Partly allowed

Smt. Shanti Devi and Ors. v. Nainu Kathat and Ors.

Rajasthan HC2 Sept 2024CMA/1275/2017

Case brief

AI extract

What is this about?

The High Court modified the compensation awarded by the Motor Accident Claims Tribunal in a death case. The Court upheld the insurer's appeal to reduce certain compensable heads, calculating a final amount of Rs. 21,65,220/- instead of the Tribunal's award of Rs. 28,24,712/-, while dismissing the claimants' appeal for enhancement.

What did the court decide?

Compensation reduced to Rs. 21,65,220/-; judgment and award of MACT modified; interest excluded on consortium, funeral, and loss of estate heads.

Smt. Shanti Devi and Ors. Vs Nainu Kathat and Ors. — Motor Accident Claims | Rajasthan HC (2024)

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[2024:RJ-JD:36253]

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Civil Misc. Appeal No. 2503/2017

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IFFCO TOKIO General Insurance Co. Ltd., Regd. Office IFFCO Sadan C1 Distt. Centre, Saket, New Delhi- 110017.

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----Appellant

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Versus

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Smt. Shanti Devi W/o Late Nain Singh,

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Jeewan Singh S/o Late Nain Singh,

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Hukam Singh S/o Late Nain Singh,

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Ganga Singh S/o Late Nain Singh,

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Jasoda D/o Late Nain Singh,

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Kaushlaya D/o Late Nain Singh,

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Shiv Singh S/o Late Nain Singh, All residents of 328, Anand Nagar, Sardar Samand Road, Pali, Teshil Pali, District Pali Raj. Respondent Nos. 6 and 7 through natural Guardian mother Smt. Shanti Devi.

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Nainu Kathat S/o Subhan, R/o Chittad Vadiya Salpada, Tehsil Raipur, Police Station Sandhara, District Pali Raj.

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Faij Mohd. S/o Madari Khan, R/o Village Khanpura, Police Station, Ramganj, District Ajmer Raj..

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----Respondents

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Connected With

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S.B. Civil Misc. Appeal No. 1275/2017

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Smt. Shanti Devi W/o Late Shri Nain Singh, aged about 54 years,

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Jeevan Singh S/o Late Shri Nain Singh, aged about 32 years,

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Hukam Singh S/o Late Shri Nain Singh, aged about 30 years,

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Ganga Singh S/o Late Shri Nain Singh, aged about 29 years,

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Jasoda D/o Late Shri Nain Singh, aged about 26 years, 6. Kaushalya D/o Late Shri Nain Singh, aged about 24 years,

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Shiv Singh S/o Late Shri Nain Singh, aged about 21 years, Appellant No. 6 To 7Are Minor Through Their Natural Guardian Mother Smt. Shanti Devi.

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(2 of 8) [CMA-2503/2017]

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[2024:RJ-JD:36253]

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All residents of 328, Anand Nagar, Sardar Samand Road, Pali, Tehsil and District Pali.

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----Appellants

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Versus

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Nainu Kathat S/o Subhan, Resident of Chitad Wadia, Salpada, Tehsil Raipur, P.S. Sendra, District Pali. ...driver

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Faiz Mohd. S/o Madari Khan, Resident of Village Khanpura, P.s. Ramganj, District Ajmer. ...owner

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IFFCO TOKIO General Insurance Co. Ltd., Regd. Office Iffco Sadan, C-1, District Centre, Saket, New Delhi. ...Insurance Co.

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----Respondents

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For Appellant(s) : Mr. Ayush Goyal on behalf of Mr. Vinay Kothari, Insurance Co./nonclaimant No.3. For Respondent(s) : Mr. Shanker Singh Rajpurohit, for respondents/claimants

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HON'BLE DR. JUSTICE NUPUR BHATI Judgment

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02/09/2024

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The appellant/non-claimant No.3 and claimants, both have filed by the instant appeals under Section 173 of the M.V. Act, 1988, challenging the validity of the judgment and award dated 02.02.2017 passed by learned Judge, Motor Accident Claims Tribunal, Pali (‘Tribunal’) in MAC Case No.198/2015, whereby the learned Tribunal has awarded compensation in favour of claimants to tune of Rs.28,24,712/- along with interest @ 9% p.a. from the date of filing the claim petition on account of death of Sh. Nain Singh.

