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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
JUDGMENT
UNITED INDIA INSURANCE CO. LTD. Vs. SMT. RUKMANI
& ORS.
S.B. CIVIL MISC. APPEAL NO. 92 OF 1997
against the judgment and award
dated 02.11.95 passed by the learned
Judge, Motor Accident Claims Tribunal,
Ratangarh, District Churu in Claim Case
No.31/94.
DATE OF JUDGMENT :: 14th JULY, 2008
PRESENT
HON'BLE MR.JUSTICE MANAK MOHTA
Mr. G.Vaishnav for the appellant.
Mr. S.L.Jain ] for the respondents.
Mr. G.L.Khatri ]
BY THE COURT :
This appeal has been filed by the United India
Insurance Company Ltd. against the judgment and award
dated 02.11.1995 passed by the learned Judge, Motor Accident
Claims Tribunal, Ratangarh, District Churu (in short ‘the
Tribunal’) in Claim Case No.31/1994 whereby the learned
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Judge has allowed the claim petition and has awarded
compensation of Rs.1,83,000/- with interest @ 12% per annum
in favour of the claimants.
This claim petition by Smt.Rukmani Devi & Ors. was
originally filed before the District & Sessions Judge, Churu on
28.04.88 from where it was transferred to the court of Motor
Accidents Claims Tribunal, Churu.
Briefly stated, the facts of the case are that on
24.12.1987 at 11.00 PM Dharamchand (deceased) and
several other passengers were going from Sujangarh to
Bodasar by travelling in Jeep No.RRT.3104 which was being
driven by Jeevanmal owner of the said jeep. It was submitted
that Dharamchand (deceased) was sitting in the front seat.
When the jeep reached about four Kms. from Gopalpura
Dungar, it was being driven with a high speed and near a turn,
the driver of the jeep lost his control as a result of that the jeep
overturned and fell into a pit resulting into causing grievous
injuries to the head of Dharamchand, who was immediately
admitted in the Government Hospital, Sujangarh where he was
declared dead due to brain hemorrhage caused in said
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accident. An FIR of this incident was lodged at P.S. Sujangarh.
The claimants, Smt. Rukmani, wife of Dharamchand
(deceased), and Mamta, Manisha, Seema, minor daughters of
Dharamchand filed claim petition under Section 110-A of the
Motor Vehicle Act 1939 (in short ‘the Act’). It was stated that
Dharamchand (deceased),was at the time of accident aged 32
years and was plying his own taxi thereby was making an
earning of Rs.1500-1600/- per month. The claimants were
dependent on his income it was submitted that due to untimely
death of Dharamchand in motor accident they have suffered
loss of income and loss of love and affection. Thus, the
claimants claimed a total compensation of Rs.6,34,000/- on
various heads.
Non-claimant No.1 Jeevanmal, owner cum driver of
offending jeep, though was served with the notice, neither he
filed any reply nor appeared before the Tribunal, therefore,
ex parte proceedings was initiated against him. Non-claimant
No.2 insurer of jeep United India Insurance Co. in its reply
stated that their liability for the payment of compensation was
limited upto Rs.15,000/- only and further denied all other the
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averments made in the claim petition. It was also stated that
the offending Jeep was being driven by vehicle-owner
Jeevanmal (non-claimant No.1) but at the time of accident he
was not having a valid and effective driving licence, as such,
the Insurance Company cannot be held responsible for the
payment of compensation and it was prayed that the claim
petition may be dismissed.
On the basis of pleadings of the parties, relevant
issues with regard to responsibility of causing accident and
quantum of compensation were framed.
During trial, on behalf of claimants AW/1 Rukmani
Devi, (claimant No.1), AW/2 Bhagwanaram, AW/3
Hanumanmal, AW/4 Bhanwarlal and AW/5 Girdhari were
examined and certain documents were produced and got
exhibited . No evidence was led from the side of non-claimant.
After hearing both the parties, the learned Tribunal
on the basis of material available on record, held non-appellant
No.1 responsible for causing accident and further held that
the non-claimants are jointly and severally liable for the
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payment of compensation to the claimants and as the vehicle
was found insured with appellant Insurance Company at that
time, therefore, has directed the Insurance Company to make
payment of compensation amount of Rs.1,83,000/- to the
claimants with interest @ 12% per annum.
