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2021 DIGILAW 74 (RAJ)

Oriental Insurance Company Limited v. Indra Devi

2021-01-12

ARUN BHANSALI

body2021
JUDGMENT 1. This appeal is directed against the judgment and award dated 26.4.2019 passed by Motor Accident Claims Tribunal, Pali ('the Tribunal'), whereby, the Tribunal has awarded a sum of Rs.25,62,000/- as compensation alongwith interest @ 9% per annum from the date of application i.e. 17.1.2017. 2. The application for compensation was filed by the nine claimants, who were wife, children, parents and brothers of one Hari Ram, inter alia, with the submissions that Hari Ram was going on motorcycle when the offending vehicle a Mahindra Jeep, which was being driven rashly and negligently, collided with the motorcycle, resulting in, grievous injuries to Hari Ram, to which, he succumbed. It was claimed that the deceased was aged 28 years and was involved in grocery business, operating a flour mill and he used to undertake agricultural operations and earned Rs.21,500/- per month. Based on the said submissions, compensation was sought to the tune of Rs. 1,35,08,000/-. 3. The application was contested by the Insurance Company questioning the avements made in the application. The other non-claimants also filed reply and contested the claim. 4. The Tribunal framed four issues. On behalf of the claimants, three witnesses were examined and 42 documents were exhibited. On behalf of the non-claimants, no evidence was led. 5. After hearing the parties, the Tribunal came to the conclusion that the accident occurred on account of rash and negligent driving by the driver of the Jeep. The defence raised by the Insurance Company was negated. 6. While assessing the quantum of compensation, the Tribunal came to the conclusion that from the evidence available on record, the deceased was operating a flour mill and was involved in agricultural operations and assessed the income of the deceased at Rs.10,000/- per month, thereafter, adding Rs.4,000/- towards future prospects, deducting l/4th towards personal expenses and applying multiplier of 17, assessed the loss of income at Rs.21,42,000/-. The Tribunal also awarded Rs.50,000/- each to the seven claimants except for two major brothers i.e. Rs.3,50,000/- as compensation towards loss of love & affection, awarded Rs.40,000/- towards loss of consortium to the wife, Rs.15,000/- towards funeral expenses and Rs.15,000/- towards loss of estate and in all awarded a sum of Rs.28,62,000/-. 7. It is submitted by learned counsel for the appellant that the Tribunal was not justified in awarding excessive compensation. 7. It is submitted by learned counsel for the appellant that the Tribunal was not justified in awarding excessive compensation. Submissions were made that the material produced on record did not support the claim of the claimants pertaining to the income of the deceased and, therefore, the notional income even as per skilled workman could have been taken by the Tribunal, however, a huge sum of Rs. 10,000/- per month has been assessed as income, which deserves to be modified. 8. Further submissions were made that the award of Rs.50,000/- each to the seven claimants towards loss of love & affection also cannot be sustained. It was further submitted that the Tribunal has awarded excessive interest @ 9% per annum, which also deserves to be modified. 9. Reliance was placed on judgment of Hon'ble Supreme Court in The New India Assurance Company Ltd. v. Smt. Somwati & Ors.: Civil Appeal No.3093/2020 & other connected matters decided on 7.9.2020. 10. Learned counsel appearing for the respondents - claimants vehemently opposed the submissions. It was submitted that the fact of agricultural operations and other income sources were duly proved by producing witness AW/3 - Gurmeet Singh, on whose land, the deceased was undertaking agricultural operations in share, further exhibits 30/A, 33/A and 34/A to 38/A were produced to indicate the fact that flour mill was being operated by the deceased and, therefore, the assessment made by the Tribunal cannot be faulted. 11. Further submissions have been made that though the Tribunal has awarded Rs.50,000/- each to the seven claimants towards loss of love & affection, which may not be sustainable in light of judgment in Somwati (supra), they were entitled to compensation towards loss of consortium in view of the same judgment at Rs.40,000/- each and, therefore, to that extent award impugned may be modified. 12. I have considered the submissions made by learned counsel for the parties and have perused the material available on record. 13. The facts about the age of the deceased, entitlement towards future prospects and the multiplier applied are not in dispute. 12. I have considered the submissions made by learned counsel for the parties and have perused the material available on record. 13. The facts about the age of the deceased, entitlement towards future prospects and the multiplier applied are not in dispute. So far as the income assessed by the Tribunal is concerned, the claimants claimed the income of the deceased at Rs.20,000 - 25,000/-, however, the Tribunal by taking an apparently balanced approach on account of evidence, oral and documentary, available on record pertaining to the fact that the deceased was involved in agricultural operations and was running a flour mill, has assessed the income at Rs.10,000/- per month, which, in the circumstances of the case, cannot be said to be excessive. 14. The important fact, which needs to be noticed, is the number of dependents in the present case, which apparently are at least six in numbers and, therefore, on that count also, the assessment made, cannot be said to be excessive in the year 2016 when the accident took place. 15. So far as the submission made by learned counsel for the appellant regarding assessment based on the notional income is concerned, it is not in each case that the concept of notional income has to be applied, on the said basis the compensation is assessed in cases where there is no evidence available on record. In the present case, in view of the evidence available on record, it cannot be claimed that the claimants were entitled only to notional income of the deceased. In view thereof, the finding of the Tribunal in assessing the income of the deceased at Rs. 10,000/- per month cannot be faulted. 16. So far as the award of amount towards loss of love & affection to the seven claimants is concerned, the said amount in view of the judgment in the case of Somwati (supra), cannot be sustained. However, in view of the same judgment in the case of Somwati (supra), few of the claimants are entitled for award of compensation towards loss of parental consortium and filial consortium and to that extent, the award impugned deserves to be modified and the claimants - Smt. Indra Devi, Mr. Mahipal, Ms.Aaliya, Smt. Kamla Devi and Mr. However, in view of the same judgment in the case of Somwati (supra), few of the claimants are entitled for award of compensation towards loss of parental consortium and filial consortium and to that extent, the award impugned deserves to be modified and the claimants - Smt. Indra Devi, Mr. Mahipal, Ms.Aaliya, Smt. Kamla Devi and Mr. Jeevraj alone would be entitled to compensation towards loss of consortium and, therefore, instead of Rs.3,90,000/- towards loss of love & affection and consortium, the claimants would be entitled to Rs.2,00,000/-. 17. So far as the rate of interest @ 9% per annum awarded by the Tribunal is concerned, the said rate of interest in the year 2019 w.e.f. the date of filing application, is excessive and the same also deserves to be modified to 7% per annum. 18. Consequently, the appeal filed by the appellant - Insurance Company is partly allowed. The award impugned dated 26.4.2019 is modified to the extent that instead of a sum of Rs.25,62,000/-, the claimants would be entitled to a compensation of Rs.23,72,000/- alongwith interest @ 7% per annum from the date of application i.e. 17.1.2018. 19. The amount to be disbursed to the claimants would also stand modified, whereby, Mr. Bhanwar Lal, Mr. Kishan and Mr. Gouri Lal would not be entitled to any compensation and four claimants i.e. Mr. Mahipal, Ms. Aaliya, Smt. Kamla Devi and Mr. Jeevraj would be entitled to Rs. 10,000/- less than what has been awarded by the Tribunal.