Rajasthan High Court - Jodhpur
Miss Dhaku And Anr vs Daud Bhai And Ors on 25 October, 2024
Author: Nupur Bhati
Bench: Nupur Bhati
[2024:RJ-JD:43465]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
S.B. Civil Misc. Appeal No. 634/2016
The New India Assurance Company Ltd. Divisional Office,
Udaipur through its Authorized Office, T.P. Claims Hub, Divsonal
Office-I, Abhay Chambers, Jalori Gate, Jodhpur.
----Appellant/Non-claimant No.3
Versus
1. Mst. Dakhu D/o Shri Heeralal,
2. Mangilal S/o Shri Heelarlal,
Both residents of Village Baghana, P.S. Diwer, Tehsil Bhim,
District Rajsamand.
---Respondents/Claimants
3. Daud Bhai S/o Musa Bhai Gachi Muslim, Resident of Dariyai
Colony, Modasa, District Arwali, Gujarat (Driver).
4. Zulfikar S/o Shri Kasam Bhai Muslim, Resident of Zilani
Park Society, House No.43, Modasa, District Arwali, Gujarat
(Owner)
5. Bherulal S/o Shri Heeralal, Resident of Village Baghana,
P.S. Diwer, Tehsil Bhim, District Rajsamand
----Respondents/Non-claimants
Connected With
S.B. Civil Misc. Appeal No. 598/2016
1. Miss Dakhu D/o Heeralal, aged about 24 years,
2. Mangilal S/o Heeralal, aged about 46 years,
Both residents of Baghana, P.S. Diver, Tehsil Bheem,
District Rajsamand.
----Appellant
Versus
1. Daud Bhai S/o Musa Bhai, Resident of Dariyai Colony,
Modasa, District Arvali, Gujarat (Driver)
2. Zilfikar S/o Kasam Bhai, Resident of Zilani Park Society,
House No.43, Modasa, District Arvali, Gujarat (Owner)
3. New India Assurance Co. Ltd. through Divisional Manager,
Divisional Office, Bapu Bazar, Udaipur.
4. Bherulal S/o Heeralal, Resident of Baghana, P.S. Diver,
Tehsil Bheem, District Rajsamand.
----Respondents
(Downloaded on 25/10/2024 at 10:00:48 PM)
[2024:RJ-JD:43465] (2 of 8) [CMA-634/2016]
For Appellant(s) : Mr. Jagdish Vyas.
For Respondent(s) : Mr. B.L. Choudhary.
HON'BLE DR. JUSTICE NUPUR BHATI
Judgment
Reserved on : 23/10/2024
Pronounced on : 25/10/2024
1. The Insurance Company (non-claimant No.3) and claimants,
both have filed these misc. appeals under Section 173 of the M.V.
Act, 1988 (Act) challenging the judgment and award dated
11.12.2015 passed by learned Judge, Motor Accident Claims
Tribunal, Rajsamand ('Tribunal') in MAC Case No.356/2013,
whereby the learned Tribunal has awarded compensation in favour
of claimants to tune of Rs.6,24,000/- along with interest @ 9%
per annum from the date of filing the claim petition i.e.
28.10.2013. All the non-claimants were held jointly and severally
liable to pay the compensation to the claimants.
2. Briefly stated, the facts of the case are that the claimants,
who are sister and elder brother of deceased Nathulal, preferred
claim petition under Section 166 of the Act claiming compensation
of Rs.24,00,000/- on account of untimely death of Nathulal. In the
claim petition it was stated that on 12.10.2013 at about 09:00
pm, Nathulal after fetching water was coming to his home, near
National High Hotel, he was hit from behind by offending Truck
bearing registration number GJ-18-T-9132, coming from
Kamlighat, on account of rash and negligent driving of its driver.
As a result of which, Nathulal died on the spot.
[2024:RJ-JD:43465] (3 of 8) [CMA-634/2016]
3. Despite service of summons of the claim petition upon non-
claimants No. 1 and 2, nobody appeared on their behalf and,
therefore, exparte proceedings were drawn against them. No reply
to claim petition was filed by non-claimant No.4.
4. The claim petition was contested by the non-claimant No.3
Insurance Company by filing its reply while denying involvement
of the insured vehicle on the relevant day and time and the
deceased himself was negligent for the accident. It was further
stated that the claimants were not the dependent upon the
deceased. It was further stated that there was violation of the
conditions of the policy, therefore, the insurance company could
not have been held liable to pay the compensation.
