Rajasthan High Court - Jodhpur
The New India Assurance Co. Ltd vs Smt. Jubeda Bano And Ors on 25 October, 2024
Author: Nupur Bhati
Bench: Nupur Bhati
[2024:RJ-JD:42011]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Misc. Appeal No. 2666/2017
1. Smt. Jubeda, Widow Of Late Sikandar Khan,
2. Jafar, Son Of Rasul Khan, All By Caste Musalman,
Residents Of Ward No. 24, Opposite Nagar Palika, Balotra,
District Barmer.
3. Sahania, Daughter Of Late Sikandar Khan,
4. Aprudeen, Son Of Late Sikandar Khan,
5. Aman, Son Of Late Sikandar Khan,
6. Hasan, Son Of Late Sikandar Khan, Appellant Nos. 2 To 5
Minor, Through Their Natural Guardian Mother Smt.
Jubeda, Appellant No.1
7. Smt. Sahida Bano, Wife Of Shri Rasul Khan,
8. Rasul Khan Son Of Ali Khan Since Deceased, Name
Deleted Due To Death During Trial Of Claim Petition
9. Gulshan, Daughter Of Rasul Khan,
10. Raksha, Daughter Of Rasul Khan, Minor Through Her
Natural Guardian Smt. Sahida Bano, Appellant No.6
----Appellants
Versus
1. Pawandeep Singh, Son Of Shri Jasvinder Singh, By Caste
Jat Sikh, Resident Of 276, Patwar Khane Wali Gali, Old
City, P.s. Kotakpura, District Faridkot, Punjab. Alternate
Address C/o New Bikaner Punjab Haryana Roadline, Shop
No.5, Plot No. 32, Sector 9/c, Gandhidham, Kacch
Gujarat. ........owner
2. Kuldeep Singh, Son Of Shri Sukhman Singh, By Caste Nai
Sikh, Resident Of E2/1240, Guru Tegbahadur Singh
Nagar, P.s. Kotakpura, District Faridkot Punjab Driver
3. The New India Assurance Company Limited, Through Its
Divisional Manager, Abhay Chambers, Jalori Gate,
Jodhpur. .......insurer
----Respondents
Connected With
S.B. Civil Misc. Appeal No. 2665/2017
1. Smt. Vimla Devi, Widow Of Late Shri Gopilal Alias Gopa
Ram,
2. Miss Divya, Daughter Of Late Shri Gopilal Alias Gopa
Ram,
3. Manoj, Son Of Late Shri Gopilal Alias Gopa Ram,
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4. Anil Kumar, Son Of Late Shri Gopilal Alias Gopa Ram,
5. Smt. Parmeshwari Devi, Wife Of Shri Hem Raj,
6. Hem Raj, Son Of Shri Ranchod,
7. Yashpal, Son Of Shri Hem Raj Paliwal, Appelant Nos. 2
And 3 Minor, Through Their Natural Guardain Mother Smt.
Vimla Devi, Appellant No.1., All By Caste Paliwal Brahmin,
Residents Of Village Nawai, P.s. Pachpadra, District
Barmer.
----Appellants
Versus
1. Pawandeep Singh, Son Of Shri Jasvinder Singh, By Caste
Jat Sikh, Resident Of 276, Patwar Khane Wali Gali, Old
City, P.s. Kotakpura, District Faridkot, Punjab. Alternate
Address C/o New Bikaner Punjab Haryana Roadline, Shop
No.5, Plot No. 32, Sector 9/c, Gandhidham, Kacch
Gujarat. ........owner
2. Kuldeep Singh, Son Of Shri Sukhman Singh, By Caste Nai
Sikh, Resident Of E2/1240, Guru Tegbahadur Singh
Nagar, P.s. Kotakpura, District Faridkot Punjab Driver
3. The New India Assurance Company Limited, Through Its
Divisional Manager, Abhay Chambers, Jalori Gate,
Jodhpur. .......insurer
----Respondents
S.B. Civil Misc. Appeal No. 2667/2017
1. Smt. Pankaj Mehta, Widow Of Late Shri Bharat Mehta,
2. Adesh Mehta, Son Of Late Shri Bharat Mehta,
3. Shreyansh Mehta, Son Of Late Shri Bharat Mehta,
4. Smt. Pawni Devi, Wife Of Shri Ranjeet Mal,
5. Ranjeet Mal, Son Of Shri M.r. Mehta, All By Caste Jain,
Residents Of 32, Green Park, Pali.
----Appellants
Versus
1. Pawandeep Singh, Son Of Shri Jasvinder Singh, By Caste
Jat Sikh, Resident Of 276, Patwar Khane Wali Gali, Old
City, P.s. Kotakpura, District Faridkot, Punjab. Alternate
Address C/o New Bikaner Punjab Haryana Roadline, Shop
No.5, Plot No. 32, Sector 9/c, Gandhidham, Kacch
Gujarat. ........owner
2. Kuldeep Singh, Son Of Shri Sukhman Singh, By Caste Nai
Sikh, Resident Of E2/1240, Guru Tegbahadur Singh
Nagar, P.s. Kotakpura, District Faridkot Punjab Driver
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3. The New India Assurance Company Limited, Through Its
Divisional Manager, Abhay Chambers, Jalori Gate,
Jodhpur. .......insurer
----Respondents
S.B. Civil Misc. Appeal No. 3367/2017
The New India Assurance Company Limited, T.p. Claim Hub,
Divisional Office, Abhay Chambers, Jalori Gate, Jodhpur Through
Its Authorized Representative.
----Appellant
Versus
1. Smt. Jubeda Bano W/o Late Sikandar Khan,
2. Pawandeep S/o Jaivindra Singh, Jat Sikh, R/o 276, Patwar
Khan Lane, Old City, P.s. Kotakpura, Faridkot Punjab.
Second Addrsss C/o New Bikaner Punjab Haryana Road
Line, Shop No.5, Plot No. 32, Sector 9/c, Gandhi Dham,
Kutch, Gujarat. - Owner
3. Kuldeep Singh S/o Sukhman Singh Nai, Sikh, R/o E-
2/1240, Guru Tegbahadur Singh Nagar, P.s. Kotakpura,
District Faridkot Punjab. - Driver
4. Mst. Shahniya D/o Late Sikandar Khan Minor
5. Aaprudeen S/o Late Sikandar Khan Minor
6. Aman S/o Late Sikandar Khan Minor
7. Hasan S/o Late Sikandar Khan Minor, Minors Are
Represented Through Their Next Frient Mother Smt.
Jubeda Bano.
8. Smt. Shahida Bano W/o Rasool Khan,
9. Mst. Gulsan D/o Rasool Khan, Minor
10. Mst. Raksha D/o Rasool Khan, Minor, Minors Are
Represented Through Their Next Frient Mother Smt.
Shahida Bano. All By Caste Muslim, Resident Of 24,
Opposite Nagar Parishad, Balotra.
11. Jafar S/o Rasool Khan, By Caste Muslim, Resident Of 64,
Sindhi Muslim Basti, Masuriya, Jodhpur.
----Respondents
S.B. Civil Misc. Appeal No. 3371/2017
The New India Assurance Company Limited, T.p. Claim Hub,
Divisional Office, Abhay Chambers, Jalori Gate, Jodhpur Through
Its Authorized Representative.
