Partly allowed

The New India Assurance Co. Ltd. v. Asha Devi and Others

Rajasthan HC19 Jul 2018CMA/2235/2016

Case brief

AI extract

What is this about?

The High Court disposed of connected appeals regarding compensation for a motor accident death. The court modified the Tribunal's award, rejecting contributory negligence regarding helmet use and recalculating the compensation based on minimum wages and dependency factors.

What did the court decide?

Compensation enhanced to Rs. 10,33,868/- payable jointly and severally by the driver, owner, and insurance company; appeals disposed of.

The New India Assurance Co. Ltd. Vs Asha Devi and… — Motor Accident Claims | Rajasthan HC (2018)

¶1

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

¶2

S.B. Civil Miscellaneous Appeal No. 3955/2016

¶3

Smt Asha Devi, W/o Late Shri Meghraj, aged about 26 years.

¶4

Bulbul, D/o Late Shri Meghraj, aged about 07 years.

¶5

Shravan Singh, S/o Late Shri Meghraj, aged about 05 years.

¶6

(No. 2 and 3 are minor through their mother Asha Devi, W/o Late Shri Meghraj, aged about 26 years).

¶7

Raghunath, S/o Shri, Ram Gopal, aged about 68 years.

¶8

Bajrangi, W/o Raghunath, aged about 66 years.

¶9

All appellants, B/c Kushwaha, R/o Ward no.05, Kushwaha Colony, Uniara, District Tonk, Rajasthan.

¶10

----Appellants-Claimants

¶11

Versus

¶12

Ramesh Gurjar, S/o Shri Harji Gurjar, B/c Gurjar, aged about 40 years, R/o Samravata, Police Station Nagarfort, District Tonk, Rajasthan (Driver of Vehicle)

¶13

Sahzad, S/o Selani, B/c Muslim, R/o Sunaro Ka Mohalla, Aligarh, Tonk, Rajasthan (Owner of Vehicle)

¶14

The New India Insurance Company Ltd. Jhalawar Road, Kota, Rajasthan. (Insurance Company)

¶15

----Respondents-Non-Claimants

¶16

Connected With

¶17

S.B. Civil Miscellaneous Appeal No. 2235/2016

¶18

The New India Insurance Company Ltd. Jhalawar Road through its Regional Office at 2^nd Floor, Nehru Place, Tonk road, Jaipur

¶19

----Appellant

¶20

Versus

¶21

Smt Asha Devi, W/o Late Shri Meghraj, aged about 26 years.

¶22

Bulbul, D/o Late Shri Meghraj, aged about 07 years.

¶23

Shravan Singh, S/o Late Shri Meghraj, aged about 05 years.

¶24

(No. 2 and 3 are minors through their mother Asha Devi, W/o Late Shri Meghraj).

¶25

Raghunath, S/o Shri, Ram Gopal, aged about 68 years.

¶26

Bajrangi, W/o Raghunath, aged about 66 years.

¶27

All appellants, B/c Kushwaha, R/o Ward no.05, Kushwaha Colony, Uniara, District Tonk, Rajasthan.

¶28

----Respondents-Claimants

¶29

(2 of 5)

¶30

[CMA-3955/2016]

¶31

Ramesh Gurjar, S/o Shri Harji Gurjar, B/c Gurjar, aged about 40 years, R/o Samarawata, Police Station Nagar Fort, District Tonk, Rajasthan (Vehicle Driver)

¶32

Sahzad, S/o Sailani, B/c Muslim, R/o Sunaro Ka Mohalla, Aligarh, District Tonk, Rajasthan (Owner of Vehicle)

¶33

----Respondents-Non-Claimants

¶34

For Claimant(s) : Mr. Vikas Kabra

¶35

For Insurance Company : Mr. Rahul Joshi

¶36

HON'BLE MRS. JUSTICE SABINA

¶37

Order

¶38

19/07/2018

¶39

Vide this order above mentioned two appeals would be disposed of.

¶40

Claimants had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988 seeking compensation on account of death of Megh Raj in the motor vehicle accident, which had occurred on 20.03.2013.

¶41

Tribunal vide impugned award dated 08.02.2016 has granted compensation to the claimants to the tune of Rs. 12,52,628/-. Hence, the present appeals by the claimants seeking enhancement of compensation amount and the Insurance Company seeking reduction of the compensation amount.

¶42

Learned counsel for the claimants has submitted that the compensation amount granted by the Tribunal was liable to be enhanced. Tribunal has erred in fixing 15% contributory negligence on the deceased on the ground that he was not wearing a helmet, at the time of accident. Infact, accident had occurred due to sole rash and negligent driving of Ramesh Gurjar while driving the offending Truck.

