Partly allowed

United India Insurance Co. Ltd. v. Smt Usha and Ors.

Rajasthan HC3 Jul 2018CMA/4438/2007

Case brief

AI extract

What is this about?

The High Court disposed of four appeals arising from the same motor vehicle accident award. It upheld the 50:50 negligence finding but modified the compensation quantum for one claimant by disallowing USA treatment costs deemed not medically referred, and recalculating disability and future prospects benefits as Rs. 33,73,399/- instead of Rs. 29,02,316/-.

What did the court decide?

Impugned award modified; compensation enhanced to Rs. 33,73,399/- with simple interest at 7.5% p.a.; amount to be invested in FD.

United India Insurance Co. Ltd. Vs Smt Usha and Ors. — Motor Accident Claims | Rajasthan HC (2018)

¶1

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

¶2

S.B. Civil Miscellaneous Appeal No. 4438/2007

¶3

United India Insurance Co Ltd. through Authorized Signatory, Regional Office, Sahara Chambers, Tonk Road, Jaipur (Insurer of Truck No. RSB-2670)

¶4

----Appellant-Non-Claimant No.3

¶5

Versus

¶6

Smt Usha Upadhyay, W/o Shri S.K. Upadhyay, B/c Brahmin, R/o Plot No. B-56-A, Dev Nagar, Bajaj Nagar, Jaipur. (Raj.)

¶7

----Respondent-Claimant

¶8

Durga Prasad, S/o Shri Manaram, Caste Balai, R/o Bhagega, P.S. Neem Ka Thana, District Sikar (Raj.) (Driver of Truck No RSB-2670)

¶9

Ratanlal, S/o Laxminarain, Cate Agarwal, R/o Mandi Neem Ka Thana, District Sikar (Raj.) (Owner of Truck No RSB-2670)

¶10

Shivank Upadhyay, S/o Shri S.K. Upadhyay, Cate Brahmin, R/o Plot No. B-56-A, Dev Nagar, Bajaj Nagar, Jaipur (Raj.) (Driver of Maruti Car No. RJ-14-C-4606)

¶11

S.K. Upadhyay, S/o Shri B.L. Upadhyay, Cate Brahmin R/o Plot No. B-56-A, Dev Nagar, Bajaj Nagar, Jaipur (Raj.) (Owner of Maruti Car No. RJ-14-C-4606)

¶12

The New India Assurance Company Ltd. through Regional Manager, Regional Office, Nehru Place, Tonk Road, Jaipur (Raj.) (Insurer of Maruti Car No. RJ-14-C-4606)

¶13

….Respondents/Non-claimants No. 1,2,4 to 6

¶14

Connected With

¶15

S.B. Civil Miscellaneous Appeal No. 37/2008

¶16

The New India Assurance Company Ltd. through its Jaipur Regional Office: 330000, 2^nd Floor, Nehru Place, Tonk Road, Jaipur (Raj.)- 302015.

¶17

….Appellant/Non-claimant No.6/Insurer of Maruti 800 Car No. RJ-14/1C-4606

¶18

Versus

¶19

Smt Usha Upadhyay, W/o Shri S.K. Upadhyay, B/c Brahmin, R/o Plot No. B-56-A, Dev Nagar, Bajaj Nagar, Jaipur. (Raj.)

¶20

….Respondent/Claimant.

¶21

Durga Prasad, S/o Shri Manaram aged about 50 years, Caste Balai, R/o Bhagega, P.S. Neem Ka Thana, District Sikar (Raj.)

¶22

….Respondent/Non-Claimant No.1/Driver of Truck No. RSB-2670

¶23

Ratanlal, S/o Laxminarain, aged about 65 years, Cate

¶24

(2 of 9)

¶25

[CMA-4438/2007]

¶26

Agarwal, R/o Kapil Mandi Neem Ka Thana, District Sikar (Raj.)

¶27

….Respondent/Non-Claimant No.2/Owner of Truck No. RSB-2670 4. United India Insurance Co Ltd. Jaipur Regional Office, Sahara Chambers, Near Nehru Place, Tonk Road, Jaipur (Raj.), through its Regional Manager.

¶28

….Respondent/Non-Claimant No.3/Insurer of Truck No. RSB-2670 5. Dr. Shivank Upadhyay, S/o Shri S.K. Upadhyay, Cate Brahmin, aged about 34 years, R/o Plot No. B-56-A, Dev Nagar, Tonk Road, Jaipur (Raj.)

¶29

…..Respondent/Non-claimant No.4/Driver of Maruti 800 Car No. RJ-14-1C-4606

¶30

Sushil Kumar Upadhyay, S/o B.L. Upadhyay, B/c Brahmin, R/o B-56-A, Dev Nagar, Tonk Road, Jaipur (Raj.)

