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2021 DIGILAW 326 (RAJ)

The New India Assurance Co. Ltd. , v. Mangi Devi

2021-02-10

VINIT KUMAR MATHUR

body2021
JUDGMENT 1. With the consent of the learned counsel for the parties, the appeals are being heard and decided finally. 2. Since there is no dispute with respect to the violation of the policy, therefore, the service upon driver and owner of the truck is dispensed with in both the appeals at the risk and cost of the counsel for the appellant-Insurance Company. 3. The present appeals have been preferred assailing the validity of the judgment and award dated 14.7.2020 passed by the Motor Accident Claims Tribunal, Barmer in claim case No.208/2018 whereby the Tribunal awarded a compensation to the tune of Rs. 15,80,520/- to the respondents-claimants on account of accident which occurred on 2.4.2018. The Insurance Company by filing the present appeal (CMA No.1679/2020) has challenged the findings of the Tribunal on issue No.1, whereas, the claimants have preferred the appeal (CMA No. 1797/2020) for enhancement of the amount awarded by the Tribunal. Since both the appeals arise out of the judgment dated 14.07.2020, therefore the same are decided by this common judgment. 4. Learned counsel appearing for the appellant-Insurance Company vehemently submitted that the findings of the Tribunal recorded on issue No.1 are absolutely incorrect and erroneous. He submits that a perusal of the site plan prepared by the police during the course of investigation, clearly reveals that the accident was taken place on the centre of the road which is a four lane highway running from Barmer to Uttarlai having a divider which divides the highway in two lanes each. He submits that the place of accident as reflected in the site plan, clearly shows that the deceased who was riding the motorcycle hit the truck from behind and because of his negligence, the accident occurred. He further submits that no fault can be found with the driver of the truck. He submits that even as per the MTO reports of the motorcycle and truck clearly show that there was damage of front light and odometer of the motorcycle and the rare bumper of the truck. No other damages were reported in the MTO report. He further submits that even as per the post mortem report, the injuries sustained by Devendra (deceased) were only on front part of the head and on face. No other damages were reported in the MTO report. He further submits that even as per the post mortem report, the injuries sustained by Devendra (deceased) were only on front part of the head and on face. Thus, this clearly reflects that it was the fault of the motorcycle rider Devendra who drove the motorcycle rashly and negligently and hit the truck from behind and caused the accident. Learned counsel for the appellant-Insurance Company has also submitted that as per the statement of one Daduram AW-2, the motorcycle rider Devendra hit the truck from behind. Therefore, the findings recorded by the Tribunal on issue No.1 is erroneous and the Insurance Company cannot be held liable to pay the compensation to the tune of 100% for causing the accident. In support of his contention, learned counsel for the appellant submits that since it was the motorcycle rider who was 100% negligent in the present case, the fastening of the liability on the Insurance Company, on the face of it, is incorrect and erroneous. He has also relied upon the judgment passed by the Hon'ble Supreme Court in the case of Nishan Singh & Ors. Vs. Oriental Insurance Co. Ltd. reported in 2018(l) R.A.R. 129(SC). 5. He further submits that as far as the computation of the award is concerned, learned Tribunal has correctly computed the award taking into consideration the factors which are in consonance with the judgment of Hon'ble the Supreme Court in the case of National Insurance Company Ltd. vs. Pranay Sethi reported in (2017) SC 5157, however, the amount awarded towards general damages is stated to be on the higher side. Thus, he prays that the judgment and award dated 14.7.2020 passed by the Tribunal may be quashed and set aside so far as the Insurance Company is concerned. 6. Per contra, learned counsel for the respondents-claimants submits that the findings recorded by the Tribunal on issue No.1 is perfectly in order as the same has been passed after appreciation of the evidence on record. He further submits that the accident occurred because of the sudden turning of the truck and the fault squarely lies with the driver of the truck as he was driving the truck in a rash and negligent manner. He further submits that the accident occurred because of the sudden turning of the truck and the fault squarely lies with the driver of the truck as he was driving the truck in a rash and negligent manner. Learned counsel for the respondents-claimants on the strength of the depositions made by AW-1 Mangi Devi and AW-2 Daduram submits that because of the fault of the driver of the truck, the accident occurred and there was no fault of the motorcycle rider Devendra to cause accident. He therefore, submits that the liability to pay the compensation has rightly been fastened on the appellant-Insurance Company and the same does not require any interference. 7. Learned counsel for the respondent-claimants further submits that the amount awarded by the Tribunal while adjudicating the issue no.2 is on lower side. He submits that the pay slips of the deceased Devendra were placed on record which shows that he was working on the post of Supervisor in Meera Enterprises and was earning Rs.30,000/- per month. He therefore submits that the Tribunal committed error in considering the income of the deceased to the tune of Rs.5538/- per month while computing the award. Learned counsel for the respondents-claimants further submits that no amount towards the loss of consortium has been awarded in the light of the judgment of Hon'ble the Supreme Court in the case of New India Assurance Company Limited and Ors. vs. Somwati and Ors. (2020) 9 SCC 644 . Thus, he prays for dismissal of the appeal preferred by the appellant-Insurance Company and the amount may suitably be enhanced in the present