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2011 DIGILAW 785 (RAJ)

United India Insurance Co. Ltd. v. Priyank

2011-04-20

MAHESH CHANDRA SHARMA

body2011
Hon'ble SHARMA, J.—The claimants Priyank and Gopal, have filed appeal No. 137/2006 for enhancement of the compensation awarded by the award dated 25.7.2005 passed by Judge, Motor Accident Claims Tribunal Jaipur and Essential Commodities Act, Jaipur City Jaipur in MACT Case No. 453/2004, whereas the United India Insurance Company has filed the appeal No. 2456/2006 against the award of Rs. 4,57,839 to the claimants Priyank and Gopal for the death of their uncle Rajesh. 2. The facts have been set out in the impugned judgment and hence I am not repeating the same here except wherever necessary. 3. It may also be mentioned that claimants Priyank and Gopal, earlier have also filed appeal No. 85/2006 against the common award dated 25.7.2005 in Claim Case No. 458/2004 for the death of their uncle's son Vivek aged 4 year. The co-ordinate Bench of this Court in S.B. Civil Misc. Appeal No. 85/2006 passed the following order : "This appeal has been preferred against the award dt. 25.7.2005 passed by the Motor Accident Claims Tribunal, Jaipur City, Jaipur in Claim Petition No. 458/2004 (1902/2001) whereby a sum of Rs. 50,000/- has been paid as compensation on account of death of a body aged 4 years in a vehicular accident on the ground that the award passed by the Tribunal is not justified as this Court in a number of appeals has awarded a sum of Rs. 1,00,000/- and Rs. 1,80,000/- as compensation to the claimants parents wherein the deceased victim was in between the age group of 1 to 5 years and 5 to 10 years, respectively. Heard learned counsel for the parties and perused the record. The arguments projected by learned counsel for the appellants is based on the judgment of this Court. While dealing with number of appeals where the victim children were of age group of 1 to 5, 5 to 10 and 10 to 15 years, this Court considering the judgment delivered by the Supreme Court in the case title Lata Wadha and Others vs. State of Bihar and others, reported in 2001 ACJ 1735 and relying upon the judgment delivered by the Supreme Court in case title New India Assurance Co. Ltd. vs. Satender and Ors reported in 2007(1) TAC 11 (SC) and case title State of Haryana and Anr. vs. Jasbir Kaur and Ors. 2003(7) SCC 484 has determined the just compensation. Ltd. vs. Satender and Ors reported in 2007(1) TAC 11 (SC) and case title State of Haryana and Anr. vs. Jasbir Kaur and Ors. 2003(7) SCC 484 has determined the just compensation. Learned counsel for the appellants has drawn the attention of the Court upon the judgment delivered by the Supreme Court in Lata Wadhwas's case (supra), emphasizing that the ratio of this judgment may be made applicable for determining compensation. The Court has already rejected its application for determining the compensation in the cases arising out of motor accident in the judgment delivered in bunch of appeals. however, in Smt. Malti & Others vs. M.K. Vasu and Others (S.B. Civil Misc. Appeal No. 768/1999 along with 52 similar appeals) decided on 25.5.2007 this Court relying upon the judgment of the Supreme Court delivered in New India Insurance Company vs. Stendra (supra) has disposed of the appeals holding the claimants entitled to the following compensation : 1. The claimants of the victim child in the age group upto 5 years shall be entitled to compensation to a sum of Rs. One lac. 2. The claimants of the victim child in the age group of 5 to 10 years shall be entitled to a sum of Rs. 1,80,000/-. 3. The claimants of the victim child in the age group of 10 to 15 years shall be entitled to compensation to a sum of Rs. 2,25,000/-. Similar grounds were agitated by the learned counsel for the parties in number of appeals which have been decided by a common judgment dated 3.10.2007. Claimants appellants are therefore held entitled to the compensation of Rs. 1,00,000/-. The appeal is allowed and the award is modified to that extent. Interest paid by the Tribunal is maintained." 4. Thus, it is clear that the common award dated 25.7.2005 passed in the claim petition along with the claim case No. 453/2004 stands confirmed with modification only in the claim amount. 