Rajasthan High Court - Jodhpur

Smt. Shanti Devi And Ors vs Nainu Kathat And Ors. ... on 2 September, 2024

Author: Nupur Bhati

Bench: Nupur Bhati

[2024:RJ-JD:36253]

        HIGH COURT OF JUDICATURE FOR RAJASTHAN
                       AT JODHPUR
                  S.B. Civil Misc. Appeal No. 2503/2017
IFFCO TOKIO General Insurance Co. Ltd., Regd. Office IFFCO
Sadan C1 Distt. Centre, Saket, New Delhi- 110017.
                                                                     ----Appellant
                                     Versus
1.       Smt. Shanti Devi W/o Late Nain Singh,
2.       Jeewan Singh S/o Late Nain Singh,
3.       Hukam Singh S/o Late Nain Singh,
4.       Ganga Singh S/o Late Nain Singh,
5.       Jasoda D/o Late Nain Singh,
6.       Kaushlaya D/o Late Nain Singh,
7.       Shiv Singh S/o Late Nain Singh,
         All residents of 328, Anand Nagar, Sardar Samand Road,
         Pali, Teshil Pali, District Pali Raj. Respondent Nos. 6 and 7
         through natural Guardian mother Smt. Shanti Devi.
8.       Nainu Kathat S/o Subhan, R/o Chittad Vadiya Salpada,
         Tehsil Raipur, Police Station Sandhara, District Pali Raj.
9.       Faij Mohd. S/o Madari Khan, R/o Village Khanpura, Police
         Station, Ramganj, District Ajmer Raj..
                                                                  ----Respondents
                               Connected With
                  S.B. Civil Misc. Appeal No. 1275/2017
1.       Smt. Shanti Devi W/o Late Shri Nain Singh, aged about
         54 years,
2.       Jeevan Singh S/o Late Shri Nain Singh, aged about 32
         years,
3.       Hukam Singh S/o Late Shri Nain Singh, aged about 30
         years,
4.       Ganga Singh S/o Late Shri Nain Singh, aged about 29
         years,
5.       Jasoda D/o Late Shri Nain Singh, aged about 26 years,
6.       Kaushalya D/o Late Shri Nain Singh, aged about 24 years,
7.       Shiv Singh S/o Late Shri Nain Singh, aged about 21
         years, Appellant No. 6 To 7Are Minor Through Their
         Natural Guardian Mother Smt. Shanti Devi.


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         All residents of 328, Anand Nagar, Sardar Samand Road,
         Pali, Tehsil and District Pali.
                                                                      ----Appellants
                                         Versus
1.       Nainu Kathat S/o Subhan, Resident of Chitad Wadia,
         Salpada, Tehsil Raipur, P.S. Sendra, District Pali. ...driver
2.       Faiz    Mohd.     S/o       Madari         Khan,    Resident    of    Village
         Khanpura, P.s. Ramganj, District Ajmer. ...owner
3.       IFFCO TOKIO General Insurance Co. Ltd., Regd. Office
         Iffco       Sadan,       C-1,     District      Centre,      Saket,     New
         Delhi. ...Insurance Co.
                                                                    ----Respondents


For Appellant(s)              :     Mr. Ayush Goyal on behalf of
                                    Mr. Vinay Kothari, Insurance Co./non-
                                    claimant No.3.
For Respondent(s)             :     Mr. Shanker Singh Rajpurohit, for
                                    respondents/claimants


                 HON'BLE DR. JUSTICE NUPUR BHATI

Judgment 02/09/2024

1. The appellant/non-claimant No.3 and claimants, both have

filed by the instant appeals under Section 173 of the M.V. Act,

1988, challenging the validity of the judgment and award dated

02.02.2017 passed by learned Judge, Motor Accident Claims

Tribunal, Pali ('Tribunal') in MAC Case No.198/2015, whereby the

learned Tribunal has awarded compensation in favour of claimants

to tune of Rs.28,24,712/- along with interest @ 9% p.a. from the

date of filing the claim petition on account of death of Sh. Nain

Singh.

2. Briefly stated, the facts of the case are that claimants filed a

claim petition under Section 140/166 of the M.V. Act, 1988 before

the learned Tribunal claiming compensation on account of

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untimely death of their breadwinner late Sh. Nain Singh. In the

claim petition it was stated by the claimants that on 08.07.2015,

Nain Singh (deceased) was going on his motorcycle bearing

registration number RJ-22-SN-4932 from Bewar to Pali. When the

deceased reached near Jadan Bus Stand, then a Truck Trailer

bearing registration number RJ-01-GA-2440, which was being

plied by its driver, applied break of its vehicle and without using

indicator turned his vehicle, as a result of which, the deceased

who was plying his motorcycle, collided in the truck. On account of

injuries sustained by him, Sh. Nain Singh died on the spot. An FIR

of the incident was lodged at Police Station Shivpura, District Pali

as FIR No.88/2015. Charge Sheet (Ex.1) was filed against Nainu

Kathat, driver/non-claimant No.1 of the offending vehicle in the

competent court. In the claim petition, it was alleged that the

deceased was 52 years of age at the time of accident and he was

doing the works of RCC and by doing the aforesaid work, he was

earning Rs.17,000/- per month. The claimants thus by filing the

claim petition claimed compensation of Rs.91,63,000/- under

various heads.

3. The non-claimants were summoned. After service of the

summons, nobody appeared on behalf of non-claimants No.1 and

2, therefore, exparte proceedings were ordered against them on

27.04.2016. On behalf of non-claimant No.3 i.e. insurance

company, reply to claim petition was filed while denying the

averments therein for want of knowledge. It was stated in the

reply that the deceased was plying the motorcycle without

wearing helmet and he was not having valid and effective licence

and the accident occurred due to his own negligence. It was

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further stated by the non-claimant No.3 that driver of the

offending Truck Trailer was also not having valid and effective

licence and thus on account of violation of conditions of the policy,

the liability of paying compensation could not have been fastened

upon the insurance company. It was further stated that the

claimants have claimed excess amount of compensation and

prayed for dismissal of the claim petition.

