Dismissed

National Insurance Co. Ltd. v. Smt Bhanwari Devi and Others

Rajasthan HC24 Aug 2023CMA/1277/2013

Case brief

AI extract

What is this about?

Appeal by insurance company against MACT award dismissing claims for fatal accident compensation. Court rejected liability defense based on empty hazardous vehicle status and upheld compensation quantum.

What did the court decide?

Appeal and stay application dismissed; original judgment and award upheld.

What the court decided

National Insurance Co. Ltd. Vs Smt Bhanwari Devi and Others — Cheque Dishonour | Rajasthan HC (2023)

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[2023:RJ-JP:28793]

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Civil Miscellaneous Appeal No. 1277/2013

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National Insurance Co Ltd, having its registered Office at 3, middleton street, kolkata, west bengal- 700071, having its divisional office at bajaj road, jatia baazar, sikar and having its Regional office at ''Jeevan nidhi'', 2^nd Floor, Bhawani singh road, Jaipur-302005, Jaipur- through its constituent attorney.

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----Appellant

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Versus

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Smt. Bhanwari devi @ santra W/o late sh. Ratan lal, aged about 41 years, R/o Malkeda, tehsil and district sikar, rajasthan.

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Anita D/o Late sh. Ratan lal, aged about 19 years

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Sunita D/o late Sh. Ratan lal, aged about 17 years

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Laxmi D/o Late Sh. Ratan lal, aged about 15 years

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Maina D/o Late Sh. Ratan lal, aged about 11 years

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Santosh D/o Late Sh. Ratan lal, aged about 9 years

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Dalip S/o Late Sh. Ratan lal, aged about 6 years

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Ekta D/o Late Sh. Ratan lal, aged about 4 years Respondents no. 3 to 8 being minor, through natural guardian and mother Smt. Bhanwari devi 2 Santra W/o Late Ratan lal, R/o Malkeda, tehsil and district sikar, Rajasthan

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Smt. Prem devi W/o Mangla Ram, aged about 73 years, R/o Malkeda, tehsil and district sikar, Rajasthan

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-----Claimants/Respondents

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Subhash singh S/o Sh. Amar singh, aged about 31 years, R/o Preetampuri, Neem ka thana, District Sikar, Rajasthan (Driver Tanker No. RJ-23-GA-2423)

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Radheyshyam kanodia S/o Hanuman Prasad, R/o M/s Kanodia Oil store, Neem ka thana, District Sikar, Rajasthan through Power of attorney holder Sh. Rakesh Kanodia S/o Sh. Radheyshyam, R/o M/s kanodia Oil Store, Neem ka thana, District Sikar, Rajasthan (Owner Tanker No. RJ-23-GA-2423)

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----Non-Claimants/Respondent

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For Appellant(s) : Mr. V. P. Mathur For Respondent(s) : Mr. Chandra Shekar for Ms. Soniya Saini

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HON'BLE MR. JUSTICE ASHUTOSH KUMAR

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Order

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24/08/2023

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The present civil misc. appeal has been filed by the appellant-Insurance Company under Section 173 of the Motor Vehicles Act, 1988 (for short ‘the Act of 1988’) against the judgment and award dated 05.02.2013 passed by the Judge, Motor Accident Claims Tribunal, Sikar (for short ‘the Tribunal’) in MACT Case No.287/2010 whereby an amount of Rs.12,79,000/has been awarded as compensation to the claimants.

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Brief facts of the case are that one Ratan Lal was going on his motorcycle on 09.06.2010 towards his village Malkeda. At that time, driver of the Tanker bearing No.RJ-23-GA-2423 (offending vehicle) drove the tanker in rash and negligent manner and hit the motorcycle of Ratan Lal by which he sustained fatal injuries and subsequently died.

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The claimants-respondents filed claim petition before the learned Tribunal. After considering the facts and circumstances of the case and evaluating the evidence available on record, the learned Tribunal has awarded compensation to the tune of Rs.12,79,000/- in favour of the claimants.

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Aggrieved by the impugned judgment and award of the learned Tribunal, the Insurance Company has filed this appeal on the ground that the learned Tribunal has decided the claim petition against the respondent only on the basis of charge-sheet filed against the driver of the offending vehicle.

