Partly allowed

Smt Rajan Devi and Ors. v. Sajjan Singh and Ors.

Rajasthan HC7 Jan 2019CMA/26/2002

Case brief

AI extract

What is this about?

The High Court of Judicature for Rajasthan Bench at Jaipur set aside the Motor Accident Claims Tribunal award. It held that the vehicle was not in police custody based on lack of evidence, found the deceased contributorily negligent for overloading, and assessed compensation at Rs. 1,36,640.

What did the court decide?

The impugned award is quashed. The claim petition is allowed with compensation of Rs. 1,36,640 plus interest at 6% p.a. to the respondents jointly and severally.

Smt Rajan Devi and Ors. Vs Sajjan Singh and Ors. — Motor Accident Claims | Rajasthan HC (2019)

¶1

¶2

HIGH COURT OF JUDICATURE FOR RAJASTHAN BEN~H AT

¶3

JAIPUR

¶4

S.B. Civil Misc. Appeal No.26/2002

¶5

I. Smt. Rajan Devi wife of Late Shri Sitaram aged 57 years 2. Kum. Indra daughter of Late Shri Sitaram, aged 25 years

¶6

3. Banwari Lal son of Late Shri Sitaram, aged 22 years

¶7

Murari Lal son of Late Shri Sitaram, aged 19 years

¶8

Rajesh Kumar son of Late Shri Sitaram, aged 16 years

¶9

Vishnu Kumar son of Late Shri Sitaram, aged 13 years

District

Versus ""Y

I. Sajjan Singh son of late Shri Bhim Singh, by caste Jat, son of Shri Ram Kish

¶14

Sardar Gurud ishan Das, resident of I-C-161, Latpat

¶15

The New India ed, Regional Office,

¶16

For Appellant(s) : Mr. For Respondent(s) : M r. Ashok Mehta

¶17

07/01/2019

¶18

The instant Civil iseellaaesuq-Ae%~ is directed against the vI"'-";B aqC award dated 13.08.2001 passed by the Motor Accident Claims Tribunal, Jaipur, District, Jaipur (for short "the tribunal") in Motor Accident claim case no. 350/1994 whereby the learned tribunal dismissed the claim petition filed by the Appellants.

¶19

2. The brief facts giving rise to the instant appeal as mentioned in the memo of appeal are that the deceased Sitaram who was

¶20

(2 of 11)

¶21

7 I ICMA- 26/2002] Z

¶22

riding,on a motorcycle along with two of his acquaintances and going from Chaksu towards Jaipur on the night of 3.04.1994 dashed against a truck bearing no. D.N.G 1705, which was parked in the middle of the road without any parking lights/indicators on. It was further stated that the said accident happened somewhere near the village Kanthala and without any negligence on part of the deceased. The truck that was parked in the middle of the road 9 '+ j, !' &QT $- -4 ,, could not be add% ol tbp Qi !motarcycle because of the -ay, ms of the headlights of tk.e.hvehicles coming ~iap was further alleged that 'thesince the 3% parked by the driver with?thaving turned on the parking ligh$t@nd.$ors, the driver was clearly _.+,f_ negligent and so t well as the insurer were jointly and se te the dependents of the deceased. 3. The learned Mr Sandeep Mathur contended that si arked by the driver on the middle of the turned on parking lights/indictors, the d the owner as well as the insurer were liable to compensate the%claimants-appellants. . . At w~~~T*m&F q a"i g=j the time of the death ed was'"about 50 years of age and was earning 4,000 Rupees per month. Further, the accused had a wife and four children including three sons and a daughter. The counsel contended that the learned tribunal erred in deciding .+% issue no. 1 against the appellants by holding that the driver of the vehicle was not negligent since at the time of the accident, the vehicle was in the custody of the police. The counsel further

(3 of 11)

$CMA- 26/2002]

) contended that looking to the age of the deceased, a much higher multiplier should have been applied by the learned tribunal to assess the quantum of compensation. Further, very little amount was assessed by the tribunal towards conventional heads like loss of consortium and loss of love and affection. The counsel thus prayed that the award passed by the tribunal be set aside and the appellants be awarded a compensation of Rupees 17,90,000

¶27

following judicial

¶28

ivil) Page 6 Smt. rs. Vs. The New India Assurance Co. Ltd. & Ors.