¶31

…..Respondent/Non-claimant No.5/Owner of Maruti 800 Car No. RJ-14-1C-4606

¶32

S.B. Civil Miscellaneous Appeal No. 1027/2008

¶33

Smt Usha Upadhyay, W/o Shri S.K. Upadhyay, aged about 60 years, B/c Brahmin, R/o Plot No. B-56-A, Dev Nagar,Tonk Road, Jaipur.

¶34

……Appellant-Claimant

¶35

Versus

¶36

Durga Prasad, S/o Shri Manaram, Caste Balai, R/o Bhagega, P.S. Neem Ka Thana, District Sikar (Raj.) (Driver of Truck No RSB-2670)

¶37

Ratanlal, S/o Laxminarain, Cate Agarwal, R/o Mandi Neem Ka Thana, District Sikar (Raj.) (Owner of Truck No RSB-2670)

¶38

United India Insurance Co Ltd. through Regional Manager, Transport Nagar, Jaipur (Insured Company of Truck No. RSB2670)

¶39

Shivank Upadhyay, S/o Shri S.K. Upadhyay, Cate Brahmin, R/o Plot No. B-56-A, Dev Nagar, Tonk Road, Jaipur (Raj.) 5. S.K. Upadhyay, S/o Shri B.L. Upadhyay, Cate Brahmin R/o Plot No. B-56-A, Dev Nagar, Tonk Road, Jaipur (Raj.)

¶40

The New India Assurance Company Ltd. through Regional Manager, Regional Office, Nehru Place, Tonk Road, Jaipur (Raj.)

¶41

----Respondents/Non-Claiamnts.

¶42

S.B. Civil Miscellaneous Appeal No. 407/2011

¶43

The New India Assurance Company Ltd. through its Jaipur Regional Office: 330000, 2^nd Floor, Nehru Place, Tonk Road, Jaipur (Raj.)- 302015.

¶44

….Appellant/Non-claimant No.6/Insurer of Maruti 800 Car No. RJ-14/1C-4606

(3 of 9)

[CMA-4438/2007]

Versus

Smt Nisha Sharma, W/o R.B. Sharma, aged 57 years, R/o Opposite Hawa Mahal, Jaipur (Raj.), at present R/o Bohra Ji Ka Baag, Opposite Jal Mahal, Amer Road, Jiapur (Raj.)

¶49

….Respondent/Claimant.

¶50

Durga Prasad, S/o Shri Manaram aged about 50 years, Caste Balai, R/o Bhagega, P.S. Neem Ka Thana, District Sikar (Raj.)

¶51

….Respondent/Non-Claimant No.1/Driver of Truck No. RSB-2670

¶52

Ratanlal, S/o Laxminarain, aged about 65 years, Cate Agarwal, R/o Kapil Mandi Neem Ka Thana, District Sikar (Raj.)

¶53

¶54

¶55

…..Respondent/Non-claimant No.4/Driver of Maruti 800 Car No. RJ-14-1C-4606 6. Sushil Kumar Upadhyay, S/o B.L. Upadhyay, B/c Brahmin, R/o B-56-A, Dev Nagar, Tonk Road, Jaipur (Raj.)

¶56

…..Respondent/Non-claimant No.5/Owner of Maruti 800 Car No. RJ-14-1C-4606

¶57

For the United India Insurance : Mr. Amarnath Pareek with Company Mr. Kartar Singh For the New India Insurance : Mr. Vizzy Agarwal Company For Claimant : Mr. A.C. Upadhyay and Mr. V.B. Srivastava

¶58

HON'BLE MRS. JUSTICE SABINA

¶59

Judgment

¶60

03/07/2018

¶61

Vide this order, above mentioned four appeals would be disposed of as they have arisen out of same award.

¶62

Claimants-Nisha Sharma and Usha Upadhyay had filed claim petitions under Section 166 of the Motor Vehicles Act, 1988 seeking compensation on account of injuries suffered by them in

¶63

(4 of 9)

¶64

[CMA-4438/2007]

¶65

the motor vehicle accident, which had occurred on 20.12.1997 at about 6.00 a.m. on National Highway No. 8. Claimants were travelling from Jaipur to Delhi in Maruti Car bearing registration No. RJ-14-1C-4606. Truck bearing registration No. RSB-2670 had been parked on the road. It was the case of the claimants that the Truck had been parked on the road without any signal/indication and the Maruti Car had struck against the Truck.