5. Brief facts of the case are that on 27.4.2001 claimants along with other family members were traveling from Pushkar to Jaipur in a jeep bearing registration No. RJ 14 P 9389. Near Padsoli the jeep collided with a Traula, bearing No. RH 38 D 6802 being rash and negligently driven by respondent No.3 Girver Singh and owned by respondent No.4 Smt. Sumanlata Agarwal which resulted in death of eleven passengers including driver of the jeep. Near Padsoli the jeep collided with a Traula, bearing No. RH 38 D 6802 being rash and negligently driven by respondent No.3 Girver Singh and owned by respondent No.4 Smt. Sumanlata Agarwal which resulted in death of eleven passengers including driver of the jeep. Both the vehicle were insured with the appellant insurance company. FIR bearing No. 147/2001 was lodged on 27.4.2001 at Dudu Police Station. After investigation the police filed challan under Sections 279, 337, 338 304-A IPC against the respondent No.3 Girver Singh. the claimants filed the claim petition No. 453/2004 for the death of Rajesh Sharma, aged 35 years uncle of the claimants. The MACT after considering the evidence and the material produced by the parties, allowed the claim petition awarding Rs. 4,57,839 to the claimants with interest at the rate of 6% from the date of filing of the claim till the date of realization of the award money. Against this award the insurance company filed the appeal No.2456 of 2006 against the award of Rs. 4,57,839/- to the claimants, who were not dependents of Rajesh and the appeal No. 137/2006 was filed by the claimants Priyank and Gopal for the death of their uncle Rajesh for enhancement of compensation. 6. The learned counsel for the Insurance Company has submitted that the MACT has committed a gross error by holding that the nephew of the deceased was entitled for the claim. The MACT has failed to appreciate that the principles of Hindu Succession Act are not applicable to the claims filed under the Motor Vehicles act and only dependents to the deceased can be held entitled for the claim. The nephew could not be considered to be under any legitimate expectation, to be sustained by the deceased uncle. The jeep was carrying more passengers than it was permitted under the policy and hence there was a specific breach in policy and the appellant insurance company cannot be held liable to compensate the claimants. The information of the accident was not provided to the insurance company hence also there was a breach of a specific policy condition hence the insurance company could not be held liable to compensate the claimants. 7. The information of the accident was not provided to the insurance company hence also there was a breach of a specific policy condition hence the insurance company could not be held liable to compensate the claimants. 7. The learned counsel for the claimants has argued that the MACT has not considered the pay slip produced by the claimants and only considered the income of the deceased as per the provisions of Section 163A of the Motor Vehicles Act to be Rs. 40,000/- per year and out of which one third was deducted for the expenses incurred by the deceased on himself. The MACT failed to consider the future prospects which the deceased might have earned. Thus the claimants are entitled for the enhancement of the claim amount. 8. I have considered the arguments of the learned counsel for the parties and also gone through the material available on record. 9. It is an admitted fact that against the common award dated 25.7.2005 in Claim Case No. 458/2004 of the claimants Priyank and Gopal filed misc. appeal No. 85/2006 before this Court and the same was allowed by the Co-ordinate Bench of this Court vide order dated 12.3.2008, for the death of Vivek aged 4 years cousin brother of the claimants. It is also an admitted fact that the said appeal was contested by the insurance company and the insurance company has not filed any cross-objections in the appeal contested by them. Thus the argu-ments raised by the appellants Insurance Company except issue No.4 cannot be accepted in these appeals. The findings on other issues in the common award dated 25.7.2005 in claim case No.453/2004 stand confirmed. Now I may consider the arguments raised by the appellant insurance company challenging the award in respect of issue No.4 in their appeal and the arguments raised by the claimants Priyank and Gopal for enhancement of compensation in the appeal filed by them. 10. The claimants proved the income of deceased Rajesh Sharma to be Rs. 50,448/- per year by filing documents and in their statements. Since the claim was filed under Section 163-A of the Motor Vehicles Act, as per second schedule the maximum income of the deceased cannot exceed to Rs. 40,000/- per year. As per the second schedule the MACT assumed the maximum income of the deceased to be Rs. 50,448/- per year by filing documents and in their statements. Since the claim was filed under Section 163-A of the Motor Vehicles Act, as per second schedule the maximum income of the deceased cannot exceed to Rs. 