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2017 DIGILAW 1730 (RAJ)

NATIONAL INSURANCE COMPANY LTD. v. PYARI DEVI

2017-08-03

ARUN BHANSALI

body2017
JUDGMENT : Arun Bhansali, J. The appeal and cross objection are directed against the judgment and award dated 31/1/2008 passed by Motor Accident Claims Tribunal, Pali ('the Tribunal'), whereby, the Tribunal has awarded a sum of Rs. 2,80,000/- as compensation along with interest @ 7% p.a. from the date of application i.e. 14/12/2006 and the appellant Insurance Company has been held liable for payment of compensation. 2. While the appellant Insurance Company has questioned its liability to make payment of amount of compensation, the claimants have filed cross objection seeking enhancement of compensation. 3. The application for compensation was filed by wife and parents of deceased Vinod Kumar with the averments that Vinod Kumar was working at Ratan Cycle Works as mechanic on a monthly salary of Rs. 3,200/-, on 17/10/2006, he was going on a bicycle with his friend when the offending vehicle, TATA 407, which was being driven rashly and negligently, struck the said bicycle, resulting in both Vinod Kumar and his friend Mukesh suffering grievous injuries, to which they succumbed. Based on the said averments, compensation to the tune of Rs. 41,00,000/- was claimed. The application was opposed by owner and driver alleging that the cycle was being driven rashly and negligently which resulted in the accident. 4. The Insurance Company disputed its liability alleging that the driver of TATA 407 was not possessing a valid driving licence. 5. The Tribunal after hearing the parties came to the conclusion that the accident occurred on account of rash and negligent driving by driver of the mini truck, the Insurance Company was liable for making payment of amount of compensation as weight of the vehicle in question was less than 7500 kgs. and was a light motor vehicle and the driver was in possession of a driving licence authorized to drive light motor vehicle. 6. While assessing the amount of compensation, the Tribunal came to the conclusion that the deceased was aged 22 years, the claimed income at Rs. 3,200/- p.m. despite certificate Ex.8 issued by the owner of Ratan Cycle Works was not accepted and the income was assessed at Rs. 2,100/- p.m., multiplier of 17 was adopted and 3rd amount was deducted towards personal expenses and compensation to the tune of Rs. 3,24,000/- was awarded, lump sum Rs. 3,200/- p.m. despite certificate Ex.8 issued by the owner of Ratan Cycle Works was not accepted and the income was assessed at Rs. 2,100/- p.m., multiplier of 17 was adopted and 3rd amount was deducted towards personal expenses and compensation to the tune of Rs. 3,24,000/- was awarded, lump sum Rs. 6,000/- towards funeral expenses and loss of love & affection was also awarded and in all a sum of Rs. 3,30,000/- was awarded. 7. It is submitted by learned counsel for the appellant that the issue raised by the appellant Insurance Company regarding violation of policy condition on account of the driver of TATA 407 having licence to drive Light Motor Vehicle only, stands concluded against the appellant Insurance Company in view of the larger bench judgment of Hon'ble Supreme Court in Mukund Dewangan v. Oriental Insurance Company & Ors., Civil Appeal No. 5826/2011, decided on 3/7/2017. 8. Learned counsel for the claimants submitted that once the certificate of salary by the owner of Cycle Shop was exhibited by the claimants and cross examination in this regard was done, the Tribunal was not justified in rejecting the salary of Rs. 3,200/- per month. Further submissions were made that the claim was made under Section 166 of the Motor Vehicles Act, 1988 ('the Act'), however a meager amount towards loss of consortium and loss of love & affection has been awarded by the Tribunal, which deserves to be enhanced adequately. 9. I have considered submissions made by the learned counsel for the parties and have perused the material available on record. 10. So far as the issue raised by the appellant Insurance Company regarding its liability is concerned, the same stands squarely covered by the judgment of Hon'ble Supreme Court in the case of Mukund Dewangan (supra) and, therefore, there is no substance in the appeal filed by the appellant Insurance Company. 11. So far as the cross objection filed by the claimants is concerned, though the certificate issued by the owner of the Cycle shop wherein deceased was working was exhibited, the owner was not produced in the witness box and the father of the deceased in his statement expressed ignorance about the status of shop and, therefore, in those circumstances, the Tribunal was justified in coming to the conclusion that the income as such was not proved. 12. 12. However, looking to the fact that the deceased was working in a cycle shop, the income assessed at Rs. 2,100/- p.m. appears to be a bit on the lower side and, therefore, the same is enhanced to Rs. 2,400/- p.m. and after deducting ?rd towards personal expenses, the loss of income would be Rs. 1,600/- p.m. and after applying multiplier of 17, the total loss of income comes to Rs. 3,26,400/-. It may be noticed that the Tribunal has wrongly calculated the loss of income by taking the income of the deceased though at Rs. 2,100/- p.m. by assessing the same at Rs. 3,24,000/-, whereas, the same ought to be Rs. 2,85,000/- (1400x12x17) only. So far as the award of compensation towards loss of consortium to wife and love & affection to the parents is concerned, the amount of Rs. 6,000/- awarded is extremely meager and same, therefore, deserves to be enhanced to Rs. 25,000/- towards loss of consortium and Rs. 25,000/- each to the parents towards loss of love & affection. No amount has been awarded towards funeral expenses and under the said head a sum of Rs. 5,000/- deserves to be awarded. 13. Consequently, the claimants would be entitled to a total compensation of Rs. 4,06,400/-. 14. In view of the above, while the appeal filed by the appellant Insurance Company is dismissed, the cross objections filed by the claimants are partly allowed and the award impugned is modified to the extent that the claimants would be entitled to a compensation of Rs. 4,06,400/- along with interest @ 7% p.a. from the date of application i.e. 14/12/2006. The enhanced amount of compensation be divided equally among the three claimants and be paid in their Saving Bank Accounts. The appellant Insurance Company is directed to pay the balance amount of compensation within a period of six weeks from the date of this judgment.