Allowed

Mahendra Kumar and Ors. v. Devinder Kumar and Ors.

Rajasthan HC2 Aug 2019CMA/1167/2010

Case brief

AI extract

What is this about?

The High Court allowed appeals regarding liability exemption for insurer of an owner's vehicle and quantum of compensation. The court applied Supreme Court precedents to hold the insurer liable despite the passenger being in a goods vehicle and recalculated compensation based on established guidelines, modifying the award and directing payment with interest.

What did the court decide?

The appeal in Misc. Appeal No. 958/2010 was disposed of by setting aside the exoneration of the insurer. The award in Misc. Appeal No. 1167/2010 was modified to Rs. 10,22,000/-, and payment was direct

Mahendra Kumar and Ors. Vs Devinder Kumar and Ors. — Execution and Attachment | Rajasthan HC (2019)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN JODHPUR

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S.B. Civil Misc. Appeal No. 958/2010

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Devinder Kumar S/o Shri Fakeer Chand Ji Agarwal, Aged about 40 years, resident of Nathana, Tehsil & District Bathinda (Punjab)

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Harbhajan Singh S/o Shri Gurjant Singh Jat Sikh, resident of Bhuchchu Kalan, Tehsil & District Bathinda (Punjab)

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----Appellants

¶6

Versus

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Mahender Kumar S/o Shri Khub Chand Jangid

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Nani Bai W/o Mahender Kumar Jangid

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Kapil S/o Atma Ram Jangid (Minor) through her natural guardian and mother Smt. Kaushalya Devi (Respondent NO.4).

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Kaushaliya Devi W/o Rajendra Kumar Jangid,

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All resident of Beerbal Coloni, Sangariya, District Hanumangarh

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(Rajasthan)

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Oriental Insurance Company Ltd. Head Office Oriental House, Asaf Ali Road, New Delhi.

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----Respondents

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Connected with

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S.B. Civil Misc. Appeal No. 1167/2010

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Mahender Kumar S/o Shri Khub Chand Jangid

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Nani Bai W/o Mahender Kumar Jangid

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Kapil S/o Atma Ram Jangid (Minor) through her natural guardian Grand-father Shri Mahendra Kumar (Applicant No.1) All resident of Beerbal Coloni, Sangariya, District Hanumangarh (Raj.)

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----Appellants

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Versus

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Devinder Kumar S/o Shri Fakeer Chand Ji Agarwal, Aged about 40 years, resident of Nathana, Tehsil & District Bathinda (Punjab)

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Harbhajan Singh S/o Shri Gurjant Singh Jat Sikh, resident of Bhuchchu Kalan, Tehsil & District Bathinda (Punjab)

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Oriental Insurance Company Ltd. Head Office Oriental House, Asaf Ali Road, New Delhi.

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Kaushaliya Devi W/o Rajendra Kumar Jangid,

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All resident of Beerbal Coloni, Sangariya, District Hanumangarh (Rajasthan)

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----Respondents

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For Appellant(s) : Mr. AK Rajvanshy with Mr. Vishal Thakur For Respondent(s) : Mr. Anil Bachawat Mr. SR Paliwal Mr. Prashant Tatia

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(2 of 5)

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HON'BLE MR. JUSTICE SANJEEV PRAKASH SHARMA

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Order

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02/08/2019

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In S.B. Civil Misc. Appeal No.958/2010

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The owner’s appeal as against the judgment award dated 10.08.2010 has been filed solely on the ground that the contention of the Insurance Company that the passenger was travelling in a goods vehicle would result in exoneration was erroneously held in favour of the Insurance Company. Although the vehicle of the owner was involved in the accident which was insured, thus, the Insurance Company which insured the owner’s vehicle could not have been exonerated merely because the other vehicle where passenger was sitting was also a goods carriage vehicle.

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Learned counsel appearing for the insurance company has submitted that the factual aspect is correct that the respondent No.5 Oriental Insurance Company had insured the vehicle which was owned by the appellant and the same was involved in the accident causing death of passenger who was travelling in another vehicle which was also a goods carriage vehicle.