----Appellant
Versus
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1. Smt. Vimla Devi W/o Shri Gopilal @ Goparam,
2. Mst. Divya D/o Shri Gopilal @ Goparam Minor
3. Manoj S/o Shri Gopilal @ Goparam Minor, Minors Are
Represented Through Their Natural Guardian Mother Smt.
Vimla Devi.
4. Smt. Parmeshwari Devi W/o Shri Hemraj,
5. Hemraj S/o Shri Ranchhod, All By Caste Paliwal,
Residents Of Village Nawai, Tehsil Pachpadara, District
Barmer.
6. Anil Kumar S/o Sh. Gopilal @ Goparam Now Major,
Resident Of Apex Hostal, Kuri Bhagtasani, Jodhpur.
7. Yashapl S/o Shri Hemraj Paliwal, Resident Of A-231,
Shastri Nagar, Jodhpur.
8. Pawandeep S/o Jaivindra Singh, Jat Sikh, R/o 276, Patwar
Khan Lane, Old City, P.s. Kotakpura, Faridkot Punjab.
Second Addrsss C/o New Bikaner Punjab Haryana Road
Line, Shop No.5, Plot No. 32, Sector 9/c, Gandhi Dham,
Kutch, Gujarat. - Owner
9. Kuldeep Singh S/o Sukhman Singh Nai, Sikh, R/o E-
2/1240, Guru Tegbahadur Singh Nagar, P.s. Kotakpura,
District Faridkot Punjab. - Driver
----Respondents
S.B. Civil Misc. Appeal No. 3372/2017
The New India Assurance Company Limited, T.p. Claim Hub,
Divisional Office, Abhay Chambers, Jalori Gate, Jodhpur Through
Its Authorized Representative.
----Appellant
Versus
1. Smt. Pankaj Mehta W/o Late Bharat Mehta
2. Aadesh S/o Late Bharat Mehta Minor
3. Shreyansh S/o Late Bharat Mehta Minor, Minors Are
Represented Through Their Natural Guardian Mother Smt.
Pankaj Mehta All Resident Of 32, Green Park, Pali.
4. Smt. Pawani Devi W/o Late Shri Ranjeet Mal Mehta
5. Ranjeet Mal S/o Shri M.r. Mehta, Both Resident Of A-108,
Shastri Nagar, Jodhpur.
6. Pawandeep S/o Jaivindra Singh, Jat Sikh, R/o 276, Patwar
Khan Lane, Old City, P.s. Kotakpura, Faridkot Punjab.
Second Addrsss C/o New Bikaner Punjab Haryana Road
Line, Shop No.5, Plot No. 32, Sector 9/c, Gandhi Dham,
Kutch, Gujarat. - Owner
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7. Kuldeep Singh S/o Sukhman Singh Nai, Sikh, R/o E-
2/1240, Guru Tegbahadur Singh Nagar, P.s. Kotakpura,
District Faridkot Punjab. - Driver
----Respondents
For Appellant(s) : Mr. Anil Bhandari for Claimants
Mr. Dinesh Choudhary for Claimants
Mr. Jagdish Vyas for Ins. Company
For Respondent(s) : Mr. Amardeep Lamba for Owner &
Driver
HON'BLE DR. JUSTICE NUPUR BHATI
JUDGMENT
Reserved on: 15/10/2024
Pronounced on: 25/10/2024
1. The civil misc. appeal nos. 3367/2017, 3371/2017 and
3372/2017 have been preferred by the appellant-Insurance
Company under Section 173 of the Motor Vehicles Act, 1988
(hereinafter as 'the Act') assailing the judgment and award dated
22.06.2017 passed by learned Judge, Motor Accident Claims
Tribunal, Jodhpur Mahanagar (hereinafter as 'the learned
Tribunal') in MAC Case Nos. 13/2015, 15/2015 and 14/2015 and
whereby the learned Tribunal partly allowed the claim petitions
filed by the respective claimants under Section 166 of the MV Act
and awarded compensation of Rs. 72,04,298/-, Rs. 12,70,360/-
and Rs. 61,20,455/- respectively in favour of respective claimants
along with interest @6 % p.a. from the date of filing the
respective claim petitions, while fastening the liability upon the
respondent/owner and respondent/driver of the offending vehicle
along with the appellant/Insurance Company, jointly and
severally.
[2024:RJ-JD:42011] (6 of 33) [CMA-2666/2017]
2. The S.B. Civil Misc. Appeal Nos. 2666/2017, 2665/2017 and
2667/2017, seeking enhancement, have been filed by the
respective respondents/claimants assailing the judgment and
award dated 22.06.2017 passed by the learned Tribunal in MAC
Case Nos. 13/2015, 15/2015 and 14/2015 respectively. Since all
these appeals arise from the same accident, and both the
insurance company as well as the claimants in the respective
claim petitions have preferred the appeals, therefore, for the sake
of convenience, the claimants in S.B. Civil Misc. Appeal No.
2666/2017 and S.B. Civil Misc. Appeal No. 3367/2017 would be
referred to as claimants-1, the claimants in S.B. Civil Misc. Appeal
No. 2665/2017 and S.B. Civil Misc. Appeal No. 3371/2017 would
be referred to as claimants-2 and the claimants in S.B. Civil Misc.
Appeal No. 2667/2017 and S.B. Civil Misc. Appeal No. 3372/2017
would be referred to as claimants-3 when referred to in context of
their respective claim petition and as 'the claimants' when referred
to cumulatively. Also, the insurance company, as it is same in all
the appeals, would be referred to as the insurance company for
the sake of convenience.
3. Briefly stated the facts of the case are that on 08.09.2014,
Sikandar Khan, Gopilal@Goparam, Mahaveer Singh and Bharat
Mehta were travelling in the car bearing registration no. RJ19
temperory 183688 (hereinafter as 'the car') from Balotara to
Loonkaransar and at around 7:00 AM- 7:30AM the truck-trolla
bearing registration no. GJ12AT9222 (hereinafter as 'the offending
vehicle'), which was being driven rashly and negligently by
Kuldeep Singh (hereinafter as 'the respondent/driver') came from
the opposite side and dashed into the car. As a result of the
[2024:RJ-JD:42011] (7 of 33) [CMA-2666/2017]
accident all the four persons travelling in the car died on the spot.
The FIR no. 86/2014 (Ex.1) was lodged and the police after
investigation filed chargesheet (Ex.2) against the
respondent/driver under Section 279,304A, IPC. Subsequently, the
MAC case no. 13/2015 was filed by the claimants-1 under Section
166 of the Act claiming compensation on account of the death of
Sikandar Khan (hereinafter as 'the deceased-1'), the MAC case no.
15/2015 was filed by the claimants-2 under Section 166 of the Act
claiming compensation on account of the death of Gopilal
(hereinafter as 'the deceased-2') and the MAC case no. 14/2015
was filed by the claimants-3 under Section 166 of the Act claiming
compensation on account of the death of Bharat Mehta
(hereinafter as the deceased-3) before the learned tribunal.
4. The respondent/driver and Pawandeep Singh (hereinafter as
'the respondent/owner') of the offending vehicle filed their reply to
the claim petitions and averred that the accident happened due to
the rash and negligent driving of the driver of the car and not that
of the offending vehicle. It was averred by them in their reply to
the claim petitions that the driver of the car, while trying to
overtake one other vehicle, dashed into the offending vehicle.
