Dismissed

The Oriental Insurance Co. Ltd. v. Smt. Lalita and Ors.

Rajasthan HC24 Jul 2024CMA/2223/2015

Case brief

AI extract

What is this about?

The High Court of Judicature at Jodhpur dismissed special civil miscellaneous appeals filed by an insurance company challenging compensation awards granted to claimants of two deceased drivers involved in a fatal motor accident. The Court upheld the Motor Accident Claims Tribunal's finding of negligence by the opposing vehicle. It rejected arguments regarding the deceased's income certainty and pr

What did the court decide?

Compensation withheld and deposited by the appellant insurance company is directed to be paid to the respective claimants within six weeks

The Oriental Insurance Co. Ltd. Vs Smt. Lalita and… — Motor Accident Claims | Rajasthan HC (2024)

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[2024:RJ-JD:30929]

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HIGH COURT OF JUDICATURE FOR RAJASTHAN

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AT JODHPUR

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S.B. Civil Misc. Appeal No. 2224/2015

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The Oriental Insurance Company Limited, through its Deputy Manager Incharge, (Motor T.P. Hub), 637/B, Bhansali Towers, Residency Road, Jodhpur.

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----Appellant/Non-claimant No.3

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Versus

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Smt. Lalita Widow of late Shri Prakash Chandra Kharadi Meena, aged 35 years

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Sagar son of late Shri Prakash Chandra Kharadi Meena, aged 17 years

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Manoj son of late Shri Prakash Chandra Kharadi Meena, aged 15 years

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Smt. Asha W/o Shri Daulat Ram Kharadi Meena, aged 58 years,

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Daulat Ram son of Shri Thavar Chand Kharadi Meena, aged 62 years, Respondents No. 2 and 3 minor through their natural guardian mother Smt. Lalita, respondent No.1, All residents of village Mandela Upali, Tehsil Simalwada, District Dungarpur. [respondents/claimants]

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Mahesh Kumar son of Shri Nanu Ram Meena, Resident of Deval Fala Damor, Police Station Sadar, District Dungarpur.

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Amrit Lal son of Shri Moga Roti Meena, Resident of Sansarpur Padli, Tehsil and District Dungarpur.

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----Respondents

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Connected With

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S.B. Civil Misc. Appeal No. 2223/2015

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The Oriental Insurance Company Limited, through its Deputy Manager Incharge, (Motor T.P. Hub), 637/B, Bhansali Towers, Residency Road, Jodhpur.

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----Appellant/Non-claimant No.3

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Versus

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Smt. Lalita Widow of late Shri Harish Chandra Kharadi Meena, aged 40 years,

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Riya, daughter of late Shri Harish Chandra Kharadi Meena, aged 16 years,

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(2 of 9) [CMA-2224/2015]

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[2024:RJ-JD:30929]

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Navya, daughter of late Shri Harish Chandra Kharadi Meena, aged 13 years,

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Ronak son of late Shri Harish Chandra Kharadi Meena, aged 15 years,

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Smt. Haker Devi Wife of Shri Ranchod Kharadi Meena, aged 65 years,

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Ranchor son of Shri Kanji Kharadi Meena, aged 70 years, Respondents No. 2 to 4 minor through their natural guardian mother Smt. Lalita, respondent No.1, All residents of village Mandela Upali, Tehsil Simalwada, District Dungarpur. [respondents/claimants]

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Mahesh Kumar son of Shri Nanu Ram Meena, Resident of Deval Fala Damor, Police Station Sadar, District Dungarpur.

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Amrit Lal son of Shri Moga Roti Meena, Resident of Sansarpur Padli, Tehsil and District Dungarpur.

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----Respondents

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For Appellant(s)	: Mr. Mukul Singhvi.
For Respondent(s)	: Nonepresent.

