Rajasthan High Court - Jodhpur
The New India Assurance Co. Ltd vs Manju (2025:Rj-Jd:20841) on 1 May, 2025
[2025:RJ-JD:20841]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Misc. Appeal No. 1826/2018
The New India Assurance Co. Ltd., Through Divisional Manager
Udaipur (Raj) Through Tp Hub Incharge, The New India
Assurance Co. Ltd. Abhay Chambers Jalori Gate, Jodhpur.
(Insurer Of Bolero No. Gj-1-Hl-5251)
----Appellant
Versus
1. Manju W/o Dinesh Kumar Meena, Aged About 24 Years,
R/o Pal Sepur Tehsil Sarada Udaipur
2. Smt Kamla W/o Sh. Manaji Meena, Aged About 48
Years, R/o Pal Sepur Tehsil Sarada Udaipur
3. Mana S/o Sh. Fulaji Meena, Aged About 50 Years, R/o
Pal Sepur Tehsil Sarada Udaipur
4. Mahendra S/o Sh. Dinesh Kumar Meena, Aged About 2
Years, Being Minor Through Natural Guardian Mother R/
o Pal Sepur Tehsil Sarada Udaipur
5. Firoz Khan S/o Nisar Khan, R/o Chavand Tehsil Sarada,
(Driver Of Bolero No. Gj-1-Hl-5251)
6. Abhey Singh S/o Manu Singh Rathore, R/o 52-Pach Jyoti
Society, Modasa District Aravali Modasa (Gujrat) (Owner
Of Bolero No Gj-1-Hl-5251)
----Respondents
For Appellant(s) : Mr. M.P. Goswami.
For Respondent(s) : Mr. Manish Rajpurohit for
Mr. Rakesh Arora.
Mr. Digvijay Singh Chouhan for
Mr. Anuj Sahlot.
HON'BLE MR. JUSTICE ARUN MONGA
Order (Oral)
01/05/2025
1. Aggrieved by the judgment and award dated 11.04.2018
passed in MACT No.275/2018 (CIS No.781/2017) by learned
[2025:RJ-JD:20841] (2of 9) [CMA-1826/2018]
Motor Accident Claims Tribunal No.II, Udaipur, the appellant-
Insurance Company is before this Court by way of this appeal
seeking quashing of the same.
2. Brief facts first. On 03.05.2017, at around 7:30 a.m., Dinesh
Kumar Meena since deceased and Shanti Lal were riding a
motorcycle from Sepur to Parsad. When they reached Bhur Ghati
(Chchani), Parsad, a Bolero vehicle bearing registration number
GJ-1-HL-5251, being driven by Respondent No. 5-Firoz
Khan(Driver) in a rash and negligent manner, collided with their
motorcycle. As a result, Dinesh sustained fatal injuries and died,
while Shanti Lal suffered grievous injuries.
2.1 FIR No. 88/2017 under Sections 279, 337 & 304 A of IPC
was registered at Police Station Sarada and charge sheet was filed
after investigation. Respondents No. 1-4 filed a claim case
No.275/2018 before the Tribunal at Udaipur, seeking
compensation for the death of Dinesh asserting that the deceased
was 30 years old, was of sound mind and had good physique. He
was working as a mason and was earning Rs. 12,000/- per
month.
2.2 In Shanti Lal's case it was claimed that he was aged 30
years old and was working as mason and was earning Rs.12000/-
per month. He sustained fracture of femur and dislocation of
clavicle bone. He (Shanti Lal) claimed compensation on account
of injuries, physical pain and mental agony apart from financial
loss. 2.3 Respondent No.5(Abhey Singh (Owner Of Bolero No Gj-
1-Hl-5251) admitted that was owner of the offending vehicle and
that at the relevant time, respondent No.4(Firoz Khan ) was it's
driver. He, however, pleaded the negligence of the deceased
[2025:RJ-JD:20841] (3of 9) [CMA-1826/2018]
Dinesh and petitioner Shanti Lal by not following the traffic rules.
