Partly allowed

Om Dutt and Ors. v. Manoj and Ors.

Rajasthan HC1 Feb 2024CMA/2875/2017

Case brief

AI extract

What is this about?

The High Court dismissed the insurance company's appeal challenging liability, affirming the vehicle was not hired. It partly allowed the claimants' appeal, modifying compensation by accepting higher income proof and recalculating deductions and consortium losses according to Supreme Court precedents, enhancing the total award to Rs. 23.17 lakhs.

What did the court decide?

Insurance company directed to deposit Rs. 15,35,420/- (enhanced compensation) with the Tribunal within two months; excess appeal dismissed; original award partly allowed.

Om Dutt and Ors. Vs Manoj and Ors. — Insurance | Rajasthan HC (2024)

¶1

[2024:RJ-JD:5424]

¶2

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Civil Misc. Appeal No. 2640/2017

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United India Insurance Company Limited, Through Its Legally Constituted Authority, T.p. Hub, 74A, Bhati-N-Plaza, Pal Road, Jodhpur.

¶5

----Appellant

¶6

Versus

¶7

Om Dutt S/o Banwari Lal Sharma.

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Smt. Santosh W/o Om Dutt Sharma.

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Smt. Manju W/o Late Sanjay Kumar Sharma.

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Mst. Vidhisha D/o Late Sanjay Kumar Sharma, Now Major. 5. Mst. Himani D/o Late Sanjay Kumar Sharma, Minor Through Her Natural Guardian Mother Smt. Manju. All Residents Of Ward No. 21, Bhadra, District Hanumangarh

¶11

Manoj S/o Kalu Ram Goswami, Driver

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Jaideep S/o Kalu Ram Goswami, Owner Both Residents Of Ward No. 22, Bhadra, District Hanumangarh.

¶13

----Respondents

¶14

Connected With

¶15

S.B. Civil Misc. Appeal No. 2875/2017

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Om Dutt S/o Shri Banwari Lal, By Caste Sharma, Resident Of Ward No. 21, Bhadra Tehsil Bhadra District Hanumangarh.

¶17

Santosh W/o Om Dutt, By Caste Sharma, Resident Of Ward No. 21, Bhadra Tehsil Bhadra District Hanumangarh.

¶18

Manju W/o Late Sanjay Kumar, By Caste Sharma, Resident Of Ward No. 21, Bhadra Tehsil Bhadra District Hanumangarh.

¶19

Vidisha D/o Late Sanjay Kumar, By Caste Sharma, Resident Of Ward No. 21, Bhadra Tehsil Bhadra District Hanumangarh.

¶20

Himani D/o Late Sanjay Kumar, Being Minor Through Natural Guardian Mother Manju Wd/o Late Sanjay Kumar, By Caste Sharma, Resident Of Ward No. 21, Bhadra Tehsil Bhadra District Hanumangarh.

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----Appellants

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(2 of 12) [CMA-2640/2017]

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[2024:RJ-JD:5424]

¶24

Versus

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Manoj S/o Shri Kalu Ram, By Caste Goswami, Resident Of Ward No. 22, Bhadra Tehsil Bhadra District Hanumangarh. Driver Of Car No. Rj 49Ca 0646

¶26

Jaideep S/o Shri Kalu Ram, By Caste Goswami, Resident Of Ward No. 22, Bhadra Tehsil Bhadra District Hanumangarh. Owner Of Car No. Rj 49Ca 0646

¶27

United India Insurance Co. Ltd. Through Divisional Manager, United India Insurance Co. Ltd. Divisional Office, Sri Ganganagar. Insurer Of Car No. Rj 49Ca 0646

¶28

----Respondents

¶29

For Appellant(s)	: Mr. Jagdish Vyas for Insurance Co.
For Respondent(s)	: Mr. R.S. Choudhary for claimants.
	Mr. Nitin Trivedi for owner & driver

¶30

HON'BLE MS. JUSTICE REKHA BORANA

¶31

Order

¶32

01/02/2024

¶33

Both these appeals arise out of the impugned judgment and award dated 30.06.2017 passed by Motor Accident Claims Tribunal, Bhadra, District Hanumangarh in Motor Accident Claim Case No.46/2015 (48/2015).