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HON'BLE DR. JUSTICE NUPUR BHATI

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Judgment

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24/07/2024

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Appellant/Non-claimant No.3, Oriental Insurance Company Limited has preferred these misc. appeals under Section 173 of the M.V. Act, 1988 assailing the validity of the judgment and award dated 04.08.2015 passed by learned Judge, Motor Accident Claims Tribunal, Dungarpur in MAC Case Nos.543/2014 and 542/2014 respectively, whereby the learned Tribunal has awarded compensation in favour of respective claimants to tune of Rs.20,04,000/- and Rs.24,67,504/- respectively along with interest @9% per annum and the liability to pay compensation has been fastened upon the appellant insurance company.

[2024:RJ-JD:30929]

[CMA-2224/2015]

(3 of 9)

The facts necessary for the disposal of the instant misc. appeals are that the claimants filed claim petitions under Section 166 of the M.V. Act, 1988 claiming compensation on account of death of bread winner, late Sh. Prakash Chandra Kharadi and late Sh. Harish Chandra Kharadi, who lost their live(s) in the accident, which took place on 22.09.2014. The claimants filed claim petitions claiming compensation of Rs.1,01,15,000/- each. In the claim petitions, it was inter-alia alleged that on 22.09.2014 at about 08:30 – 09:00 pm, while the deceased along with two other persons were going on motorcycle bearing number RJ-12-SF-9314 from village Makad Japa to their residence, in front of Khandi Obari Jhouthari Wine Shop on Udaipur-Ahmedabad main road, a vehicle bearing registration number RJ-12-UA-1981, which was being plied by its driver/non-claimant No.1 rashly and negligently, while overtaking, dashed against the motorcycle. As a result of the said accident, the pillion riders, namely, Harish Chandra and Gattu Lal died on the spot and injured Prakash Chandra who sustained injuries, also died during the course of treatment. In the claim petition No.543/2014, it was alleged by the claimant that deceased Sh. Prakash Chandra was employed as teacher in Delhi Central Public School, Navadera, Dungarpur and his monthly salary was Rs.12,000/- and additionally by giving tuition and agriculture works, he was earning Rs.6000/- per month. Likewise, in claim petition No.542/2014, it was alleged by the claimants that deceased Sh. Harish Chandra, who was 32 years of age at the time accident, was working as Teacher in Government Upper Primary School, Mandela and his monthly salary was Rs.11,100/and additionally by giving tuition and agriculture works, he was

(4 of 9)

[2024:RJ-JD:30929]

[CMA-2224/2015]

earning Rs.7000/- per month. The claimants also prayed for awarding them compensation in other heads also.

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Upon receipt of the summons of the claim petitions, nonclaimants No.1 and 2 (driver and owner of the offending vehicle) filed their reply while denying the averments made in the claim petitions.

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On behalf of non-claimant No.3/appellant herein, reply to claim petitions was filed alleging therein that there was no negligence on the part of the driver of the offending vehicle and on the motorcycle three persons were riding and on account of fault on the part of rider of the motorcycle, the accident occurred. An objection with regard to driver of the offending vehicle not having valid and effective licence was also raised. An objection with regard to rider of motorcycle not wearing helmet and not having licence was also taken and there was violation on the part of the riders of the motorcycle, inasmuch as against the capacity of two riders, rider and pillion riders, three persons were there on the motorcycle. It was thus prayed that the claim petitions be rejected.

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As per the pleadings of the parties, the learned Tribunal proceeded to frame consolidated issues for its consideration. The issues framed by the learned Tribunal reads as under:

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“1. vk;k vizkFkhZ la-1 egs’k dqekj okgu pkyd us fnukad 22-092014 dks jk=h ds djhc 8-30 & 9-00 ih-,e- ij mn;iqj ls vgenkckn tkus okys eq[; ekxZ ij ekStk [k.Mh vkscjh >kSFkjh okbZu ‘kkWi ds lkeus okgu ua- vkj-ts-&12@;w-,&1981 dks rstxfr] xQyr o ykijokgh iwoZd pfyr djrs gq, lgh fn’kk esa py jgh e`rdx.k dh eksVjlkbZfdy uavkj-ts-12@,l-,Q-&9314 dks Vddj ekjh nh ftlls

