Rajasthan High Court - Jodhpur
Smt. Pyaridevi And Anr vs Swaroopsingh And Anr on 25 October, 2024
Author: Nupur Bhati
Bench: Nupur Bhati
[2024:RJ-JD:43705]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
S.B. Civil Misc. Appeal No. 2546/2016
1. Smt. Pyaridevi W/o Sh. Dayalchand, age 30 years,
2. Dayalchand S/o Sh. Rooparam, age 32 years,
Both residents of Jagiyon Ka Naya Bas, Behind Truck
Union, Barmer (Raj.)
----Appellants/Claimants
Versus
1. Swaroopsingh S/o Gulab Singh, Resident of Tejmalta,
Tehsil Fatehgarh, District Jaisalmer (Raj.)
2. Divisional Manager, The New India Assurance Company
Limited, Divisional Office, 1st Floor, Abhay Chambers, Jalori
Gate, Jodhpur (Raj.)
----Respondents/Non-claimants
Connected With
S.B. Civil Misc. Appeal No. 1218/2016
The New India Assurance Company Limited, through its legally
constituted authority, Divisional Office, First Floor, Abhay
Chambers, Jalori Gate, Jodhpur.
----Appellant/Non-claimant No.2
Versus
1. Smt. Pyari Devi W/o Sh. Dayal Chand,
2. Dayalchand S/o Shri Roopa Ram,
Both residents of Jagiyon Ka Naya Bas, Behind Truck
Union, Barmer (Raj.)
--- Respondents/claimants
3. Swaroop Singh S/o Shri Gulab Singh, Resident of Tejmalta,
Tehsil Fatehgarh, District Jaisalmer.
----Respondent/Non-claimant No.1
For Appellant(s) : Mr. Gaurav Khatri, for claimants.
For Respondent(s) : Mr. Mukul Singhvi, for Insurance Co.
HON'BLE DR. JUSTICE NUPUR BHATI
[2024:RJ-JD:43705] (2 of 10) [CMA-2546/2016]
Judgment
Reserved on: 23/10/2024
Pronounced on : 25/10/2024
1. These misc. appeals have been preferred by the
appellants/claimants and the New India Assurance Company Ltd.
under Section 173 of the M.V. Act, 1988 ('Act') assailing the
validity of the judgment and award dated 06.02.2016 passed by
learned Judge, Motor Accident Claims Cases, Barmer ('Tribunal') in
MAC Case No.449/2015 (396/2015), whereby the learned Tribunal
while partly allowing the claim petition preferred by the claimants
has awarded compensation in favour of claimants to the tune of
Rs.5,00,000/- on account of death of claimants' daughter, namely,
Ms. Khushbu, along with interest @9% per annum from the date
of filing the claim petition i.e. 04.02.2015. Both the non-claimants
i.e. owner-cum-driver and insurance company have been held
jointly and severally liable to pay the compensation quantified by
the learned Tribunal.
2. The appellants/claimants, by way of filing CMA
No.2546/2016 have sought enhancement of the compensation
awarded and the appellant- Insurance Company (non-claimant
No.2) has challenged the impugned judgment award.
3. Facts of the case are that the appellants/claimants filed claim
petition under Section 166 of the Act claiming compensation to
tune of Rs.8,43,000/- on account of death of their daughter,
namely, Ms. Khushbu in the accident, which took place on
10.12.2014. In the claim petition, it was stated that it was on
10.12.2014 at about 11:30 am, while the deceased was plying
outside her house situated at Jatiyon Ka Nayabas; at that time, an
[2024:RJ-JD:43705] (3 of 10) [CMA-2546/2016]
unnumbered Ford Model Eco-Sport Car, being driven by non-
claimant No.1 rashly and negligently, dashed against deceased
Khushbu. As a result of which, Khushbu sustained injuries, she
was immediately taken to hospital, where she was declared dead.
In the claim petition, it was stated that at the time of accident,
Ms. Khushbu was 7 years of age and was studying. The claimants
thus filed claim petition praying for awarding compensation along
with interest under various heads.
4. The claim petition was contested by the non-claimant No.1
(owner-cum-driver) by filing reply to the claim petition. The non-
claimant denied negligence on his part and it was stated that while
the deceased was crossing the road, she dashed with the Car and
thus there was not fault on his part. In the alternative, it was
stated that at the time of accident, the offending vehicle was
insured with non-claimant No.2, therefore, the liability to pay
compensation shall be of insurance company.
5. On behalf of non-claimant No.2 i.e. insurance company,
reply to claim petition was filed while denying the facts averred in
the claim petition. It was stated that the deceased herself was
negligent, inasmuch as she while crossing the road suddenly came
in front of the car and thus there was contributory negligence on
the part of deceased herself. An objection with respect to driver of
the insured car not having valid and effective licence was also
taken and the vehicle was being plied without there being valid
permit and fitness. Thus, it was prayed that the claim petition qua
the insurance company be rejected.
6. On the basis of pleadings of the parties, the learned Tribunal
framed four issues including relief. In support of their claim
[2024:RJ-JD:43705] (4 of 10) [CMA-2546/2016]
petition, the claimants examined Pyari Devi (AW-1) and Babulal
(AW-2). In documentary evidence, Ex./1 to Ex./12 were exhibited.