Respondent No.3 Insurance Company submitted that the driver of
the vehicle was not having the valid license, permit etc. and the
breach of the terms of the policy.
2.3 The learned Tribunal framed following issues:-
"(1)Whether on dated 03.05.2017 at about 7.30 a.m. while deceased
who were riding on motorcycle and going from Sepur to Parsad, as
soon as they reached at Bhur Ghati (Chchani) Parsaad, one Bolero
no. GJ-1-HL 5251 being driven by its Driver i.e. R 1 in a rash and
negligent manner hit the motorcycle and thereby causing fatal
injuries to deceased Dinesh and grievous injuries to Shanti Lal.
(2)Whether Insurance Company in view of the preliminary
objections and reply on merits can be relieved from its liability, if
no, its effect.
(3)Whether the petitioners are entitled to get the amount claimed or
any other just amount, if yes, then how much amount and from
whom.
(4) Relief. "
2.4 On appraisal of record, the learned Tribunal awarded a
compensation of Rs.14,40,880 along with interest @ 6% per
annum from the date of application in favour of respondents No.1
to 4 (legal representatives of Dinesh deceased victim of the
accident) to be paid by the appellant - Insurance Company.
3. In claim petition filed by Shanti Lal which arose out of the
same accident, the Tribunal awarded Rs. 2,70,744 for Shanti Lal's
injuries (fracture of femur and dislocation of clavicle), covering
medical expenses, loss of income, pain and suffering, and other
non-pecuniary damages.
3.1 The appellant has not challenged the award of compensation
in favour of Shanti Lal. The instant appeal is directed only against
the award of compensation by the learned Tribunal in favour of
[2025:RJ-JD:20841] (4of 9) [CMA-1826/2018]
respondents No. 1 to 4 (legal representatives of Dinesh deceased
victim of the accident).
4. Learned counsel for the appellant argues that the learned
Tribunal has erred both in law and on facts while passing the
impugned award dated 11.04.2018 awarding compensation in
favour of respondents No. 1 to 4. The findings are contrary to the
evidence on record and the settled legal principles, including
Section 168(1) of the Motor Vehicles Act. Therefore, the award
passed by the Motor Accident Claims Tribunal, Udaipur (Raj.), in
Claim Case No. 275/2018, deserves to be quashed and set aside.
4.1. He contends that the Tribunal granted permission under
Section 170 of the Motor Vehicles Act vide order dated
13.08.2018. Hence, the findings on the quantum of compensation
are open to challenge.
4.2 He submits that as per the record, the deceased, Dinesh
Kumar, was a 25-year-old mason and left behind four dependents.
The minimum wage at the time of the accident (03.05.2017) was
Rs. 7,200/- per month. The Tribunal failed to assess compensation
correctly based on this. Furthermore, the Tribunal wrongly
calculated the total compensation as Rs. 14,40,880/-. In the
absence of proof of actual income, the computation should have
been based on the minimum wage of Rs. 5,382/- per month. The
Tribunal erroneously presumed an income of Rs. 7,200/- per
month and added 40% for future prospects due to the victim's
young age, along with Rs. 70,000/- under conventional heads, as
per Supreme Court rendition in National Insurance Company Ltd.
vs. Pranay Sethi(AIR 2017 SC 4973). The correct compensation
would come to Rs. 10,94,732/-, while the Tribunal has over-
[2025:RJ-JD:20841] (5of 9) [CMA-1826/2018]
awarded Rs. 3,46,148/-, contrary to settled legal norms.
Therefore, the finding on Issue No.3 is flawed, and the award
dated 11.04.2018 should be quashed and set aside.
5. In the aforesaid backdrop, I have heard the rival contentions
and gone through the case record.