5. As per the pleadings of the parties, the learned Tribunal
framed two issues, which inter-alia reads as under:
"1. D;k fnukad 12-10-2013 dks le; yxHkx 9-00 ih-,e- ij
jktekxZ gksVy ds ikl] xzke c?kkuk] ,u-,p- 8 ij iqfyl
Fkkuk fnosj {ks= esa Vªd la[;k th-ts-18&Vh&9132 dks mlds
pkyd us rst xfr o ykijokgh ls pykdj nq?kZVuk dkfjr
dj nh ftlls ukFkwyky dh e`R;q gks x;h\
2. D;k izkFkhZx.k mDr nq?kZVuk esa mDr e`rd dh e`R;q gks tkus
ds dkj.k izfrdj izkIr djus ds vf/kdkjh gSA ;fn gka] rks
fdl i{kdkj ls fdruh jkf'k\"
6. In support of their claim petition, the claimants examined
AW. 1- Ms. Dakhu and AW. 2 Sanwra and also exhibited certain
documents as Ex.1 to Ex.12.
7. The learned Tribunal after hearing the parties partly allowed
the claim petition filed by the claimants and thereby awarded
compensation of Rs.6,24,000/- along with interest @ 9% p.a. in
favour of claimants.
8. Aggrieved by the judgment and award, the appellant
Insurance Company has challenged the judgment impugned and
[2024:RJ-JD:43465] (4 of 8) [CMA-634/2016]
the claimants have filed appeal seeking enhancement of the
compensation.
9. The appeal preferred by the Insurance Company viz. CMA
No.634/2016 was admitted by a Coordinate Bench of this Court on
11.03.2016 and an interim order was also passed staying the
execution of the impugned judgment and award passed by learned
Tribunal.
10. Learned counsel appearing for appellant Insurance Company
submitted that the deceased himself was married and was having
a son, however, the wife and son of the deceased were not
impleaded party in the claim petition, though they were necessary
and proper party and, therefore, claim petition itself was not
maintainable. Learned counsel for the Insurance Company
submitted that when first class heirs of deceased were there, the
submitted being the sister and elder brother of deceased could not
have claimed compensation by filing the claim petition. While
adverting to the testimony of AW.1 Ms. Dakhu (Claimant No.1)
and AW.2 Sanwra, nephew of the claimants, learned counsel for
the appellant- Insurance Company submitted that there was
material contradiction in their testimony, inasmuch as AW.1 in her
statement deposed that the deceased was unmarried whereas
AW.2 stated that the deceased was married and one child was
also there. Learned counsel for the appellant Insurance Company
further submitted that the claimant No.1, being major woman
cannot be said to be solely dependent upon the income of the
deceased and, therefore, the learned Tribunal has erred in
awarding compensation in favour of claimant No.1. Counsel for the
appellant Insurance Company further questioned awarding of 30%
[2024:RJ-JD:43465] (5 of 8) [CMA-634/2016]
future prospects, inasmuch as the deceased was not in a stable
job having regular source of income. Thus, in absence of any
cogent evidence adduced by the claimants in this regard, learned
Tribunal was not justified in awarding 30% future prospects to the
claimants.
11. On the other hand, learned counsel appearing for the
claimants (Appellants in CMA No.598/2016) vehemently opposed
the submissions made by counsel for the Insurance Company and
submitted that the compensation awarded by the learned Tribunal
is on lower side and the same deserves to be suitably enhanced.
12. It is submitted by learned counsel for the claimants that the
claimant No.1 being unmarried sister of the deceased was
dependent upon the income of the deceased and the parents of
claimants had expired long back. He further submitted that so far
as claimant No.2 is concerned, he is a mentally retarded person,
therefore, the learned Tribunal has erred in not considering him as
dependent upon the income of the deceased. Learned counsel for
the claimants further submitted that deceased was 30 years of
age at the time of accident, however, the learned Tribunal has
erred in considering the age of the deceased as 40 years, merely
on the basis that in the claim petition and in the statement it was
stated that deceased was 4-5 year younger to Mangilal (claimant
No.2) and the age of claimant No.2 was mentioned in the claim
petition as 45 years, therefore, the learned Tribunal observed that
the deceased was 40 years of age and applied the lesser multiplier
of 14. Learned counsel for the claimants further argued that the
deceased was blacksmith by profession and used to earn
Rs.9,000/- per month, however, the learned Tribunal assessed the
[2024:RJ-JD:43465] (6 of 8) [CMA-634/2016]
monthly income of Rs.4980/-, which was prevalent minimum
wage of an unskilled labour. Learned counsel for the appellants
further submitted that the learned Tribunal has not awarded
compensation under the had of loss of consortium to claimant
No.2, who is none other than the elder brother of deceased.
