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2017 DIGILAW 230 (RAJ)

United India Insurance Company Ltd. v. Shanti Bai

2017-01-18

ARUN BHANSALI

body2017
JUDGMENT Arun Bhansali, J. - This appeal is directed against the judgment and award dated 26.3.2016 passed by the Motor Accident Claims Tribunal, Chittorgarh (''the Tribunal''), whereby the Tribunal has awarded a sum of Rs. 36,11,315/- as compensation alongwith interest @ 9% from the date of application i.e. 23.10.2009 to the claimants. 2. The application for compensation was filed by the claimants, who are wife, children and parents of deceased Hazari Lal seeking compensation with the averments that Hazari Lal was riding motor-cycle from Kochawa to Kanera when at about 12:30 p.m. another motor-cycle from opposite direction being driven by Shanti Lal rashly and negligently struck his motor-cycle, resulting in Hazari Lal falling down and suffering grievous injuries, to which he succumbed. It was claimed that the accident occurred on account of rash and negligent driving by the motor-cycle driver Shanti Lal. 3. It was claimed that the deceased was working as Male Nurse (II) with the Community Health Centre and therefore, compensation to the tune of Rs. 62,10,000/- was claimed. 4. The application was opposed by the Insurance Company as well as the driver and owner of the motor-cycle. It was inter-alia submitted that the accident occurred on account of rash and negligent driving by the deceased himself and therefore, the nonclaimants were not liable for making payment of any compensation. 5. On behalf of the claimants, two witnesses were examined and on behalf of the Insurance Company, one witness was examined. 6. After hearing the parties, the Tribunal came to the conclusion that the accident occurred on account of rash and negligent driving of the non-claimant motor-cycle driver Shanti Lal. While assessing the amount of compensation, the Tribunal came to the conclusion that the deceased was aged 48 years and was getting a salary of Rs. 25,027/, after deducting the amount of nursing allowance and washing allowance and the applicable income-tax, the net income of the deceased was assessed at Rs. 2,82,944/-per year, after deducting 1 /4th amount towards his personal expenses and applying multiplier of 13 assessed a sum of Rs. 27,58,704/- towards loss of income and thereafter, added 30% towards future prospects i.e. Rs. 8,27,611/-, awarded a further sum of Rs. 70,000/- towards loss of love and affection, Rs. 5,000/- towards funeral expenses and in all awarded a sum of Rs. 36,11,315/- alongwith interest @ 9% p.a. from the date of application. 7. 27,58,704/- towards loss of income and thereafter, added 30% towards future prospects i.e. Rs. 8,27,611/-, awarded a further sum of Rs. 70,000/- towards loss of love and affection, Rs. 5,000/- towards funeral expenses and in all awarded a sum of Rs. 36,11,315/- alongwith interest @ 9% p.a. from the date of application. 7. It is submitted by learned counsel for the appellant that the Tribunal committed error in coming to the conclusion that the accident occurred on account of rash and negligent driving by the driver of the insured motor-cycle Shantilal. It was submitted that the FIR was lodged by one Gopal, he was not examined instead one Pushkar Sharma claiming himself to be a pillion rider alongwith Gopal was examined. It was submitted that from the document Ex.-5 produced by the claimants, which is site report alongwith a map, clearly indicates that the deceased was traveling on the wrong side of the road and therefore, it cannot be said that the accident occurred on account of rash and negligent driving by the driver of the insured motor-cycle. 8. Further submissions were made that from a bare look at the site map Ex.-5 in any case, it is apparent that the same is a case of contributory negligence and therefore, the Tribunal was not justified in awarding the huge amount of compensation to the claimants. 9. Further submission was made disputing the age of the deceased based on the voter identity card of the deceased. It was prayed that the award impugned deserves to be quashed and setaside and in any case, the same deserves to be reduced. 10. Learned counsel appearing for the respondent supported the award impugned. 11. It was submitted that the Insurance Company did not produce any witness except for its surveyor, who was not in position to depose about the accident as such. Further submissions were made that the reliance placed by the appellant-Insurance Company a site map (Ex.-5) is wholly misplaced as oral evidence has been recorded of the eyewitness, which cannot be negated based on the site report. It was further submitted that no evidence was led regarding the alleged contributory negligence of the deceased and therefore, the Tribunal was justified in coming to the conclusion that on account of rash and negligent driving by the driver of the insured motor-cycle, the accident occurred. 12. It was further submitted that no evidence was led regarding the alleged contributory negligence of the deceased and therefore, the Tribunal was justified in coming to the conclusion that on account of rash and negligent driving by the driver of the insured motor-cycle, the accident occurred. 