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2019 DIGILAW 2849 (RAJ)

Padama Gokal Gandhi v. Karan Singh

2019-11-15

PUSHPENDRA SINGH BHATI

body2019
JUDGMENT Pushpendra Singh Bhati, J. - The matter was argued at length yesterday by the learned counsel Mr. B.L. Lodha assisted by Mr. Rishabh Shrimali and was posted today for a small querry to be satisfied by Mr. Sanjeev Johari. 2. The appeal of the enhancement has been preferred by the claimants with the following prayers:- "It is, therefore, humbly prayed that this appeal may kindly be allowed with cost and amount of award may be enhanced and remaining amount of compensation as per claim petition may be awarded to the claimants." 3. The insurance Company has filed cross objection challenging the liability and the cross examinations were also listed with the following prayer:- "It is, therefore, most humbly and respectfully prayed that the Cross-objections may kindly be allowed and the award of the learned Tribunal, Udaipur may kindly be set aside or in the alternative the Cross- Objector Insurance Company may not kindly be held liable in this case. 4. The cross objection has been preferred on the ground that under the Motor Vehicle Act, 1939 particularly under Section 95 the limited liability of the insurance company has to be considered. Learned counsel for the claimant has submitted the judgments which are as follows:- (1) Oriental Insurance Co. Ltd. Vs. Cheruvakkara Nafeessu and Ors., (2001) 1 SRJ 340 (SC) (2) Oriental Fire and General Ins. Co. Ltd. Vs. Firdos Pervez Mysorewala and Ors., (2004) ACJ 257 (3) New India Assurance Co. Ltd. Vs. Vimal Devi and Ors.,2011 ACC 102 (SC) 5. The purport of the judgments is that if an amount has already been paid to the claimants then the insurance company at best could be liable to recover the same from the owner. The learned counsel for the claimants further submits that guidelines of National Insurance Company Limited Vs. Pranay Sethi and Ors., (2017) AIR SC 5157 may be adhered to enhance the compensation by recomputing the same. 6. Learned counsel for the appellants does not have any dispute on the factual matrix of the case. 7. Learned counsel for the Insurance Company has referred to the judgment of the Constitutional Bench of the Hon'ble Apex Court in the matter of New India Assurance Company Ltd. Vs. 6. Learned counsel for the appellants does not have any dispute on the factual matrix of the case. 7. Learned counsel for the Insurance Company has referred to the judgment of the Constitutional Bench of the Hon'ble Apex Court in the matter of New India Assurance Company Ltd. Vs. C.M. Jaya and Others, (2002) 2 SCC 278 whereby the Hon'ble Apex Court has directed that the Insurance Company can be held liable only to the limited liability under Section 95(2) .Learned counsel for the respondents has also relied upon the judgments reported in ( Oriental Insurance Co. Ltd Vs. Bhoop Singh and Ors., (2003) 10 SCC 286 and also the order passed in SB Civil Misc. Appeal No. 642/1999 (National Insurance Company Limited Vs. Bhuraji and Ors.) 8. After hearing learned counsel for the parties and perusing the record available with the Court on the limited issue, this Court is of the opinion that applying Pranay Sethi guidelines (Supra) on the non disputed factual matrix is a lawful demand of the claimants and thus, learned counsel for the insurance company and the learned counsel for the claimants are directed to give joint computation on the same factual matrix which has been arrived at by the learned court below. 9. The computation provided by the learned counsel for the parties is as under:- Age of the Deceased 45 years Multiplier 14 Future Prospects 25% Personal Expenses Deduction 1/3 Monthly Income of the Deceased Rs. 5000/- Monthly Income after adding Future Prospects Rs. 6250/- Monthly Income after deducting Personal Expenses Rs. 4167/- Yearly Income of the deceased Rs. 50,004/- Total Income after applying Multiplier Rs. 700056/- Other Conventional Heads Rs. 70,000/- Total Award Rs. 7,70,056/- Compensation awarded by Tribunal Rs. 4,90,200/- Enhanced Award Rs. 2,79,856/- 10. The enhanced amount of Rs. 2,79,856/- shall be payable by the owner of the vehicle in question. In light of the precedent law of National Insurance Company Ltd Vs. Pranay Sethi (supra), the enhanced award of Rs. 2,79,856/- is granted which shall be payable along with interest @ 6% per annum from the date of filing of claim petition till actual payment is made. The enhanced amount is to be paid within two months from today, failing which the same shall carry interest @ 9% per annum for the subsequent period (i.e. after two months from today) till actual payment is made. 11. The enhanced amount is to be paid within two months from today, failing which the same shall carry interest @ 9% per annum for the subsequent period (i.e. after two months from today) till actual payment is made. 11. The appeal is accordingly allowed. All pending applications also stand disposed of. 12. The cross objection filed by the insurance company deserves to be allowed in light of the judgment passed in C.M. Jaya, Bhoop Singh and Bhuraji and Ors. (supra) as liability of the Insurance Company cannot be saddled beyond the parameters of Section 95 (2) of the Motor Vehicle Act, 1939. However, taking into account that the judgments given by the learned counsel for the claimants in Cheruvakkara Nafeessu and Ors., Firdos Pervez Mysorewala and Ors. ( Vimal Devi and Ors.) Vimal Devi and Ors. (supra) the amount which has already been paid is made permissible to be recovered from the owner of the vehicle by the insurance company. As far as the enhanced amount as passed by this judgment is concerned, the same shall be recovered only from the owner only.