¶34

S.B. Civil Misc. Appeal No.2640/2017 has been preferred by the Insurance Company with a prayer to set aside the impugned judgment/award whereby an award for a sum of Rs.7,82,080/with interest @9% per annum has been passed in favour of the claimants whereas S.B. Civil Misc. Appeal No.2875/2017 has been preferred by the claimants seeking enhancement of the compensation amount as awarded vide the impugned judgment/award.

[2024:RJ-JD:5424]

[CMA-2640/2017]

(3 of 12)

Brief facts as per the claim petition are that on 25.09.2015, deceased Sanjay Kumar was travelling in car No.RJ49-CA-0646 driven by Manoj and owned by Jaideep from Bhadra to Khatushyamji. When they reached Kishangarh (Dhani Charnan), a cow came in front of car and as the car was driven rashly and negligently by its driver, the same could not be controlled and hence, overturned. As a result, the deceased fell out and being run over by the car, died on the spot.

¶39

The Insurance Company has challenged the impugned judgment/award on the ground that the vehicle in question was, at the time of accident, run on hire and the same being a breach of the insurance policy, the insurance company could not have been held liable to indemnify the owner.

¶40

Learned counsel for the Insurance Company submitted that the policy in question comprised of a specific condition that the policy shall cover use of the vehicle for any purpose other than hire or reward. As the vehicle in question was being driven on hire, in terms of the above condition, the policy would not cover the compensation qua death of the deceased. To substantiate his arguments, learned counsel relied upon the statements of AW.2Jatin who admitted the fact that the car was hired (although he pleaded ignorance regarding the person who hired the same).

¶41

Counsel further relied upon the statements of AW.1, wife of the deceased, who admitted in her cross examination that Manoj and Jaideep, driver and owner of the car respectively, were not her relatives. He further pointed out to the specific averment in the claim petition itself to the effect that the driver and owner of

[2024:RJ-JD:5424]

[CMA-2640/2017]

(4 of 12)

the vehicle are neither relatives nor acquaintances of the claimants.

¶46

Learned counsel submitted that what can be concluded from the above facts is that neither of the passengers travelling in the vehicle were known to each other nor were they relatives and hence, it is clear that the vehicle was hired and several persons were travelling in the capacity of passengers. Thus the same would not be covered by the insurance policy in question and hence, the insurance company cannot be held liable to pay the compensation. He submitted that liability, if any, would solely be of the owner and the insurance company deserves to be exonerated.

¶47

On quantum, learned counsel submitted that the rate of interest as awarded by the learned Tribunal being on a higher side, deserves interference.

¶48

Per contra, learned counsel for the claimants submitted that it was proved on record that Manoj, driver of the vehicle and other passengers were very well known to each other. Learned counsel relied upon the statement of AW.3-Vicky who specifically denied the factum of the car being hired and stated that deceased Sanjay Kumar and he frequently travelled together. Learned counsel further relied upon statement of NAW.1-Manoj, driver of the vehicle in question, who specifically admitted that deceased Sanjay Sharma was working as an ad-hoc teacher in the school of which his father was the Manager and wherein, he himself was a teacher.

¶49

Learned counsel further submitted that even NAW.2-Ashish, Assistant Manager of the Insurance company, admitted that he did

[2024:RJ-JD:5424]

[CMA-2640/2017]

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not conduct any enquiry regarding the factum of the car being hired. Further, no evidence was led by the Insurance Company to prove that any rent/amount was paid by anyone to hire the car. Therefore, it was not proved on record that the car was hired. Rather, on the contrary, it was proved that all the passengers were known to each other.

