Allowed

Smt Mohari Devi and Ors. v. Ram Karan and Ors.

Rajasthan HC30 Oct 2023CMA/396/1997

Case brief

AI extract

What is this about?

The High Court dismissed the appeal by the National Insurance Company but set aside the Tribunal's award. It directed the insurer to pay revised compensation of Rs. 6,83,600, including loss of future prospects, along with interest.

What did the court decide?

Compensation increased to Rs. 6,83,600 with interest; insurer to pay within three months.

Smt Mohari Devi and Ors. Vs Ram Karan and Ors. — Insurance | Rajasthan HC (2023)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Civil Miscellaneous Appeal No. 396/1997

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Smt. Mohari Devi W/o Chhotu Ram, aged 50 years, (SINCE DECEASED)

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Smt. Santra W/o Shyam Sunder, aged 23 years,

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Kumari Mohani D/o Shyam Sunder, aged 5 years,

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Bablu S/o Shyam Sunder, aged 3 years,

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Kumari Rajani D/o Shyam Sunder, aged about 2 years,

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Appellant No. 3 to 5 are minors, through their mother/natural guardian Smt. Santra W/o Shyam Sunder, All R/o Bhabhru, Tehsil Shahpura, District Jaipur (Raj.)

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Versus

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Ram Karan S/o Bhura Mal, R/o Nathawali Dhani, Sherawata, Thana Shahpura, District Jaipur, (Diver Owner)

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Sardar Mal S/o Kanaram, R/o Manda, Tehsil Kotputali, District Jaipur (Raj.).

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National Insurance Company Ltd. Through Regional office at 10 Narayan Singh lane, Narayan Singh Circle, Jaipur.

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For Appellant(s) : Mr. Kamal Gupta For Respondent(s) : Smt. Archana Mantri

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HON'BLE MR. JUSTICE BIRENDRA KUMAR

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Judgment Reserved on : 12/10/2023 Judgment Pronounced on : 30/10/2023

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The appellants are mother, widow and children of late Shyam Sunder, a victim of motor vehicle accident. The appellants are not satisfied with the quantum of compensation awarded by the Motor Accident Claims Tribunal, Kotputli by judgment and award dated 10.1.1997 passed in Motor Accident Claims Case No. 463/93.

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Heard learned counsel for the appellants and insurance company -respondent No.3. The driver and owner of the vehicle

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who are respondents No. 1 and 2 neither contested the claim case nor appeared in this appeal.

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The uncontroverted facts of the case are that on 22.4.1991, the Tractor bearing Registration No. PUW 7288 was going on to the field carrying manure. Shyam Sunder was also on the tractor to unload the manure in the field. Due to rash and negligent driving of the tractor, the same turtled and Shyam Sunder aged 25 years died on the spot.

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Before the Claims Tribunal, the claimants-appellants produced a copy of FIR No. 121/91 registered with Police Station Shahpura, District Jaipur for offences under Sections 304-A and 279 IPC along with other supporting documents i.e. charge-sheet, post mortem report and a copy of the policy of insurance. AW/1 Smt. Santra (appellant No.2) deposed that the deceased was doing labour work in the day and was working as loader in the night. He was earning Rs. 2,000/- per month. In the evidence, she stated that the deceased used to pay Rs. 2,000/- to her for expenses. The witness has not been cross-examined on the income and age of Shyam Sunder, even by suggestion to the contrary.

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AW/2 Nathuram, AW/3 Chittar and AW/4 Kailash are eyewitnesses of the incident rather they were on the same tractor as labour to unload the manure. The Insurance Company examined only witness Vijay Kumar Bairwa, who has deposed that as per terms of insurance policy, the tractor was to be used only for agricultural purposes and not for carrying passengers.

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From the evidence on record, it is evident that the tractor was being used at the time of incident for agricultural purposes as it was carrying manure to be put in the field and the people on the tractor were labour to unload the manure.

