Rajasthan High Court - Jodhpur

O.I.C.Ltd vs Smt.Nopa Devi @ Neva Devi And Ors. ... on 24 September, 2024

Author: Nupur Bhati

Bench: Nupur Bhati

[2024:RJ-JD:39770]

        HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                         JODHPUR
                 S.B. Civil Misc. Appeal No. 2469/2012

Oriental Insurance Company Limited Through its Divisional
Manager, Bhansali Towers, Residency Road, Jodhpur.
                                                                     ----Appellant
                                     Versus
  1.    Smt. Manju, widow of late Shri Lalji, aged 25 years
  2.    Sunita, daughter of late Shri Lalji, aged 7 years
  3.    Rakesh, son of late Shri Lalji, aged 6 years
  4.    Jhitha, son of Shri Limba, aged 53 years
  5.    Smt. Kali, wife of Shri Jhitha, aged 48 years
       Respondent nos. 2&3 minor, through their natural guardian-
       mother Smt. Manju(Respondent no.1), and all resident of
       village Godawada, Tehsil Kushalgarh, District Banswara.
                                                                     (Claimants)
  6.    Himmat Kumar Jain, son of Shri Veni Chand Jain, resident
       of Partapur Garhi, District Banswara.(Owner of Truck bearing
       Registration No. RJ03 GA 0015)
  7.    Yaya Khan, son of Shri Abid Khan, resident of Arthuna,
       tehsil Garhi, District Banswara.(Driver of Truck bearing
       Registration No. RJ03 GA 0015)
                                                                  ----Respondents
                               Connected With

                 S.B. Civil Misc. Appeal No. 2468/2012

Oriental Insurance Company Limited Through its Divisional
Manager, Bhansali Towers, Residency Road, Jodhpur.
                                                                     ----Appellant
                                     Versus
  1.    Smt. Ramli, widow of late Shri Ramesh, aged 25 years
  2.    Gamira, son of of late Shri Ramesh, aged 8 years
  3.    Rekha, daughter of late Shri Ramesh, aged 5 years
  4.    Badiya, son of Shri Makhji, aged 53 years
  5.    Smt. Huki, wife of Shri Badiya, aged 48 years
       Respondent nos. 2&3 minor through their natural guardian
       mother Smt. Ramli(respondent no.1), all resident of village
       Mahudia, Tehsil Kushalgarh, District Banswara.
                                                                    (Claimants)
  6.    Himmat Kumar Jain, son of Shri Veni Chand Jain, resident


                      (Downloaded on 27/09/2024 at 10:20:18 PM)
 [2024:RJ-JD:39770]                    (2 of 12)                       [CMA-2469/2012]


       of Partapur Garhi, District Banswara.(Owner of Truck bearing
       Registration No. RJ03 GA 0015)
  7.     Yaya Khan, son of Shri Abid Khan, resident of Arthuna,
       tehsil Garhi, District Banswara.(Driver of Truck bearing
       Registration No. RJ03 GA 0015)
                                                                   ----Respondents
                  S.B. Civil Misc. Appeal No. 2470/2012
Oriental Insurance Company Limited Through its Divisional
Manager, Bhansali Towers, Residency Road, Jodhpur.
                                                                      ----Appellant
                                      Versus
 1.      Smt. Nopa Devi @ Neva Devi, widow of late Shri Gehrilal,
       aged 32 years
 2.      Ravina, daughter of late Shri Gehrilal, aged 15 years
 3.      Rinku, daughter of late Shri Gehrilal, aged 13 years
 4.      Vijay, son of late Shri Gehrilal, aged 10 years
 5.      Sohan Lal @Sovania, son of Shri Opaji, aged 58 years
 6.      Smit. Huja, wife of Shri Sohan Lal, aged 55 years
       Respondent no. 2 to 4 minor through their natural guardian
       mother Smt. Nopa Devi(respondent no.1), all resident of
       village   Mugana Mota Tanda,               Tehsil    Dhariawad,     District
       Pratapgarh.
                                                                      (Claimants)
 7.      Himmat Kumar Jain, son of Shri Veni Chand Jain, resident
       of Partapur Garhi, District Banswara.(Owner of Truck bearing
       Registration No. RJ03 GA 0015)
 8.      Yaya Khan, son of Shri Abid Khan, resident of Arthuna,
       tehsil Garhi, District Banswara.(Driver of Truck bearing
       Registration No. RJ03 GA 0015)
                                                                   ----Respondents


For Appellant(s)            :     L.D. Khatri
For Respondent(s)           :     Parikshit Nayak for
                                  Respondents/claimants



                 HON'BLE DR. JUSTICE NUPUR BHATI

Judgment

24/09/2024

[2024:RJ-JD:39770] (3 of 12) [CMA-2469/2012]

1. These appeals(S.B. Civil Misc. Appeal No. 2469/2012, S.B.

Civil Misc. Appeal No. 2468/2012 and S.B. Civil Misc. Appeal No.