5. The insurance company in its reply to the claim petitions
challenged the claim petitions on the ground of jurisdiction while
averring that the learned tribunal does not have the jurisdiction to
try the claim petitions. Further, the appellant/insurance company
averred in their reply to the claim petition that the accident
occurred due to the rash and negligent driving of the driver of the
car at a high speed. It was also averred by the Insurance company
in their reply that the car dashed into the rear side of the
[2024:RJ-JD:42011] (8 of 33) [CMA-2666/2017]
offending vehicle, which was in a stationary position on the road
due to the heavy fog, therefore, the claim petitions should be
dismissed.
6. On the basis of the pleadings of the parties, the learned
tribunal framed five issues which are reproduced as under:
"1- vk;k fnukad 08@09@2024 dks le; lqcg 7&7-30 cts ;k mlds yxHkx
LFkku ckyksrjk ls yw.kdj.klj tkus okyh vke lM+d ij "kksHkklj pkSjkgs ls FkksM+k
igys vizkFkhZ la[;k 02 us Vªd Vªksyk la[;k th-ts- 12&,-Vh 9222 dks rst xfr o
ykijokgh ls pykdj dkj la[;k vkj-ts-&19&VSEijsjh 183688 dks xyr lkbM esa
tkdj VDdj ekjh ftl dkj.k fldUnj "kku] xksihyky o Hkjr esgrk dh e`R;q gks
xbZ \
2- D;k mDr okgu dk mDr pkyd cjoDr nq?kZVuk] fookfnr okgu dks okgu
Lokeh foi{kh la[;k ,d dh tkudkjh @lgefr @fu;kstu@ fgrkFkZ esa pyk jgk
Fkk\
3- vk;k foi{kh chek dEiuh dh tokcnkos esa vafdr vkifRr;k¡ lkFkZd gSa] ;fn
gk¡] rks D;k mDr {kfriwfrZ jkf"k vnk djus ds fy;s ftEesnkj ugha gS\
4- D;k [email protected] izfrdj jkf"k izkIr djus ds vf/kdkjh gSa] ;fn gk¡] rks
fdl fdl foi{kh ls fdruh fdruh jkf"k\
5- vuqrks'kA"
7. The claimants examined four witnesses namely- Pankaj"
Mehta (AW-1), Hemraj (AW-2), Jubeda Bano (AW-3) and Jafar
(AW-4) and produced 23 documentary evidences (from Ex.1 to
Ex.23). However, no evidence was produced by the insurance
company.
8. The claimants contended before the learned tribunal that the
accident occurred due to the negligence of the respondent/driver
of the offending vehicle for which the FIR (Ex.1) was lodged on
the same day at around 3:15 PM and the police after the
investigation submitted Final Report (Ex.2) against the
respondent/driver of the offending vehicle. It was further
contended by the claimants before the learned tribunal that all the
witness have deposed that the accident occurred due to the rash
[2024:RJ-JD:42011] (9 of 33) [CMA-2666/2017]
and negligent driving of the respondent/driver of the offending
vehicle and the appellant/insurance company failed to produce any
evidence to refute the same.
9. On the other hand, it was contended by the insurance
company before the learned tribunal that the claimants have
proved the negligence of the respondent/driver of the offending
vehicle however, they have not produced any document to prove
such negligence on the part of the respondent/driver of the
offending vehicle, therefore, solely on the basis of the final
report(Ex.2) the negligence of the respondent/driver cannot be
said to be proved.
10. After hearing all the parties and perusing the material
available on the record, the learned tribunal partly allowed the
claim petitions filed by the respective claimants and awarded
compensation of, Rs. 72,04,298/- (in MAC case no. 13/2015), Rs.
12,70,360/- (in MAC case no. 15/2015) and Rs. 61,20,455/- (in
MAC case no. 14/2015) along with interest@ 6 % p.a. from the
date of filing the claim petition, while fastening the liability upon
the respondent/owner, the respondent/driver of the offending
vehicle along with the appellant/Insurance Company, jointly and
severally.
11. Aggrieved by the same the appellant/insurance company has
preferred S.B. C.M.A. nos. 3367/2017, 3371/2017 and 3372/2017
challenging the impugned award passed in the MAC case nos.
13/2015, 15/2015 and 14/2015 respectively. On the other hand,
the claimants-1 have preferred S.B. C.M.A. no. 2666/2017, the
claimants-2 have preferred S.B. C.M.A. no. 2665/2017 and the
claimants-3 have preferred S.B. C.M.A. no. 2667/2017 challenging
[2024:RJ-JD:42011] (10 of 33) [CMA-2666/2017]
the impugned award passed in the MAC Case nos. 13/2015,
15/2015 and 14/2015 respectively.
12. The learned counsel appearing on behalf of the
appellant/insurance company submitted that the learned tribunal
has erred in deciding the issue no.1 (with respect to the
negligence of the respondent/driver of the offending vehicle)
solely on the basis of the final report (Ex.2) while ignoring the fact
that the Site plan or site inspection memo has not been produced
by the claimants. He further submitted that, although it is well
settled that the documents prepare by the police during the
discharge of their official duty are admissible in the evidence
however, the Final report prepared by the police is not binding
upon the learned tribunal and the learned tribunal has to decide
the claim on the basis of the material produced before it. He
further submitted that in the present case the claimants have
failed to discharge their burden to prove that the accident
occurred due to the negligence of the respondent/driver of
offending vehicle, which is sine qua non to sustain a claim petition
under Section 166 of the Act. For this submission he placed
reliance on the judgment of the Hon'ble Supreme Court in Oriental
Insurance Co. Ltd. v. Meena Variyal, (2007) 5 SCC 428 (para 27).
Oriental Insurance Co. Ltd. v. Premlata Shukla, (2007) 13 SCC
476(para 10).
13. The learned counsel appearing on behalf of the
appellant/insurance company further submitted that an application
under Order 41 Rule 27, Code of Civil Procedure, 1908 has also
been filed by the appellant/insurance company for bringing on
record the Site plan, site inspection memo prepared by the police
[2024:RJ-JD:42011] (11 of 33) [CMA-2666/2017]
and also the photographs of the spot of the accident taken by the
police in all the appeals preferred by the appellant/insurance
company. By placing reliance upon the site plan, site inspection
memo and the photographs of the spot of the accident, he
submitted that it is evident from these documents that the
offending vehicle was being driven by the respondent/driver in the
correct lane however, the car, which was being driven at a high
speed which is evident from marks of break on the road as visible
in the photographs taken by the police, crossed the center line of
the road into the wrong side and dashed into the offending vehicle
as shown in the site plan prepared by the police. He further
submitted, while relying on the photographs of the spot of the
accident and the site plan, that the car was being driven at such
high speed that its position changed into the direction from which
it was coming. He further submitted, that the offending vehicle
was being driven in its correct lane as the offending vehicle
capsized beside its correct lane which is evident from the
photographs of the spot of the accident. Thus, he submitted, while
placing reliance on these documents that it was the car driver who
was negligent in causing the accident and not the
respondent/driver of the offending vehicle.