6. As already noted, claim petition filed by Shanti Lal also
arose out of the same accident and was premised inter alia on
the basis that the accident was caused by the rash and negligent
driving of Bolero vehicle bearing registration number GJ-1-HL-
5251, being driven by Respondent No. 5-Firoz Khan. The learned
Tribunal awarded Rs. 2,70,744 for Shanti Lal's injuries The
appellant has not challenged the award of compensation in
favour of Shanti Lal. This implies acceptance by the appellant of
the learned Tribunal's finding that the accident was caused by the
rash and negligent driving of Bolero vehicle bearing registration
number GJ-1-HL-5251, being driven by Respondent No. 5-Firoz
Khan. The appellant is thus precluded by it's act and conduct
from questioning the said finding. Further, there is no material on
record brought to the notice of this Court to dispute the said
finding of fact recorded by the learned Tribunal.
7. At this stage, reference may be had to the relevant part of
the impugned judgment / award dated 11.04.2018 which is as
under :-
"9. Issue no.2:-
Whether the R2 Insurance Company in view of the objections
and reply on merits can be relieved from its liability, if No, Its effect
in law. The burden to prove this issue was on the Insurance
company which failed to prove the facts as pleaded. No Evidence
was led by R 3 in this regard. Hence the issue is decided against the
R-3 and in favour of the petitioner.
[2025:RJ-JD:20841] (6of 9) [CMA-1826/2018]
Smt. Manju & ors. v. Firoz Khan & ors. CIS no. 781/17
MACP No.275/18.
10. Issue No.03:-
The relevant factor to decide the quantum of the
compensation are age, income, dependents of the deceased and
future prospect of the deceased as held by Honble supreme court in
case of Sarla Verma & Ors v. DTC & Another 2009 ACJ 1298 and
SLP no 25590 of 2014 National Insurance Co. Ltd. v. Pranay
Sethi & Ors. AW-1 testified to the effect that deceased died in the
accident. And further she testified that Deceased was working as
Mason and doing the work of agriculture and was earning Rs. 500
per day. It is further testified that the age of the deceased was 25
years at the time of the accident. It is also well settled preposition of
law that the age of the deceased shall be the basis to select the
multiplier. The age of the deceased completed 25 years as per Adhar
Card. The multiplier of '17' would be applicable in the case in hand.
11. Admittedly there was no documentary proof of the income of the
deceased was produced by the petitioners. Learned counsel for the
petitioner contended that the Income can be assessed on the
assumption by taking into consideration the factor of nature of work
of the petitioner if no documentary evidence are produced by the
petitioner. Learned counsel for the insurance company contended
that there is no income of the deceased. In the given facts and
circumstances there is not even a single documents/material before
the court to assume or to come to the conclusion that the deceased
used to earn an amount of Rs.20000 per month. The deceased was a
labourer. Accordingly, in the case in hand, as per record, in the
given facts and circumstances income of the deceased can be
assessed as Rs 7200 per month at the time of accident. Towards the
future prospects 40% increase in the income of the deceased seems
to be just, fair and reasonable as per direction of Honbkle Supreme
court in Pranay Sethi (Supra). Towards the deduction of personal
expenses the 1/3 of the income of the deceased is deducted towards
the personal expenses as per the judgment of Sarla Varma (Supra).
12. Calculation:
Income Rs.7200 per month and Rs 2880 added as future
prospects. Income is assessed Rs. 10,080/- per month. After
deduction of 1/3 i.e. Rs 3360 towards the personal expenses of the
deceased the remaining amounts' comes to Rs.6720 per month.
Accordingly, the loss of dependency comes to Rs.13,70,880/-
(Rs.6720X12X17). Towards the head of loss of consortium, loss of
estate and funeral expenses an amount of Compensation of Rs
70,000 is also granted. The overall compensation of the death of
deceased thus comes to Rs.14,40,880. Amount of interim
compensation of Rs 50,000/- be adjusted if any. As per record the
offending vehicle was duly insured R3 at the relevant time and
accordingly R3 is directed to deposit within 30 days from today the
awarded amount with interest at the rate of 6 % per annum from the
date of filing of the petition i.e. 02.08.17 till notice of deposit of
award amount to be given by R3 to the petitioners and their
counsel."