¶29

2.1991 ACJ pag,g
a n d a n other ,&ctk3a55g,~ A4@-=-Tg9 ,,# ?&@'
3.2011(1)
Assurance
& Ors.
4.1986 ACJ
& Ors. Vs. Ja
5.1996 ACJ 59.111 @pq#
Vs. Corporal
6.1987 ACJ
Swroo Bal &

¶30

On the other han nsel appearing on behalf of the respondent insu rted the award passed

¶31

by the learned tribunal and contended that since the offending vehicle was not even in the custody of the owner, neither the owner nor the insurance company can be held liable since there was no negligence on part of the driver or the owner of the vehicle. The counsel further contended that the claimants/appellants are also not entitled to claim any

¶32

compensation since the deceased along with the rider of the motorbike were themselves negligence as mentioned by the Police in the FIR as well as the charge-sheet.

¶33

I have heard the learned counsel for the parties and perused the material on record and given my thoughtful consideration to the submissions made by the learned counsel for the parties. Following are the adjudication in the

instant case:

1.Whether D.N.G

compensation despi

was not in the cust

Whether the

¶39

negligence of the driver

¶40

ISSUE NO. I

¶41

custody of the police 4and.n$dhes~esndent No.2-owner and SP" qre+94".1x4/ L~j T%ji 4 i~ ,:ai gdqfl 4 .. a thus, there was no negligence on part of the driver and neither the

¶42

owner nor the insurance company can be held liable. Impugning this finding, the learned counsel for the Appellants-claimants has relied on a number of judgments. Therefore, for a fair adjudication of the appeal, an analysis of these judicial precedents is essential.

¶43

The first case relied on by the learned counsel is Kaushnuma Begum (Supra). In this case, the accident was caused by a jeep, which capsized and the cause of the capsize was attributed to bursting of the front tyre of the jeep. The claims tribunal held that since the tyre had burst suddenly and without any negligence/fault on part of the driver, the owner could not be held liable. The appeal filed before a division bench of the

¶44

follows:

¶45

Q{%,,

¶46

"No Fault Liability envisaged in Section 140 of the MV Act is distinguishable from the rule of strict liability. In the former the compensation amount is fixed and is payable even if any one of the exceptions to the Rule can be applied. It is a statutory liability created without which the claimant should not get any amount under that count. Compensation on account of accident arising from the. use of motor vehicles can be claimed under the common law even without the aid of a statute. The provisions of the MV Act permits that comp'ensation paid under no fault liability can be deducted from the final amount awarded by the Tribunal. Therefore, these two are resting on two different premises. We are, therefore, of the opinion that even apart from Section 140 of the MV Act, a victim in an accident which occurred while using a motor vehicle, is entitled to get compensation from a Tribunal unless any one of the exceptions would apply. The Tribunal and the High Court have, therefore, gone into error in divesting the claimants of the compensation payable to them."

¶47

The next judgement relied upon by the counsel is Shivaji Dayanu Patil (Supra). In this case, there was a collision between a truck and a petrol tanker, which caused the petrol tanker to turn turtle. However, after 4-5 hours of the accident, the petrol tanker caught fire. and there was an explosion in which a number of people died while others were injured. Two arguments were taken by the Appellants. First, that the petrol tanker could .& "#' -'"" . - B t- not be termed as "vehicle" as defined under Section 2(18) of the & q e: ,, '%a 44 *--4%' 84, Motor Vehicle Act, 1939 (for short 'the Act of 1939") since it was 4, 'y-w L#74$% e?? % lying turtle and incapable of plying on the road. since the vehicle ,%&Lb 'Fp3 was lying turtle, the appellants did not have any liability even on

¶48

the ground of 'no fault liability" under Section 92-A of the Act of 1939 since the pro "arising out of the use of a motor vehi was that there was no causal relations hi^ between the accident/collision and the explosion since it happened after 4-5 hours of the accident. Since the vehicle was lying turtle, the appellants did not have any #,NU :a d~',~.,z :,%%%k% liability even on the ground of 'no fault liability" under Section 926R;3?5%&p<yy/jd>vTjimfk ,i&%gg&& a " A of the Act of 193 uses the expression "arising out of the use of a motor vehiclerr. The Supreme Court **ali L.&-, -ea*aw <c9zw$& brushed aside these aGK"ts. The observations by the Hon'ble

¶49

court on each of these points w'ere as follows:

¶50

A. The honourable supreme court brushed aside the first argument by observing that no evidence had been adduced that the petrol tanker could never be used to ply on the road again. Further, the word 'use" in the context of motor vehicle should be given a broad connotation and a vehicle can "used" not

¶51

only when it is in motion but also when it is stationary.