¶54

On quantum, learned counsel for the claimants submitted that the Tribunal erred in not considering income of the deceased as a Teacher while computing the compensation qua loss of income. He submitted that it was clearly proved on record that the deceased was working as an ad-hoc/part time Teacher and two certificates pertaining to his salary in two different schools at different point of time, had even been exhibited which have wrongly been ignored by the learned Tribunal.

¶55

Further, learned Tribunal erred in not considering the future prospects qua the loss of income. He submitted that the amount of Rs.1,00,000/- only qua the head of consortium has also wrongly been awarded whereas it is clear on record that there were five dependents of the deceased. Further, the deduction of 1/3^rd of the income qua personal expenses as made by the learned Tribunal, is also erroneous as the same ought to have been 1/4^th keeping into consideration the number of dependents.

¶56

Learned counsel appearing for the owner and driver, while adopting the arguments of learned counsel for the claimants qua the factum of the vehicle not being hired, supported the impugned judgment.

¶57

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

(6 of 12)

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[CMA-2640/2017]

AW.3-Vicky, in his cross examination, admitted as under: “;g dguk xyr gS fd ge dkj fdjk;s djds ys tk jgs FksA”

¶62

He further submitted as under:

¶63

“lat; dqekj gekjs v/;kid FksA lat; dqekj ds lkFk gekjk vkuk tkuk FkkA”

¶64

NAW.1-Manoj, in his chief examination, submitted as under: “gekjs Ldwy dk ,Mgksd v/;kid lat; “kekZ o fedj ds tkudkj tfru o foDdh Hkh lkFk FksA”

¶65

NAW.2-Ashish, in his cross examination, admitted as under: ^ “ eq>s /;ku ugha erd lat; dqekj okgu&MªkbZoj o ekfyd ds Ldwy esa ukSdjh djrk gSA ;g lgh gS fd geus nq?kZVuk o chek ikWylh dh “krksaZ ds mYya?ku ckcr dksbZ tkap ugha djokbZA ;g ckr lgh gS fd dkj dh iSdst ikWylh gksA dkj esa lokj tfru o lat; ds vykok eSa fdlh dks ugha tkurkA tfru ls eSa dHkh ugha feykA e **** rd lat; D;k dke djrk Fkk eq>s tkudkjh ugha gS eSa mlds ?kj dHkh ugha x;kA ;g lgh gS fd dkj ekfyd] pkyd o tfru ls eSaus dkj fdjk;s ckcr dksbZ iwNrkN ugha dhA iqfyl -pkyku dh izfr0 gekjs dk;kZy; esa gSA eq>s ;kn ugha dh iqfyl us viuh tk¡p esa dkj fdjk;s ij uk py dj futh mi;ksx esa py jgh gks ekuk gksA e`rd us fdldks o fdruk fdjk;k fn;k eq>s irk ughaA ”

¶66

A perusal of the above statements prove beyond reasonable doubt that the passengers travelling in the vehicle were definitely known to each other. Manoj, driver of the vehicle, has specifically admitted that deceased Sanjay Kumar was a Teacher in his school. Further, Vicky has also admitted the factum of Sanjay Kumar being a Teacher and he being known to him. Further, there is no evidence available on record to show that any rent was paid by any of the passengers to the driver/owner of the vehicle neither is there any receipt to suggest so.

¶67

Further, it is an admitted case of the witness of insurance company itself that no investigation qua the said aspect was

[2024:RJ-JD:5424]

[CMA-2640/2017]

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conducted by the insurance company. The witness, rather admitted that he was not aware whether any amount was paid by the deceased to anyone. In view of the above statements and specific admissions, finding as reached by the learned Tribunal does not deserve any interference, the same being totally in consonance with the material evidence available on record. There is nothing on record to believe that the vehicle was hired. Therefore, the ground as raised by learned counsel for the insurance company that there was a breach of the policy conditions, does not seem to be plausible one.

¶72

The finding on issue No.3 as decided against the insurance company by the learned Tribunal, is hereby affirmed.

¶73

So far as the quantum of compensation is concerned, the learned Tribunal observed and concluded that there is nothing on record to prove the income of the deceased as a Teacher and hence, the learned Tribunal proceeded on to consider the income of the deceased on the basis of the minimum wages as prevalent in the month of June, 2015.

