Rajasthan High Court - Jodhpur
National Insurance Co. Ltd vs Rami Devi And Ors. (2024:Rj-Jd:39529) on 23 September, 2024
Author: Nupur Bhati
Bench: Nupur Bhati
[2024:RJ-JD:39529]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
S.B. Civil Misc. Appeal No. 2604/2016
National Insurance Company Ltd., Naya Darwaja Road, Nagaur
through its Authorized Signatory at "Sun Tower", 3 rd and 4th
Floor, Pal Road, Jodhpur.
----Appellant/Non-claimant
Versus
1. Rami Devi W/o late Sh. Ganpat Ram, R/o Village Karnu
Tehsil Khimsar Distt. Nagaur
2. Kaani D/o late Sh. Ganpat Ram, R/o Village Karnu Tehsil
Khimsar Distt. Nagaur
3. Shrawan Ram S/o late Sh. Ganpat Ram, R/o Village
Karnu Tehsil Khimsar Distt. Nagaur
4. Santu D/o late Sh. Ganpat Ram, R/o Village Karnu Tehsil
Khimsar Distt. Nagaur
5. Ramu Ram S/o late Sh. Ganpat, R/o Village Karnu Tehsil
Khimsar Distt. Nagaur
6. Shobha D/o late Sh. Ganpat Ram, R/o Village Karnu
Tehsil Khimsar Distt. Nagaur
7. Gopal Singh S/o Inder Singh, R/o Village 475 New BJS
Colony Near Rto Office Jodhpur
8. Hanuman Singh S/o Bhanwar Singh, R/o Village Pabusar
Tehisl Khimsar Distt. Nagaur
----Respondents
For Appellant(s) : Mr. Santosh Choudhary.
For Respondent(s) : Mr. Bharat Dewasi, R-1 to 6/claimants.
None present for R 7 & 8 despite
service.
HON'BLE DR. JUSTICE NUPUR BHATI
Judgment
23/09/2024
1. This misc. appeal under Section 173 of the Motor Vehicles
Act, 1988 ('Act') has been preferred by the appellant/non-
[2024:RJ-JD:39529] (2 of 8) [CMA-2604/2016]
claimant- Insurance Company challenging the validity of the
judgment and award dated 21.06.2016 passed by the learned
Judge, Motor Accident Claims Tribunal, Nagaur ('Tribunal') in MAC
Case No.52/2011 (377/2014), whereby the learned Tribunal
awarded compensation of Rs.11,86,500/- in favour of
claimants/respondents No.1 to 6 along with interest @7.5% p.a.
The liability of paying the compensation was fastened upon all the
non-claimants jointly and severally.
2. Succinctly stated, the facts giving rise to this appeal are that
the claimants filed a claim petition under Section 166 of the Act
claiming compensation of Rs.38,01,000/- on account of
unfortunate death of sole breadwinner late Sh. Ganpat Ram, in
the accident, which took place on 09.01.2014. In the claim
petition, it was stated that on 09.01.2014, deceased Ganpat Ram
at about 08:00 pm was going on motorcycle as pillion rider from
Karnu to his 'Dhani' on motorcycle bearing registration number
RJ-21-SK-3308. The motorcycle was being plied by Gopal Singh
(non-claimant No.1) rashly and negligently and on account which
Ganpat Ram fell down and received grievous injuries. On account
of injuries, Ganpat Ram died during treatment on 20.01.2014. The
claimants stated that deceased was doing construction work and
apart from the doing the construction work, he used to do
agriculture work. The deceased was thus earning Rs.15,000/- per
month from doing the aforesaid works.
3. After issuance of the notices of the claim petition, reply to
claim petition was filed by non-claimant No.1 and 2 while denying
the submissions made in the claim petition. It was stated that no
accident took place by the motorcycle. The deceased met with
[2024:RJ-JD:39529] (3 of 8) [CMA-2604/2016]
accident with another vehicle, however, with a view to claim
compensation, the FIR of the accident was lodged while falsely
implicating the motorcycle. It was further stated that at the time
of accident, the vehicle was insured and, therefore, liability of
paying the compensation, was of the insurance company.