Being aggrieved and dis-satisfied by the judgment
and award dated 02.11.1995, the instant appeal has been
preferred by the appellant-United India Insurance Co. Limited,
before this Court. Notice of the appeal was issued, record was
called. In the meanwhile, the claimant-respondents also filed
cross objections under Order 41 Rule 22 CPC, for the
enhancement of compensation amount. Thus, both were
heard together, and are being disposed of by this judgment.
During the course of arguments, learned counsel
for the appellant, insurer, submitted that in this case the
learned tribunal has not properly considered the facts and the
material available on record and passed erroneous judgment.
It was contended that no proper opportunity even was given to
appellant to lead evidence in defence. Thus, the appellant has
been deprived from putting his case. It was urged that on this
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ground, the judgment is liable to be set aside. It was further
contended that during trial, cover note Ex.4 was produced by
owner of the vehicle and as per terms of the cover note, the
liability of the Insurance Company was limited upto 15,000/-
but the learned tribunal has ignored to peruse the terms of the
policy and held responsible for the payment of entire amount
of compensation. It was stated that in this way, issue No.4
should have been decided in favour of the appellant. It was
also contended that learned tribunal has awarded
compensation on higher side. It was urged that without any
basis, the learned tribunal has totally assessed income and on
that basis, loss of dependency has been determined. Thus,
that is not sustainable. It was also agitated that likewise 12%
rate of interest has been awarded, that is on higher side,
thus, the awarded compensation is not sustainable. On the
basis of these submissions, it was prayed that the appeal may
be allowed and the judgment and award, holding responsibility
of Insurance Company, be quashed.
On the other hand, the learned counsel for the claimant
respondents, refuted the contentions and submitted that the
appellant raised contentions with regard to limited liability but
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later on they have not been able to prove their contentions. In
this respect, a specific issue No.4 was framed and the
burden of proving limited liability was on them, but they failed. It
was also contended that from mere perusal of the cover note,
this contention cannot be treated to be proved. The learned
tribunal has rightly rejected their contentions, there is no scope
for interference in this respect. It was also contended that the
awarded compensation is not just and reasonable. It was also
contended on behalf of claimant-widow of the deceased that
her husband was, by profession, a driver and he used to earn
Rs.1500/- 1600/- per month, but the learned tribunal has not
accepted her version. As there were no rebuttal from the other
side, therefore, the income of the deceased should have been
determined accordingly. But the learned tribunal has first
assessed monthly income of Rs,1000/- and after deducting
expenses for his personal use, Rs.700/- has been determined
as his monthly income, this requires to be modified . It was
further contended that learned tribunal has taken into
consideration the future prospect of job . Thus, to this extent
has rightly doubled the loss of dependency. In the meanwhile, it
was also contended that the learned tribunal has not properly
applied multiplier, looking to the age of the deceased that is
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32 years, the multiplier of at least 17 should have been
applied. Thus, the awarded loss of dependency of
Rs.1,68,000/- be enhanced reasonably. It was also
contended, while making submissions with regard to the cross
objection filed on behalf of respondent-claimants, that learned
tribunal has granted a meagre amount of compensation , first
the compensation under the head of loss of dependency has
not been properly determined. Further, the claimants are the
widow and three daughters of tender age of deceased.
Therefore, looking to the peculiar facts of the case, appropriate
amount should have been granted with regard to loss of love
and affection and loss of guardianship and loss of consortium.
But the learned tribunal has awarded only Rs.15,000/- in all.
On the basis of these submissions it was prayed that the
appeal filed by the Insurance Company may be dismissed
and the cross objection filed by the claimant respondents be
allowed and the awarded compensation may be enhanced.
I have considered the rival submissions and perused
the findings and the conclusion drawn thereon.
The main questions arise for consideration in dealing
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with the appeal and the cross-objection are that whether the
Insurance Company has been wrongly held responsible for
the payment of compensation ?. Secondly, the awarded
compensation is not just and reasonable and it requires to be
enhanced, while considering the cross objection ?