2470/2012), seeking reduction of the awarded compensations,

have been preferred by the Appellant/Insurance Company under

Section 173 of the Motor Vehicles Act, 1988(hereinafter as 'the

Act') against the common judgment and order dated

18.07.2012(hereinafter as 'impugned award') passed by the MACT,

Kushalgarh(hereinafter as 'the learned tribunal') in MAC Case No.

57/2009, MAC Case No. 58/2009 and MAC Case No. 40/2009

respectively. As all the three appeals arise from the common

order, the same are being decided by this common order and facts

of S.B. Civil Misc. Appeal no. 2469/2012 are being taken

illustratively and the claimants in all the respective appeals,

though different but are being referred to as claimants for the

sake of convenience.

2. Briefly stated the facts of the case are that on 05.01.2009

Gehrilal, Ramesh, Lalji were standing near a road and a truck

bearing registration no. RJ03 GA 0015(hereinafter as 'the

offending vehicle'), which was being driven by Respondent no.

7/Driver in a rash and negligent manner, hit them and as a result

of the accident all of them died on spot. At the time of the

accident the offending vehicle was insured with the

appellant/insurance company.

3. The claim case no. 57/2009 was filed seeking compensation

on account of the death of Lalji(hereinafter as 'deceased-1'),

Claim case no. 58/2009 was filed seeking compensation on

account of the death of Ramesh(hereinafter as 'deceased-2') and

Claim Case no. 40/2009 was filed seeking compensation on

[2024:RJ-JD:39770] (4 of 12) [CMA-2469/2012]

account of the death of Gehrilal(hereinafter as deceased-3). The

appellant/insurance company, Respondent no. 6/owner and

Respondent no. 7/driver in their reply to the claim petitions denied

the averments made therein. The learned tribunal on the basis of

the pleadings of the parties framed 4 issues.

4. The claimants examined three witness(AD1 to AD 3) and

produced 17 documentary evidences. On the other hand the

appellant/insurance company examined one witness(NAD1) and

produced 11 documentary evidences.

5. After hearing the parties the learned tribunal vide the

impugned award awarded Rs. 8,94,000/- as compensation in MAC

Case No. 57/2009, Rs. 10,66,800/- in MAC Case No. 58/2009 and

Rs.16,67,700/- in MAC Case No. 40/2009 along with interest @9%

from the date of the filing of the claim petition till payment of the

same and held the appellant/insurance company, respondent no.

6/owner and respondent no.7/driver jointly and severally liable to

pay the amount of compensation as awarded in the respective

claim petitions.

6. Aggrieved by the same the appellant/insurance company has

preferred these misc. appeals before this court.

7. As there is no dispute as to the facts of the case the learned

counsel appearing on behalf of the Appellant/insurance company

has restricted his arguments to the quantum of the compensation

as awarded by the learned tribunal in the respective claim

petitions.

8. The learned counsel appearing on behalf of the

Appellant/insurance company submits with respect to the

impugned award passed in MAC Case no. 57/2009(which is

[2024:RJ-JD:39770] (5 of 12) [CMA-2469/2012]

challenged in S.B. C.M.A. No. 2469/2012) that the learned

tribunal has erred in assessing the income of the deceased-

1('Lalji') as Rs. 5,000/- per month in absence of any proof of

income and the same ought to have been assessed on the basis of

minimum wages prevalent at the time of the accident. He further

submits that the learned tribunal has erred in making the

deduction of 1/5 on account of personal expenses of the

deceased-1 instead of 1/4.

9. The learned counsel appearing on behalf of the

Appellant/insurance company further submits with respect to the

impugned award passed in MAC Case no. 58/2009(which is

challenged in S.B. C.M.A. No. 2468/2012) that the learned

tribunal has erred in assessing the income of the deceased-

2('Ramesh') as Rs.6,000/- per month in absence of any proof of

income and the same ought to have been assessed as per the

minimum wages prevalent at the time of the accident. He further

submits that the learned tribunal has erred in making the

deduction of 1/5 on account of personal expenses of the

deceased-2 instead of 1/4.

10. The learned counsel appearing on behalf of the

Appellant/insurance company further submits with respect to the

impugned award passed in MAC Case no. 40/2009(which is

challenged in S.B. C.M.A. No. 2470/2012) that the learned

tribunal has erred in assessing the income of the deceased-

3('Gehrilal') as Rs.10,000/- per month in absence of any proof of

income and the same ought to have been assessed as per the

minimum wages prevalent at the time of the accident. He further

submits that the learned tribunal has erred in applying multiplier

[2024:RJ-JD:39770] (6 of 12) [CMA-2469/2012]

of 17 instead of 16. He further submits that the learned tribunal

has erred in making the deduction of 1/5 on account of personal

expenses of the deceased-3 instead of 1/4.