¶52

B. The court next observed that the expression "arising out of" has a broader meaning than the word 'causedrr. ~lthough both these expressions imply a causal relationship, the degree of proximity of such a causal relationship needed is much lower when the provision uses the expression "arising out-of". The expression "caused by" means a direct and proximate relationship of cause and effect whereas the expression "arising out of" includes even an indirect and a less proximate relationship of cause and2 " ,$"" )- effect. &+, &. -**' "0 ,& b Based on these observations, the Courtkb 4;". " allowed the appeal and awarded .<&ompensation on the ground of 'no fault C4q h* liability" under Section 92-A.

¶53

After having d m of the view that the said judgement is e facts of the instant case since the instant case has been filed under Section 166 of the Motor Vehicle Act, 1988 (for short "the Act of 1988") and not By 11 a " 11 y under Section 163-A of the Act of 1988. Under Section 166 of the flB& P A"_ 1 %n, Act, compensation cannot be provided on the ground of 'no fault r, """i .- -&$t,- 9%. *&&&, h\p;k{g&\p&[&v"6$%d$\f-[ig liability" and some n of the driver needs to be proved. The judgement given in Shivaji Dayanu Patil (Supra), compensation was given only on the ground of 'no fault liability"

¶54

The next case relied upon by the learned counsel is Yadu Sambhaji More (Supra). The case of Yadu Sambhaji More (Supra) was the second round of litigation on the same facts as in Shivaii Dayanu Patil(Supra) In this case, the accident involved a petrol tanker, which was thrown off the road after a collision with the truck and started leaking. There was an explosion later on in

¶55

which some people were injured while some others died. The claimants had filed application under Section 92-A of the Act as well as petitions under Section 110-A of the Act. While there was no dispute with respect to the applicatjons under Section 92-A of the Act in light of the judgement given in Shivaji Dayanu Patil (Supra), the claims tribunal dismissed the claim petitions under Section 110-A of the Act. Award of the claims tribunal was set &. .,T crz p aside by the High court; The matter reached the Hon'ble Supreme &\ $e,. iB',"'' -47 & 0% Court. The Hon'ble supreme Court observed that since the matter 4 y9 5,.&%J3, -& p & had already been decided by the Supreme Court in Shivaji V y Tb@ if .% Dayanu Patil (Supra) and no additional evidencelmaterial was available with the tribunal, in the cts and circumstances of the case, the matter was squarely covered by the judgement in " "4 g & .a &&?&& w'q 7(%k$fgygx3&9$ : f2 ?e4y ,.P.& - .. ~~FPII-~~~~,,~ "thvq: gpv* Shivaji Dayanu Pati e observations by the Hon'ble court in Yadu S re giiren on the peculiar facts and circumstances as clear from the observations given in Para 13:

¶56

'In a g.iven case, on the basis of the evidences later on adduced before it in the main proceeding under section IIOA of the Act, it may be possible. for the Claims Tribunal to arrive at a finding at variance with the finding recorded by a superior court on the same issue on an application undersection 92A of the Act. But the variant finding by the tribunal must be based on some material facts coming to light from the evidences led before it that were not available before the superior court while dealing with the proceeding under section 92A of the Act. In this case, however, as correctly noted by the High Court, the position is entirely different. It is true that the case Shivaji Dayanu Patil arose from the claim for no-fault compensation under section 92A but all the material facts

¶57

were already before the court and all the contentions being raised now were considered at length by this Court in that case ... N

¶58

The next case relied upon by the learned counsel for the Appellants was given by the Gujarat High Court in Saudagarsing Chhajusing (Supra). In this case, a motor cycle had rammed into a stationary truck, which was parked by the driver without "I" Y 4"; %&?A% f5ejki m~C &&, having switched on the parking lights or indicators. The Gujarat .%\T " L ;i@s3 High Court held that there was no contributory negligence and a L~A held the owner liable. On similar facts, the owners were held liable -%" @-ay@7 in the other judgements relied upon by the counsel including &*Tf@?& Ci" : '

¶59

Pushpinder Kaur S n Lal (Supra)

¶60

Coming to the facts of the instant case, the claim petition 3Ki was dismissed by the nly on. the ground that the offending vehicle was in the of the state Police and hence, there was n of the driver. While this finding seems plausi f the record makes .it

¶61

¶62

perverse. There is no oral or documentary evidence on record to BiyB prove that the offending tually in custody of the %. % Police. Merely because it was mentioned in the FIR no. 80/1994 t t% "-gw I7 -8 -%Zg (Ex.-1) that the vehicle was in custody of the police, it cannot be concluded that the vehicle actually was. No seizure memo was brought on record. Moreover, no cross-examination was done in this regard by the respondents from the eye-witness that the vehicle had actually been parked by the Police and not the driver of the vehicle. There is yet another important aspect to the