4. As per the pleadings of the parties, the learned Tribunal

framed four issues, including relief. In support of their claim, the

claimants examined two witnesses, viz. AW.1 Shanti Devi and

AW.2 Firoz. In documentary evidence, the claimants exhibited 25

documents. On behalf of non-claimants, no evidence was led.

5. The learned Tribunal, after hearing the arguments of the

parties and perusing the material placed before, it vide judgment

and award dated 02.02.2017 proceeded to partly allowed claim

petition and awarded compensation of Rs.28,24,712/- along with

interest @ 9% per annum from 15.10.2015, the date of filing of

claim petition while holding all the non-claimants jointly and

severally liable to pay the aforesaid compensation.

6. The claimants by way of filing the misc. appeal have prayed

for enhancement of the compensation and the non-claimant No.3/

insurance company has challenged the judgment and award.

7. Learned counsel appearing for the appellant insurance

company submits that the learned Tribunal has erred in deducting

1/5th of the income of the deceased towards his own expenses. He

submits that looking to number of dependents i.e. rightful

claimants who were four in number, the deduction ought to have

been 1/4th made, inasmuch as three sons of the deceased were

[2024:RJ-JD:36253] (5 of 8) [CMA-2503/2017]

major. Learned counsel for the appellant further submits that the

learned Tribunal has also erred in awarding 15% future prospects,

which deserves to be 10% looking to the age of the deceased and

the nature of job, inasmuch as the deceased was self-employed.

Learned counsel for the appellant/non-claimant No.3 further

submits that the learned Tribunal has also erred in awarding

consortium/loss of care and guidance for each claimants at

Rs.1,00,000/-, which in view of Guidelines laid down by the

Rajasthan State Legal Services Authority and in view of judgment

passed by Hon'ble Court in the case of National Insurance Co.

Ltd v. Pranay Sethi : 2017 (16) SCC 680 deserves to be

reduced and modified. Learned counsel for the appellant/non-

claimant No.3 further submits that the compensation awarded

under the heads of loss of estate and funeral expenses are also on

higher side and the same also deserve to be reduced.

8. On the other hand, learned counsel appearing for claimants

opposes the submissions made by counsel for the insurance

company and submits that the compensation awarded by the

learned Tribunal is not adequate and the same deserves to be

enhanced. Learned counsel for the appellant submits that the

monthly income of the deceased was Rs.17,000/- per month,

however, the learned Tribunal has assessed the yearly income of

the deceased at Rs.1,97,600/- and the future prospects awarded

@ 15% is on lower side and the same deserves to be 50%.

Learned counsel for the claimants further submits that the learned

Tribunal has applied the multiplier of 11, which is also on lower

side and the same deserves to be 18. Learned counsel for the

claimants further submits that the compensation awarded under

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other heads also deserves to be enhanced suitably along with

interest @ 12% p.a. Learned counsel for the claimants thus

prayed for enhancement of the compensation.

9. I have considered the submissions made by counsel for the

parties at length and have perused the material available on

record.

10. This Court finds considerable force in the submissions made

by counsel for the appellant/insurance company that the learned

Tribunal has erred in deducting 1/5 th of the income of the

deceased towards own expenses, inasmuch as three sons of the

deceased were major and, therefore, the deduction ought to have

been 1/4th made from the income of the deceased. This Court also

finds that the learned Tribunal has also erred in awarding 15%

future prospects, which deserves to be 10% looking to the age of

the deceased and the nature of job. The learned Tribunal has also

erred in awarding consortium/loss of care and guidance for each

claimants at Rs.1,00,000/-. The learned Tribunal has also awarded

excess compensation towards loss of estate and funeral expenses,

which also deserves to be reduced.

11. This Court also considered the submissions made by counsel

for the claimants with regard to awarding 50% future prospects. It

is seen that the learned Tribunal assessed the yearly income of the

deceased at Rs.1,97,600/- while relying upon Ex.25 [Income Tax

Return] and looking to the age of the deceased (52 years 8

months and 27 days) 50% future prospects could not have been

awarded, rather the same deserves to be reduced to 10%. This

Court also finds that the compensation awarded under other heads

viz. consortium/loss of care and guidance for each claimants at

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Rs.1,00,000/-, loss of estate and funeral expenses are also on

higher side and the same also deserves to be suitably reduced.

The claimants are thus held entitled to get compensation under

the head of consortium/loss of care and guidance @ Rs.48,000/-

for each claimant and the claim awarded by the learned Tribunal

under the heads of loss of estate and funeral expenses is also

reduced to Rs.18,000/- each. This Court finds no force in the misc.

appeal filed by the claimants seeking enhancement of the

compensation.

12. Accordingly, the compensation awarded by the learned

Tribunal towards the loss of income is required to be re-quantified

in view of law laid down by Hon'ble Apex Court in the case of

Sarla Verma v. Delhi Transport Corporation : AIR 2009 SC

3104, which is as under: -

Yearly income of the deceased : Rs.1,97,600/- as per Ex.25.

Calculation: Rs.1,97,600/- x 11 = 21,73,600/-

                       Add: Future Prospects (10%)      = 2,17,360/-
                                                          23,90,960/-
                       Less: ¼ deduction                    5,97,740/-
                       Loss of Income                    17,93,220/-

13. Accordingly, the compensation is accordingly re-quantified as

under: -

  S. No.                            Particulars                           Amount
      1.      Compensation towards loss of income while adding           Rs.17,93,220/-