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Briefly stated, the facts of the case are that claimants filed a claim petition under Section 140/166 of the M.V. Act, 1988 before the learned Tribunal claiming compensation on account of

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untimely death of their breadwinner late Sh. Nain Singh. In the claim petition it was stated by the claimants that on 08.07.2015, Nain Singh (deceased) was going on his motorcycle bearing registration number RJ-22-SN-4932 from Bewar to Pali. When the deceased reached near Jadan Bus Stand, then a Truck Trailer bearing registration number RJ-01-GA-2440, which was being plied by its driver, applied break of its vehicle and without using indicator turned his vehicle, as a result of which, the deceased who was plying his motorcycle, collided in the truck. On account of injuries sustained by him, Sh. Nain Singh died on the spot. An FIR of the incident was lodged at Police Station Shivpura, District Pali as FIR No.88/2015. Charge Sheet (Ex.1) was filed against Nainu Kathat, driver/non-claimant No.1 of the offending vehicle in the competent court. In the claim petition, it was alleged that the deceased was 52 years of age at the time of accident and he was doing the works of RCC and by doing the aforesaid work, he was earning Rs.17,000/- per month. The claimants thus by filing the claim petition claimed compensation of Rs.91,63,000/- under various heads.

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The non-claimants were summoned. After service of the summons, nobody appeared on behalf of non-claimants No.1 and 2, therefore, exparte proceedings were ordered against them on 27.04.2016. On behalf of non-claimant No.3 i.e. insurance company, reply to claim petition was filed while denying the averments therein for want of knowledge. It was stated in the reply that the deceased was plying the motorcycle without wearing helmet and he was not having valid and effective licence and the accident occurred due to his own negligence. It was

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further stated by the non-claimant No.3 that driver of the offending Truck Trailer was also not having valid and effective licence and thus on account of violation of conditions of the policy, the liability of paying compensation could not have been fastened upon the insurance company. It was further stated that the claimants have claimed excess amount of compensation and prayed for dismissal of the claim petition.

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As per the pleadings of the parties, the learned Tribunal framed four issues, including relief. In support of their claim, the claimants examined two witnesses, viz. AW.1 Shanti Devi and AW.2 Firoz. In documentary evidence, the claimants exhibited 25 documents. On behalf of non-claimants, no evidence was led. 5. The learned Tribunal, after hearing the arguments of the parties and perusing the material placed before, it vide judgment and award dated 02.02.2017 proceeded to partly allowed claim petition and awarded compensation of Rs.28,24,712/- along with interest @ 9% per annum from 15.10.2015, the date of filing of claim petition while holding all the non-claimants jointly and severally liable to pay the aforesaid compensation.

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The claimants by way of filing the misc. appeal have prayed for enhancement of the compensation and the non-claimant No.3/ insurance company has challenged the judgment and award. 7. Learned counsel appearing for the appellant insurance company submits that the learned Tribunal has erred in deducting 1/5^th of the income of the deceased towards his own expenses. He submits that looking to number of dependents i.e. rightful claimants who were four in number, the deduction ought to have been 1/4^th made, inasmuch as three sons of the deceased were

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major. Learned counsel for the appellant further submits that the learned Tribunal has also erred in awarding 15% future prospects, which deserves to be 10% looking to the age of the deceased and the nature of job, inasmuch as the deceased was self-employed. Learned counsel for the appellant/non-claimant No.3 further submits that the learned Tribunal has also erred in awarding consortium/loss of care and guidance for each claimants at Rs.1,00,000/-, which in view of Guidelines laid down by the Rajasthan State Legal Services Authority and in view of judgment passed by Hon’ble Court in the case of National Insurance Co. Ltd v. Pranay Sethi : 2017 (16) SCC 680 deserves to be reduced and modified. Learned counsel for the appellant/nonclaimant No.3 further submits that the compensation awarded under the heads of loss of estate and funeral expenses are also on higher side and the same also deserve to be reduced.

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On the other hand, learned counsel appearing for claimants opposes the submissions made by counsel for the insurance company and submits that the compensation awarded by the learned Tribunal is not adequate and the same deserves to be enhanced. Learned counsel for the appellant submits that the monthly income of the deceased was Rs.17,000/- per month, however, the learned Tribunal has assessed the yearly income of the deceased at Rs.1,97,600/- and the future prospects awarded @ 15% is on lower side and the same deserves to be 50%. Learned counsel for the claimants further submits that the learned Tribunal has applied the multiplier of 11, which is also on lower side and the same deserves to be 18. Learned counsel for the claimants further submits that the compensation awarded under

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other heads also deserves to be enhanced suitably along with interest @ 12% p.a. Learned counsel for the claimants thus prayed for enhancement of the compensation.