¶74

The learned Tribunal hence, computed the income of the deceased to be Rs.6270/- per month (Rs.209/- per day). After applying multiplier of 13 and deducting 1/3^rd of the income qua personal expenses, the loss of income was computed for a total amount of Rs.652080/-. An amount of Rs.25,000/- qua the funeral expenses, Rs.1,00,000/- towards love and affection and Rs.5,000/- towards ambulance expenses had also been awarded by the learned Tribunal thereby summing up the amount for Rs.782080/-.

[2024:RJ-JD:5424]

[CMA-2640/2017]

(8 of 12)

So far as the finding of the learned Tribunal that the income of the deceased was not proved on record is concerned, the same being totally contrary to the evidence and the material available on record, cannot be affirmed. The finding of the learned Tribunal that the salary certificate as exhibited on record proved that the deceased was not employed permanently and hence, the salary on the basis of the said certificate cannot be justifiable and further the computation of future prospects on basis of the said temporary employment is also not legally possible, being totally in contravention to the settled position of law cannot be said to be tenable.

¶79

The Hon’ble Apex Court in the case of Rajwati and Ors. Vs. United India Insurance Company Ltd. and Ors.; Civil Appeal

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No. 8179 of 2022 decided on 09.12.2022 held as under:

¶81

“20. In view of the above, we do not agree with the view taken by the High Court while rejecting the salary certificate (Exhibit 19) and pay slip (Exhibit 20) of the deceased merely on the ground that the person issuing the two aforementioned documents was not examined before the Learned Tribunal. The said documents are conclusive proof of the income of the deceased and were also corroborated by the statements of the deceased’s wife (Appellant No. 1 herein) and his co-workers . As such, the High Court was not justified in assessing the income of the deceased at Rs.4,836/- per month on the basis of minimum wages fixed by the State at the relevant time.”

¶82

The Hon’ble Apex Court in the case of Kaushnuma Begum and Ors. Vs. The New India Assurance Co. Ltd. and Ors.;

¶83

(2001) 2 SCC 9 held as under:

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“.. But PW-1 widow of the deceased said that her husband's income was Rs.1,500/- per

(9 of 12)

[2024:RJ-JD:5424]

[CMA-2640/2017]

month. PW-4 brother of the deceased also supported the same version. No contra evidence has been adduced in regard to that aspect. It is, therefore, reasonable to believe that the monthly income of the deceased was Rs.1,500/-”

¶89

Applying the above ratio to the present matter, AW.1-Manju, wife of the deceased, specifically deposed that her husband earned Rs.14,000/- per month. She got exhibited two salary certificates (Exh.19 & 20) pertaining to two schools where her husband was employed in the years 2014 and 2015, that is, just before his death. Further, even the mark-sheet of B.P.Ed. examination (Exh.23) and the college leaving certificate of B.P.Ed. (Exh.24) were also placed on record to prove that the deceased was possessing a valid qualification to be a Physical Education Teacher and was employed as such.

¶90

AW.3-Vicky @ Krishna Kumar, in his cross examination, admitted that deceased Sanjay Kumar was his teacher. Even NAW.1-Manoj admitted that deceased Sanjay Sharma was employed with his school and a salary of Rs.14,000/- was paid to him.

¶91

The above evidence as led and the documents corroborating the said evidence, in the opinion of this Court, are sufficient enough to prove that the deceased was working as a Physical Education Teacher. So far as the salary of Rs.14,000/- being paid to him is concerned, there is nothing contrary available on record to disprove the same. Meaning thereby, the oral evidence as well as the salary certificates as exhibited on record have not been controverted by anyone and hence, there is no reason to disbelieve the same.

