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Rajasthan High Court · body

2006 DIGILAW 1959 (RAJ)

New India Assurance Co. Ltd. v. Saddiq Khan

2006-05-31

VINEET KOTHARI

body2006
Judgment Vineet Kothari, J.-Since these two appeals are arising out of the same award dated 16.08.1993 passed by the Motor Accident Claims Tribunal, Jaipur District, Jaipur (hereinafter referred to as ‘the Tribunal’), therefore, the same are being disposed of by this common Judgment . 2. The Tribunal while deciding claim case No. 819 of 1991 vide its award dated 16.08.1993 awarded a compensation of Rs. 2,90,000/-alongwith interest @ 12% per annum in favour of the claimant on account of death of his elephant named Babli, who died upon being hit by offending jeep bearing Registration No. RNX-9550, which was driven in rash and negligent manner by Respondent No. 1, Saddiq Khan, on 110.1998. The said jeep while coming from the opposite side on Amer Fort Road, Jaipur hit the said elephant, which was carrying the tourists over it and as a result of the said hitting, the said elephant suffered injuries and died after three days. 3. The Tribunal decided Issue No. 1 in favour of the claimant and held that the death of the elephant was on account of the said accident only, therefore, the owner of the elephant was entitled for the compensation. The Tribunal awarded Rs. 1 lac towards the cost of the elephant, which was aged about 35 years at the time of said accident. The Tribunal has also awarded Rs. 1,80,000/- towards the loss of income to the owner which the said elephant would have earned for the owner by being engaged in the tourist activities and Rs. 10,000/-for the funeral expenses. Thus, the Tribunal awarded a total compensation of Rs. 2,90,000/-, which was directed to be paid with 12% interest from the date of filing of the claim petition i.e. 211.1998 within a period of two weeks, failing which the rate of interest would be increased from 12% of 15%. 4. Learned Counsel for the Insurance Company, Mr. Ram Singh Rathore, submits that the compensation awarded by the Tribunal, is excessive and since the cost of the elephant was awarded by the Tribunal the owner thereof could have purchased a new elephant and, therefore, nothing should have been awarded by the Tribunal under the head of loss of income. He also assails the higher rate of interest of 12% particularly the penal rate of interest of 15%. He informs this Court that the Insurance Company has deposited Rs. He also assails the higher rate of interest of 12% particularly the penal rate of interest of 15%. He informs this Court that the Insurance Company has deposited Rs. 80,000/ - as directed by this Court vide order dated 21.01.1994. 5. Mr. G.K. Bhartiya, learned Counsel for the owner of the elephant, firstly submits that the Insurance Company cannot raise the ground of quantum of compensation since the owner and driver of the offending jeep were represented before the learned Tribunal and had contested the claim and no permission has granted by the Tribunal to the Insurance Company under Section 170 of the Act and, therefore, grounds relating to quantum of the compensation cannot be raised. Secondly, relying on the Judgment of Karnataka High Court in the case of New India Assurance Company Ltd. vs. Kalappa Channappa Hanchimani & Anr., reported in 2005 (3) ACC 104, he submits that the elephants have to be treated as living being at par with human beings within the meaning of Section 147(2)(b) of the Act and, therefore, the compensation even on account of loss of income which the owner of such living elephant suffers, can be awarded by the Tribunal. In the said Judgment , the Hon’ble Karnataka High Court has upheld the award of the Tribunal to the extent of Rs. 26,000/-for the loss of one bullock and Rs. 5,000/-towards injury to another bullock and Rs. 6,000/-towards damage of bullock cart in a road accident. He further submits that the claim deserves to be enhanced as the income earned by the said owner of the elephant would have increased over the period and the age of the elephant is normally 90 and 100 years and, therefore, number of working years for the said elephant would have been more. 6. Mr. Ashutosh Bhatiya, learned Counsel for the driver submits that the Insurance Company would be liable to pay the compensation, if any and the driver cannot be held responsible for the same. 7. 6. Mr. Ashutosh Bhatiya, learned Counsel for the driver submits that the Insurance Company would be liable to pay the compensation, if any and the driver cannot be held responsible for the same. 7. A bare perusal of the record further shows that since no specific permission has been given by the Tribunal to the Insurance Company to contest the claim under Section 170 of the Act, which provision requires the Tribunal to record reason in writing as to its satisfaction that there is collusion between person making the claim and the person against whom the claim is made or the person against whom the claim is made has failed to contest the quantum of claim and the Insurance Company can be permitted to contest the claim and only after such permission under Section 170 of the Act, the Insurance Company can raise grounds other than prescribed under Section 149(2) of the Act. 8. Having heard learned Counsel for the parties and upon perusal of the impugned award passed by the Tribunal and record of the case, this Court is of the view that both the appeals filed by the Insurance Company as well as owner of the elephant are devoid of merits. While it is true that the elephant in question who died in the said accident can be treated a living being at par with human being and, therefore, the compensation cannot be limited as is available only for the property of third party as prescribed in the Act, this Court finds no ground to enhance the compensation as well at the instance of the appellant, Sadeeq Khan, owner of the elephant. The Tribunal was awarded cost of purchase of elephant as well as further loss of income. Both taken together fully and adequately compensates the appellant owner’s legal entitlement. This Court also finds that the compensation awarded by the Tribunal towards cost of the elephant and loss of income computed after taking yearly net income as Rs. 36,000/-an applying the multiplier of 5 and thus, a sum of Rs. 1,80,000/-towards loss of income is just and proper and also represents adequate compensation that too coupled with interest from the date of filing of the claim petition i.e. 211.1998 should be construed to adequate compensation of owner of the said elephant. 9. However, since the amount under the said award only to the extent of Rs. 1,80,000/-towards loss of income is just and proper and also represents adequate compensation that too coupled with interest from the date of filing of the claim petition i.e. 211.1998 should be construed to adequate compensation of owner of the said elephant. 9. However, since the amount under the said award only to the extent of Rs. 80,000/-has been paid by the Insurance Company as directed by this Court vide order dated 21.01.1994, the balance amount is now required to be deposited by the appellant Insurance Company. In view of prevailing rate of interest having gone substantially down, the interest rate of 12/15% awarded by the Tribunal deserves to be reduced. 10. Accordingly, it is directed that the entire compensation amount be deposited by the Insurance Company with the Tribunal within a period of three months from today alongwith interest @ 7.5% per annum throughout from the date of filing of the claim petition i.e. 211.1998 till the date of deposit. The interest on Rs. 80,000/-also deposited shall be calculated only upto the date of deposit. The total amount of compensation with interest shall be deposited in fixed deposit in the name of owner of the elephant with nationalized bank for a period of three years and remaining 50% shall be disbursed by way of a account payee cheque in the name of owner of the elephant. 11. In view of the above discussions, both the appeals are hereby disposed of . The appeal of the claimant for enhancement is dismissed, whereas appeal of the Insurance Company is partly allowed to the extent of rate of interest accordingly.