11. Per contra, the learned counsel appearing on behalf of the

claimants in all the appeals disputes the contentions made by the

learned counsel appearing on behalf of the appellant/insurance

company.

12. Heard the parties and perused the material available on

record.

13. This court, with respect to the impugned award passed in

MAC Case no. 57/2009(which is challenged in S.B. C.M.A. No.

2469/2012), finds that the learned tribunal has erred in assessing

the income of the deceased-1 as Rs. 5000/- on the ground that

there was no proof with respect to the income. However, in

absence of any proof of income, the same has to be assessed as

per the minimum wages prevalent at the time of the accident(i.e.,

05.01.2009), therefore, the income of the deceased-1 is assessed

as Rs.2990/- considering him a skilled worker. Further, the learned

tribunal has erred in making deduction of 1/5 on account of

personal expenses of the deceased-1 instead of 1/4 as there were

5 dependants of the deceased-1, and in the light of the judgment

of the Hon'ble Supreme Court in Sarla Verma v. DTC, (2009) 6

SCC 121, deduction towards personal expenses ought to be

1/4(which is applicable when number of dependants are between

4 to 6).

14. This court, with respect to the impugned award passed in

MAC Case no. 58/2009(which is challenged in S.B. C.M.A. No.

2468/2012), finds that the learned tribunal has erred in assessing

[2024:RJ-JD:39770] (7 of 12) [CMA-2469/2012]

the income of the deceased-2 as Rs. 6000/- on the ground that

there was no proof with respect to the income. However, in

absence of any proof of income, the same has to be assessed as

per the minimum wages prevalent at the time of the accident(i.e.,

05.01.2009), therefore, the income of the deceased-2 is assessed

as Rs.2990/- considering him a skilled worker. Further, the learned

tribunal has erred in making deduction of 1/5 on account of

personal expenses of the deceased-2 instead of 1/4 as there were

5 dependants of the deceased-2, and in the light of the judgment

of the Hon'ble Supreme Court in Sarla Verma(Supra), deduction

towards personal expenses ought to be 1/4(which is applicable

when number of dependants are between 4 to 6).

15. This court, with respect to the impugned award passed in

MAC Case no. 40/2009(which is challenged in S.B. C.M.A. No.

2470/2012), finds that the learned tribunal has erred in assessing

the income of the deceased-3 as Rs. 10,000/- on the ground that

there was no proof with respect to the income. However, in

absence of any proof of income, the same has to be assessed as

per the minimum wages prevalent at the time of the accident(i.e.,

05.01.2009), therefore, the income of the deceased-3 is assessed

as Rs.2990/- considering him a skilled worker. Further, the learned

tribunal has erred in making deduction of 1/5 on account of

personal expenses of the deceased-3 instead of 1/4 as there were

6 dependants of the deceased-3, and in the light of the judgment

of the Hon'ble Supreme Court in Sarla Verma(Supra), deduction

towards personal expenses ought to be 1/4(which is applicable

when number of dependants are between 4 to 6). Further, this

court finds that the learned tribunal even after determining the

[2024:RJ-JD:39770] (8 of 12) [CMA-2469/2012]

age of the deceased-3 as 35 years has applied the multiplier of 17

instead of 16 and the same deserves to be modified to 16 in the

light of the judgment of the Hon'ble Supreme Court in Sarla

Verma(Supra) as the multiplier applicable to the age group of 31-

35 years is 16.

16. This court finds that the Hon'ble Supreme court in Ranjana

Prakash v. Divl. Manager, (2011) 14 SCC 639, has held that even

in an appeal by the insurer/owner, the appropriate course for the

High Court is to examine the facts and by applying the relevant

principles, determine the just compensation. And where the

compensation determined by the High Court is higher than the

compensation awarded by the learned tribunal, the appeal

preferred by the insurer/owner can be dismissed. Also, if the

overall amount of the compensation is being reduced under

certain heads, it is open for the claimant to defend the awarded

compensation by pointing out the errors/omissions in the award

and as such the quantum of compensation can be

enhanced/awarded under other heads (if the same deserves to be

enhanced/awarded in those respective heads) so as to set off such

reduction. The relevant paragraphs of the said judgment are as

follows:

6. ......Therefore, in an appeal by the owner/insurer, the appellant can certainly put forth a contention that if 30% is to be deducted from the income for whatsoever reason, 30% should also be added towards future prospects, so that the compensation awarded is not reduced. The fact that the claimants did not independently challenge the award will not therefore come in the way of their defending the compensation awarded, on other grounds. It would only mean that in an appeal by the owner/insurer, the claimants

[2024:RJ-JD:39770] (9 of 12) [CMA-2469/2012]

will not be entitled to seek enhancement of the compensation by urging any new ground, in the absence of any cross-appeal or cross-objections.

