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Rajasthan High Court · body

2022 DIGILAW 3006 (RAJ)

Reliance General Insurance Co. Ltd. v. Krishna

2022-12-19

MANOJ KUMAR GARG

body2022
JUDGMENT 1. Instant appeals have been filed under section 173 MV Act of the Motor Vehicles Act, 1988 against the judgment and award dated 04.06.2012 passed by learned Judge, MACT Jaitaran, District Pali in Claim Case no. 83/2009 whereby the learned Judge, MACT Cases has partly allowed the claim petition of the claimants for a sum of Rs.4,08,000/- along with simple interest @ 7.5% per annum from the date of filing of the claim petition and on account of violation of the condition of permit by the owner of the Truck, the appellant Insurance Company was directed to pay the awarded amount to the claimants and, thereafter, recover the same from the owner. The claimants has filed the appeal for the enhancement of the award amount whereas, the Insurance company has challenged the award. 2. Succinctly stated, facts of the case are that a claim petition was filed by the respondents no. 1 to 5 before the Motor Accident Claims Tribunal, Jaitaran District Pali, stating therein that on 17.05.2009, when the deceased Mahendra and Kishore Ram were travelling on motor cycle driven by one Om Prakash from Jaitaran towards Anandpur Kalu, when near Banjakudi they were hit by one Truck 409 no. RJ-19-GA-221which was coming from opposite direction which was being driven by its driver respondent no. 6 Shravan Kumar in highly rash and negligent manner resulting into taking place of the accident in which all the 3 persons riding on motor cycle namely Om Prakash (driver of motor cycle) and Mahendra and Kishore Ram(pillion riders of the motor cycle) sustained injuries who succumbed to injuries. 3. The respondents no.6 and 7 who were the driver and registered owner of the offending vehicle respectively filed reply to the claim petition and stated that the accident was caused due to the negligence of the driver of the motor cycle as the motor cycle has gone on the middle of the road as a result of which the truck coming from the opposite direction hit the motor cycle for which no liability could be fastened on the driver of the truck. It was also pleaded by the respondents that since the vehicle was insured with the insurance company, the liability to pay compensation is upon the insurance company. 4. It was also pleaded by the respondents that since the vehicle was insured with the insurance company, the liability to pay compensation is upon the insurance company. 4. The appellant insurance company filed its reply and submitted that the accident took place on account of negligent of the driver of the motor cycle and not on account of any negligence on the part of the driver of the Truck. The appellant also took plea that the driver of the truck was not having valid and effective driving license and as such the insurance company was not liable to make payment of any compensation to the claimants. It was also pleaded by the insurance company that the truck in question was being driven without permit which was a violation of condition of policy and as such the insurance company was not liable to pay any compensation. 5. In support of the claim petition, the claimants produced AW-1 Multan, AW-2 Santra Devi and AW-3 Mangla Ram and exhibited 11 documents. Whereas, the insurance company produced NAW-1 Ghanshyam Singh and exhibited 2 documents. 6. The learned Judge, MACT cases after taking into consideration the entire facts of the case decided issue no.1 and 2 partly in favor of the claimants by holding that since it was head on collision between the offending vehicle and the motor cycle and 3 persons were sitting on the motorcycle, therefore, the liability of the driver of the motor cycle to the extent of 25% shall be fastened and the remaining liability of 75% shall be fastened on the driver of the Truck. 7. Issue no. 4 related to the objections of the insurance company regarding its non-liability of making payment of compensation to the claimants on account of the Truck was being plied in violation of policy conditions as no permit of the Truck was produced by the owner of the vehicle, even though the vehicle weight was of 9600 kilogram, however, no permit was produced by the owner of the vehicle. Therefore, an adverse inference was drawn against the owner of the vehicle that the offending vehicle was being plied without valid permit for which insurance company could not be held liable. Therefore, an adverse inference was drawn against the owner of the vehicle that the offending vehicle was being plied without valid permit for which insurance company could not be held liable. However, by applying the principle laid down in the case of Swaran Singh, the liability of making the payment of compensation to the claimants at the first instance was fastened upon the appellant insurance company which can later recover the same from the owner of the offending vehicle. 