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I have considered the submissions made by counsel for the parties at length and have perused the material available on record.

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This Court finds considerable force in the submissions made by counsel for the appellant/insurance company that the learned Tribunal has erred in deducting 1/5^th of the income of the deceased towards own expenses, inasmuch as three sons of the deceased were major and, therefore, the deduction ought to have been 1/4^th made from the income of the deceased. This Court also finds that the learned Tribunal has also erred in awarding 15% future prospects, which deserves to be 10% looking to the age of the deceased and the nature of job. The learned Tribunal has also erred in awarding consortium/loss of care and guidance for each claimants at Rs.1,00,000/-. The learned Tribunal has also awarded excess compensation towards loss of estate and funeral expenses, which also deserves to be reduced.

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This Court also considered the submissions made by counsel for the claimants with regard to awarding 50% future prospects. It is seen that the learned Tribunal assessed the yearly income of the deceased at Rs.1,97,600/- while relying upon Ex.25 [Income Tax Return] and looking to the age of the deceased (52 years 8 months and 27 days) 50% future prospects could not have been awarded, rather the same deserves to be reduced to 10%. This Court also finds that the compensation awarded under other heads viz. consortium/loss of care and guidance for each claimants at

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Rs.1,00,000/-, loss of estate and funeral expenses are also on higher side and the same also deserves to be suitably reduced. The claimants are thus held entitled to get compensation under the head of consortium/loss of care and guidance @ Rs.48,000/for each claimant and the claim awarded by the learned Tribunal under the heads of loss of estate and funeral expenses is also reduced to Rs.18,000/- each. This Court finds no force in the misc. appeal filed by the claimants seeking enhancement of the compensation.

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Accordingly, the compensation awarded by the learned Tribunal towards the loss of income is required to be re-quantified in view of law laid down by Hon’ble Apex Court in the case of Sarla Verma v. Delhi Transport Corporation : AIR 2009 SC 3104, which is as under: -

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Yearly income of the deceased : Rs.1,97,600/- as per Ex.25.

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Calculation: Rs.1,97,600/- x 11 = 21,73,600/Add: Future Prospects (10%) = 2,17,360/- 23,90,960/Less: ¼ deduction 5,97,740/- Loss of Income 17,93,220/-

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Accordingly, the compensation is accordingly re-quantified as

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under: -

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S. No.	Particulars	Amount
1.	Compensation towards loss of income while adding 10% towards future prospects along with multiplier of 11.	Rs.17,93,220/-
2.	Consortium [48,000 x 7 = 3,36,000/-]	Rs. 3,36,000/-
3.	Loss of Estate	Rs.18,000/-
4.	Funeral Expenses	Rs.18,000/-
	Gross Total	Rs.21,65,220/-

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Accordingly and in view of above discussion, the misc. appeal filed by the appellant insurance company is partly allowed and

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appeal filed by the claimants seeking enhancement of the compensation is dismissed, as no case for enhancement of compensation is made out. The claimants are thus held entitle to get compensation of Rs.21,65,220/- instead of Rs.28,21,712/as awarded by the learned Tribunal. The amount of compensation is thus reduced by Rs.6,56,492/- . The judgment and award dated 02.02.2017 passed by the learned MACT, Pali in MAC Case No.198/2015 is modified. The compensation re-determined by this judgment, shall carry interest as awarded by the learned Tribunal from the date of filing of claim petition. It is, however, made clear that no interest shall be payable on the amount awarded under the heads of consortium, funeral and loss of estate, inasmuch as the amount awarded carries an increase of 10% every three year, in view of judgment passed by a Coordinate Bench of this Court in the case of Rasal Kanwar v. Harish Chand : S.B. Civil Misc. Appeal No.1099/2019 decided on 20.03.2024.

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(DR. NUPUR BHATI),J

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2 & 3-DJ/-

Smt. Shanti Devi and Ors. v. Nainu Kathat and Ors.

Case brief

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Smt. Shanti Devi and Ors. v. Nainu Kathat and Ors.

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