¶43

(3 of 5)

¶44

[CMA-3955/2016]

¶45

Learned counsel for the Insurance Company has submitted that it was a case of head on collusion. Hence, deceased as well as the driver of the offending vehicle were negligent to the extent of 50%. In support of his arguments, learned counsel has placed reliance on the decision of Kerala High Court in C.N. Ramachandran Nair and V.K. Mohanan,

¶46

JJ., AIR 2009 Kerala 99 ,wherein it was held as under:-

¶47

“ However, apart from punishment, if a rider gets into an accident and suffers head injury, we feel defence will be available to the insurance company to plead that there is contributory negligence, in as much as the use of helmet would have reduced the impact of the accident which has resulted in head injury for the rider. When protection that a helmet provides to a rider is statutorily recognized and when it is mandatory under statute for the riders and drivers of two wheelers to wear the same, we feel it is a matter to be considered by the Motor Accidents Claims Tribunal as to whether the injured in a motor bike accident had suffered head injury and if so, whether at the time of accident the driver or pillion rider, as the case may be, who claims compensation for head injury was wearing a helmet.”

¶48

On the pleadings of the parties, learned Tribunal had framed Issue No. 1 to the effect as to whether deceased-Megh Raj had died in an accident, which had occurred on 20.03.2013 due to rash and negligent driving of respondent- Ramesh Gurjar while driving the Truck bearing registration No. RJ-14-1G-5109.

¶49

In order to prove issue No. 1, claimants had examined AW-2 Satya Narayan. The said witness deposed that on 20.03.2013, he was standing in front of his house. In the meantime, motorcycle bearing registration No. RJ-26-8A-3060 was going towards Nainwa side. In the meantime, Truck bearing registration No. RJ-14-1G-5109 came from Nainwa side. The Truck was being driven in a rash and negligent manner and struck against the motorcycle. As a result, Megh Raj had suffered injuries and died.

¶50

(4 of 5)

¶51

[CMA-3955/2016]

¶52

Driver of the offending Truck did not appear in the witness box in rebuttal. Hence, an adverse inference is liable to be drawn against him.

¶53

A perusal of the site plan prepared by the Investigating Agency during investigation reveals that the motorcycle was being driven on its correct side of the road, whereas, the Truck by coming on the wrong side of the road had struck against the motorcycle.

¶54

In these circumstances, it cannot be said that the driver of the motorcycle was guilty of contributory negligence. Rather, motorcycle was on its extreme left side of the road, whereas, Truck by coming on wrong side of the road had struck against it. Hence, in the facts of the present case, it can be said that the accident had occurred due to rash and negligent driving of Ramesh Gurjar while driving the offending Truck.

¶55

In the facts of the present case, the judgment relied upon by learned counsel for the Insurance Company fails to advance its case.

¶56

Accordingly, finding of the Tribunal on Issue No. 1 is modified and it is decided in favour of the claimants.

¶57

The next question that requires consideration is with regard to the quantum of compensation liable to be received by the claimants.

¶58

As per the post mortem report, deceased was aged 25 years, at the time of accident. Hence, appropriate multiplier to work out the dependency of the claimants would be '18'.

¶59

Although, it was the case of the claimants that the deceased was earning Rs. 10,000/- per month, but in the absence of any documentary evidence in this regard, his income was liable to be taken as per the minimum wages fixed by the State. Thus, learned Tribunal had rightly taken the income of the deceased as Rs. 4,316/- per month.

¶60

(5 of 5)

¶61

[CMA-3955/2016]

¶62

Claimants are the widow, children and parents of the deceased. Hence, 1/4^th out of the income of the deceased was liable to be deducted towards his personal expenses.

¶63

Thus, the dependency of the claimants comes to Rs. 3,237/- x 12 x 18 = Rs. 6,99,192/-. Claimants would be entitled to receive an addition of 40% of the said amount towards loss of future prospects of the deceased and the said amount comes to Rs. 2,79,676/-. Claimants would be further entitled to receive Rs. 40,000/- towards loss of consortium and Rs. 15,000/- towards funeral expenses.

¶64

Thus, the total compensation amount liable to be received by the claimants comes to Rs. 6,99,192/- + Rs. 2,79,676/- + Rs. 40,000/- + Rs. 15,000/- = Rs. 10,33,868/-.

¶65

Accordingly, impugned award dated 08.02.2016 is modified to the extent that the claimants would be entitled to receive Rs. 10,33,868/by way of compensation instead of Rs. 14,73,680/- as awarded by the Tribunal. Driver, Owner and Insurance Company of the Truck bearing registration No. RJ-14-1G-5109 would be liable for payment of compensation amount to the claimants jointly and severally. Remaining terms and conditions of the impugned award shall remain unchanged.

¶66

Both the appeals stands disposed of accordingly.

¶67

Sudha/65-66

The New India Assurance Co. Ltd. v. Asha Devi and Others

Case brief

What is this about?

What did the court decide?

The New India Assurance Co. Ltd. v. Asha Devi and Others

Case brief

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What did the court decide?

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