4. On behalf of appellant- Insurance Company, reply to claim
petition was filed while denying the facts stated in the claim
petition, except that the vehicle was insured by it. It was stated
that rider of the motorcycle was not having valid and effective
licence to ply the vehicle and no premium was charged covering
the risk of pillion rider. It was thus prayed that the insurance
company be exonerated from its liability to pay the compensation.
5. The learned Tribunal, on the strength of pleadings of the
parties, settled four issues for determination.
6. For proving his case, the claimants examined witnesses, viz.
AW.1 Rami Devi, AW.2 Bhura Ram, and AW.3 Shera Ram and also
placed on record documents, which were exhibited as Ex. 1 to 37.
The Non-claimant No.1 examined himself as NAW.1. No
documentary evidence was tendered by the non-claimants.
7. The learned Tribunal, while deciding Issue No.1, after
considering the evidence produced before it, has recorded a
finding that after investigation in the FIR No.16/2014 lodged by
complainant, Bhura Ram Jat, at Police Station Panchodi, District
Nagaur, charge sheet was filed against the rider i.e. Gopal Singh
for the offences under Sections 279 and 304A of IPC and no
explanation was furnished by said Gopal Singh for his false
implication in the accident. The learned Tribunal decided Issue
No.2 against the insurance company while recording a finding that
[2024:RJ-JD:39529] (4 of 8) [CMA-2604/2016]
the non-claimant was having valid licence to ply the motorcycle.
The learned Tribunal decided the issue No.3 partially in favour of
claimants and after considering the evidence brought before it,
awarded compensation of Rs.10,61,424/- towards the loss of
income on account of death of Sh. Ganpat Ram. The learned
Tribunal awarded a sum of Rs.25,000/- towards funeral expenses
and Rs.1,00,000/- towards loss of consortium. The learned
Tribunal thus awarded a sum of Rs.11,86,500/- (round off). For
the amount of compensation, all the non-claimants were held
jointly and severally liable.
8. None appeared on behalf of respondents No.7 & 8 despite
service.
9. The instant misc. appeal was admitted by a Coordinate
Bench of this Court vide order dated 19.12.2016 and execution of
the impugned judgment and award was stayed, subject to
appellant depositing Rs.9,00,000/- along with interest as awarded
by the Tribunal within a period of six weeks from 19.12.2016. The
amount upon being deposited was directed to be disbursed to the
claimants on moving an appropriate application.
10. Learned counsel appearing for the appellant-Insurance
submits that FIR in this case was lodged after 11 days of the
accident without assigning any plausible reasons for such an
inordinate delay, though as per the version of AW.3 Shera Ram,
who was styled as eyewitness of the accident, has stated that he
immediately informed about the accident to Bhura Ram, brother of
the deceased. Learned counsel for the appellant further submits
that as per the story set out in the FIR, the accident took place on
a straight road due to negligent driving of motorcyclist and the
[2024:RJ-JD:39529] (5 of 8) [CMA-2604/2016]
pillion rider fell off the motorcycle, whereas as the version of the
eyewitness Shera Ram (AW.3), the motorcycle got slipped at the
curve of the road and the deceased sustained head injury.
Learned counsel for the appellant submits that in the accident, no
injury has been sustained by the rider i.e. Gopal Singh and further
as per the report of the MTO and seizure report, no scratch marks
were found on the motorcycle, which bound to be there on
account of slipping of the motorcycle. Learned counsel for the
appellant further submits that as per the Naksha Mauka, the
accident had taken place on a straight road and not at the curve,
as stated by the eyewitness of the accident. Thus the learned
Tribunal has erred in deciding the issue No.1 in favour of
claimants. Learned counsel for the appellant further drew
attention of the Court towards the testimony of Gopal Singh (Non-
claimant No.1), who in his statements, deposed that at the time of
accident, he was not even present at the place of occurrence and
was at Jodhpur, but the same has not been considered and due
weightage has been given to the statement of AW.3 Shera Ram.