8. The appellant contends that at the relevant time, the driver
(Respondent No. 5) did not hold a valid license or permit,
[2025:RJ-JD:20841] (7of 9) [CMA-1826/2018]
constituting a breach of the insurance policy. However, it failed to
lead any evidence to substantiate this claim. The burden of proof
of this plea rested on the Insurance Company, but it failed to lead
any evidence to discharge that onus. Thus, the learned Tribunal
was justified in recording the finding against the appellant.
8.1 Undisputably, the offending vehicle was duly insured with
the appellant at the time of the accident. In the absence of
evidence proving a policy violation, the Insurance Company could
not be relieved of its liability. Thus, the Tribunal's finding on issue
No. 2 is sound and correct as per record and the same is upheld.
9. The Tribunal's calculation of compensation for both the
deceased (Dinesh) adheres to settled legal principles and is
reasonable. The Tribunal assessed the deceased's income at Rs.
7,200/- per month, considering he was a mason and the minimum
wage at the time of the accident (03.05.2017). The appellant
argued that the income should have been Rs. 5,382 per month
due to lack of proof of actual income. However, in the absence of
documentary evidence, the Tribunal's reliance on the minimum
wage for a skilled laborer like a mason (Rs. 7,200) is reasonable
and in consonance with judicial precedents.
9.1 The Tribunal added 40% for future prospects, as mandated
by the Supreme Court in National Insurance Co. Ltd. v. Pranay
Sethi (AIR 2017 SC 4973), given the deceased's young age (25
years). The multiplier of 17, based on the age of the deceased,
was correctly applied as per Sarla Verma v. DTC (2009 ACJ 1298).
10. The Tribunal deducted 1/3 of the income (Rs. 3,360) for
personal expenses, correctly considering the four dependents.
Amount of Rs. 70,000 was awarded for conventional heads (loss
[2025:RJ-JD:20841] (8of 9) [CMA-1826/2018]
of consortium, estate, and funeral expenses). Thus, the total
compensation of Rs. 14,40,880 (Rs. 6,720 x 12 x 17 + Rs.
70,000) is mathematically accurate and legally justified. The
appellant's claim that the correct amount should be Rs. 10,94,732
is based on an arbitrarily lower income assumption (Rs. 5,382),
which lacks evidentiary support.
11. If anything, in fact, it appears that each of the four
respondents No. 1 to 4 ought to have been awarded higher
amount of compensation of Rs. 44,000/-under the head 'loss of
consortium' (total Rs. 17,6000/-) plus the due amount of
compensation for loss of estate and funeral expenses of the
deceased. As against this, the learned Tribunal awarded a
consolidated amount of Rs. 7,0000/- only for loss of consortium,
loss of estate and funeral expenses of the deceased. The same
is not, however, interfered as respondents No. 1 to 4 have not
filed any appeal or counter-claim for enhancement of
compensation.
12. To sum up, there is no perversity or illegality in learned
Tribunal's findings based on evidence and meticulous application of
legal principles. The Tribunal correctly attributed negligence to the
driver (Respondent No.1) based on credible evidence. The
Insurance Company (appellant) failed to prove any breach of
policy terms to avoid liability. This court ought to exercise restraint
in interfering with Tribunal awards unless there is a clear
miscarriage of justice or gross misapplication of law. The
appellant's objections primarily hinge on a lower income
assumption and unproven claims of policy breach, neither of which
withstand judicial scrutiny. The Tribunal's award is based on a fair
[2025:RJ-JD:20841] (9of 9) [CMA-1826/2018]
appreciation of evidence and as per applicable legal norms. I am
in agreement with the findings arrived at by the learned Tribunal.
No interference is thus called for to disturb the finding of facts
recorded by the learned Tribunal. In result, the appeal is
dismissed and the Tribunal's award dated 11.04.2018 stands
upheld.
13. Dismissed.
14. Pending application(s), if any, stand disposed of.
(ARUN MONGA),J
162-DhananjayS/Rmathur/-
Whether fit for reporting: Yes / No
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