So far as the finding with regard to factum of accident is
concerned, I have perused the finding of learned tribunal, that
is not suffering from any infirmity and has not been disputed,
thus that is maintained. Now first of all, I have considered the
contentions placed by the appellant insurer. On the pleading
of parties , a specific issue No.4, was framed and the burden
of proving that issue was on the insurer on the point of
limited liability. But they have not led any evidence in that
respect. Neither they have made submissions before the
learned tribunal for producing any evidence in this respect nor
any specific material was placed, therefore, the contention
placed by the insurer are not sustainable in this respect. In the
alternative, it was also contended that, from the perusal of the
cover note, the plea of limited liability was found proved. In
this respect, I have perused Ex. 6. From the perusal of the
cover note, it seems that they have received the premium of
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passengers, thus no such adverse inference can be drawn.
Thus, the contentions raised in this appeal are not
sustainable. The appellant has also raised contentions with
regard to quantum of compensation. But considering their
status and contentions, they are not sustainable. Therefore, the
appeal filed by the Insurance Company is liable to be
dismissed.
Now I have considered the contentions raised by the
claimant-respondents, with regard to enhancement of the
awarded compensation. In this respect, I have perused the
statement of AW/1 Rukmani Devi, widow of the deceased. In
her statement, she has stated that her husband was by
profession, driver and he used to earn Rs.1500/- – 1600/- per
month. To this extent, neither there is cross examination from
the insurer’s side, nor any material has been placed in
rebuttal. The income shown by the widow of the deceased
does not seem to be excessive. But the learned tribunal,
without any base, has determined monthly income of the
deceased as Rs.1000/- and thereafter, considering the future
prospect had determined compensation, considering the net
loss of dependency of Rs.1400/- and again the learned
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tribunal has taken the multiplier of 10 and determined loss of
dependency as Rs.1,68,000/-. But considering the
submissions, the amount determined by the tribunal under this
head, is not found proper and adequate. It is established on
record that at the time of accident, the age of the deceased
was 32 years, that is also corroborated by the age shown in
the post mortem report. Thus, suitable multiplier of 17 should
have been taken. Therefore, taking into consideration the
income shown by the widow of the deceased, Rs.1500/- per
month, and after taking 1/3 for personal use, atleast Rs.1,000/-
per month can safely be assessed as loss of dependency to
the claimants, looking to the nature of job, there are no ground
for doubling the income of deceased. Thus, compensation
comes to 1000x12x17= Rs.2,04,000/-. Thus, the awarded
amount of compensation under this head, is enhanced by
Rs.36,000/-. Further, learned tribunal has awarded total
Rs.15,000/- for loss of consortium, love and affection to the
claimants. Taking into consideration the age of widow, and the
tender age of three female children that is ranged between 4
to 10, at the time of filing of application, the amount of
Rs.15,000/- is further added in the amount awarded by the
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tribunal. Thus, total amount of Rs.51,000/- is enhanced and
that comes to Rs.2,34,000/-.
The claimant respondents, further will be entitled to get
interest on the enhanced amount at the rate of 7.5% from the
date of filing of the appeal. In this way, the cross-objection filed
by the claimant respondents, deserves to be partly allowed.
On the basis of the aforesaid discussion, the appeal filed
by the insurer, is hereby disallowed and the cross objection
filed by the claimant respondents are partly allowed. The
awarded compensation of Rs.1,83,000/- is enhanced by
Rs.51,000/-, that comes to Rs.2,34,000/-. Further on the
enhanced amount , claimants respondents will be entitled to
receive interest @ 7.5% per annum from the date of filing of
the claim application. For payment of enhanced
compensation, owner as well as the insurer of the vehicle are
held jointly and severally responsible. In the interest of justice,
the Insurance Company is directed to make the payment
within two months from the date of order, or deposit the same
with the learned Tribunal, failing which claimants will be free to
start recovery proceedings. Rest of the judgment is maintained.
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No order as to costs.
( MANAK MOHTA ),J.
l.george