14. The learned counsel appearing on behalf of the
appellant/insurance company has also challenged the quantum of
compensation as awarded by the learned tribunal. He submitted
with respect to the S.B.CMA No. 3367/2017 that the learned
tribunal has erred in awarding future prospect @50% despite the
fact that the deceased-1 was not in a permanent job. He further
submitted with respect to the S.B.CMA No. 3367/2017 that the
[2024:RJ-JD:42011] (12 of 33) [CMA-2666/2017]
learned tribunal has erred in awarding consortium to the brother
(Respondent no.9/Jafar in S.B.CMA No. 3367/2017) and sisters
(Respondent nos.7 and 8 in S.B. CMA No. 3367/2017) of the
deceased-1 as they are not legal heirs of the deceased-1 in view
of the fact that the wife and children of the deceased-1 are parties
in the claim petition. He also challenged the quantum of
compensation awarded under the head of consortium. He further
submitted that as on the filing of the claim petition the father of
deceased-1 was alive therefore, only the wife (Respondent
no.1/Jubeda in S.B.CMA No. 3367/2017), children (Respondent
nos.2 to 5 in S.B.CMA No. 3367/2017) and the
mother(Respondent no.6/Shahida in S.B.CMA No. 3367/2017) of
the deceased-1 could be considered as the dependents on the
deceased-1, thus, the learned tribunal has rightly made the
deduction of 1/4 on account of the personal expenses of the
deceased-1 and for this submission he placed reliance on the
judgment of the Hon'ble Supreme Court in Sarla Verma.
15. He further submitted with respect to the S.B.CMA No.
3372/2017 that the income of the deceased-3 as mentioned in the
Ex.8 (ITR for AY 2013-14) filed prior to the date of accident is
from the sale of lands and thus, cannot be considered as regular
income for determination of compensation and for this submission
he placed reliance on the judgment of the Hon'ble Supreme Court
in New India Assurance Co. Ltd. v. Yogesh Devi, (2012) 3 SCC
613 (para 12 and 13). He also challenged the quantum of
compensation awarded by the learned tribunal under the head of
consortium.
[2024:RJ-JD:42011] (13 of 33) [CMA-2666/2017]
16. He further submitted with respect to the S.B.CMA No.
3371/2017 that the learned tribunal has erred in awarding future
prospect @50% despite the fact that the deceased-2 was not in a
permanent job. He further challenged the quantum of
compensation as awarded under the head of loss of consortium by
the learned tribunal. He further submitted that father (Respondent
no.5/Hemraj in S.B.CMA No. 3371/2017) of deceased-2 and
brother (Respondent no.7/Yashpal in S.B.CMA No. 3371/2017) of
the deceased-2 could not be considered to be dependent on the
deceased-2, thus, the learned tribunal has rightly made the
deduction of 1/4 on account of the personal expenses of the
deceased-2 looking to the number of the dependents (Respondent
nos. 1 to 4 and Respondent no. 6) i.e., 5 and for this submission
he placed reliance on the judgment of the Hon'ble Supreme Court
in Sarla Verma v. DTC, (2009) 6 SCC 121.
17. Per contra, the learned counsel appearing on behalf of the
claimants-1 in S.B.CMA No. 2666/2017 submitted that the
personal expenditure should be 1/5 looking to the number of the
dependants i.e., 9 and for this he placed reliance on the judgment
of the Hon'ble Supreme Court in National Insurance Co. Ltd. v.
Birender, (2020) 11 SCC 356(para 12 to 22). He further submitted
that the learned tribunal has erred in awarding meager amount
under the heads of consortium and loss of estate. He also
challenged the interest as awarded by the learned tribunal and
prayed for interest @9% and for this submission he placed
reliance on the judgment of the Hon'ble Supreme Court in Kumari
Kiran v. Sajjan Singh, (2015) 1 SCC 539 (para 21).
[2024:RJ-JD:42011] (14 of 33) [CMA-2666/2017]
18. The learned counsel appearing on behalf of the claimants-2
in S.B.CMA No. 2665/2017 submitted that the application under
Order 41 Rule 27, Code of Civil Procedure, 1908 has been filed by
the claimants-2 to bring on record the Income Tax Return for the
assessment year 2012-13 wherein the income of the deceased-2
has been mentioned as Rs.1,78,234/- per annum. He submitted
that it was not produced before the learned tribunal as at that
time claimants-2 could not procure the same and prayed that
income of the deceased-2 be assessed as per the Income Tax
Return for the assessment year 2012-13. He further, placed
reliance on the statement of the Hemraj (AW2), who is the father
of the deceased-2, to submit that all the seven
appellants/claimants in S.B.CMA No. 2665/2017 were dependent
on the deceased-2 therefore, the learned tribunal has erred in
making deduction of 1/4 instead of 1/5 looking to the number of
the dependants i.e., 7. He further challenged the quantum of the
compensation awarded under the heads of loss of consortium and
loss of estate. He also challenged the interest as awarded by the
learned tribunal and prayed for interest @9% and for this
submission he placed reliance on the judgment of the Hon'ble
Supreme Court in Kumari Kiran v. Sajjan Singh, (2015) 1 SCC
539 (para 21).
19. The learned counsel appearing on behalf of the claimants-3
in S.B.CMA No. 2667/2017 submitted that the submission made
by the learned counsel appearing on behalf of the insurance
company with respect to the income of the deceased-3 is devoid
of any merit as the deceased-3 was engaged in construction
business also and was deriving income from it. He further
[2024:RJ-JD:42011] (15 of 33) [CMA-2666/2017]
submitted that the learned tribunal has erred in not considering
the income of the deceased-3 from other sources i.e., Rs.46,540/-
while assessing the income of the deceased-3 as after his death
there has been loss of this income and also the learned tribunal
has not given any reason for not considering this part of the
income despite the fact that it was included in the ITR(Ex.8) for
the Assessment Year 2013-14 and also mentioned in Ex.10, which
is the Intimation under Section 143(1) of the Income Tax Act,
1961 dated 08.01.2014. He further challenged the quantum of
compensation awarded under the heads of loss of consortium and
loss of estate. He also challenged the interest as awarded by the
learned tribunal and prayed for interest @9% and for this
submission he placed reliance on the judgment of the Hon'ble
Supreme Court in Kumari Kiran v. Sajjan Singh, (2015) 1 SCC
539 (para 21).
20. The learned counsel appearing on behalf of the claimants in
all the respective appeals submitted, while reading out para no.28
of the reply filed by the insurance company to the claim petitions
before the learned tribunal, that the insurance company took a
specific plea before the learned tribunal that the car dashed into
the offending vehicle which was stationary on the road however,
before this court, the insurance company has raised a totally new
and contrary ground that the respondent/driver was driving the
offending vehicle on the correct lane and the driver of the car
rashly and negligently came from the opposite direction towards
the wrong lane and dashed into the offending vehicle. Thus, the
insurance company cannot take a totally different plea before this
court at the appellate stage for the first time which was not even
[2024:RJ-JD:42011] (16 of 33) [CMA-2666/2017]
taken before the learned tribunal and that too on the basis of
evidence for which it had laid no foundation in the pleadings
before the learned tribunal. For this submission he placed reliance
on the judgment of the Hon'ble Supreme Court i n Kaushik
Narsinhbhai Patel v. S.J.R. Prime Corpn. (P) Ltd., 2024 SCC
OnLine SC 1762(para 18 and 20).