¶63

matter. Even if it is believed that the vehicle was indeed in the custody of the Police, it was the bounden duty of the driver of the vehicle to switch on the parking lights and the indicators before giving custody to the police. It is an admitted fact that the lights of the vehicle were not on at the time of the accident, making it difficult for any passer-by to see the vehicle from a distance at night. Thus, I am of the view that the Respondents cannot eschew Ia. 7k-r their liability by contending that the vehicle was in the custody of >-"" "^47 B"t &,y2 _F_ the Police and the driver was not at all negligent. %+Y "a*- up, etJ;%x ISSUE No. I1 y. h- % /J

¶64

At this juncture, it is important to examine whether or not the deceased along with the rider of the motor bike were negligent +> K1;.atabb+:$r38Ve +hk 6tk uc . . . , .*dZe J,. , too, thereby making .the principle of contributory negligence '~.-F$pdxywp@fp&qgd$q&-&w $%' ?'.'"' <. .. ,& ,&.,&&&: $;a. applicable to the instant case. From the record i.e. the FIR as well

¶65

as the charge-sheet, it has come out that the rider of the motor 'V cycle and deceased were themselves negligent. The deceased was q , $1 ,.p .lu9 g $$i y $$i kr g& riding on a motorbike with a rider and another pillion rider, making it three people on a single motorcycle which goes against the w 'F-% "?',%3& WJ T$%:q$w&=+-&l"." -+- .@yJ- '. qi * g provisions of the Act of 1988. Further, it has been o.bserved by the learned tribunal that the motor cycle had collided with the truck 7T+ $--=a *d,:p# from the wrong side, making it obvious that the motor cycle was being ridden in the wrong direction of the road. In view of this, I think the rider of the motor cycle and deceased were negligent to the extent of 50% and hence the compensation to be awarded has to be reduced accordingly.

¶66

The income of the deceased was assessed by the Tribunal as Rs.2,100/per month which calls for no interference. As the

¶67

deceased was aged about fifty-five years at the time of accident, therefore, multiplier of eleven is to be applied. Keeping in view the number of the dependents, 1/3rd is to be deducted towards personal expenses of the deceased. In this way, the total dependency of the claimants comes to Rs. 1,400x12x11=1,84,800/-. In view of the judgment of Honlble Apex Court in National Insurance Company Limited Vs. : '" '&. 'g rr . ~y ' "&--%\ Pranay Sethi & Ors. reported in AIR 2017 SC 5157 claimants & "k '$,,j%2e # '""7 would be further entitled to receive an addition of 10% towards y"v @&, fl &P , future prospects of the deceased. Claimants would be also entitled YL. YF :;Tar g 2 1 to receive a sum of Rs.70,000/- towards conventional heads. Thus the amount comes to Rs.2,03,280/(1,84,800+18,480). Thus the _@]&6@$$3_ "2 .., , total amount of compensation receivable by the claimants comes -7 "%ha:+& $9fiJ6wyJF!'4, ,$T$"$@,XL ki,J $ &24ik&&iA , qA,: && $b*:fi>i,4,,, to Rs.2,03,280 + 70, ince the rider of the motorcycle and the de t to the extent of 50% and hence the claimants are entitled to receive only half the 1 P fl ii 11 compensation i.e. Rs. I

¶68

In view of th appeal is allowed. Judgment and award sed by Motor Accident Claims Tribunal, Jaipur District, Jaipur is quashed and set aside %a and the claim petition is partly allowed. The claimants are entitled to receive Rs.1,36,640/amount as compensation with the interest @ 6 O/O from the date of filing of the claim petition till realisation. The respondents are jointly and severally liable to pay the said compensation and interest.

Smt Rajan Devi and Ors. v. Sajjan Singh and Ors.

Case brief

What is this about?

What did the court decide?

Smt Rajan Devi and Ors. v. Sajjan Singh and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Raj State Road Transport Cor Vs Smt Sushila Bai and Ors.

Raj State Road Transport Cor Vs Smt Kamlesh Bai and Ors.

Raj State Road Transport Cor Vs Devlal Bairwa and Ors.

Smt Ummed Devi and Others Vs Gopal and Others

Shankar Lal Vs Reliance Gen Insurance Co. Ltd. and Others

Shiv Kumar Ranasariya Vs Chhaju Ram Pansari and Others