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2021 DIGILAW 1918 (RAJ)

Bhanwar Lal v. Kalawati

2021-10-04

VINIT KUMAR MATHUR

body2021
JUDGMENT : VINIT KUMAR MATHUR, J. 1. Since, both these appeals arise out of the common judgment, therefore, the same are being disposed of finally by this common judgment. 2. The present appeals arise out of the Judgment and Award dated 21.03.2016 passed by the Motor Accident Claims Tribunal No. 1, Udaipur, in MACT Claim Case No. 75/2014 whereby, the claimants were awarded a sum of Rs. 8,25,000/- on account of the death of Khushboo in the accident which occurred on 24.09.2013. 3. The learned Tribunal after framing the issues, evaluating the evidence on record and hearing learned counsel for the parties decided the claim petition of the claimants. 4. Heard learned counsel for the parties. 5. The appeal bearing No. 2383/2016 preferred by Bhanwar Lal, who is the owner of the vehicle involved in the accident, assailed the findings recorded by Tribunal on Issue No. 2. 6. Learned counsel for the appellant submits that the Tribunal committed an error while recording the finding that the tractor trolley was being used for the commercial purposes, the insurance cover of the tractor trolley was only for the purpose of using the same for the agriculture purposes but, the said tractor trolley at the time of accident was used for commercial purpose, therefore, the Insurance Company is liable to pay the compensation. Learned counsel further submits that even as per the insurance policy, the third party risk was covered and the Insurance Company is liable to satisfy the payment of compensation in the present case and, therefore, the liability to pay the compensation cannot be fastened upon the appellant. He further submits that even as per the testimony of NW-1 Nitin, who was an Officer of the Insurance Company, it has come on record that the tractor trolley at the time of accident was not used for the commercial purposes. He further submits that evaluation of the evidence on record further shows that it cannot be said with certainty that the tractor trolley at the time of accident was being used for commercial purposes. Thus, learned counsel submits that the liability to pay the compensation was wrongly fastened on the present appellant, who is the owner of the tractor trolley. He, therefore, prays that the finding recorded by the Tribunal on Issue No. 2 is erroneous and the same is required to be quashed and set aside. 7. Thus, learned counsel submits that the liability to pay the compensation was wrongly fastened on the present appellant, who is the owner of the tractor trolley. He, therefore, prays that the finding recorded by the Tribunal on Issue No. 2 is erroneous and the same is required to be quashed and set aside. 7. Per contra, learned counsel for the respondent-Insurance Company submits that the finding recorded by the Tribunal on Issue No. 2 does not suffer from any infirmity as it had come on record that at the time of accident, the tractor trolley was filled with the quarry stones and while taking a turn when one of the stones fell on Khushboo and caused fatal injuries resulting into her death. Thus, according to the learned counsel for the Insurance Company, the tractor at the time of accident was not being used for the agricultural purposes and therefore, the Insurance Company is not liable to pay the compensation. 8. I have considered the submissions made at the Bar and gone through the Judgment dated 21.03.2016 as well as the other relevant record of the case. 9. The finding recorded by the Tribunal on Issue No. 2 to the effect that the tractor was being used for commercial purposes, therefore, the appellant is liable to pay the compensation does not appear to be just and proper in the wake of the evidence which has come on record, more particularly, the insurance policy which was placed on record. As per the insurance policy, the third party risk was covered and premium for the same was also charged by the Insurance Company. Further, as per the statement of NW-1 Nitin, it cannot be assumed that at the time of accident the tractor trolley was being used for the commercial purposes. 10. The conjoint reading of evidence which was brought on record shows that the tractor was being used only for the agriculture purposes and as per the insurance policy since, the third party risk was covered, the Insurance Company was liable to satisfy the award in the present case. Further, it is also observed that in view of the evidence brought on record, the violation of the policy conditions are not made out in the present case. Further, it is also observed that in view of the evidence brought on record, the violation of the policy conditions are not made out in the present case. Therefore, the finding arrived at by the Tribunal on issue No. 2 is set aside and the insurance Company is directed to make the payment of compensation in the present case. 11. In view of the discussions made above, the appeal preferred by the owner/appellant Bhanwar Lal is allowed and the respondent-Insurance Company is directed to pay the amount awarded by the Tribunal in the present case. 12. As far as, the appeal of the claimants for enhancement is concerned, learned counsel has submitted that the Tribunal committed an error while calculating the amount of compensation. He further submits that it was specifically stated before the Tribunal that at the time of the accident the deceased was 19 years of age and was running a beauty parlour from which the monthly income of the deceased was Rs. 12,000/-. Learned counsel further submits that as per the statement of AW-1 Basanti Lal, it had come on record that the deceased was running a beauty parlour and the income derived from the same was Rs. 12,000/- per month. However, the Tribunal was not justified in reducing the same to Rs. 6,000/- per month. He further submits that the Tribunal had taken into consideration the multiplier of 14 taking into consideration the age of her parents, whereas, the multiplier of 18 was required to be taken into consideration while calculating the amount in the light of the judgment of Hon'ble the Supreme Court in the case of National Insurance Company Ltd. vs. Pranay Sethi, (2017) SCC 5157. 