8. On the issue of quantum of compensation, the learned Judge, MACT Cases assessed the monthly income of the deceased to be Rs.3,000/- per month and considered the age of the deceased Kishore Ram to be 24 years, applied the deduction of 1/4 by considering the dependants to be 5 in number upon the deceased. The loss of income was thus arrived at a sum of Rs.4,59,000/-. Apart from the above some, the Tribunal awarded Rs.5000/- towards funeral expenses, Rs.20,000/- to the wife of the deceased towards loss of consortium, Rs.40,000/- to the children of the deceased towards loss of love and affection, Rs.10,000/- each to the parents of the deceased. The total amount was thus arrived at a sum of Rs.5,44,000/-. Since the negligence of the offending vehicle was assessed at 75% and the negligence of the motor cycle was assessed at 25%, the total award amount for which the claimants were entitled was arrived at Rs.4,08,000/ along with interest @ 7.5% per annum from the date of filing of the claim petition. 9. Mr. Vishal Singhal, learned counsel for the Insurance Company submitted that the insurance company has challenged the award mainly on the ground that even though issue no.4 was decided in favour of the appellant company, still the learned Judge, MACT cases has directed the insurance company to first pay the awarded amount to the claimants and thereafter to recover the same from the owner. Since the violation of permit was held proved by the Tribunal, the insurance company deserved to be exonerated completely. The other ground on which the appeal is preferred is that since the accident took place in the middle of the road, negligence of the driver of the motor cycle could not be less than 50% and on that basis deduction of 50% from the award amount should have been made while passing the award in favour of the claimants. The other ground on which the appeal is preferred is that since the accident took place in the middle of the road, negligence of the driver of the motor cycle could not be less than 50% and on that basis deduction of 50% from the award amount should have been made while passing the award in favour of the claimants. Lastly the quantum of compensation was also challenged by the company that the amount awarded in other heads is excessive and as per the Second Schedule, the amount awarded in other heads is limited i.e. for funeral expenses Rs.2,000/-, for loss of consortium Rs.5,000/- and for loss of estate Rs.2,500/- can only be awarded, whereas, the learned Tribunal has awarded Rs.85,000/- in other heads. The deduction of 1/4th is also not justified as the maximum deduction permitted as per the Second Schedule appended to the Motor Vehicles Act is 1/3rd in case of fatal accident claims which the victim would have incurred towards maintaining himself had he been alive. 10. Per contra, learned counsel for the claimants Mr. Ravi Panwar submits that the amount awarded by the learned Tribunal is already on the lower side and the same is liable to be enhanced as the deceased was pillion rider of the motor cycle which was driven by its driver Om Prakash. Therefore, it was the case of composite negligence as far as deceased Mahendra is concerned and as such the reduction of total award amount to the tune of 25% was not justified and the claimants are entitled for complete award amount. The claimants though did not dispute the pay and recovery order granted by the learned Tribunal. Learned counsel for the claimants placed reliance on the decision of Hon’ble Supreme Court in the case of ’Amrit Paul Singh Vs. Tata AIG General Insurance Co.Ltd. & Ors.’ reported in (2018) 7 SCC 558 and ’Khenyei Vs. New India Assurance Company Ltd. & Ors.’ reported in (2015) 9 SCC 273 . 11. The owner of the vehicle who is represented by Mr. S.K. Sankhla, Advocate submitted that both the appeals are liable to be dismissed as the finding recorded by the learned Tribunal cannot be faulted out. 12. Heard the learned counsel for the parties. I have gone through the record and perused the impugned judgment / award passed by the learned Judge, MACT cases, Jaitaran, District Pali. 13. S.K. Sankhla, Advocate submitted that both the appeals are liable to be dismissed as the finding recorded by the learned Tribunal cannot be faulted out. 12. Heard the learned counsel for the parties. I have gone through the record and perused the impugned judgment / award passed by the learned Judge, MACT cases, Jaitaran, District Pali. 13. It is not disputed that the accident occurred on 17.05.2009 as a result of which Mahendra succumbed to injuries. The vehicle was also insured with the insurance company. However, as far as decision on issue no.1 is concerned, the learned Judge, MACT cases while deciding issue no.1 has held that both the vehicles were negligent as the accident took place at the middle of the road and there were 3 persons riding on the motor cycle, therefore, the Tribunal held that there was 25% negligence of the driver of the motor cycle and remaining 75% negligence was of the driver of the Truck. Since with respect to the deceased Mahendra it was the case of composite negligence as he was riding on the motor cycle as the pillion rider and by applying the principle provided in the judgment of Khenyei (supra) the deceased can claim compensation from any of the vehicle i.e. either motor cycle or the Truck. Moreover, the present claim was filed under section 163A of the MV Act which is based on the principle of no-fault liability which provides that the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or vehicle concerned or of any other person. Therefore, from the above, it is clear that since the claim was filed by the claimants u/s 163A of the MV Act, the reduction of the claim of the claimants to the tune of 25% was not justified. Since the owner/insurance company of the motor cycle was not made party to the claim petition, the claimants are entitled to claim the entire claim amount from the owner / insurance company of the Truck. The finding on issue no.1 is thus modified accordingly in favor of claimants and against the appellant insurance company. 