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Rajasthan High Court · body

2019 DIGILAW 1039 (RAJ)

Kanhaiya Lal v. United India Insurance Co. Ltd.

2019-04-05

PRATAP KRISHNA LOHRA

body2019
JUDGMENT : Pratap Krishna Lohra, J. 1. These cross-appeals are filed by claimants and insurance company to challenge judgment and award dated 24th of September, 2015, passed by Motor Accident Claims Tribunal, Chittorgarh (for short, 'learned Tribunal'). In the appeal filed by the claimants, precisely, they have questioned the impugned award to the extent to its finding on Issue No. 3. As per the version of the claimants, amount of compensation determined by the learned Tribunal is grossly inadequate. Per contra, the appeal preferred by the insurer too is confined to finding on Issue No. 3 inasmuch as it has challenged the quantum of compensation determined by the learned Tribunal. As per the perception of the insurer, the amount of compensation quantified and awarded by learned Tribunal is excessive and exorbitant. 2. Necessary relevant facts for disposal of the appeals are that claimants are parents, wife, daughter and sister of deceased Naresh, who died on the spot instantaneously alongwith his companion Aditya Kumar in a road accident on 10th of November, 2007 while riding on motor cycle on account of rash and negligent driving of the vehicle Tanker bearing registration No. RJ-09-GA-0851 by its driver, which dashed against the motorcycle of deceased in its back. An FIR of the accident was lodged at Police Station Nimbaheda bearing No. 443/2007 and after investigation charge-sheet against driver of the tanker for offence under Section 297, 304A IPC and Section 134/187 of the Motor Vehicles Act was filed. In the claim petition, filed before Motor Accident Claims Tribunal, Chittorgarh (for short, 'learned Tribunal'), the claimants quantified total amount of compensation to the tune of Rs. 89,60,000 under different heads including non-conventional damages impleading owner, driver and insurer of the tanker as non-applicants. Another claim petition arising out of the same accident, in connection with other deceased Aditya Kumar, was filed by his near and dear ones, and the claim petition of the present claimants was clubbed therewith. After issuance of summons, the claim petitions were contested by the insurer and owner of the offending vehicle by filing their written statements. Another claim petition arising out of the same accident, in connection with other deceased Aditya Kumar, was filed by his near and dear ones, and the claim petition of the present claimants was clubbed therewith. After issuance of summons, the claim petitions were contested by the insurer and owner of the offending vehicle by filing their written statements. In reply, the insurer though admitted that the vehicle was insured but taken the stand that at the time of accident the driver of tanker was not having valid driving licence and permit to ply the vehicle as such there was violation of the terms of insurance policy, and therefore, it is a clear case of its exoneration from any sort of liability. The owner of tanker in his formal reply refuted the averments of claim petitions and denied liability to pay compensation as the vehicle was insured with the insurance company. 3. The learned Tribunal, on the basis of pleadings of contesting parties, settled issues for determination. For substantiating their claims, on behalf of claimants, in all, four witnesses appeared and were examined. Besides ocular evidence, claimants exhibited 26 documents. However, no evidence was produced in defence by the insurer and other non-claimants. 4. Upon overall appreciation of the evidence, the learned Tribunal decided the issues framed and on the basis of evidence found that accident occurred due to rash and negligent driving of tanker by its driver. Finally, the learned Tribunal awarded a sum of Rs. 16,75,000 to the present claimants holding the insurer, owner and driver of the offending vehicle liable to pay the compensation amount jointly and severally. For arriving at the awarded sum, the learned Tribunal analyzed ocular and documentary evidence, in the backdrop of age of deceased Naresh being 21 years and taking his income as Rs. 10,000 per month quantified total amount of compensation for loss of dependency to the tune of Rs. 16,20,000 by applying multiplier of 18. The amount so worked out by the learned Tribunal was after making 1/4th deduction for personal expenses of the deceased. Besides that, learned Tribunal awarded Rs. 5,000 for funeral expenses and for loss of love & affection and consortium Rs. 10,000 each to the claimants amounting to Rs. 50,000. Finally, the total amount of compensation was quantified to the tune of 16,75,000. 5. Besides that, learned Tribunal awarded Rs. 5,000 for funeral expenses and for loss of love & affection and consortium Rs. 10,000 each to the claimants amounting to Rs. 50,000. Finally, the total amount of compensation was quantified to the tune of 16,75,000. 5. Before this Court, the claimants have filed their appeal for enhancement of the compensation awarded by learned Tribunal while the Insurance Company for quashing and setting aside of the impugned judgment and award dated 24.09.2015. 6. Heard learned counsel for the parties, and perused the materials available on record. 7. The claimants have preferred the appeal claiming enhanced compensation under different heads such as loss of dependency, future prospectus, mental agony, loss of love and affection, consortium and the expenses incurred in performing last rites etc. They have, inter alia, pleaded that deceased Naresh would have earned a sum of Rs. 30,000 per month after completing his medical course and would have lived long, therefore, financial assistance that he could have rendered to the family would have been much more than the amount awarded. The Insurance Company, in its return, refuted various averments of the claim petition and denied its liability on mere ipse dixit stating that driver was not having driving licence and permit to ply the vehicle however that stood disproved from the evidence which has come on record of the learned Tribunal. 