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Learned counsel for the appellant submitted that learned Tribunal has erred in not considering the contributory negligence

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on the part of the deceased himself. Learned counsel contended that the driver of the offending vehicle was holding a driving license to drive the commercial vehicle only whereas the offending vehicle was being used to transport hazardous substance/chemical. Therefore, the driver of the offending vehicle should have had a driving license to drive the vehicle used for transportation of hazardous substance and in absence of it the Insurance Company is not liable to pay any sort of compensation. 6. Learned counsel further submitted that the learned Tribunal has erred in determining the income of the deceased as Rs.1 lac per annum, as no proof of earning has been produced before it. Learned counsel submitted that in such situation, the income of the deceased cannot be assessed to be more than notional income i.e. Rs.15,000/- per month. Thus, the appeal may be allowed and the impugned judgment and award of the learned Tribunal may be quashed and set aside.

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Per contra, learned counsel for the respondents-claimants submitted that there is no infirmity in the judgment and award of learned Tribunal and there is no merit in the appeal, therefore, the same be dismissed.

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Heard learned counsel for the parties and perused the material available on record.

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Firstly, we will consider the submissions of learned counsel for the appellant to the effect that the driver of the offending vehicle did not possess a driving license to drive the vehicle carrying hazardous substance/chemical, therefore, on the ground of valid and effective driving license there is breach of policy and the Insurance Company is not liable to pay the compensation.

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It is true that offending vehicle is a ‘hazardous substance/chemical carrying vehicle’. The learned Tribunal in the impugned judgment has discussed this fact in detail and held that at the time of accident the offending vehicle was empty and there was no substance in the tanker/offending vehicle, which is clear from the seizure memo of offending vehicle (Ex.7). Therefore, it is insignificant whether driver of the offending vehicle was having driving license to drive the vehicle having hazardous substance or not.

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This finding of the learned Tribunal is cogent and well reasoned which needs no interference by this Court.

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Had the hazardous chemical/substance such as ‘kerosene’ etc being transported at the time of accident then the position would have been somewhat different but as discussed above at the time of accident the offending vehicle was not carrying hazardous chemical/substance and, therefore, no question of breach of policy on the basis of valid and effective driving license arises. Therefore, this objection of the appellant-Insurance Company is not sustainable.

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The impugned judgment has also been assailed by way of this appeal on the ground of quantum. In this case the deceased was said be to earning Rs.25,000/- per month but as per the impugned judgment, no corroborative evidence to support this fact was produced. Thus, the learned Tribunal has rightly not believed on the averments of claimants-respondents. The learned Tribunal has determined income of the deceased as Rs.1 lac. The occupation of the deceased has been told to collect sales tax for the firm Girdhari Lal & Company. Therefore, the deceased is to be

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treated as a skilled labour. The learned Tribunal has assessed the income of the deceased annually, taking into consideration his age and future prospects, which cannot be said to be on a higher side. 14. Furthermore, the claimants-respondents, includes the wife, children and mother of the deceased. The total dependent of the deceased are 9 in number. The dependents are entitled to get spousal consortium, parental consortium and filial consortium respectively @ Rs.40,000/- each as per the judgments of National Insurance Company Limited Vs. Pranay Sethi & Ors. reported in (2017) 16 SCC 680 United India Insurance Company Ltd. Vs. Satinder Kaur @ Satvinder Kaur & Anr. reported in (2021) 11 SCC 780 and Magma General Insurance Co. Ltd Vs. Nanu Ram @ Chuhru Ram & Ors reported in (2018) 18 SCC 130 , whereas the learned Tribunal has awarded Rs.20,000/- to the wife of the deceased and Rs.40,000/- total to the children and mother of the deceased. 15. As per the judgment of Pranay Sethi (supra), Rs.15,000/were to be awarded to the claimants-respondents under the head of loss of estate, whereas the learned Tribunal has awarded only Rs.3000/-, therefore, as per the above discussions it cannot be said that the learned Tribunal has awarded compensation on a higher side to the claimants-respondents on the ground of quantum of the compensation

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