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Thus, the finding of the learned MACT is found to be erroneous. The Insurance Company which had insured the owner’s vehicle cannot be said to be exonerated on the basis of judgment of New India Assurance Company Limited VS. Vedwati Ors.

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reported in AIR 2007 Supreme Court 1334 wherein the Hon’ble Apex Court had held as under :-

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“The inevitable conclusion, therefore, is that provisions of the Act do not enjoin any statutory liability on the owner

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(3 of 5)

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of a vehicle to get his vehicle insured for any passenger travelling in a goods carriage and the insurer would have no liability therefor.

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Our view gets support from a recent decision of a threeJudge Bench of this Court in New India Assurance Company Limited v. Asha Rani and Ors. (2002 (8) Supreme 594] in which it has been held that Satpal Singh's case (supra) was not correctly decided. That being the position, the Tribunal and the High Court were not justified in holding that the insurer had the liability to satisfy the award. ”

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This aspect was only applicable for the Insurance Company of the vehicle where the passenger was sitting and would not apply to the Insurance Company of owner’s vehicle. The Insurance Company which insured the owner’s vehicle, therefore, could not have been exonerated.

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Accordingly, the said part of the award dated 10.08.2018 passed by MACT is set aside and the appeal of the appellants is accordingly disposed of.

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In S.B. Civil Misc. Appeal No.1167/2010

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This is an appeal by the claimants praying for enhancement of the award dated 10.08.2010 passed by the Motor Accident Claims Tribunal, Sangariya, District Hanumangarh.

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Learned counsel for the appellant submits that the award passed of Rs.15,22,000/- is on the lesser side. He also submits that amount awarded for conventional heads is on the lower side.

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Per contra, learned counsel appearing for the Insurance Company submits that if the Insurance Company is held liable as above, the aspect regarding the payment has also to be examined

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(4 of 5)

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in light of the judgment passed by Hon’ble Apex Court in National Insurance Company Ltd. Vs. Pranay Sethi reported in AIR 2017 SC 5157. Accordingly, the total income should have been calculated. He submits that if the earnings are assessed as Rs.5,000/- per month, 1/3 whereof would come to Rs.3,333/after deduction of 1/3 personal expenses and as he was selfemployed, future prospects would be added by increasing 40% which would come to Rs.1,666/-, thus, total income would be calculated as 4,666/- per month which could be multiplied by giving a multiplier of 17 as laid down in Pranay Sethi (supra). The amount would thus come to Rs.4,666X12X17=9,51,864/-, adding the conventional heads the amount of Rs.70,000/-, the total amount as would be given in compensation ought to have been Rs.10,21,864/-.

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Thus, he submits that award passed was in excess by sum of Rs.5,00,136/-, thus, he submits that multiplier awarded was on the higher side of 18 instead of 17.

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Taking into consideration above, this Court finds that the law as governing the field today would be as laid down by the Constitutional Bench in Pranay Sethi (supra) and accordingly, computation has to be done. Thus, it finds that the award of compensation available to the legal representatives of deceased was to be Rs.10,22,000/-, as calculated above and a sum of Rs.5,00,000/- has been awarded in excess which is accordingly deleted from the award passed by the MACT dated 10.08.2010 and the amount payable as compensation to the legal representatives would be Rs.10,22,000/-.

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Learned counsel appearing for the claimant submits that the amount has not been paid even till date to the claimants,

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(5 of 5)

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thus, the amount shall carry an interest @9% per annum from the date of filing of the application i.e. from 04.02.2004 till the date of payment. The payment shall be made by the Insurance Company now within a period of eight weeks alongwith interest. The award passed by the MACT dated 10.08.2010 is accordingly modified.

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The present civil misc. appeal is accordingly disposed

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of.

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(SANJEEV PRAKASH SHARMA),J

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-sudheer/-

Mahendra Kumar and Ors. v. Devinder Kumar and Ors.

Case brief

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Mahendra Kumar and Ors. v. Devinder Kumar and Ors.

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