In rebuttal, on behalf of non-claimant No.2, Pankaj Meena
(NAW-1) was examined.
7. At the conclusion of the trial, the learned Tribunal vide the
impugned judgment and award dated 06.02.2015 partly allowed
the claim petition and awarded compensation of Rs.5,00,000/- in
favour of claimants.
8. The appeal preferred by the claimants was admitted by a
Coordinate Bench of this Court on 22.02.2018 and the appeal
preferred by the Insurance Company was admitted by a
Coordinate Bench of this Court on 24.05.2016 and an interim
order was also passed while directing the Insurance Company to
deposit 70% along with interest of the amount of compensation
awarded by the Tribunal, inclusive amount already deposited
within a period of one month. The amount was directed to be
disbursed to the claimants in terms of award and recovery of rest
of the amount qua the appellant- Insurance Company was stayed.
Later on, after compliance of the order dated 24.05.2016, the
interim order dated 24.05.2016 was confirmed on 22.11.2016.
9. Learned counsel for the appellants/claimants submitted that
the learned Tribunal has erred in awarding meagre amount of
compensation, inasmuch as the learned Tribunal has considered
the evidence, oral and documentary, led by the claimants. Learned
counsel for the appellants/claimants submitted that the learned
Tribunal while quantifying the award under head of loss of filial has
considered the notional income of the deceased at Rs.30,000/-,
however, applied the multiplier of 15 instead of applying the
[2024:RJ-JD:43705] (5 of 10) [CMA-2546/2016]
multiplier of 18 and, therefore, the same should have been
Rs.5,40,000/-. So far as other conventional heads are concerned,
learned counsel for the appellants/claimants submitted that the
learned Tribunal has awarded a sum of Rs.50,000/- only, which
also deserves to be suitably enhanced and the compensation be
awarded, as prayed in their claim petition.
10. On the other hand, learned counsel appearing for the
Insurance Company while opposing the submissions made by
counsel for the claimants submitted that the learned Tribunal has
erred in fastening the liability to satisfy the award upon the
Insurance Company. Learned counsel for the Insurance Company
(non-claimant No.2) submitted that the learned Tribunal has
committed error while deciding the Issue No.1 against the
Insurance Company, inasmuch as there was material contradiction
in the testimony of Pyari Devi (AW-1) and Babulal (AW-2) and the
papers submitted by the police after investigation. Learned
counsel for the Insurance Company submitted that the road,
where the accident took place, was 90 feet wide road and the
deceased while playing outside her house, came on the road
without looking at the sides of the road and dashed against the
offending vehicle. Thus, there was contributory negligence on the
part of the deceased herself, however, this aspect of the matter
has not been considered.
11. Learned counsel for the Insurance Company further
submitted that the owner of the vehicle has not complied with the
terms and conditions of the policy, inasmuch as the vehicle was
not registered in accordance with law. He further submitted that
the vehicle was insured in the name of its owner (Swaroop Singh)
[2024:RJ-JD:43705] (6 of 10) [CMA-2546/2016]
on the basis of temporary registration number, which numbers
were valid for a period of one month, during which the vehicle was
required to be registered as per the provisions of the M.V. Act.
Learned counsel for the Insurance Company submitted that the
temporary registration was valid up to 11.05.2014 and the
accident took place on 10.12.2014, therefore, on the date of
accident the vehicle was not registered and thus there was
violation of the conditions of the policy. In support of his
contentions, learned counsel for the Insurance Company relied
upon judgment in the case of Narinder Singh v. New India
Assurance Company Ltd. & Ors. : MACD 2014 (SC) 382.
12. While assailing the quantum of compensation and awarding
interest @ 9% by the learned Tribunal, learned counsel for the
Insurance Company submitted that the compensation awarded by
learned Tribunal is on higher side, which also deserves to be
reduced.
13. Nobody appeared on behalf non-claimant (owner-cum-
driver) despite service of the notice in the appeal preferred by
appellant- Insurance Company and in the appeal preferred by the
claimants, service upon the non-claimant No.1 was dispensed
with.
14. I have considered the submissions made by counsel for the
parties at length and have perused the material available on
record.
15. This Court finds that while deciding the issue No.1, the
learned Tribunal has considered the testimonies of Pyari Devi
(AW-1) (claimant) and Babulal (AW-2) (eyewitness). Pyari Devi
(AW-1), in her statements stated that while her daughter was
[2024:RJ-JD:43705] (7 of 10) [CMA-2546/2016]
playing outside her house, it was the non-claimant (driver of the
offending vehicle) dashed her daughter while plying the car rashly
and negligently and a charge sheet was also filed against the
driver of the offending vehicle. AW.2 Babulal, in his examination
deposed that on 10.12.2014 at about 11:30 am, while he was
standing outside the house of Bhagirath, then a silver colour
vehicle came from Renbasera side being plied by its driver rashly
and negligently, dashed Ms. Khusbhu, who was standing outside
her house. This Court finds that the learned Tribunal has
specifically recorded a finding that the testimony of these
witnesses remained uncontroverted by non-claimants and the
learned Tribunal also observed that the statements made by the
claimants' witnesses also fortified from the charge sheet filed
against the driving of the offending vehicle. Thus, the learned
Tribunal has rightly attributed the complete negligence on the part
of driver of the offending vehicle and has not committed any error
while deciding the issue No.1.
