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Rajasthan High Court · body

2014 DIGILAW 755 (RAJ)

National Insurance Co. Ltd. v. Smt. Prabhu Devi

2014-03-25

NISHA GUPTA

body2014
JUDGMENT 1. - This appeal Under Section 173 of the Motor Vehicles Act, 1988 has been filed against the judgment and award dated 22.5.2002 passed by Judge, MACT, Tonk in Claim Case No. 440/2001 (6/95) whereby the Insurance Company has been held liable to pay the compensation. 2. The short facts giving rise to this appeal are that on 9.9.1994, deceased Kanhaiyalal was going on road to call veterinary doctor at about 10.00 PM, truck No. Rs. 2631 came and hit him and he died due to the accident. FIR No. 119/94 was lodged. The claimants preferred a claim petition was allowed hence this appeal. 3. The contention of the appellant is that impugned vehicle has been falsely involved in the accident, in FIR it has been specifically narrated that the accident has occurred by unknown vehicle and impugned vehicle has been falsely involved afterward by way of application Ex.4 two eye-witnesses have been stated out of which Kalyan had not been examined and Bhairu Singh has stated specifically in his cross-examination that he has not seen the number of the truck, hence involvement of the vehicle was not proved before the court below. Further contention of the Insurance Company is that the driver of the involved vehicle was not having a valid license, hence a liberty to recover the amount be allowed to it, income has been unnecessarily assessed on higher side, loss of income should be assessed after taking actual income, hence the compensation should be reduced appropriately.Per contra, the contention of the respondents is that the Insurance Company has not objected as regard the involvement of the vehicle, income has been assessed rightly, multiplier of 16 should be applied and looking to the number of dependents, 1/5 deductions should have been made. 4. Heard the learned counsel for the parties and perused the impugned award as well as the original record of the case. 5. The first contention of the appellant Insurance Company is that the impugned vehicle was not involved in the accident and it has been falsely involved. It is not in dispute that Prabhu Devi is not the eye-witness so also Kalyan- AW/3. In FIR number of the vehicle has not been mentioned. 5. The first contention of the appellant Insurance Company is that the impugned vehicle was not involved in the accident and it has been falsely involved. It is not in dispute that Prabhu Devi is not the eye-witness so also Kalyan- AW/3. In FIR number of the vehicle has not been mentioned. Admittedly, the accident has occurred on 9.9.94 and present vehicle has been involved by way of application Ex.4 which has been presented to the Investigating Officer on 2.11.94 about 2 months after the accident in which it has been stated that Kalyan and Bhairu Singh are the eye-witnesses. As already mentioned Kalyan has not been produced and Bhairu Singh has been examined as AW/2 but in cross-examination he has categorically stated that he could not say that which truck has hit the deceased and admittedly, he had not reported the matter to the police. Ex.4 has been lodged by Ratan Lal. Nothing has been explained that how Ratan Lal came to know about the fact that Kalyan and Bhairu Singh are the eye-witnesses of the accident. On the same day i.e. 2.11.94 on which Ex. 4 has been presented, the vehicle has been seized and that too has been produced by the owner of the vehicle himself at Police Station and he has also admitted the fact of accident which also caste a suspicion on the veracity of the evidence of the claimants, hence in view of the fact that basis of Ex.4 is missing and Bhairu Singh could not identify the involved vehicle, the involvement of the impugned vehicle was doubtful and findings to this effect on Issue No.1 are perverse and liable to be set aside and it can safely be concluded that involvement of the impugned vehicle was not proved by the claimants. 6. It is not in dispute that Motor Vehicles Act is a beneficial legislation and in claim petition, strict proof is not needed only on the probabilities, the evidence should have been assessed but here in the present case, there is a big question mark that on which basis the author of Ex.4 Ratan Lal could know about the fact that truck No. RSL 2631 is responsible for the accident and Issue No.1 is held decided in favour of appellant. 7. 7. When Issue No.1 has been decided in favour of appellant, the claim petition is liable to be dismissed as involvement of the vehicle has not been proved but as further arguments have also been advanced by the parties, in the fitness of things, I would like to entertain them also. 8. The other contention of the appellant is that the driver of the impugned vehicle was not having a valid driving license. It is true that no specific evidence has been produced by the Insurance Company, but against Narain Lal, driver of the impugned vehicle charge-sheet under Section 3/181 of the Motor Vehicles Act has been filed. Apart from it, Narain Lal respondent No.8 has not produced his driving license during the proceedings, hence it can safely be concluded that at the time of the alleged accident, the driver of the vehicle was not having a valid driving license but in view of the law laid down in Kusum Lata & ors. v. Satbir & ors., 2011 ACJ 926 , the Insurance Company could be given liberty to recover the amount from respondents No. 8 and 9. 9. Further, the contention of the appellant is that income has been assessed at higher side. It is not in dispute that the deceased was having salary of Rs. 1891 at the time of accident but taking note of the revised pay scale which would have been applied from 1.9.96, his income has been assessed as 4500/-. The counsel for the respondents has submitted that there is no infirmity in the above calculation and reliance has been placed on Vimal Kanwar & ors. v. Kishore Dan & ors., MACD 2013 (SC) 169 wherein looking to the salary certificate of the deceased, compensation has been awarded, here in the present case, the deceased was having income of 1891/- at the time of death and admittedly death has occurred on 9.9.94 when revised pay scale was not in force, hence looking to the law laid down in Santosh Devi v. National Insurance Co. Ltd. & ors., MACD 2012 (SC) 97 and Sarla Verma (Smt.) & ors. v. Delhi Transport Corporation & Anr., (2009) 6 SCC 121 , on the basis of actual income along with 30% increase as future prospects, the loss of income could be calculated. Ltd. & ors., MACD 2012 (SC) 97 and Sarla Verma (Smt.) & ors. v. Delhi Transport Corporation & Anr., (2009) 6 SCC 121 , on the basis of actual income along with 30% increase as future prospects, the loss of income could be calculated. The contention of the respondents is sound that deceased was having 7 dependents hence the deduction towards personal expenses be 1/5, multiplier of 12 has been applied but looking to the age of the deceased that he was 35-40 years, 15 would be the appropriate multiplier but all these calculations are futile as the involvement of the vehicle is not proved and claim case is liable to be rejected on this ground alone.Consequently, the appeal succeeds and is allowed. The judgment and award passed in Claim Case No. 440/2001 (6/95) is set aside.Appeal allowed. *******