¶66

Learned Tribunal vide its award dated 19.09.2007 allowed the claim petitions. Tribunal has granted Rs. 91,000/- by way of compensation to claimant Nisha Sharma and Rs. 29,02,316/- by way of compensation to claimant Usha Upadhyay. It was further held that the driver of the Maruti Car as well as the Truck were equally liable for causing the death. Hence, the present appeals by the Insurance Companies and claimant-Usha Upadhayay.

¶67

So far as the case of claimant Nisha Sharma is concerned, appeal filed by the United India Insurance Company Limited challenging the award by way of S.B. Civil Misc. Appeal No. 4437/2007 and cross objections filed by her bearing No. 29/2011 are concerned, the same were dismissed by co-ordinate Bench of this court vide order dated 03.08.2011. The said order was passed in the presence of counsel for both the Insurance Companies as well as counsel for the cross-objector.

¶68

Learned counsel for the New India Assurance Company Limited has submitted that the Maruti Car driver could not be said to be negligent as the Truck had been parked on the road without any indication. Hence, the Insurance Company of the Truck was liable to pay the entire claim. Learned counsel has further

¶69

(5 of 9)

¶70

[CMA-4438/2007]

¶71

submitted that so far as the quantum of compensation awarded to claimant-Usha Upadhyay is concerned, the same was liable to be reduced as she had been granted compensation towards the expenses incurred by her on her treatment in America. There was no material on record to establish that the claimant had been referred for treatment to America by any hospital in India. Rather, claimant-Usha Upadhyay had gone to America of her own accord for her treatment, because her daughter and son-in-law were practicing Doctors in America.

¶72

Learned counsel for the United India Insurance Company Limited has submitted that the Tribunal has erred in fixing the liability on the said company to pay 50% of the compensation amount as the Truck driver could not be said to be negligent. Infact, the accident had occurred due to sole negligence of the car driver. The Truck was parked on the correct side of its road. The car driver should have driven his vehicle with due care and caution. Learned counsel have adopted the argument raised by the learned counsel for the New India Assurance Company Limited with regard to reduction of the quantum of compensation granted to claimant-Usha Upadhyay.

¶73

Learned counsel for claimant-Usha Upadhyay has submitted that the amount of compensation granted to the said claimant was on a lower side. Claimant was getting salary to the tune of Rs. 19,062/-, at the time of accident. Claimant-Usha Upadhayay had suffered permanent disability to the extent of 72%. She had suffered paralysis of her left side. Due to this reason, claimantUsha Upadhayay remained under treatment for a long time and

¶74

(6 of 9)

¶75

[CMA-4438/2007]

¶76

had to take voluntary retirement prior to six years three months of her retirement.

¶77

In the present case, claimants were travelling in a Maruti Car driven by Shivank Upadhyay. The accident had occurred in the month of December, 1997 at 6.00 a.m. It was the case of the claimants that the accident had occurred due to fault of the Maruti Car driver as well as the Truck driver. The Maruti Car driver was driving the vehicle in a rash and negligent manner and the Truck had also been parked on the road without any indication. While dealing with this issue, learned Tribunal has held that the accident had occurred due to contributory negligence of the Maruti Car driver as well as the Truck driver to the extent of 50:50.

¶78

In the present case, the Truck was parked on the road without any indication. The Maruti Car driver was also required to drive his Car with due care and caution with regard to other vehicles on the road. Since, it was winter season and accident had occurred at 6.00 a.m., in the facts and circumstances of the present case, learned Tribunal had rightly came to the conclusion that the accident had occurred due to negligence of driver of the Maruti Car as well as the Truck driver to the extent of 50:50. Moreover, in the appeal filed by the United India Insurance Company Limited bearing S.B. Misc. Appeal No. 4437/2007, Coordinate Bench of this Court has upheld the finding of the Tribunal while apportioning the liability of both the vehicles to pay compensation to the claimants to the extent of 50:50. In these circumstances, the finding of the Tribunal, in this regard is liable to be upheld.

¶79

(7 of 9)

¶80

[CMA-4438/2007]

¶81

So far as claimant-Usha Upadhyay is concerned, she has been granted compensation by the Tribunal to the tune of Rs. 29,02,316/-. Claimant-Usha Upadhyay was earning Rs. 19,062/per month, at the time of accident as she was working as an Assistant Director. Salary certificate of claimant-Usha Upadhyay is Exhibit-32. There is no evidence on record to the contrary. Thus, the income of claimant- Usha Upadhyay was liable to be taken as Rs. 19,062/- per month, at the time of accident. As per the exhibit-12, claimant-Usha Upadhyay had suffered permanent physical disability to the extent of 72%. It has been further mentioned in the certificate that she was unable to perform her daily activities without assistance. She has suffered left hemiparesis and her left hand had become non-functional.

