalal Rathore, aged 32 years.
2. Ms. Manju, aged 14 years,
3. Ms. Lali, aged 10 years,
4. Ms. Seema, aged 08 years,
5. Ms. Chanda, aged 05 years,
All appellant no. 2 to 5 daughters of Ambalal Rathore.
6. Shri Mukesh, s/o Ambalal Rathore, appellant no. 02-06 are
minors through mother appellant no. 1
7. Smt. Keshi Bai, w/o Bholi Ram Rathore, aged 65 years
All r/o of Badliya, Tehsil and District Rajsamand.
----Appellant
Versus
1. Shri Randhir Singh, s/o, Vagrao Singh Rajpoot, r/o Biwas
Tehsil Rajgarh, District Churu.
2. M/s Auto Cars, through P.N. Dhoot, Compound, MIDC Area,
Valuz, Oorangabad.
3. The New India Insurance Company Limited, Branch
Udaipur.
----Respondent
Connected With
S.B. Civ.cros.obj.miscapp No. 9/2005
The New India Assurance Co. Ltd.Branch Office Udaipur
(Rajasthan).
----Appellant
Versus
1. Smt. Bhanwari, w/o Ambalal Rathore, aged 32 years.
2. Ms. Manju, aged 14 years,
3. Ms. Lali, aged 10 years,
4. Ms. Seema, aged 08 years,
5. Ms. Chanda, aged 05 years,
All appellant no. 2 to 5 daughters of Ambalal Rathore.
6. Shri Mukesh, s/o Ambalal Rathore, appellant no. 02-06 are
minors through mother appellant no. 1
7. Smt. Keshi Bai, w/o Bholi Ram Rathore, aged 65 years
All r/o of Badliya, Tehsil and District Rajsamand.
8. Shri Randhir Singh, s/o, Vagrao Singh Rajpoot, r/o Biwas
Tehsil Rajgarh, District Churu.
(Downloaded on 18/10/2024 at 09:34:56 PM)
[2024:RJ-JD:42313] (2 of 7) [CMA-683/2004]
9. M/s Auto Cars, through P.N. Dhoot, Compound, MIDC Area,
Valuz, Oorangabad.
----Respondent
For Appellant(s) : Mr. Nikhil Ajmera for the claimants
For Respondent(s) : Mr. D.K. Bhootra and
Ms. Mamta Joshi for the Insurance
Company
HON'BLE DR. JUSTICE NUPUR BHATI
Judgment
17/10/2024
1. The present civil misc. appeal has been preferred by the
appellant-claimants under Section 173 of the Motor Vehicles Act,
1988 ('MV Act') assailing the judgment and award dated
21.02.2003 passed by learned Judge, Motor Accident Claims
Tribunal, Rajsamand ('Tribunal') in MAC Case No.372/2001,
whereby the learned Tribunal partly allowed the claim petition filed
by the appellant/claimants under Section 166 of the MV Act and
awarded compensation of Rs. 4,57,000/-, in favour of claimants
along with interest @ 9% p.a. from the date of filing the claim
petition, while fastening the liability upon the respondents, jointly
and severally.
2. By way of filing the cross-objection, the respondent-
Insurance Company have assailed the judgment and award passed
by the learned Tribunal dated 21.02.2003, whereby the learned
Tribunal had partly allowed the claim petition filed by the
appellant-claimants and fastened the liability upon the
respondents jointly and severally.
3. Briefly stated, the facts of the case are that on 24.04.2001,
Ambalal (deceased) was traveling to Badliya, Gujarat, when in
[2024:RJ-JD:42313] (3 of 7) [CMA-683/2004]
Modasa, a truck bearing number MH-20-A-5986, driven by the
respondent no.1/driver on the wrong side, hit the motorcycle on
which the deceased was travelling on account of which Ambalal
died on spot, while the pillion rider sitting with deceased Ambalal,
i.e. Himmat Singh suffered serious injuries and later succumbed to
death. A claim was filed by the representatives of the deceased
Ambalal under Section 166 of the MV Act seeking compensation to
the tune of Rs. 89,56,000/- on account of death of Ambalal.
Learned Tribunal, after hearing the parties partly allowed the
claim, while fastening liability upon the respondents jointly and
severally, awarded Rs. 4,57,000/- to the appellant-claimants,
aggrieved of which, the appellant-claimants have preferred the
present appeal, and the respondent-Insurance Company has
preferred the cross-objection.
4. Learned counsel for the respondent-Insurance Company, in
its cross-objection submits that the accident did not take place on
account of negligence of the driver of the offending vehicle, rather
it was the motorcycle of the deceased that had slipped, which
resulted in the accident and therefore, the learned Tribunal has
erred in determining the issue of negligence in favour of the
appellant-claimants. He also submits that the interest levied on
the compensation awarded by the learned Tribunal is also on a
higher side and thus, prays for reducing the interest rate on the
amount awarded by the learned Tribunal.
5. Per contra, learned counsel for the appellant-claimants
submits that the learned Tribunal has rightly observed that the
respondent no.1/driver of the offending vehicle had been negligent
in driving the offending vehicle while taking into consideration the
[2024:RJ-JD:42313] (4 of 7) [CMA-683/2004]
evidence available on record, which led to the unfortunate
accident, and thus, the learned Tribunal has rightly held the
respondents jointly and severally liable to pay the compensation.