13. Learned counsel submits that only an amount of Rs. 35,000/- was awarded towards the general damages, whereas, as per the judgment of Hon'ble the Supreme Court in the case of Pranay Sethi (supra), the same is required to be awarded as Rs. 70,000/-. 14. Per contra, learned counsel for the respondent-Insurance Company vehemently submitted that the amount awarded by the Tribunal is too excessive and being on the higher side, the same is required to be reduced considerably. He further submits that there is no credible evidence on record which shows that the deceased was running a beauty parlour and the monthly income of Rs. 6,000/- was derived from the same. He further submits that there is no credible evidence on record which shows that the deceased was running a beauty parlour and the monthly income of Rs. 6,000/- was derived from the same. Learned counsel further submits that in the statements of AW-1 Basanti Lal, who is the father of the deceased it is stated that the deceased was a regular student of second year and was attending the classes from morning till 1'o clock. Further in the statement of AW-2 Garima, who issued the certificate does not throw any light on the fact that the deceased was earning Rs. 12,000/- per month as claimed by the claimants. He, therefore, submits that the Tribunal committed an error while considering the income of deceased as Rs. 6,000/- per month. However, learned counsel for the respondent is not in a position to controvert the submissions with respect to the multiplier and the award of amount towards other conventional heads in the light of the judgment of Hon'ble the Supreme Court in the case of Pranay Sethi (supra). 15. Learned counsel further submits that the interest awarded in the present case is excessive and the same is required to be reduced considerably in the light of the prevailing rate of interest in the country. 16. Learned counsel for the respondent-Insurance Company submits that the Tribunal had wrongly taken into consideration the 50% of the amount towards the loss of future prospects, whereas, as per the judgment of Hon'ble the Supreme Court in the case of Pranay Sethi (supra), an amount of 40% is required to be taken into consideration towards the loss of future prospects. 17. I have considered the submissions made at the Bar and gone through the Judgment dated 21.03.2016 as well as the other relevant record of the case. 18. The fact that the deceased was running a beauty parlour is made out from the statements of AW-1 Basanti Lal and AW-2 Garima. Besides the other evidence brought on record, the amount taken into consideration by the Tribunal also in the opinion of this Court is just and proper and therefore, the same does not call for any interference by this Court. It is also noted that the multiplier of 14 employed by the Tribunal is not correct as while calculating the award considering the age of the deceased multiplier of 18 should have been applied. It is also noted that the multiplier of 14 employed by the Tribunal is not correct as while calculating the award considering the age of the deceased multiplier of 18 should have been applied. It is also noted that the amount towards the conventional heads is also to be taken as Rs. 70,000/- in the light of the judgment of Hon'ble the Supreme Court in the case of Pranay Sethi (supra). 19. The Tribunal had also wrongly taken into consideration 50% of the amount towards the loss of future prospects as the same was required to be taken as 40% as the age of the deceased at the time of the accident was 19 years. The amounts awarded on account of the other heads shall remain unchanged and the amount in the present case is required to be computed as under: For future prospects 40% of Rs. 6,000/- p.m. (Income of deceased) Rs. 2,400/- Rs. 6,000/- + Rs. 24,00/- = Rs. 8,400/- p.m. Rs. 8,400/- / 1/2 = Rs. 4,200/- Amount to be deducted as spent on himself Dependence Amount Rs. 8,400 - Rs. 4,200 = Rs. 4,200/- 20. The age of deceased was 19 years, therefore, a multiplier of 18 will be applied: (I) Compensation due to death [4,200 x 18 x 12] Rs. 9,07,200/- (II) Medical Bills Rs. 31,648/- (III) Attendant Charges Rs. 2,000/- (IV) Funeral Expenses Rs. 15,000/- (V) Loss of Estate Rs. 15,000/- (VI) Loss of Consortium Rs. 40,000/- Total Rs. 10,10,848/- Less Amount awarded by the Tribunal Rs. 8,25,000/- Enhanced amount Rs. 1,85,848/- 21. The amount of interest 9% p.a. awarded by the Tribunal is excessive and the same is modified to 7% p.a. 22. In view of the discussions made above, the appeal preferred by the claimants is allowed and the respondent-Insurance Company is directed to pay the entire amount including the amount awarded by the Tribunal vide its judgment and award dated 21.03.2016 as well as the enhanced amount of Rs. 1,85,848/- (Rupees One Lac Eighty Five Thousand Eight Hundred Forty Eight Only) within a period of six weeks from today. The amount of compensation so awarded shall be paid by the Insurance Company with interest @ 7% p.a. from the date of filing the claim petition and till the same is paid.