¶82

Keeping in view the age of claimant-Usha Upadhyay, at the time of accident, appropriate multiplier to work out the amount of compensation would be '11'. Thus, the compensation amount liable to be paid to claimant-Usha Upadhyay vis-à-vis her disability would be Rs. 19,062/- x 12 x 11 x 72% = Rs. 18,11,652/-. Claimant- Usha Upadhyay would be further entitled to receive an addition of 15% of the said amount towards loss of her future prospects and the said amount comes to Rs. 2,71,747/-.

¶83

As per Exhibit-24, estimated amount liable to be spent by claimant-Usha Upadhyay towards her treatment was Rs. 1,30,000/-

¶84

It was further the case of claimant- Usha Upadhyay that she had taken treatment in Amercia and in this regard, Tribunal has granted compensation to the tune of Rs. 10,91,280/- + Rs.

¶85

(8 of 9)

¶86

[CMA-4438/2007]

¶87

4,00,000/- = Rs. 14,91,280/- However, there is no material on record that claimant-Usha Upadhyay had been referred by any hospital in India for treatment in America. There is also no material on record to suggest that the treatment required by claimant-Usha Upadhyay was not available in India. In these circumstances, learned Tribunal has erred in granting the amount spent by claimant-Usha Upadhyay towards her treatment in America by way of compensation.

¶88

It has been noticed by the Tribunal that claimant-Usha Upadhyay took voluntary retirement prior to six years three months of her retirement. In this regard, learned Tribunal has awarded Rs. 7,60,000/- to the claimant-Usha Upadhyay by way of compensation. The said amount does not require any interference.

¶89

Claimant-Usha Upadhyay would be further entitled to receive Rs. 2,00,000/- towards pain and suffering. Since, claimant-Usha Upadhyay is unable to do her daily activities without any assistance, she would be further entitled to receive Rs. 2,00,000/on this count towards services of attendant.

¶90

Thus, claimant-Usha Upadhyay, in all, is entitled to receive Rs. 18,11,652/- + Rs. 2,71,747/- + Rs. 1,30,000/- + Rs. 7, 60,000/- + Rs. 2,00,000/- + Rs. 2,00,000/- = Rs. 33,73,399/-.

¶91

Accordingly, appeals filed by the Insurance Companies bearing S.B. Civil Miscellaneous Appeal No. 4438/2007, S.B. Civil Miscellaneous Appeal No. 37/2008 and S.B. Civil Miscellaneous Appeal No. 407/2011 are dismissed and appeal filed by the claimant-Usha Upadhyay bearing S.B. Civil Miscellaneous Appeal

¶92

(9 of 9)

¶93

[CMA-4438/2007]

¶94

No. 1027/2008 is allowed. Consequently, impugned award dated 19.09.2007 is modified to the extent that the claimant-Usha Upadhyay would be entitled to receive Rs. 33,73,399/- by way of compensation instead of Rs. 29,02,316/- as awarded by the Tribunal alongwith simple interest @ 7.5% per annum. The rate of interest awarded by the Tribunal was @ 7.5% per annum simple interest to claimant-Nisha Sharma, whereas, the same was granted @ 6% per annum to claimant-Usha Upadhyay without any cogent reason. Remaining terms and conditions of the impugned award shall remain unchanged. It is further ordered that the enhanced amount of compensation be invested in Fixed Deposit Receipt with some nationalized Bank initially, for a period of three years and the interest accrued on the deposit shall be paid to claimant- Usha Upadhyay on monthly basis. The Secretary District Legal Services Authority, Jaipur District, in the interest of claimant-Usha Upadhyay shall invest the amount in Fixed Deposit Receipt in the name of claimant-Usha Upadhyay in some nationalized Bank. The Secretary, District Legal Services Authority, Jaipur District shall further apprise the appellant with regard to the amount which has been granted to her by way of enhancement and the fact that the enhanced amount shall be invested in Fixed Deposit Receipt in some nationalised bank for her benefit.

¶95

(SABINA),J

¶96

Sudha/3-6

United India Insurance Co. Ltd. v. Smt Usha and Ors.

Case brief

What is this about?

What did the court decide?

United India Insurance Co. Ltd. v. Smt Usha and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

The United India Insurance Co. Ltd. Vs Deepak Kumar Pandey and Ors.

Pradeep Kumar Vs Smt Sharda and Ors.

Ranjeet and Ors. Vs Abdul Kayam and Ors.

Lelamma K. Josep Vs Mumtaz

Nanhe Khan and Anr. Vs Anil Kumar and Ors.

The New India Insurance Compan Vs Usha Devi and Ors.