6. Learned counsel for the appellant-claimants also submits
that the learned Tribunal has erred in applying a multiplier of 12,
instead of 15, when the deceased was 36 years at the time of
accident in light of the judgment passed by the Hon'ble Apex
Court in the case of Sarla Verma Vs. Delhi Transport
Corporation reported in AIR 2009 SC 3104. He also submits
that the learned Tribunal has erred in not awarding future
prospects and thus, the same deserves to be added for calculating
the loss of income of the deceased, in light of the judgment
passed by the Hon'ble Apex Court in the case of National
Insurance Company Limited vs. Pranay Sethi & Ors. reported
in (2017)16 SCC 680. He also submits that the learned Tribunal
has also erred in deducting 1/3 towards personal expenses of the
deceased, while calculating his loss of income, which ought to
have been 1/5, inasmuch as there are 7 dependents, in the light
of the judgment passed by the Hon'ble Apex Court in the case of
Pranay Sethi (supra).
7. Learned counsel for the appellant-claimants also submits
that the learned Tribunal has erred in awarding a meagre amount
of compensation towards consortium and funeral expenses and
the same deserves to be enhanced in the light of Pranay Sethi
(supra).
8. Heard learned counsel for the parties, perused material
available on record and judgments cited at the Bar.
[2024:RJ-JD:42313] (5 of 7) [CMA-683/2004]
9. This Court finds that the learned Tribunal, while considering
the evidence available on record, had categorically observed that
the eye-witness of the said accident, i.e. Shabir Ali, who lodged
the FIR (Ex.1) of the said incident, had stated that the accident
took place on account of the offending vehicle, insured with the
respondent-Insurance Company, which was driven by the
respondent no.1/driver in a rash and negligent manner while
being on the wrong side of the road. Learned Tribunal has also
taken into account the fact that a challan (Ex.3) had been issued
against the respondent no.1/driver, however neither the
respondent no.1/driver had denied the allegations leveled therein,
nor the respondent-Insurance Company or the respondent
no.1/driver himself had presented any evidence to rebut the
same, in the absence of which, the learned Tribunal has rightly
decided the issue of negligence in favour of the appellant-
claimants. Thus, upon perusal of the record, this Court also
concurs with the finding of the learned Tribunal with respect to the
issue of negligence, while observing that the accident took place
on account of respondent no.1/driver who drove the offending
vehicle rashly and negligently, on the wrong side of the road.
10. With regard to the quantum of the compensation, this Court
finds that the learned Tribunal has erred in applying a multiplier of
12, when the deceased himself was aged 36 years at the time of
accident and thus, the multiplier of 15 ought to have been applied
in the light of the judgment passed by the Hon'ble Apex Court in
the case of Sarla Verma (supra). Moreover, learned Tribunal has
erred in not granting future prospects while calculating loss of
income of the deceased as well as the loss of estate to the
[2024:RJ-JD:42313] (6 of 7) [CMA-683/2004]
deceased under the non-pecuniary heads, and thus, this Court
deems it fit to grant future prospects in accordance with the law
laid down by the Hon'ble Apex Court in the case of Pranay Sethi
(supra). Furthermore, this Court also finds that the amount of
compensation awarded towards the heads of consortium and
funeral expenses is on the lower side and thus, deems it fit to
enhance accordingly in light of the judgment passed by the
Hon'ble Apex Court in the case of Pranay Sethi (supra). However,
this Court observes that looking at the number of dependents of
the deceased, i.e. seven, learned Tribunal ought to have deducted
1/5 from the income of the deceased towards personal expenses,
instead of 1/3, in light of the judgment rendered by the Hon'ble
Apex Court in the case of Pranay Sethi (supra) and thus, deems
it fit to deduct 1/5 of the income of the deceased towards personal
expenses. This Court also finds that the learned Tribunal has
rightly levied the interest @ 9% p.a. and therefore, deems it fit
not to grant indulgence to the extent of interest levied by the
learned Tribunal on the compensation awarded to the appellant-
claimants.
11. Thus, after arriving at a conclusion that the award passed by
the learned Tribunal deserves to be modified, this Court directed
both the counsel to jointly submit the calculation of the
compensation awardable to the claimants afresh in light of the
guidelines laid down by Hon'ble the Supreme Court in the cases of
Pranay Sethi (supra) and Sarla Verma (supra), the award is
modified in the following manner:-
Particulars Awarded by Amount awarded by
Tribunal the Court
[2024:RJ-JD:42313] (7 of 7) [CMA-683/2004]
Yearly Income of the deceased Rs.56,000/- Rs.56,000/-
40% Future Prospects Rs.56,000 x 40% Not awarded Rs. 78,400/-
i.e. 22,400 (56,000+22,400)
Deduction of 1/5 i.e. Rs.78,400/- x Rs.36,000/- (after Rs. 62,720/-
1/5th =15,680 (78,400 - 15,680) deducting Rs.
20,000/-)
Applying a multiplier of 15, i.e. Rs.4,32,000/- Rs.9,40,800/-
Rs.62,720 x 15 [A] (taking a multiplier
of 12)
Consortium (48,400 x 7) [B] Rs.20,000/- Rs.3,38,800/-
Funeral Expenses [C] Rs. 4,000/- Rs. 18,150/-
Loss of Estates [D] Not awarded Rs. 18,150/-
Litigation Expenses [E] Rs.1,200/- Rs.1,200/-
TOTAL Rs. 4,57,000/- [F] Rs.13,17,100/- [G]
ENHANCED AMOUNT [G - F] Rs. 8,60,100/-
12. Accordingly, the instant misc. appeal is partly allowed, while
the cross objection filed by the respondent-Insurance Company is
dismissed and the amount of compensation payable to the
claimants is enhanced by Rs.8,60,100/- in the terms stated
above. The enhanced amount shall carry the same interest as
awarded by the learned Tribunal from the date of filing of claim
petition till the date of deposit, in light of Section 171 of the MV
Act. The amount of compensation, if any disbursed to the
claimants, shall be adjusted accordingly.
13. Record be sent back forthwith. No order as to costs.
(DR. NUPUR BHATI),J
64-65/Ajay/-
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