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[CMA-2640/2017]

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In view of the same, the computation of income of the deceased @ Rs.6,270/- per month being erroneous deserves modification. The income of the deceased deserves to be computed @ Rs.14,000/- per month. So far as deduction of 1/3^rd of income qua personal expenses by the learned Tribunal is concerned, the same also deserves modification keeping into consideration the number of dependants which is five. Hence, the deduction of 1/4^th ought to be made qua personal expenses. 25% of the actual income towards future prospects also deserves to be added to the income as assessed.

¶96

So far as the ground of the amount payable under the conventional heads is concerned, the Hon’ble Apex Court in the case of National Insurance Company Limited Vs. Pranay Sethi & Ors.; (2017) 16 SCC 680 has fixed the amount payable under the conventional heads, namely, loss of estate, loss of consortium and funeral expenses to be Rs. 15,000/-, Rs. 40,000/and Rs.15,000/- respectively. Further, the Hon’ble Apex Court in the case of Magma General Insurance Co. Ltd. vs. Nanu Ram and Ors.; (2018) 18 SCC 130 interpreted ‘consortium’ to be a compendious term, which encompasses spousal consortium, parental consortium as well as filial consortium. Meaning thereby, learned Tribunal erred in awarding a lumpsum amount of Rs.1,00,000/- qua ‘loss of consortium’ whereas as per the above ratio, Rs.40,000/- ought to be granted to each claimant.

¶97

Further, the amount under the head of loss of consortium deserves to be enhanced at the rate of 10% every three years from the date of judgment of Pranay Sethi (supra) i.e. 2017 and

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[CMA-2640/2017]

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therefore the amount under the head ‘loss of consortium’ deserves to be enhanced to Rs.48,000/-.

¶102

In view of the above analysis, the amount under the ‘conventional heads’ deserves to be modified as under:

¶103

Loss of estate: Rs.15,000/-;

¶104

Loss of consortium: Rs.48,000/- to each claimant; Funeral expenses: Rs.15,000/-.

¶105

Resultantly, S.B. Civil Misc. Appeal No.2640/2017 as preferred by the Insurance Company is dismissed . S.B. Civil Misc. Appeal No.2875/2017 preferred by the claimants is partly allowed . The impugned judgment/award is hereby modified to the

¶106

extent as under:

¶107

1.	Income per month (after adding future prospects(25%) and deduction towards personal and living expenses(1/4^th) in the monthly income of Rs. 14,000/-)	Rs.13,125/-
2.	Loss of Annual Income (as per the Tribunal, multiplier of 13).	13125x 12 x 13 = Rs.20,47,500 /-
3.	Under the head of ‘loss of estate	Rs.15,000/-
4.	Under the head of ‘consortium’	Rs. 48,000/- each to appellant Nos.1,2,3,4 & 5 Total: Rs. 2,40,000/-
5.	Under the head of ‘Funeral expenses’	Rs.15,000/-
6.	Total amount of compensation	Rs.23,17,500/-
7.	Amount awarded by the Tribunal.	Rs.7,82,080/-
8.	Enhanced amount of compensation	Rs.23,17,500/- -Rs. 7,82,080/- -------------------- Rs.15,35,420/-

¶108

The enhanced amount qua the loss of income and other heads shall carry an interest at the rate of 6% per annum from the date of filing of the claim petition. However, the amount awarded vide this order qua the head of consortium shall not carry any interest as the same already comprises of a 10% increase for

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[2024:RJ-JD:5424]

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[CMA-2640/2017]

¶111

every three years and hence, has been computed to be Rs.48,000/-.

¶112

The respondent insurance company is directed to deposit the enhanced amount of compensation with the Tribunal within a period of two months from the date of receipt of the copy of this order failing which, the same shall carry interest @ 7.5% per annum from the date of this order till actual realization. Upon deposition, learned Tribunal is directed to disburse the same to the claimants in terms of the award.

¶113

Stay petition and all pending applications also stand disposed of .

¶114

(REKHA BORANA),J

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56,58-SPhophaliya/T.Singh/-

Om Dutt and Ors. v. Manoj and Ors.

Case brief

What is this about?

What did the court decide?

Om Dutt and Ors. v. Manoj and Ors.

Case brief

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