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Rajasthan High Court · body

2008 DIGILAW 1965 (RAJ)

Nanga Ji v. Ajij Mohammad

2008-08-20

R.S.CHAUHAN

body2008
JUDGMENT 1. - With the consent of the learned counsel for the parties, this appeal is being decided at the admission stage itself. 2. Having suffered permanent disability of 15% permanent disability, and having been awarded a meagre amount of Rs. 41,534/-, the appellant has challenged the award dated 13-6-2006 passed by the Motor Accident Claims Tribunal and Additional District and Sessions Judge (Fast Track) No. 2, Beawar (in short, 'the learned Tribunal'). 3. The brief facts of the case are that on 26-7-2004, the appellant, Nanga Ji, along with two other persons, was travelling on a motorcycle. When they reached near a petrol pump at Vanas, Devpura turn, a truck bearing registration No. RJ-09-G-2049, being driven rashly and negligently, hit the motorcycle. Resultantly, the appellant sustained injuries. The appellant filed a claim petition before the learned Tribunal. The learned Tribunal has granted the compensation amount as aforementioned. Being aggrieved by the said amount, the appellant has preferred this appeal for enhancement. 4. Mr. J. P. Gupta, the learned counsel for the appellant, has raised two contentions before this Court : firstly, the learned Tribunal has erred in deducting one-third of the income earned by the appellant. According to the learned counsel the Motor Vehicles Act, 1988 (in short, 'the Act') permits the deduction of one-third from the income only in the cases of death and not in cases of injuries. In order to buttress his contention, he has referred to the Second Schedule attached to the Act. Secondly, the learned Tribunal has erred in imposing a condition that until and unless the owner of the vehicle submits security, the compensation amount shall not be released to the claimant. According to the learned counsel, this is an unreasonable condition being imposed, as the condition is contrary to the provisions of Sub-section (4) of Section 149 of the Act. In order to buttress this contention, the learned counsel has relied upon the case Kumari Nargis v. Kazan Singh, ( 2007 (1) TAC 43 (Raj)). 5. On the other hand, Mr. S. R. Joshi along with Mr. Ganesh Joshi, the learned counsel for the respondent No. 2, the Insurance Company, has contended that in case of New India Assurance Co. In order to buttress this contention, the learned counsel has relied upon the case Kumari Nargis v. Kazan Singh, ( 2007 (1) TAC 43 (Raj)). 5. On the other hand, Mr. S. R. Joshi along with Mr. Ganesh Joshi, the learned counsel for the respondent No. 2, the Insurance Company, has contended that in case of New India Assurance Co. Ltd. v. Charlie, (2005(2) TAC 297 (SC) and in the case of Sunil Kumar v. Ram Singh Gaud (MACD 2008 (SC) 1) : (2007 AIR SCW 7166), the Hon'ble Supreme Court had deducted one-third from the income of the injured. Since the learned Tribunal has relied upon the case of Charlie (supra), therefore, the impugned award is sustainable. 6. We have heard the learned counsel for the parties and have perused the impugned award as well as the case law cited at the Bar. 7. The note attached to the table in the second schedule read as under : "The amount of compensation so arrived at in the case of fatal accident claims shall be reduced by 1 /3rd in consideration of the expenses which the victim would have incurred towards maintaining himself had he been alive." 8. A bare perusal of the note clearly reveals that the note comes into effect and is applicable only in fatal accident cases. Through this note, the Parliament has created a legal fiction that in case the deceased were alive, he would have spent at least onethird of his income upon himself, and two- third of his income would have been spent upon his family. In the case of Charlie (supra), the Hon'ble Supreme Court had applied the rule of one-third deduction only on the ground that the injured had suffered 100% permanent disability. Therefore, the Hon'ble Supreme Court had taken the 100% permanent disability to be akin to the case of death. However, in the present case before this Court, the appellant has suffered only 15% permanent disability. Hence, the analogy drawn by the Hon'ble Supreme Court is inapplicable to the present case. Therefore, the case of Charlie (supra) is distinguishable from the present case on the basis of factual matrix. Thus, the case does not come to the rescue of the Insurance Company. Hence, the analogy drawn by the Hon'ble Supreme Court is inapplicable to the present case. Therefore, the case of Charlie (supra) is distinguishable from the present case on the basis of factual matrix. Thus, the case does not come to the rescue of the Insurance Company. Since the learned Tribunal has relied upon the case of Charlie (supra) to justify one- third deduction, but as the case of Charlie (supra) is clearly distinguishable on the factual matrix, the learned Tribunal has erred on relying upon the said citation. Repeatedly, the Hon'ble Supreme Court has observed that case law is not to be relied upon as though they are statutory provisions. Each case has to be decided on the peculiar facts and circumstances of the case. While applying a precedent, the Court needs to carefully examine whether the facts and circumstances are similar to the case before the Court so as to apply the principle enunciated by a higher Court to the case before the learned Tribunal. Thus, the learned Tribunal was not justified in deducting one-third from the income of the appellant. 9. As far as the imposition of the condition is concerned, such an imposition nullifies the beneficial provisions of the Act. The beneficial provisions were enacted to ensure that the claimants who has either sustained an injury or has suffered the loss due to the death of a family member should be compensated monetarily so as to mitigate his loss. By imposing the condition that the compensation award shall not be disbursed until and unless the owner submits security, denies the claimant the benefits ensured by law. Thus, such an imposition by a condition defeats the very purpose for which the law was enacted. Moreover, the imposition of such a condition is contrary to the provisions of Sub-section (4) of Section 149 of the Act. This Court is fortified in its view by the case of Kumari Nargis (supra), where similar observations have been made by this Court. Therefore, this Court has no hesitation in setting aside the condition imposed by the learned Tribunal. 10. Hence, this appeal is allowed and the award dated 13-6-2008 is modified as under : The loss suffered by the appellant due to 15% permanent disability is as under : Rs. 2,100/- x 12 x 5 x 15% = Rs. 18,900/-. 11. The rest part of the award is confirmed. 10. Hence, this appeal is allowed and the award dated 13-6-2008 is modified as under : The loss suffered by the appellant due to 15% permanent disability is as under : Rs. 2,100/- x 12 x 5 x 15% = Rs. 18,900/-. 11. The rest part of the award is confirmed. It is clarified that since the recovery rights have already been granted by the learned Tribunal to the Insurance Company, the same shall continue. Therefore, the Insurance Company shall have right to recover the enhanced compensation amount from the owner. 12. The learned tribunal is directed to ensure that the Insurance Company pays the enhanced amount, after deducting the amount already disbursed to the appellant, along with interest at the rate of 6% per annum from the date of filing of the claim petition i.e. from 9-9-2004 till the date of realisation. 13. The learned Tribunal is directed to ensure that the remaining compensation amount is paid to the appellant within a period of two months from the date of receipt of certified copy of this judgment.Order accordingly. *******