40,000/- per year. As per the second schedule the MACT assumed the maximum income of the deceased to be Rs. 40,000/-, out of which one third was assumed to be incurred by him on himself. In this manner the dependency of the claimants was assessed Rs. 26,667/- per year. In the claim petition the claimants stated the age of deceased Rajesh as 35 year. From the post mortem report Ex.18 the age of Rajesh Sharma was shown to be 32 year. From the schedule of the Motor Vehicles Act for the age between 30-35, the multiplier of 17 was used. In this manner the MACT calculated the dependency of the claimants to be Rs. 4,53,339/-. As per the Schedule clause No.3 expenses for funeral were Rs. 2,000/-. In this manner the MACT granted Rs. 2,000/- to the claimants in respect of funeral expenses. For loss of love and affection Rs. 2,500/- has been provided in the Schedule. The MCT in this respect for love and affection awarded Rs. 2,500/- to the claimants. In this manner the total compensation in the amount of Rs. 4,57,839/- have been awarded to the claimants. 11. In the title in the claim petition the claimants mentioned Section 163-A of the Motor Vehicles Act, which reads as under : ^^{kfriwfrZ izkFkZuk i= vUrxZr /kkjk 163, ,e-oh- ,DV] 1988 ,oa la'kksf/kr ,DV] 1994 ds rgrA** 12. It is an admitted fact that the claim petition was filed by the claimants under Section 163-A of the Motor Vehicles Act as would be apparent from the title of the claim petition. 13. It is an admitted fact that the claim petition was filed by the claimants under Section 163-A of the Motor Vehicles Act as would be apparent from the title of the claim petition. 13. Section 163-A of the Motor Vehicles Act and Schedule 2 appended thereto read as under : "163-A. Special provisions as to payment of compensation on structured formula basis,—(1) Notwithstanding anything contaned in this Act or in any other law for the time being in force or instrument having the force of law, the owner of the motor vehicle or the authorized insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, compensation, as indicated in the second schedule, to he legal heirs of the victim, as the case may be. Explanation.—For the purposes of this sub-section, permanent disability shall have the same meaning and extent as in the Workmen's Compensation Act, 1923 (9 of 1923). (2) In any claim for compensation under sub-section (1), the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person. (3) The Central Government may, keeping in view the cost of living by notification in the Official Gazette, from time to time amend the Second Schedule." Schedule 2 1. Fatal Accidents : Annual Income Rs. 3000 Rs. 4200 Rs. 5400 Rs. 6600 Rs. 7800 Rs. 9000 Rs. 10200 Rs. 11400 Rs. 12000 Rs. 18000 Rs. 24000 Rs. 36000 Rs. 40000 3. General Damages (in case of death) : The following General Damages shall be payable in addition to compensation outlined above : (i) Funeral expenses -Rs. 2000/- (ii) Loss of Consortium, if beneficiary is the spouse -Rs. 5,000/- (iii) Loss of Estate -Rs. 2,500/-" 14. From Second Schedule to Section 163-A of the Motor Vehicles Act quoted above it is clear that the maximum income cannot exceed Rs. 40,000/- per year to the legal heirs. General damages in case of death for funeral is provided Rs. 2,000/-. Similar is the position for love and affection Rs. 2500/-. The claimants Priyank and Gopal are the legal heirs of Rajesh Sharma, deceased, who died in the accident. 40,000/- per year to the legal heirs. General damages in case of death for funeral is provided Rs. 2,000/-. Similar is the position for love and affection Rs. 2500/-. The claimants Priyank and Gopal are the legal heirs of Rajesh Sharma, deceased, who died in the accident. I have gone through the findings recorded by the MACT in respect of issue No.4 in the claim case No. 453/2004 for the death of Rajesh Sharma. I am in agreement with the findings arrived at by the MACT. The findings of the MACT are in conformity with the provisions of Section 163-A of the motor Vehicles Act and Schedule 2 appended thereto. In my view the appeal filed by he claimants for enhancement of the compensation deserves to be rejected. The appeal filed by the appellant insurance company also deserves to be rejected. 15. In view of the above the misc. appeals against the common award dated 25.7.2005 passed by Judge, Motor Accident Claims Tribunal Jaipur and Essential Commodities Act, Jaipur City Jaipur in MACT Case No. 453/2004, filed by the insurance company and the claimants are rejected. The award in respect of claim case No. 453/2004 stands confirmed. The parties are directed to bear their own costs. The stay application also stands decided.