(5 of 9)

[2024:RJ-JD:30929]

[CMA-2224/2015]

eRrdx.k xVwyky] gjh’kpUnz o izdk’kpUnz dh ekSds ij gh eR;q gks xbZ\

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D;k vizkFkhZx.k }kjk vius fyf[kr vfHkdFkuksa dh izkjfEHkd vkifRr;ksa ,oa fo’ks”k dFkuksa ds e/;utj vius nkf;Ro ls eqDr gks ldrs gS ugh rks bldk izHkko D;k gksxk\

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D;k izkFkhZx.k {kfriwfrZ jkf’k izkIr djus ds vf/kdkjh gS rks fdl&fdl vizkFkhZ ls fdruh&fdruh jkf’k izkIr djus ds vf/ kdkjh gS\

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vuqrks”kA”

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In support of their claim, the claimants examined AW.1 Smt. Ganga, Smt. Lalita, AW. Lalita W/o late Sh. Prakash Chandra and AW.4 Vipin and in documentary evidence 38 documents were exhibited. On behalf of non-claimants no evidence, oral or documentary was led.

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The learned Tribunal after hearing the parties and after going to through the material placed before it vide judgment and award dated 04.08.2015 proceeded to partly allow the claim petitions and thereby awarded compensation in favour of respective claimants while fastening the liability upon the appellant/nonclaimant No.3.

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Being appalled by the impugned judgment and award dated 04.08.2015, the appellant has preferred these two appeals.

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A Coordinate Bench of this Court while admitting the appeal (CMA No.2224/2015) vide order dated 27.11.2015 stayed the execution of the judgment and award dated 04.08.2015 passed by the learned Tribunal provided the appellant insurance company deposits a sum of Rs.15,00,000/- against the total awarded sum of Rs.20,04,000/-. The amount of Rs.15,00,000/- was directed to be disbursed to the claimants subject to their furnishing an undertaking that in case the appeal filed by the appellant is

[2024:RJ-JD:30929]

[CMA-2224/2015]

(6 of 9)

allowed, they will refund back the said sum with interest @6% p.a. In the connect appeal being CMA No.2223/2015 while admitting the appeal and granting interim order, identical directions were passed by the Coordinate Bench of this Court on 27.11.2015 while directing the appellant to deposit a sum of Rs.15,00,000/- against the total awarded sum of Rs.24,67,504/-. The amount of Rs.15,00,000/- was directed to be disbursed to the claimants subject to their furnishing an undertaking that in case the appeal filed by the appellant is allowed, they will refund back the said sum with interest @6% p.a.

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This Court in CMA No.2224/2015 vide order dated 16.07.2024 dispensed with service upon respondent No.6/driver of the offending vehicle. In CMA No.2223/2015, a Coordinate Bench of this Court while confirming the interim order, dispensed with service upon respondent No.7/driver. 11. Learned counsel for the appellant/non-claimant No.3 submits that while awarding compensation in favour of claimants the learned Tribunal has not considered the record of the case properly and the law applicable. Learned counsel for the appellant submits that while deciding the issue No.1 in favour of claimants, the learned Tribunal has failed to appreciate the realities and has relied much on the papers submitted by the investigating agency in the FIR. Learned counsel for the appellant submits that three persons, including the deceased, were riding on the motorcycle and on account of negligence on the part of rider of the motorcycle, he lost balance and collided with the offending truck. Learned counsel for the appellant further submits that the rider(s) of the motorcycle were not wearing the helmets and as per the

[2024:RJ-JD:30929]

[CMA-2224/2015]