Learned counsel for the appellants/claimants submitted that the
compensation awarded under the head of funeral, loss of estate
and transportation charges are also on lower side, which also
deserves to be enhanced.
13. I have given my thoughtful consideration to the submission
made by counsel for the parties at length and have perused the
material available on record.
14. This Court finds that the claimant No.1, who is sister of the
deceased in her statements has specifically deposed that
difference in the age between the deceased brother and claimant
No.2 (Mangilal) was 4-5 years and upon perusal of the claim
petition, it is seen that the age of the elder brother (claimant
No.2), namely, Mangilal was shown as 45 years, and therefore,
there was no occasion for the learned Tribunal and for this Court
as well to consider the age of the deceased as 30 years and thus
the learned Tribunal has rightly considered the age of the
deceased as 40 years. Thus, looking to the age of the deceased,
no error has been committed by learned Tribunal in awarding 30%
towards future prospects.
15. This Court also finds that though it has been argued by
learned counsel for the Insurance Company that as per the
testimony of AW.2 Sanwla, the deceased was a married and was
having an issue, but no investigation has been made by the
[2024:RJ-JD:43465] (7 of 8) [CMA-634/2016]
Insurance Company in this regard, inasmuch as except the
statement of AW.2, there is nothing plausible on record to even
presume that the deceased was married, therefore, this Court
finds no force in the contention raised by counsel for the
Insurance Company that the deceased was married, however, his
wife and son were not impleaded as party in the claim petition.
Further, so far as claimant No.1 is concerned, she being
unmarried sister and her parents had expired, was dependent
upon the income of the deceased. This Court also considered the
submission made by counsel for the claimants that the claimant
No.2 was a mentally retarded person, however, no medical
evidence in this regard was produced by the claimants in this
regard and, therefore, it cannot be believed that the claimant No.2
was a mentally retarded person and was dependent upon the
deceased for his livelihood.
16. This Court also finds that though in the claim petition and
here in misc. appeal (CMA No.598), the claimants have pleaded
that the deceased was earning Rs.9000/- per months, however,
no evidence in this regard was adduced, therefore, in the
considered view of this Court, the learned Tribunal was justified in
assessing the monthly income as per the prevailing minimum
wages of an unskilled labour at the relevant time at Rs.4980/-.
Also, the learned Tribunal has rightly awarded 30% towards future
prospects looking to the age of the deceased as 40 years.
17. In view of above discussion, this Court finds no force in the
appeal preferred by the Insurance Company (CMA No.634/2016)
and, therefore, the same is hereby dismissed. This Court,
however, finds considerable force in the contentions raised by
[2024:RJ-JD:43465] (8 of 8) [CMA-634/2016]
counsel for the claimants that the claimant No.2, being brother of
the deceased, was also entitled to get compensation under the
head of loss of consortium, which this Court hereby grants.
18. Also, a meager amount of Rs.2000/- towards loss of estate
has been given by the learned Tribunal, which also requires to be
enhanced in the light of National Insurance Company Ltd. v.
Pranay Sethi : (2017) 16 SCC 680 and thus an amount of
Rs.18,150/- is awarded.
19. Accordingly, the misc. appeal (CMA No.598/2016) preferred
by the appellants/claimants is partly allowed. Claimant No.2
Mangilal) (brother of the deceased) is held entitled to receive
compensation under the head of loss of consortium at Rs.48,400/-
and the claimants are held entitled to get compensation under the
head of loss of estate at Rs.18,150/-. Thus, the claimants are held
entitle to get compensation of Rs.66,550/- in addition to what
has been awarded by the learned Tribunal i.e. Rs.6,24,000/- along
with interest as awarded by learned Tribunal. The claimants shall
be entitled to receive compensation in terms of the award passed
by learned Tribunal. The amount of compensation withheld under
the interim order of this Court shall be paid to the claimants within
a period of four weeks from the date of passing this judgment. No
costs.
(DR.NUPUR BHATI),J
158 & 159-DJ/-
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