Learned counsel for the appellant further submits that charge
sheet is not a conclusive proof of negligence and the negligence is
required to be proved by independent and corroboratory evidence
and, therefore, the finding recorded on issue No.1 while relying
upon the charge sheet deserves to be set aside.
11. Questioning the quantum of amount of compensation,
learned counsel for the appellant submits that the learned Tribunal
has erred in quantifying the loss of income and awarding 50%
towards future prospects. Learned counsel for the appellant
submits that in the case where the deceased is self employed or
[2024:RJ-JD:39529] (6 of 8) [CMA-2604/2016]
not on fixed salary, the actual income at the time of death without
any addition to income for future prospects should be counted.
12. On the other hand, learned counsel for the
respondents/claimants opposed the submissions made by counsel
for the appellant. Learned counsel for the claimants submits that
the compensation awarded by the learned Tribunal is just and
reasonable and, therefore, the same deserves to be upheld. He
submits that in the accident, Ganpat Ram sustained injuries and
the first and foremost duty was to provide treatment the injured
person and, therefore, some delay had occasioned in lodging the
FIR, which in the given circumstances cannot be said to be fatal.
He further submits that charge sheet was filed against the non-
claimant No.1, which fact remained unrebutted, and no remedy
was availed by the non-claimant No.1 against filing of charge
sheet in the FIR lodged by the complainant. He thus submits that
the judgment and award impugned does not call for any
interference and the misc. appeal be dismissed.
13. I have heard learned counsel for the parties, perused the
impugned award and through scanned the material available on
record.
14. In order to thrash out the matter for ascertaining cause of
accident, resulting in untimely death of deceased, the impugned
award deserves judicial scrutiny on Issue No.1. On appreciation of
evidence, the learned Tribunal decided Issue No.1 in favour of
claimants while recording the finding that upon report being
submitted by complainant, Bhura Ram, FIR No.16/2014 was
registered at Police Station Panchodi, District Nagaur; wherein
after investigation, charge sheet for offences under Sections 279
[2024:RJ-JD:39529] (7 of 8) [CMA-2604/2016]
and 304-A of IPC was filed against non-claimant No.1, Gopal
Singh. However, no explanation was furnished by said Gopal Singh
for his false implication in the accident. This Court finds that the
learned Tribunal, upon scrutiny of evidence, found that it was the
non-claimant No.1, who plied his vehicle rashly and negligently, as
a result of which the pillion rider sustained injuries and succumbed
to the same. This Court also finds that interestingly, before the
learned Tribunal no such arguments have been raised that non-
claimant No.1 ever denied his presence at the time of accident
and that he was at Jodhpur at the time of accident, and for the
first time, these submissions have been made. In the considered
view of this Court, such submissions cannot be appreciated or
gone into at the appellate stage.
15. This Court finds that the learned Tribunal considering the
material produced before it has treated the deceased to be a
labourer and has quantify the amount of compensation while
taking into consideration the minimum wages at Rs.4914/- per
month and has rightly awarded 50% towards future prospects.
The learned Tribunal has considered the number of dependents,
who were six in number and, therefore, the learned Tribunal has
rightly deducted 1/4th deduction towards personal expenses and
thus the amount of compensation quantify at Rs.10,61,434/-
towards the loss of income, is just and the same calls for no
interference. This Court also finds that the amount awarded in
favour of claimants towards funeral expenses and loss of
consortium is also adequate.
16. In view of above discussion, this Court is of the opinion that
the learned Tribunal has not committed any error while passing
[2024:RJ-JD:39529] (8 of 8) [CMA-2604/2016]
the impugned judgment and award and no case of enhancement is
made out. The appeal has no force. The misc. appeal fails and is
hereby dismissed. No costs. The remaining amount of
compensation under the interim order passed by a Coordinate
Bench of this Court be paid to the claimants within a period of six
weeks from today with interest, as awarded by the learned
Tribunal. Record be sent be back.
(DR. NUPUR BHATI),J
191-DJ/-
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