(7 of 9)

registration certificate two persons viz. rider and one pillion rider were allowed to sit on the motorcycle. Learned counsel for the appellant further submits that the learned Tribunal has also erred in considering the income of deceased, namely, Prakash Chandra at Rs.8,000/- and further adding 50% of income raising the income to Rs.12,000/- towards future prospects. Learned counsel for the appellant submits that deceased Prakash Chandra was a teacher in a private school and thus his income was not certain. Learned counsel for the appellant further submits that 1/3^rd deduction ought to have been deducted, whereas the learned Tribunal has deduction 1/4 from the income of the deceased without there being any justification for the same. Learned counsel for the appellant also questioned the rate of interest awarded by the learned Tribunal @ 9% p.a. Learned counsel for the appellant further submits that deceased, namely, Harish Chandra Kharadi (in CMA No.2223/2015) though was a teacher in a Government school and his salary/income has been considered by the learned Tribunal as Rs.11,000/- per month. Learned counsel for the appellant submits that deceased Harish Chandra Kharadi was on probation and even before completion of probation period, he died. He, therefore, submits that the learned Tribunal has erred while awarding him 40% towards future prospects.

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Despite service of the notice, none is present on behalf of respondents/claimants and respondent/non-claimant/owner. 13. I have considered the submissions made by counsel for the appellant and have perused the material available on record. 14. This Court finds that while deciding the Issue No.1, the learned Tribunal has taken into consideration the final report

[2024:RJ-JD:30929]

[CMA-2224/2015]

(8 of 9)

submitted by the police after investigation, whereby charge sheet was filed against the driver of the offending vehicle for offences under Sections 279 and 304A IPC and also under the provisions of M.V. Act. There was no delay in filing the FIR in the matter and the learned Tribunal also considered the MTR of the Bolero jeep, according to which both the vehicles were reported ‘damaged’ vide Ex.6. This Court finds that the learned Tribunal after considering the Naksha Mauka and other relevant documents has rightly observed that while overtaking, the driver of the offending vehicle was plying its vehicle rashly and negligently and hit the motorcycle from behind and two persons lost their lives on the spot and the injured died later during the course of treatment. 15. This Court finds that while deciding the Issue No.2 the learned Tribunal has observed that the non-claimants failed to produce any oral or documentary evidence in support of their preliminary objections raised in the reply. The driving of the offending vehicle was having valid and effect driving licence to ply the vehicle and the police after investigation filed charge sheet against the driver of the offending vehicle. This Court also finds that looking to the dependency, the learned Tribunal has not committed any error in deducting 1/4 from the total income of the deceased. This Court further finds that both the deceased were working as Teacher, out of which one Sh. Harish Chandra Kharadi was a Government Teacher and other was employed in a private school. In the opinion of this Court, there is no force in the contention of the learned counsel for the appellant that deceased, namely, Harish Chandra Kharadi was a probation trainee and there was no certainty in his income. Suffice it to observe that

[2024:RJ-JD:30929]

[CMA-2224/2015]

(9 of 9)

after completion of probation, the deceased if would have alive, he would be granted regular pay and other benefits. Likewise, deceased, namely, Prakash Chandra Kharadi was also employed as a Teacher, though in a private school and the learned Tribunal has not committed any error in considering his monthly income at Rs.8000/- and also adding 50% increase in future. Further, the multiplier applied by the learned Tribunal considering the age of the deceased, is also correct and thus this Court finds no error in the same.

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In sum and substance and in view of above discussion, this Court finds that the learned Tribunal has not committed any error in awarding compensation in favour of respondents/claimants. There is no force in the misc. appeals filed by the appellant and, therefore, the same are dismissed. No costs. The appellant insurance company is directed to pay the amount of compensation, withheld and deposited under the interim orders passed by this Court, to the respective respondents/claimants within a period of six weeks from the date of receipt of certified copy of this judgment, failing which the same shall carry interest @ 7.5% p.a.

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(DR. NUPUR BHATI),J

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157 & 158-DJ/-

The Oriental Insurance Co. Ltd. v. Smt. Lalita and Ors.

Case brief

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The Oriental Insurance Co. Ltd. v. Smt. Lalita and Ors.

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