SBCMA NO.50/1998 - UNITED INDIA INSURANCE CO. LTD. V/S SMT. KUSHTI AND ORS. :JUDGMENT DTD.1.10.2009
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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR.
1. S.B. CIVIL MISC. APPEAL NO.50/1998
United India Insurance Company Ltd.
Versus
Smt. Kushti and ors.
2. S.B. CIVIL MISC. APPEAL NO.38/1998
Smt. Kushti and ors.
Versus
Surjan Ram and ors.
PRESENT
HON'BLE Dr.JUSTICE VINEET KOTHARI
Mr. Manoj Bhandari, for the Insurance Company.
Mr.L.D. Khatri, for the driver and owner.
Mr.Rajesh Chaudhary, for the claimants.
DATE OF JUDGMENT : 1st October, 2009.
JUDGMENT
APPEAL NO.50/1998
1. This appeal by the Insurance Company is directed against the
award of the MACT, Jaisalmer dtd.9.9.1997 deciding claim petition
No.3/1994 – Smt. Kushti W/O Pata Ram V/s Surjan Ram and ors.
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2. In an accident which took place on 17.8.1993 when the
deceased Pata Ram was sitting on a “Patia” near the driver of the
tractor in question registered at No. RJ15-R/0058, the tractor met with
an accident and he fell down from the said tractor on account of rash
and negligent driving of the said tractor by the driver Sh. Surjan Ram
and on being crushed by the tyre of the said tractor and trolley, he
expired. The claim petition was filed by the legal representatives of
the deceased Pata Ram for a sum of Rs.6,23,000/- and deciding
various issues framed by the learned Tribunal, the learned Tribunal
awarded a sum of Rs.1,23,000/- in favour of the claimants.
3. The learned counsel for the Insurance Company Mr. Manoj
Bhandari submits that the tractor is insured only for agricultural
purposes and therefore, the deceased who was travelling in the said
tractor as passenger was unauthorised to so travel and therefore, the
Insurance Company is not liable to pay said compensation as
determined by the learned Tribunal in view of Hon’ble Supreme
Court’s decision in the case of National Insurance Company Limited
V/s V. Chinnamma and ors. reported in (2004) 8 SCC 697,
Oriental Insurance Co. Ltd. V/s Brij Mohan and ors. reported in
(2007) 7 SCC 56 and National Insurance Co. Ltd. V/s Prema Devi
reported in 2008 ACJ 1149, in which the Hon’ble Apex Court has
held that gratuitous passengers travelling in goods carriage vehicles
are not liable to be compensated by the Insurance Company. The
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judgment in the case of National Insurance Co. Ltd. V/s Prema Devi
was also rendered by the Hon’ble Supreme Court following the
previous decision in the case of New India Assurance Co. Ltd. V/s
Asha Rani reported in 2003 ACJ 1 (SC) wherein it was held that the
Insurance Company in such cases is not liable to pay such
compensation.
4. As far as this legal proposition is concerned, there cannot be
any dispute on the said proposition after the said controversy having
been settled by the Hon’ble Apex Court in number of decisions.
Accordingly, the Insurance Company could not be held liable to pay
said compensation in the present case. However, the learned counsel
for the appellant – Insurance Company submits that in view of
rejection of stay application by this Court while admitting the present
appeal on 21.1.1998, the appellant – Insurance Company had to
deposit the said compensation with the learned Tribunal which has
also been disbursed to the claimants and he, therefore prays that in
view of aforesaid legal position, the appellant insurance company
may be allowed to recover the said amount paid by it including the
payment under no fault liability etc. from the owner of the vehicle –
insured, namely, respondent No.4 Surjan Ram and respondent No.5
Mohan Lal. The contention of the learned counsel for the appellant
Insurance Company appears to be justified. Accordingly, it is
directed that the appellant – Insurance Company shall have a right to
SBCMA NO.50/1998 – UNITED INDIA INSURANCE CO. LTD. V/S SMT. KUSHTI AND ORS. :JUDGMENT DTD.1.10.2009
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recover the amount already paid by it to the claimants from the owner
and driver of the said vehicle.
APPEAL NO.38/1998 FILED BY THE CLAIMANTS SEEKING
ENHANCEMENT OF THE COMPENSATION.
5. The learned counsel for the claimants Mr. Chaudhary submits
that the claim deserves to be enhanced on the following two grounds:
i) Multiplier of 15 has been wrongly adopted by the
learned Tribunal, whereas the age of the deceased was
determined as 24 years and even as per 2nd Schedule to the said
Act, the multiplier of 17 ought to have been applied. He also
relied on the recent judgment of the Hon’ble Supreme Court in
Civil Appeal No.3483/2008 – Smt. Sarla Verma and ors. V/s
Delhi Transport Corporation and anr. decided on 15.4.2009
wherein the Hon’ble Apex Court reproducing the enhanced
multiplier adopted by the Hon’ble Supreme Court in 3 leading
judgments in the case of General Manager, Kerala State
Road Transport Corporation V/s Susamma Thomas reported
in 1994 (2) SCC 176, U.P. State Road Transport Corporation
V/s Trilok Chandra (1996 (4) SCC 362) and New India
Assurance Co. Ltd. V/s Charlie (2005 (10) SCC 720), in which
for age group of 21 to 25 years, the Hon’ble Supreme Court
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has adopted multiplier of 18 as against 17 prescribed in the
schedule, he prays that multiplier of 18 may be applied in the
present case also.
ii) The other contention raised by the learned counsel for
the petitioner is that instead of 1/3rd deduction for personal
expenses out of net income determined by the learned Tribunal,
the learned Tribunal has deducted ½ amount, which has also
resulted in reduced compensation to the claimants.
6. After hearing the learned counsels and upon perusal of the
relevant evidence and the reasoning given by the learned counsel, this
Court is of the opinion that both the contentions of the learned
counsel for the claimants are justified and the compensation deserves
to be enhanced on these grounds. Accordingly out of net income of
14400/- after deduction of 1/3rd, the amount would come to
Rs.9600/- which upon being multiplied by 18, the compensation on
this ground would be Rs.1,72,800/-, whereas the learned Tribunal has
awarded only Rs.1,08,000/-. Thus, the net enhancement of Rs.64800/-
would be payable to the claimants. However, in view of long lapse of
period after the death of the deceased, the claimants are not held
entitled to any interest and it is also made clear that since the
Insurance Company cannot be held liable in view of aforesaid legal
position, said enhancement of compensation would be payable by the
owner and driver of the said offending vehicle in questions. The
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claimants shall be entitled to recover the said enhanced compensation
of Rs.64,800/- from the respondents No.4 and 5 – owner and driver
of the said vehicle and not from the Insurance Company.
7. Accordingly, the appeal No.50/1998 filed by the Insurance
Company is allowed as indicated above and the appeal No.38/1998
filed by the claimants also stands allowed as indicated above. No
order as to costs.
(Dr.VINEET KOTHARI)J.
Item No.7-8
Ss/-