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Learned counsel for the appellants contends that Shyam Sunder was admittedly aged about 25 years, hence, multiplier of 18 should have been applied, however the learned Tribunal wrongly applied the multiplier of 14. Learned counsel next contends that there was no contrary material on the record regarding income of the deceased, therefore, the Tribunal wrongly adopted Rs. 1,000/- as income permissible for daily wagers. Learned counsel contends that considering the number of dependents 1/4th deduction should have been made for the personal expenses of the deceased, however, the Tribunal wrongly deducted 1/3rd. Learned counsel further contends that nothing was awarded under conventional head i.e. for loss of consortium and loss of estate etc. and funeral expenses or for loss of future prospect.

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It appears that against claim of Rs. 18,00,000/-, the Tribunal awarded Rs. 1,30,000/- along with interest @ 12% from 6.5.1991 till payment.

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Learned counsel for the Insurance Company contends that in absence of any trustworthy evidence of income of the deceased, the Tribunal has correctly adopted the amount payable to a daily wager. On other issues, learned counsel for the Insurance Company has no reservations.

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From the testimony of AW/1 Santra, it is evident that the deceased was working in the day as well as in the night shift. In the day shift, he was working as a labour and in the night shift, as a loader. The aforesaid statement of the witness has not been controverted, even by making any suggestion to the contrary. Moreover, the claimed income cannot be regarded as being unreasonable or contrary to the realistic assessment of the situation on the date of accident. For such a small amount, no documentary evidence can be available in each and every case, therefore, the income of the deceased is taken as Rs. 2,000/- per month. A just deduction would be of 1/4th, considering the number of dependents and already settled law in Sarla Verma & Ors vs Delhi Transport Corp.& Anr reported in (2009) 6 SCC 121, which was approved in National Insurance Company Limited Vs. Pranay Sethi and Others, reported in (2017) 16 SCC 680. Likewise, considering the age of the deceased, the appropriate multiplier would be of 18. In view of the judgment in Magma General Insurance Co. Ltd. Vs. Nanu Ram and Ors. reported in (2018) 18 SCC 130 each of the dependents of the deceased are entitled for Rs. 40,000/- for loss of consortium.

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One more contention of the respondent is that the accident took place much prior to the judgment in Sarla Verma and Pranay Sethi (supra), hence the same cannot be applied to review the award made prior to the aforesaid judgment.

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It is made clear that guidelines in Sarla Verma and Pranay Sethi’s case (supra) as well as in subsequent judgments is to reach at a “just compensation”, which would be applicable in the

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matter of accident which took place prior to the aforesaid judgments as well as in the matter of adjudication made by the Tribunal prior to these judgments.

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In United India Insurance Company Vs. Satinder Kaur @ Satwinder Kaur & ors., reported in 2020 SCC Online SC 410 decided on 30.6.2020 accident took place in the year 1998 and, award was made in the year 2001, however the Hon’ble Supreme Court relied on the settled guidelines in the subsequent judgments to reach at a “just compensation”. Again in New India Assurance Company Vs. Smt. Somwati & ors. , reported in 2021 (1) SCR 25 (SC), the Hon’ble Supreme Court granted just compensation in a case wherein accident took place on 6.12.2001 and the Tribunal made made award on 22.3.2003, the Hon’ble Supreme Court again calculated compensation as per fresh guidelines and settled view in Pranay Sethi’s case (supra). 11. Thus, after deduction of 1/4th for personal expenses of the deceased, the loss of dependency comes to Rs. 1500 X 12x 18 equal to 3,24,000/-. The appellants would be further entitled to Rs. 1,29,600 as 40% payable for loss of future prospect. This amount would be payable in view of settled proposition in Pranay Sethis’ case (supra). The claimants would be entitled for 40,000/each for loss of consortium amounting to a total amount of Rs. 2 lacs. Besides that, Rs. 15,000/- each for funeral expenses and for loss of estate is also payable. Thus, the total payable compensation calculated as Rs. 6,83,600/-.

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