21. The learned counsel appearing on behalf of the claimants in
all the respective appeals submitted that the plea raised by the
learned counsel appearing on behalf of the insurance company
that the learned tribunal has erred in deciding the issue no.1 (with
respect to the negligence of the respondent/driver of the offending
vehicle) is devoid of any merit as no evidence was tendered by the
insurance company and also the respondent/driver and
respondent/owner of the offending vehicle was not examined by
the insurance company before the learned tribunal, therefore, the
tribunal after perusing the material available record has given a
reasoned finding that the respondent/driver of the offending
vehicle was negligent. He also made the submission that the site
plan was prepared after almost 27 hours (on 09.09.2014) from
the time of accident(08.09.2014). He further placed reliance on
the following judgments: Sunita v. Rajasthan SRTC, (2020) 13
SCC 486(para 36) and Vimla Devi v. National Insurance Co. Ltd.,
(2019) 2 SCC 186(para 20), Shyama Devi And Ors vs Nemi Chand
And Ors. [S.B. CMA 878 of 2012, Rajasthan High Court(Principal
Bench, Jodhpur) decided on 07.09.2020](para 27).
22. In rebuttal, the learned counsel appearing on behalf of the
insurance company submitted that the insurance company has
nowhere admitted the negligence of the respondent/driver of the
[2024:RJ-JD:42011] (17 of 33) [CMA-2666/2017]
offending vehicle. He further submitted that the respondent/driver
and respondent/owner in their reply to the claim petitions
specifically stated that the car being driven rashly and negligently
dashed into the offending vehicle which was going in its correct
lane of the road. He also submitted that even if there would not
have been any written statement from the non-claimants then too
the burden lies on the claimants to establish that the accident
occurred due to the negligence of the respondent/driver of the
offending vehicle. He placed reliance on the site plan, photographs
of the spot of accident taken by the police which show tyre mark
on the road. He placed reliance on the following judgment: United
India Insurance Co. Ltd. v. Pawan Tikkiwal, 2007 SCC OnLine Raj
75.
22. Heard the parties and perused the material available on
record.
23. This court deems it appropriate to first decide the
applications (Application no. 813/2018 in S.B.CMA 3371/2017,
Application no. 814/2018 in S.B.CMA 3372/2017 and Application
no. 815/2018 in S.B.CMA 3367/2017) filed by the insurance
company under Order 41 Rule 27, CPC for taking on record
certified copies site plan, site inspection memo and the
photographs of the spot. And on the other hand, the claimants-2
have also filed application no. 1754/2017 in S.B. CMA
No.3371/2017 to bring on record the Income tax return for
assessment year 2012-13 (Intimation under Section 143(1) of the
Income Tax Act, 1961). This court finds that Order 41 Rule 27,
CPC 27 reads as under:
[2024:RJ-JD:42011] (18 of 33) [CMA-2666/2017]
"Production of additional evidence in Appellate Court.--(1)
The parties to an appeal shall not be entitled to produce
additional evidence, whether oral or documentary, in the
Appellate Court. But if --
(a) the Court from whose decree the appeal is preferred
has refused to admit evidence which ought to have been
admitted, or
(aa) the party seeking to produce additional evidence,
establishes that notwithstanding the exercise of due
diligence, such evidence was not within his knowledge or
could not, after the exercise of due diligence, be produced
by him at the time when the decree appealed against was
passed, or]
(b) the Appellate Court requires any document to be
produced or any witness to be examined to enable it to
pronounce judgment, or for any other substantial cause,
the Appellate Court may allow such evidence or document
to be produced, or witness to be examined.
(2) Wherever additional evidence is allowed to be produced
by an Appellate Court, the Court shall record the reason for
its admission."
Thus, it is evident from the bare perusal of the above-cited
provision that the parties to an appeal shall not be entitled to
produce additional evidence in the appellate court, unless the the
court finds that the reason for not producing such evidence falls in
the categories fall within the clauses as mentioned in clause (a) to
(b) of sub-rule (1) of Rule 27.
23.1 This court with respect to the applications (Application no.
813/2018 in S.B.CMA 3371/2017, Application no. 814/2018 in
S.B.CMA 3372/2017 and Application no. 815/2018 in S.B.CMA
3367/2017) filed by the insurance company, finds that the reasons
stated by the insurance company to show its inability to produce
[2024:RJ-JD:42011] (19 of 33) [CMA-2666/2017]
certified copies site plan, site inspection memo and the
photographs of the spot are not tenable inasmuch as these
documents could not have been said to be such that insurance
company was not aware about these or could not produce them
even after exercising due diligence as these documents are of
such nature that any insurance company would be equipped with
the resources to procure them. Also, the applications filed by the
insurance company do not state any reason for its faliure to
produce these documents before the learned tribunal except the
reason that it could not produce these documents inadvertently.
Thus, the insurance company has not been able to make out a
case for allowing these applications as provided under Order 41
Rule 27, CPC, therefore, this court is of the view that these
applications cannot be allowed. Accordingly, the applications
(Application no. 813/2018 in S.B.CMA 3371/2017, Application no.
814/2018 in S.B.CMA 3372/2017 and Application no. 815/2018 in
S.B.CMA 3367/2017) as filed by the insurance company are
rejected.
23.2 Now as far as the application no. 1754/2017 in S.B. CMA
No.3371/2017 as filed by the claimants-2 is concerned this court
finds force in the contention of the counsel appearing on behalf of
the claimants-2 that the claimants-2 were not able to procure the
Income tax return for assessment year 2012-13 (Intimation under
Section 143(1) of the Income Tax Act, 1961) as a grieving family,
which was mourning the loss of their bread winner, cannot be
expected to be in a position so as to collect or procure these
documents. Further, this court is of the view that in the interest of
justice the application can be allowed to determine 'just
[2024:RJ-JD:42011] (20 of 33) [CMA-2666/2017]
compensation' that should be awarded to the claimants-2 looking
to the beneficial nature of the Act. Thus, application no.
1754/2017 in S.B. CMA No.3371/2017 as filed by the claimants-2
to bring on record the Income tax return for assessment year
2012-13 (Intimation under Section 143(1) of the Income Tax Act,
1961) is allowed.
24. Now the issues that emerge before this court for deciding the
controversy in the present case are as under:
I. Whether the tribunal has rightly held the Respondent/driver of
the offending vehicle negligent in causing the accident?
II. Whether the impugned award passed in the respective claim
petitions deserves to be modified?
Issue-I:
25. Now coming to the first issue, it is a well settled position of
law that the initial burden to prove the negligence of the offending
vehicle lies on the claimants, however, the standard of proof to
discharge such burden is preponderance of probability and not
proof beyond reasonable doubt as have been held by the Hon'ble
Supreme court in the case of Sunita v. Rajasthan SRTC, (2020) 13
SCC 486, the relevant paragraph of the aforesaid judgement is as
under:
"22. It is thus well settled that in motor accident claim
cases, once the foundational fact, namely, the actual
occurrence of the accident, has been established, then the
Tribunal's role would be to calculate the quantum of just
compensation if the accident had taken place by reason of
negligence of the driver of a motor vehicle and, while doing
so, the Tribunal would not be strictly bound by the
pleadings of the parties. Notably, while deciding cases
arising out of motor vehicle accidents, the standard of proof
[2024:RJ-JD:42011] (21 of 33) [CMA-2666/2017]
to be borne in mind must be of preponderance of
probability and not the strict standard of proof beyond all
reasonable doubt which is followed in criminal cases."