case. 8. I have considered the submissions made at the Bar and gone through the judgment and award dated 14.07.2020 as well as the record of the case. 9. The finding of fact recorded by the Tribunal on issue No.1 needs to be re-appreciated in the light of the documents i.e. the site plan prepared by the police, the MTO report of the motorcycle, the MTO report of truck as well as the Post Mortem Report of deceased Devendra. As per the site plan, the place of accident is shown in the centre of the road and no other road is crossing the main road. Admittedly, both the vehicles i.e. the truck and the motorcycle were driven in the same direction i.e. Uttarlai to Barmer. As per the site plan, the place of accident is shown in the centre of the road and no other road is crossing the main road. Admittedly, both the vehicles i.e. the truck and the motorcycle were driven in the same direction i.e. Uttarlai to Barmer. Thus, the observation of the Tribunal that a sharp turn was taken by the driver of the truck does not appear to be feasible. As per the MTO reports of the motorcycle and the truck in question show that only the front light and odometer of the motorcycle were found to be damaged and no damage was caused to other parts of the motorcycle. Similarly, it was noted that except the dent on the rear bumper of the truck, no observation with respect to scratch or damage on any part of the truck was made. As per the post mortem report also, the injuries suffered by deceased Devendra were on front head and face. Thus, the analysis of these documents, in the opinion of this Court, shows that the accident took place on account of motorcycle hitting the truck from behind. At the best it could be a case where a truck has suddenly stopped and the motorcycle driven by its rider from behind, hit rear part of the truck. It is also fortified from the fact that as per the statement of AW-2 Daduram, who is allegedly the eye-witness of the accident, has stated that the truck hit from behind and due to which the the rider of the motorcycle Devendra got seriously injured. He was taken to the hospital and ultimately he died. 10. A close reading of the documents reveals that the finding recorded by the Tribunal on issue No.1 requires some modification. It could be a case where a truck which was coming from Uttarlai to Barmer, suddenly stopped or brakes were applied by the driver and the deceased Devendra who was riding the motorcycle, hit the truck from behind and due to which, he sustained injuries on the front part of the head and face. Thus, this Court is of the opinion that the driver of the truck was not 100% negligent, however, in view of the discussions made above, the driver as well as motorcycle rider both were negligent and therefore, the contributory negligence attributed to the drivers of the truck and motorcycle could be 50% each. Thus, this Court is of the opinion that the driver of the truck was not 100% negligent, however, in view of the discussions made above, the driver as well as motorcycle rider both were negligent and therefore, the contributory negligence attributed to the drivers of the truck and motorcycle could be 50% each. Therefore, the liability of the appellant-Insurance Company on account of contributory negligence can be reduced from 100% to 50%. 11. The judgment relied upon by the learned counsel for the appellant-Insurance Company in the case of Nishan Singh (Supra) also partially applicable in the facts and circumstances of the case. The facts of the present case clearly depict that on applying the sudden brakes by the driver of the truck, the motorcycle rider hit the rear part of the truck from behind. Thus, the motorcycle rider i.e. deceased Devendra was also equally negligent. The finding recorded by the Tribunal on issue No.2, is therefore, modified and the appellant-Insurance Company is liable to compensate the damages to the extent of 50% only in this case. 12. As far as the computation of award is concerned, the Tribunal has taken into consideration the income of the deceased to the tune of Rs.5,538/- per month on the ground that no documentary evidence was produced before the Tribunal which conclusively proves that the deceased was earning Rs.30,000/- in view of the pay slips issued. Since those documents were not conclusively proved, therefore, the Tribunal has taken into consideration the income of the deceased as a unskilled labour prevailing at the time of accident according to the minimum wages. As the deceased was 27 years of age at the time of accident and had completed his senior secondary school, therefore, in the opinion of this Court, the wages available to the skilled worker at the time of accident would meet the ends of justice if the same are taken into consideration for the computation of the award. Thus, the per month income of the deceased as Rs.5538/- is modified to the tune of Rs.6058/- as an skilled labour which is the rate prevailing at the time of accident as per the minimum wages. The multiplier used in this case remains the same being correctly applied by the Tribunal. Thus, the computation of award is recomputed as under:- Income of the deceased [6058+40%(8481x12x17x )] Rs.12,97,593/- Medical Expenses Rs. The multiplier used in this case remains the same being correctly applied by the Tribunal. Thus, the computation of award is recomputed as under:- Income of the deceased [6058+40%(8481x12x17x )] Rs.12,97,593/- Medical Expenses Rs. 2,44,280/- Loss of Consortium [5 x 40,000] Rs. 2,00,000/- Funeral Expenses Rs. 15,000/- Loss of Estate Rs. 15,000/- Less 50% on account of of contributory negligence Rs.17,71,873.00 Rs. 8,85,936.50 Rs. 8,85,936.50/- 13. In view of the discussions made above, the Insurance-Company since has been held liable to the tune of 50% only on account of contributory negligence, therefore an amount of Rs.8,85,937/- is ordered to be paid to the claimants respondents in this case. 14. Thus, both the appeals are disposed of with a direction to the appellant-Insurance Company to pay an amount of Rs.8,85,937/-to the respondents-claimants within a period of six weeks. The enhanced amount shall carry an interest @ 6% till the same is paid.