16. So far as issue No.3 is concerned, the onus to prove the
same was upon the non-claimant No.2 Insurance Company. This
Court finds that the learned Tribunal while deciding the Issue No.3
has considered the statement of Pankaj Meena (NAW-1), who in
his statements has stated that since the vehicle in question was a
new vehicle and the insurance was done on the basis of temporary
number, which was valid of a period for period of one month and
the accident took place on 10.12.2014, therefore, in absence of
valid registration, there was violation of the conditions of the
policy. This Court finds that in the cross-examination, the said
witness i.e. Pankaj Meena (NAW-1) has admitted that no
[2024:RJ-JD:43705] (8 of 10) [CMA-2546/2016]
proceedings were initiated by the Insurance Copany against the
owner of the offending vehicle for not having a valid registration.
This Court finds that the learned Tribunal has considered the
judgment in the case of Narinder Singh (supra), wherein the
vehicle itself got damaged and insurance company refused to pay
compensation in absence of valid registration. So far as the
present case is concerned, this Court finds that the learned
Tribunal has observed that on account of negligence on the part of
driver of the offending vehicle the accident took place, wherein
claimants' daughter Ms. Khushbu died and, therefore, the
insurance company could not have been absolved from its liability,
as the claim was with respect to third party, and for any loss
caused to any third party, the liability has rightly been fastened
upon the insurance company. It is clear from the perusal of the
insurance policy (Ex./A-1) that no such condition has been
mentioned in it that the insurance company would not be liable in
case the registration of the vehicle is not valid. The only part of
the 'Çertificate of Insurance', that the appellant/insurance
company has relied upon to substaintiate its contention with
regards to the breach of policy conditions is the declaration
wherein the insurer of the policy states that the 'Certificate of
Policy' and the insurance policy are issued in accordance with the
provisions Contained in Chapter-X and XI of the Motor Vehicles
Act, 1988. And the aforementioned declaration is being
reproduced hereunder:
"I/We hereby certify that the policy to which this
Certificate relates as well as this Certificates of Insurance
are issued in accordance with the provisions of Chapter X
[2024:RJ-JD:43705] (9 of 10) [CMA-2546/2016]
and XI of M.V. Act, 1988.NIA S.T.REGN
No:AAACN4165CST178"
Thus, it is clear from the above-cited declaration that it nowhere
limits the liability of the insurance company in case the insured
vehicle does not have a valid registration. Further, Chapter X and
XI of the M.V. Act does not contain any provision regarding the
requirement of the registration of vehicle be it permanent or
temporary, therefore, the learned Tribunal has rightly decided
Issue No.3 against the insurance company.
17. This Court finds that while deciding the Issue No.2, which is
with respect to quantum of compensation, the learned tribunal has
considered the ratio in the case of Kishan Gopal & Anr. v. Lal &
Ors. : 2013 ACJ 2594 and quantified the compensation while
considering the notional income of the deceased at Rs.30,000/-
who was seven years of age at the time of accident and has
applied the multiplier of 15. This Court is of the considered view
that looking to the age of the deceased child i.e., 7 years the
notional income of Rs.25,000/- would be just, thus, the same is
reassessed as Rs.25,000/- p.a.. Further, this court finds no force
in the submission of the learned counsel for the claimants that the
multiplier of 18 ought to have been applied, as the Hon'ble
Supreme Court in Divya versus The National Insurance Co. Ltd. &
Anr. [Civil Appeal No. 7605 of 2022], has held that multiplier of 15
is applicable to age group of upto 15 years. So far as the
compensation awarded by the learned Tribunal under the
conventional head is concerned, this court deems it appropriate to
enhance the same to Rs.1,15,000 (Rounded off from
[2024:RJ-JD:43705] (10 of 10) [CMA-2546/2016]
Rs.1,14,950/-). Thus, the total amount of compensation as
modified/awarded by this court is as under:
25,000 x 15 + 1,15,000/- = Rs.4,90,000/-
18. Accordingly, the impugned award passed by the learned
tribunal is partly modified. The claimants are thus, held entitled to
get modified compensation of Rs.4,90,000/- along with interest
@9% (same as awarded by the learned tribunal) and the same
would be payable to the claimants in the terms of the impugned
award.
19. Accordingly, and in view of above discussion, the
appeal (SBCMA No.1218/2016) preferred by the
Non-Claimants/Insurance Company, is partly allowed and the
appeal (SBCMA No.2546/2016) preferred by the
Claimants/Appellants, is also partly allowed. No costs. The amount
of compensation withheld under the interim order of this Court,
shall be paid by the insurance company within a period of four
weeks from the date of judgment.
(DR.NUPUR BHATI),J
73-74-DJ/-
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