In the present case, the claimants have brought on record the
FIR, seizure memo of the offending vehicle and also the
chargesheet filed by the police against the respondent/driver of
the offending vehicle. And the perusal of these documents makes
out a prima facie case against the respondent/driver of the
offending vehicle thus, the initial burden to prove the negligence
on the part of the respondent/driver of the offending vehicle was
discharged by the claimants on the touchstone of preponderance
of probability.
However, the insurance company has neither produced any
evidence nor examined the respondent/driver before the learned
tribunal to assert that the accident did not occur due to the
negligence of the offending vehicle. In fact, the insurance
company took a specific plea that the offending vehicle was
stationary on the road due to the fog and the car, being driven
rashly and negligently, dashed into the rear side of the offending
vehicle. Thus, the entire thrust of the arguments was on the point
that the chargesheet cannot be the basis to prove the negligence
of the respondent/driver.
However, it is important to note at this juncture that before this
court the learned counsel appearing on behalf of the insurance
company has taken a 180 degree opposite stand than taken
before the learned tribunal and contended that the offending
vehicle was moving on its correct side but the car came from the
opposite side and dashed into the offending vehicle. This, court is
[2024:RJ-JD:42011] (22 of 33) [CMA-2666/2017]
of the view that the appellant/insurance cannot be allowed to take
a totally new plea, which is contrary to the one taken before the
learned tribunal, for the first time at appellate stage as the same
would be against doctrine of estoppel which precludes a party
from arguing or asserting something that contradicts what they
have previously argued or asserted.
26. As far as the ground raised by the learned counsel on behalf
of the insurance company that the chargesheet cannot be the sole
basis to prove the negligence of the respondent/driver is
concerned, this court finds that no evidence whatsoever was
produced by the insurance company before the learned tribunal to
demolish the prima facie case that was made out by the
claimants.
27. At this juncture, this court finds it apposite to refer to the
relevant case laws pertaining to the issue in the present case. This
court finds that a coordinate bench of this court, while dealing
with a similar matter where there were no eyewitness and the
learned tribunal relied on the documents such as FIR,
chargesheet, site inspection memo, site plan etc. to decide the
issue of negligence against the driver of the offending vehicle
therein, upheld the finding of the learned tribunal and observed
that:
"In the present case, there is no indication to reflect that
the investigating officer was ever called or any document
whatsoever was led by the insurance company to refute the
prosecution story. This Court takes note of the fact that
once the documents prepared by the police authorities
wherein challan was filed against the driver of the vehicle
and which documents have been held to be admissible in
evidence by this Court in R.S.R.T.C. vs. Nand Lal, ACTC
[2024:RJ-JD:42011] (23 of 33) [CMA-2666/2017]
2001 (Raj.) 489, the burden shifted on the insurance
company, owner and driver of the vehicle. The insurance
company in the present case has not called any witnesses
so as to question the implication of the vehicle in question.
The learned Tribunal had no reason not to accept the story
given by the claimants supported by the charge-sheet filed
by the police. The charge-sheet filed by the police is an
unrefuted document. The insurance company has made no
efforts whatsoever to counter the same or to produce any
documentary evidence or to call the investigating officer or
any person, which could discharge the burden of proof
which shifted upon the insurance company due to the
preponderance of possibility. Thus, no interference is called
for in the impugned judgment at the instance of the
appellant insurance company."
Further, this court finds that the Hon'ble Supreme Court in
Sunita v. Rajasthan SRTC, (2020) 13 SCC 486, while
dealing with a similar factual matrix, has observed that:
"24. Reverting to the factual matrix, the actual occurrence
of the accident between the motorcycle driven by Sitaram
bearing Registration No. RJ 25 SA 6923 coming from one
side and a bus belonging to Respondent 1 (the Rajasthan
State Road Transport Corporation) bearing Registration No.
RJ 26/PA 0042 coming from the opposite direction, is duly
proved. The Tribunal has relied upon the uncontroverted
evidence of witnesses AD 1 and AD 3, and the documents
presented by them, especially FIR No. 247 of 2011 (Ext. 1)
and charge-sheet (Ext. 2) against one Banwari Lal Bairwa
(Respondent 2), charging him with offences under Sections
279, 337 and 304-A IPC and Sections 134/187 of the Act,
to establish that on 28-10-2011 at around 7 a.m., Sitaram,
along with pillion rider Rajulal Khateek, was riding on a
motorcycle bearing No. RJ 25 SA 6923 from Village Bapuee
to Chaut ka Barwad for Daug, to his sister, when, near
Mahapura tri-section, Bus No. RJ 26/PA 0042 belonging to
Respondent 1 (the Rajasthan State Road Transport
[2024:RJ-JD:42011] (24 of 33) [CMA-2666/2017]
Corporation) coming from the opposite direction hit the
motorcycle from the front, resulting in the death of
Sitaram.
25. The Tribunal had justly accepted the appellants'
contention that the respondents did not challenge the
propriety of the said FIR No. 247 of 2011 (Ext. 1) and
charge-sheet (Ext. 2) before any authority. The only
defence raised by the respondents to this plea was that the
said FIR No. 247 of 2011 was based on wrong facts and
was filed in connivance between the appellant complainants
and the police, against which the respondents complained
to the in-charge of the police station and the District
Superintendent of Police but to no avail. Apart from this
bald assertion, no evidence was produced by the
respondents before the Tribunal to prove this point. The
filing of the FIR was followed by the filing of the charge-
sheet against Respondent 2 for offences under Sections
279, 337 and 304-A IPC and Sections 134/187 of the Act,
which, again, reinforces the allegations in the said FIR
insofar as the occurrence of the accident was concerned
and the role of Respondent 2 in causing such accident. Be
that as it may, the High Court has not even made a
mention, let alone record a finding, of any impropriety
against FIR No. 247/2011 (Ext. 1) or charge-sheet (Ext. 2)
or the conclusion reached by the Tribunal in that regard.
Yet, the FIR and charge-sheet has been found to be
deficient by the High Court.
xxx
27. The Tribunal's reliance upon FIR No. 247/2011 (Ext. 1)
and charge-sheet (Ext. 2) also cannot be faulted as these
documents indicate the complicity of Respondent 2. The FIR
and charge-sheet, coupled with the other evidence on
record, inarguably establishes the occurrence of the fatal
accident and also point towards the negligence of
Respondent 2 in causing the said accident. Even if the final
outcome of the criminal proceedings against Respondent 2
[2024:RJ-JD:42011] (25 of 33) [CMA-2666/2017]
is unknown, the same would make no difference at least for
the purposes of deciding the claim petition under the Act.
This Court in Mangla Ram [Mangla Ram v. Oriental
Insurance Co. Ltd., (2018) 5 SCC 656 : (2018) 3 SCC (Civ)
335 : (2018) 2 SCC (Cri) 819] , noted that the nature of
proof required to establish culpability under criminal law is
far higher than the standard required under the law of torts
to create liability."