8. On the question of quantum of compensation, both claimants and insurer have locked horns, therefore, requires judicial scrutiny in the light of available ocular & documentary evidence as well as on the touchstone of just compensation, envisaged under Section 168 of the Act of 1988. The status of deceased Naresh never remained contentious that at the time of his death he was student of second year course of Bachelor Homeopathic Medicine & Surgery [BHMS]. The status of deceased Naresh never remained contentious that at the time of his death he was student of second year course of Bachelor Homeopathic Medicine & Surgery [BHMS]. For substantiating the claim, claimants produced requisite proof and the learned Tribunal, relying on the age of deceased as 21 years, applied multiplier of 18 as per Second Scheduled to the Act of 1988 to work out total amount of compensation for loss of dependency after making 1/4th deduction for personal expenses of the deceased but the approach of learned Tribunal in determining compensation for loss of dependency, by no stretch of imagination can be said to be proper in view of the fact that deceased would be highly qualified professional of Ayurveda and would have earned much more than what has been assumed by the learned Tribunal while taking his monthly future income as Rs. 10,000 which requires adequate enhancement in view of the fact that his future income would have been much more with the passage of time and his experience in the professional field. Therefore, the amount determined and quantified to the tune of Rs. 16,20,000 for loss of dependency is to be enhanced taking into consideration future prospects of the deceased. 9. The concern of the Court is to see whether the learned Tribunal has awarded just, fair and reasonable compensation to the claimants, who have lost their loved one. The law governing the province of compensation under the Act is a social welfare legislation requiring liberal construction to achieve the objects of legislation. It is in that background, the Courts have duly recognized awarding of compensation to the bereaved family for future prospects of deceased. A bare perusal of the impugned award more specifically finding on quantum of compensation would ipso facto reveal that the aspect of future prospects has completely been eschewed by the learned Tribunal. Therefore, considering loss of income and age of deceased at the time of death, it would be appropriate to make reasonable addition of atleast 37% towards future prospects which comes to around Rs. 6,00,000. Thus, the amount determined under the head loss of dependency is redetermined taking into account future prospects of deceased and same is enhanced to Rs. 22,20,000. 10. 6,00,000. Thus, the amount determined under the head loss of dependency is redetermined taking into account future prospects of deceased and same is enhanced to Rs. 22,20,000. 10. The learned Tribunal, while awarding loss of consortium to the wife of deceased, has not at all cared to visualise the misery of a spouse, who has lost companionship of her husband at the young age of 21 years. Loss of life partner at the age of 21 and sufferings of widowhood is irreparable, which cannot be compensated in terms of money. In legal parlance, "consortium" is the right of a spouse which include company, care, help, comfort, guidance, society, solace, affection and sexual relations with his or her mate. That non-pecuniary head of damages has not been properly understood by the learned Tribunal while passing the award. The loss of companionship, love care and protection etc., to which a spouse is entitled to get, has to be compensated appropriately. Thus, awarding of compensation to the wife of deceased under the head of "loss of consortium" is increased from Rs. 10,000/- to Rs. 40,000/-. 11. Claimants No. 1 & 2 have lost their son, while claimant No. 4 her father, and claimant No. 5 her elder brother, who have been deprived of love, care, and affection on account of untimely death of deceased Naresh, which cannot be compensated in terms of money. However, the learned Tribunal by the impugned award has not reasonably compensated for the same. In the backdrop of facts and circumstances of the instant case, in my opinion, it would be appropriate that each of these claimants Nos. 1, 2, 4 & 5 are allowed a sum of Rs. 15,000/- for loss of love and affection totaling to Rs. 60,000/- under this head. 12. The learned Tribunal has awarded funeral expenses to the tune of Rs. 5,000/-, which in the considered opinion of this Court, is grossly inadequate. Therefore, under this head the amount of funeral expenses taking into consideration misc. ancillary expenses including loss of estate is enhanced from Rs. 5,000/- to Rs. 15,000/-. 13. Thus, the impugned judgment and award is, accordingly, modified and the quantum of compensation is reassessed as under: Loss of dependency with future prospects Rs.22,20,000 Loss of consortium to the spouse Rs.40,000 Loss of love and affection to claimants Nos. 1, 2 & 4 & 5 Rs.60,000 Funeral expenses & Misc. 5,000/- to Rs. 15,000/-. 13. Thus, the impugned judgment and award is, accordingly, modified and the quantum of compensation is reassessed as under: Loss of dependency with future prospects Rs.22,20,000 Loss of consortium to the spouse Rs.40,000 Loss of love and affection to claimants Nos. 1, 2 & 4 & 5 Rs.60,000 Funeral expenses & Misc. Expenses Rs.15,000 Total amount. Rs.23,35,000 14. In view of foregoing discussions, the appeal filed by the claimants is allowed in part and the appeal of the insurer is dismissed. The claimants are declared entitled for total amount of compensation to the tune of Rs. 23,35,000 (including enhanced amount of Rs. 6,60,000) as indicated hereinabove. The insurer is directed to ensure payment of enhanced amount of Rs. 6,60,000 with interest @ 9% per annum to the claimants from the date of filing claim petition within a period of two months from the date of receipt of certified copy of the judgment.