12. It was submitted that the Tribunal has assessed the age of the deceased based on his driving licence as well as the report produced by the Insurance Company, based on the date of birth made available by the employer of the deceased and therefore, there is no substance in the submissions made regarding the age of the deceased as well. 13. Reliance was placed on judgment of the Hon''ble Supreme Court in the case of Jiju Kuruvila & Ors. vs. Kunjujamma Mohan & Ors. : 2013(2) ACTC(SC) 960. 14. I have considered the submissions made by learned counsel for the parties and have perused the material available on record. 15. The case of the claimants was that the accident occurred on account of rash and negligent driving by the driver of the insured motor-cycle. For proving the said aspect, one Pushkar Sharma AW-2 was produced as eye witness of the said accident, said Pushkar Sharma in his statement clearly indicated about the negligence on part of the driver of the insured motor-cycle. The said witness was cross-examined by learned counsel for the Insurance Company. 16. A bare look at the said cross-examination indicates that the emphasis of the crossexamination was to seek to prove that Pushkar Sharma was not a pillion rider alongwith the first informant Gopal and in the entire cross-examination, none of the questions pertaining to actual happening and event and/or the alleged negligence of the deceased was put to the said witness. 17. The witness withstood the cross-examination and from the said statement of AW-2 Pushkar Sharma, it cannot be concluded that the deceased was in any manner negligent in driving the motor-cycle and it is well established that the deceased was riding on the correct side and it was the only the driver of the insured vehicle, who was negligent in driving the motor-cycle. 18. 18. So far as the reliance placed by the appellant - Insurance Company on Ex.-5 site report and site map is concerned, the site map no doubt shows the location of the accident on the side of the road, which was the wrong side of the road, however, the said site map is not supported by any other evidence. The site map, when examined with the statement of the eye-witness Pushkar Sharma, cannot be given credence so as to come to a conclusion that the accident, in fact, occurred on the location as indicated in the site map. 19. The Hon''ble Supreme Court while considering the importance of site map in the case of Jiju Kuruvila (supra) laid down as under:- "24. The mere position of the vehicles after accident, as shown in a Scene Mahazar, cannot give a substantial proof as to the rash and negligent driving on the part of one or the other. When two vehicles coming from opposite directions collide, the position of the vehicles and its direction etc. depends on number of factors like speed of vehicles, intensity of collision, reason for collision, place at which one vehicle hit the other, etc. From the scene of the accident, one may suggest or presume the manner in which the accident caused, but in absence of any direct or corroborative evidence, no conclusion can be drawn as to whether there was negligence on the part of the driver. In absence of such direct or corroborative evidence, the Court cannot give any specific finding about negligence on the part of any individual. 25. Post Mortem report, Ext.A5 shows the condition of the deceased at the time of death. The said report reflects that the deceased had already taken meal as his stomach was half full and contained rice, vegetables and meat pieces in a fluid with strong smell of spirit." In view thereof, the submissions made by learned counsel for the appellant based on Ex.-5 site map and site report cannot be accepted. 20. So far as the submissions made by learned counsel for the appellant regarding the contributory negligence of the deceased is concerned, again no question was put either to the claimant AW-1 Gaurav or AW-2 Pushkar Sharma regarding the alleged contributory negligence of the deceased. 20. So far as the submissions made by learned counsel for the appellant regarding the contributory negligence of the deceased is concerned, again no question was put either to the claimant AW-1 Gaurav or AW-2 Pushkar Sharma regarding the alleged contributory negligence of the deceased. In absence of any evidence in this regard, the submissions made by learned counsel for the appellant regarding alleged contributory negligence cannot be countenanced. 21. The issue pertaining to the age of the deceased was thoroughly considered by the Tribunal as the Insurance Company sought to contend that the age of the deceased must be determined based on the election commission votor identity card, based on which the age of the deceased would be 51 years whereas the Tribunal based on the date of birth indicated in the driving licence as well as the information made available by the employer of the deceased i.e. the Government Department came to the conclusion that the date of birth of the deceased was 12.4.1964. 22. In view of the availability of the driving licence and the indication by the Government Department, the employer of the deceased, the Tribunal was justified in taking the age of the deceased as 12.4.1964 and no interference in the impugned finding is called for. 23. In view of the above discussion, there is no substance in the appeal, the same is, therefore, dismissed.