In the present case the claimants produced FIR (Ex.1), which was
filed on same date as that of the accident, the chargesheet (Ex.2)
filed against the respondent/driver of the offending vehicle, the
seizure memo of the offending vehicle (Ex.3) to prove the
negligence of the respondent/driver of the offending vehicle.
However, the insurance company did not produce any evidence
apart from contending that the chargesheet cannot be the sole
basis to record a finding of negligence on the part of the
respondent/driver of the vehicle. Moreover, the insurance
company did not challenge the veracity of the Chargesheet (Ex.2)
before the learned tribunal.
Thus, in absence of any contrary evidence being produced by the
insurance company, the tribunal has rightly decided the issue
pertaining to the negligence of the respondent/driver on the
touchstone of preponderance of probability, while placing reliance
upon the material available on record. Therefore, this court is
inclined to answer the Issue no. I, as framed by this court in
paragraph no. 24, in affirmative.
Issue-II:
[2024:RJ-JD:42011] (26 of 33) [CMA-2666/2017]
28. Now coming to the Issue no. II, this court, with respect to
S.B.CMA 2666/2017 (against the impugned award passed in MAC
case no. 13/2015) finds that the amount awarded by the learned
tribunal under the head of loss of estate(Rs. 2000/-) and funeral
expenses (Rs. 25,000/-) deserves to be modified in the light of
the judgment of the Hon'ble Supreme Court in National Insurance
Co. Ltd. v. Pranay Sethi[(2017) 16 SCC 680] as Rs.18,150/-
under both the heads respectively. Further, this court does not find
force with the contention raised by the learned counsel on behalf
of the claimants-1 regarding the deduction 1/5 instead of 1/4 to
be made on account of personal expenses of deceased-1 as the
father of deceased-1 was alive at the time of the accident thus,
the brothers and sisters of the deceased-1, in absence of any
evidence to the contrary, cannot be considered to be dependent
on deceased-1. Thus, looking to the number of the dependants
i.e., 6(Wife, 4 children and mother of deceased-1) the tribunal has
rightly made deduction of 1/4 on account of personal expenses of
deceased-1. Further, the future prospect @40% instead of @50%
should be awarded, in light of the judgment of the Supreme Court
in Pranay Sethi(Supra). Further, the contention of the learned
counsel appearing on behalf of the insurance company that the
learned tribunal has erred in awarding amount under the head of
loss of consortium to the brother and sisters of the deceased-1
does not have any force in the light of the judgment of this Court
in Shriram General Insurance Co. Ltd v. Jethamal and ors. :
[S.B. Civil Misc. Appeal No. 2811/2019, decided on
01.10.2024], wherein, this Court observed that consortium,
being a non-pecuniary head, does not depend on the factor of
[2024:RJ-JD:42011] (27 of 33) [CMA-2666/2017]
dependency, therefore, it is awardable to the siblings of the
deceased as well. The relevant paragraph of the aforesaid
judgment passed by this Court is reproduced hereunder:
"28. This Court also finds that, contrary to the pecuniary
heads, where factors such as dependency are important to
ascertain the loss, the consortium, being a non-pecuniary
head is not to be considered in the light of dependency of a
claimant upon the deceased inasmuch as even the siblings,
as in the present case, would be deprived of the love, care,
affection and company of the deceased, which can not be
quantified. Therefore, this Court deems it appropriate to
grant compensation towards the head of consortium to the
brother of the deceased also."
Thus, the consortium to all the claimants-2 in S.B.C.M.A.
No.2666/2017 (against the impugned award passed in MAC case
no.13/2015) should be Rs.48,400/- each in the light of the
judgment of the Hon'ble Supreme Court in Pranay Sethi(Supra).
29. Further, this court with respect to S.B.C.M.A. No.2665/2017
(against impugned award passed in the MAC case no.15/2015)
finds that the amount awarded by the learned tribunal tribunal
under the head of loss of estate (Rs.2000/-) and funeral expenses
(Rs.25,000/-) deserves to be modified in the light of the judgment
passed by the Hon'ble Supreme Court in the case of Pranay
Sethi(Supra) as Rs.18,150/- under both the heads respectively.
Further, it is evident from the perusal of the document placed on
record by the claimants-2 under Order XLI Rule 27, CPC, that the
income of the deceased-2 has been mentioned as Rs.1,78,234/-
per annum. Thus, the Income Tax Verification Form ['the ITR
Form'] for the Assessment Year 2012-2013, which is a statutory
[2024:RJ-JD:42011] (28 of 33) [CMA-2666/2017]
document, has to be considered to assess the income of the
deceased-2 and therefore, the annual income of the deceased-2 is
assessed as Rs.1,78,234/-. Further, this court finds force in the
contention of the learned counsel appearing on behalf the
claimants-2, with respect to the deduction on account of the
deceased-2 is concerned, inasmuch as Hemraj(AW2), who is the
father of the deceased-2 stated in his statement as witness that
all of his family member including him was dependent on the
deceased-2 and during the cross examination of Hemraj (AW2) no
question was raised to him to controvert the same thus, in light of
the peculiar facts and circumstances and also in absence of any
contrary evidence to the testimony of the statemen t of Hemraj
(AW2), this court is of the view that all the seven family members
of the deceased-2 has to be considered as dependent upon the
latter in view of the judgment of the Hon'ble Supreme Court in
Sarla Verma v. DTC, (2009) 6 SCC 121, wherein the Hon'ble
Supreme Court has held that only in absence of any evidence to
the contrary the father and siblings will not be considered as
dependent on the deceased. The relevant paragraph of the
aforesaid judgment is reproduced as under:
"30. .......Having considered several subsequent decisions of
this Court, we are of the view that where the deceased was
married, the deduction towards personal and living expenses
of the deceased, should be one-third (1/3rd) where the
number of dependent family members is 2 to 3, one-fourth
(1/4th) where the number of dependent family members is 4
to 6, and one-fifth (1/5th) where the number of dependent
family members exceeds six.
[2024:RJ-JD:42011] (29 of 33) [CMA-2666/2017]
31. Where the deceased was a bachelor and the claimants are
the parents, the deduction follows a different principle. In
regard to bachelors, normally, 50% is deducted as personal
and living expenses, because it is assumed that a bachelor
would tend to spend more on himself. Even otherwise, there
is also the possibility of his getting married in a short time, in
which event the contribution to the parent(s) and siblings is
likely to be cut drastically. Further, subject to evidence to
the contrary, the father is likely to have his own income and
will not be considered as a dependant and the mother alone
will be considered as a dependant. In the absence of
evidence to the contrary, brothers and sisters will not be
considered as dependants, because they will either be
independent and earning, or married, or be dependent on the
father."
Thus, the deduction on account of personal expense of the
deceased-2 should be 1/5 looking to the number of the
dependants i.e.,7. Thus, the consortium to all the claimants-2 in
S.B.C.M.A. No.2665/2017 (against the impugned award passed in
MAC case no.15/2015) should be Rs.48,400/- each in the light of
the judgment of the Hon'ble Supreme Court in Pranay
Sethi(Supra).