7. ....

8. Where an appeal is filed challenging the quantum of compensation, irrespective of who files the appeal, the appropriate course for the High Court is to examine the facts and by applying the relevant principles, determine the just compensation. If the compensation determined by it is higher than the compensation awarded by the Tribunal, the High Court will allow the appeal, if it is by the claimants and dismiss the appeal, if it is by the owner/insurer. Similarly, if the compensation determined by the High Court is lesser than the compensation awarded by the Tribunal, the High Court will dismiss any appeal by the claimants for enhancement, but allow any appeal by the owner/insurer for reduction. The High Court cannot obviously increase the compensation in an appeal by the owner/insurer for reducing the compensation, nor can it reduce the compensation in an appeal by the claimants seeking enhancement of compensation."

17. Further, this court finds that the learned tribunal has

awarded Rs. 5000/- each under the head of consortium to the

dependants of the deceased-1, deceased-2 and deceased-3 in the

respective claim petitions and Rs. 5000/- under the head of

funeral expenses in all the claim petitions. Further, the learned

tribunal has not awarded future prospect and loss of estate in any

of the respective claim petitions. Thus, this court, in light of the

judgments of the Hon'ble Supreme Court in Ranjana

Prakash(Supra) and National Insurance Co. Ltd. v. Pranay Sethi,

(2017) 16 SCC 680, is of the view that the compensation awarded

under the heads of consortium and funeral expenses in all the

[2024:RJ-JD:39770] (10 of 12) [CMA-2469/2012]

respective claim petitions deserves to be modified, and amount

under heads of future prospect and loss of estate is to be added

as a set off against the amount which is being reduced on account

of reduction in income.

18. However, this court, with respect to S.B. C.M.A. No.

2469/2012, finds that if the just compensation that is allowable to

the claimants thereunder is determined, taking income of the

deceased-1 as Rs.2990/- per month, adding future prospect

@40%, deducting 1/4 on account of personal expenses of the

deceased-1 and adding consortium as Rs.2,40,000/-(48,000 x 5)

and Rs. 18,000/- each under the heads of funeral expenses and

loss of estate, the same comes to Rs. 9,54,240/-, which is higher

than the compensation as awarded by the learned tribunal i.e.,

Rs.8,94,000/-. Therefore, in the light of the judgment of the

Hon'ble Supreme Court in Ranjana Prakash(Supra), S.B. C.M.A.

No. 2469/2012 deserves to be dismissed.

18. Further, in view of the discussion in the above paragraphs,

the amount of compensation as awarded by the learned tribunal in

MAC Case no. 58/2009 and MAC Case no. 40/2009 deserves to be

modified as under:

S.B. C.M.A. No. 2468/2012( Appeal against MAC Case no. 58/2009):

S.N Particulars                                  Amount      as Amount             as
o.                                               awarded by the modified           by
                                                 learned        this court
                                                 tribunal
1.   (add)Compensation towards loss Rs.10,36,800/-                    Rs.6,78,240/-
     of dependency
     2990(Minimum wages per month)
     +1196(future prospect @40%)-
     1046 (1/4 deduction on account


        [2024:RJ-JD:39770]                  (11 of 12)                     [CMA-2469/2012]


       of personal expenses) x 12 x
       18(Multiplier) = Rs.6,78,240/-
2.     (add)Loss of Consortium 48,000               Rs. 25,000/-          Rs.2,40,000/-
       x 5= 2,40,000/-
3.     (add)Funeral Expenses                        Rs.5,000 /-           Rs.18,000/-
4.     Loss of estate                               nil                   Rs. 18,000/-
                              Gross Total           Rs.10,66,800/-        Rs.9,54,240/-

Reduced amount (after deducting from the amount as awarded by the learned tribunal) Rs.1,12,560/-

S.B. C.M.A. No. 2470/2012(Appeal against MAC Case no. 40/2009):

S.N Particulars                                     Amount      as Amount               as
o.                                                  awarded by the modified             by
                                                    learned        this court
                                                    tribunal
1.     (add)Compensation towards loss               Rs.16,32,000/-        Rs.6,02,880/-
       of dependency
       2990(Minimum wages per month)
       +1196(future prospect @40%)-
       1046 (1/4 deduction on account
       of personal expenses) x 12 x
       16(Multiplier) = Rs.6,02,880/-
2.     (add)Loss of Consortium 48,000               Rs. 30,000/-          Rs.2,88,000/-
       x 6= 2,88,000/-
3.     (add)Funeral Expenses                        Rs.5,000 /-           Rs.18,000/-
4.     Loss of estate                               nil                   Rs. 18,000/-
                              Gross Total           Rs.16,67,000/-        Rs.9,26,880/-