14. Since the owner/insurance company of the motor cycle was not made party to the claim petition, the claimants are entitled to claim the entire claim amount from the owner / insurance company of the Truck. The finding on issue no.1 is thus modified accordingly in favor of claimants and against the appellant insurance company. 14. Secondly, as far as the finding on issue no.4 is concerned, i.e. even after coming to the finding that since the vehicle was being driven in violation of the policy condition as no permit was produced by the owner of the vehicle, the learned Judge, MACT cases directed the insurance company to make the payment of compensation at first instance and thereafter recover the same from the owner of the offending vehicle, the same is in line with the law laid down by the Apex Court in the case of Swaran Singh (supra) as well as Amrit Paul (supra), therefore, the direction of pay and recovery passed by the learned Tribunal is not interfered by this court in the appellate jurisdiction. 15. Thirdly, as far as the quantum of the award is concerned, on the perusal of the award and the Second Schedule provided in the MV Act, it is clear that the learned Judge, MACT cases has erred in coming to the correct calculation of the compensation. Since the award u/s 163A of the MV Act is Special provision as to payment of compensation on structured formula basis, therefore, the calculation is to be done on the basis of the Second Schedule. The income of the deceased as pleaded was Rs.3,000/- per month and the age of the deceased was 24 years. Therefore, on the basis of the Second Schedule the income of the deceased comes to Rs.6,48,000/-. In the said income, a deduction of 1/3rd of the amount is to be applied and the amount of loss of income thus arrives at Rs. 4,32,000/-. Apart from the aforesaid amount, Rs. 2,000/- towards funeral expenses, Rs.5,000/- towards loss of consortium and Rs.2,500/- towards loss of estate is to be awarded. The total amount thus comes to Rs.4,41,500/-. In the said income, a deduction of 1/3rd of the amount is to be applied and the amount of loss of income thus arrives at Rs. 4,32,000/-. Apart from the aforesaid amount, Rs. 2,000/- towards funeral expenses, Rs.5,000/- towards loss of consortium and Rs.2,500/- towards loss of estate is to be awarded. The total amount thus comes to Rs.4,41,500/-. Since the learned Judge, MACT cases awarded a total sum of Rs.4,08,000/- to the claimants, the claimants are entitled to receive the enhanced amount of Rs.33,500/- along with interest @ 7.5% per annum from the date of filing of the claim petition from the owner / insurance company. Since the pay and recovery order is already passed by the learned Tribunal and the same is affirmed by this court, the insurance company is at obligation to make the payment of enhanced amount of Rs.33,500/- to the claimants along with interest @ 7.5% per annum from the date of filing of the claim petition at first instance and is free to recover the same from the owner of the offending vehicle. 16. Therefore, the result of the above discussion is that both the appeals are disposed of in the following terms - 1. The contributory negligence of the deceased to the tune of 25% as assessed by the learned Judge, MACT cases is hereby removed and 100% liability is fastened upon the Truck i.e. on the owner / insurance company. 2. The pay and recovery order passed by the learned Judge, MACT Cases, Jaitaran, District Pali on account of violation of policy condition as the offending vehicle was being plied without permit is kept intact and the appeal of the insurance company is dismissed to the extent of challenging the pay and recovery order of the learned Tribunal. 3. The award amount is recalculated as per the Second Schedule and the claimants are entitled to the total award of Rs.4,41,500/- as against the award amount of Rs.4,08,000/-. Since there was no stay granted to the insurance company and the entire award amount of Rs.4,08,000/- was already deposited by the insurance company, the claimants are entitled to the remaining amount of Rs.33,500/- along with interest @ 7.5% from the date of filing of the claim petition. The appeal of the claimants is thus accepted to this extent. 4. Since there was no stay granted to the insurance company and the entire award amount of Rs.4,08,000/- was already deposited by the insurance company, the claimants are entitled to the remaining amount of Rs.33,500/- along with interest @ 7.5% from the date of filing of the claim petition. The appeal of the claimants is thus accepted to this extent. 4. Both the appeals are thus disposed of and all the pending applications are also disposed of.