30. Further, this court with respect to S.B.C.M.A. No.2667/2017
(against impugned award passed in the MAC case no.14/2015)
finds that the learned tribunal has erred in not considering the
amount of Rs.46,540/- as mentioned under the head of 'income
from other sources' in in Ex.10, which is the Intimation under
Section 143(1) of the Income Tax Act, 1961 dated 08.01.2014
without assigning any reason. Further, this court does not find
force in the contention raised by the learned counsel for the
insurance company that the income of the deceased-3 as
[2024:RJ-JD:42011] (30 of 33) [CMA-2666/2017]
mentioned in ITR for Assessment Year 2013-14(Ex.8) being from
sale of land cannot be considered as regular income, for the
simple reason that reason that the ITR for Assessment Year 2013-
14 (Ex.8), being a statutory document can be relied upon to asses
the income of the deceased as held by the Hon'ble Supreme Court
in SMT. ANJALI & ORS. versus LOKENDRA RATHOD & ORS.[CIVIL
APPEAL NO. 9014 OF 2022]. Thus, the annual income of the
deceased-3 is reassessed as Rs.4,39,437/- after deducting the
'Total tax and interest payable' (Rs.22,212/-) from the 'Gross total
income' (Rs.4,61,649/-). Also, the amount awarded to the
claimants-3 under the head of consortium is modified to the
extent of Rs.48,000/- each in the light of the judgment of the
Hon'ble Supreme Court in Pranay Sethi(Supra). Further, the future
prospect @40% instead of @50% should be awarded, in light of
the judgment of the Supreme Court in Pranay Sethi(Supra). Also,
the amount awarded under the head of loss of estate (Rs.2000/-)
and funeral expenses (Rs.25,000/-) deserves to be modified in the
light of the judgment passed by the Hon'ble Supreme Court in the
case of Pranay Sethi(Supra) as Rs.18,150/- under both the heads
respectively. Further, this court finds that the learned tribunal has
applied the Multiplier of 15 even after determining the age of the
deceased-3 as 35 years 2 months. However, this court, in light of
the judgment of the Hon'ble Supreme Court in Shashikala v.
Gangalakshmamma, (2015) 9 SCC 150 is of the view that the
applicable multiplier should be of 16 as the deceased had not
completed the age of 36 years as on the date of his death.
31. Further, the interest awarded by the learned tribunal in all
the respective claim petitions is enhanced to 9%, while
[2024:RJ-JD:42011] (31 of 33) [CMA-2666/2017]
considering the Fixed Deposit Rates prevalent at the time of the
filing of the claim petitions.
32. Thus, in view of the discussion in the above paragraphs, the
amount of compensation as awarded by the learned tribunal in the
respective claim petitions against which the appeals were
preferred before this court are modified as under:
In S.B. CMA No.2666/2017 and S.B. CMA No.3367/2017
(against the impugned award passed in MAC Case Nos.
13/2015):
S.N Particulars Amount as Amount as
o. awarded by the awarded/modif
learned ied by this
tribunal court
1. (add) Compensation towards loss
of dependency:
3,61,950(annual) + 1,44,780
(future prospect @40%) -
Rs.69,22,298/- Rs.64,60,816/-
1,26,682 (1/4 deduction on
account of personal expenses) x
17 (Multiplier) = Rs.64,60,816/-
[A]
2. (add) Loss of Consortium 48,400
Rs. 2,55,000/- Rs.4,35,600/-
x 9 = 4,35,600/- [B]
3. (add) Funeral Expenses [C] Rs.25,000 /- Rs.18,150/-
4. (add) Loss of Estate [D] Rs.2,000/- Rs. 18,150/-
Gross Total [A]+[B]+[C]+[D] Rs.72,04,298/- Rs.69,32,716/-
[E] [F]
Reduced Amount [E]-[F] Rs.02,71,582/-
In S.B. CMA No.2665/2017 and S.B. CMA No.3371/2017
(against the impugned award passed in MAC Case Nos.
15/2015):
[2024:RJ-JD:42011] (32 of 33) [CMA-2666/2017]
S.N Particulars Amount as Amount as
o. awarded by the awarded/modif
learned ied by this
tribunal court
1. (add) Compensation towards loss
of dependency:
1,78,234(annual) + 71,294
(future prospect @40%) - 49,906 Rs.10,08,360/- Rs.29,94,330/-
(1/5 deduction on account of
personal expenses) x 15
(Multiplier) = Rs.29,94,330/- [A]
2. (add) Loss of Consortium 48,400
Rs. 2,35,000/- Rs.3,38,800/-
x 7 = 3,38,800/- [B]
3. (add) Funeral Expenses [C] Rs.25,000 /- Rs.18,150/-
4. (add) Loss of Estate [D] Rs.2,000/- Rs. 18,150/-
Gross Total [A]+[B]+[C]+[D] Rs.12,70,360/- Rs.33,69,430/-
[E] [F]
Enhanced Amount [F]-[E] Rs.20,99,070/-
In S.B. CMA No.2667/2017 and S.B. CMA No.3372/2017
(against the impugned award passed in MAC Case Nos.
14/2015)
S.N Particulars Amount as Amount as
o. awarded by the awarded/modif
learned ied by this
tribunal court
1. (add) Compensation towards loss
of dependency:
4,39,437(annual) + 1,75,775
(future prospect @40%) -
Rs.58,93,455/- Rs.65,62,272/-
2,05,070 (1/3 deduction on
account of personal expenses) x
16 (Multiplier) = Rs.65,62,272/-
[A]
2. (add) Loss of Consortium 48,400
Rs. 2,00,000/- Rs.2,42,000/-
x 5 = 2,42,000/- [B]
3. (add) Funeral Expenses [C] Rs.25,000 /- Rs.18,150/-
4. (add) Loss of Estate [D] Rs.2,000/- Rs. 18,150/-
Gross Total [A]+[B]+[C]+[D] Rs.61,20,455/- Rs.68,40,572/-
[E] [F]
[2024:RJ-JD:42011] (33 of 33) [CMA-2666/2017]
Enhanced Amount [F]-[E] Rs.7,20,117/-
33. Therefore, in view of the discussion in the above paragraphs,
the appeals preferred by the insurance company - S.B. C.M.A.
nos. 3367/2017, 3371/2017 and 3372/2017 are partly allowed
only to the extent of quantum of compensation and the appeals
preferred by the respective claimants - S.B. C.M.A. no.
2666/2017, S.B. C.M.A. no. 2665/2017 and S.B. C.M.A. no.
2667/2017 are partly allowed.
34. Accordingly, the claimants in S.B. C.M.A. no. 2666/2017 are
held entitled to the modified compensation of Rs.69,32,716/-
along with interest @9%, the claimants in S.B. C.M.A. no.
2665/2017 are held entitled to the modified compensation of
Rs.33,69,430/- and the claimants in S.B. C.M.A. no. 2667/2017
are held entitled to the modified compensation of Rs.68,40,572/-.
The aforesaid amount shall be payable to the claimants in the
respective appeals @9% from the date of filing of their respective
claim petitions in the terms of the impugned award passed by the
learned tribunal.
35. The amount of compensation if any paid or disbursed shall
be adjusted.
36. Record be set back forthwith.
37. No order as to costs.
(DR.NUPUR BHATI),J
64-70-ajay/-
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