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2024 DIGILAW 204 (RAJ)

National Insurance Company Limited v. Sujata

2024-02-02

BIRENDRA KUMAR

body2024
JUDGMENT : Mr. Birendra Kumar, J. - In this appeal under section 173 of the Motor Vehicles Act, 1988, the Insurer of offending vehicle, has challenged the judgment and award dated 26.5.2005 made by Motor Accident Claims Tribunal, Salumber in MACT Case No.53/2003, whereby compensation of Rs. 10,35,000/- has been awarded in favour of respondent nos. 1 to 3 for the death of Suresh i.e. husband of respondent no.1 and son of respondents no.2 & 3, in a motor vehicle accident. 2. The case and claim of the claimants is that on the date of accident i.e. 31.10.2002 Suresh was working with K.M.C. Construction Limited and was standing near the place of incident. A crane, bearing Regn. No.RJ-14E-0272 owned by respondent no.5 M/s. Bhagoriya Carriers & Lifters, was lifting Dumpher of the KMC Company and due to negligence of driver of the crane, it fell down on Suresh as a result whereof Suresh died. At the time of accident Suresh was aged about 30 years and was earning Rs. 7,500/- per month from the Company. 3. The learned Tribunal accepted the income of the deceased, which was supported by the documentary evidence Exhibit-11 a certificate granted by the Company as well as Exhibit-NA4, which was obtained by the appellant-Company through its investigator from KMC. Considering the number of dependents, the Tribunal deduced 1/3rd for the personal expenses of deceased, which was Rs. 2500/-. The remaining Rs. 5000/- was multiplied with 12 to get the yearly multiplier and the same was again multiplied with the multiplier of 17 considering age of deceased. There is no error to the aforesaid extent in the impugned judgment, however, lesser amount has been awarded for the loss of consortium, funeral expenses and nothing has been awarded considering future prospects of the deceased. 4. Considering the settled principles of calculation of just compensation based on the material available on record, the calculation of compensation requires to be made straight and just. Thus, the payable compensation would be Rs. 10,20,000/- as assessed by the Tribunal plus Rs. 4,08,000/-, which is 40% of the aforesaid amount considering future prospects of the deceased. Each of the three claimants would be entitled for Rs. 40,000/- each for the loss of consortium and total Rs. 30,000/- for funeral expenses and loss to the estate. The total payable compensation is calculated at Rs. 15,78,000/-. 5. 4,08,000/-, which is 40% of the aforesaid amount considering future prospects of the deceased. Each of the three claimants would be entitled for Rs. 40,000/- each for the loss of consortium and total Rs. 30,000/- for funeral expenses and loss to the estate. The total payable compensation is calculated at Rs. 15,78,000/-. 5. The main grievance of the appellant is that the crane was being used for hire and reward against the terms of policy of insurance at Annexure-NA-1, hence the Tribunal has wrongly held the appellant liable to pay the compensation. 6. The appellant led no evidence to support the aforesaid assertion; rather a suspicion was raised that since the crane was used for another Company, it was for hire and reward. The appellant did not make any suggestion to the claimants' witnesses Tanaji AW-1 or Jaichand AW-2. Tanaji was an eye-witness of the incident and Jaichand was the employee of KMC Company. The appellant could have cross-examined to drag out from the witnesses that the crane was being used for hire and reward purpose. Likewise, no other evidence was brought on record to prove this defence. 7. Considering lack of material to substantiate that the offending crane was used in violation of the terms of the policy, the Tribunal has rightly held the appellant liable to pay compensation to the claimants. Hence the impugned award is affirmed to the aforesaid extent. 8. In the result, the appellant is directed to pay the aforesaid amount of Rs. 15,78,000/- minus already paid amount to the claimants no.2 & 3. It is worth to point out here that claimant nos.2 & 3 have filed separate affidavit to the effect that the wife of the deceased, who was claimant no.1 and respondent no.1 herein, had received total 50% of the award money paid by the appellant and thereafter she contacted marriage with some other person. She is blessed with two children from that person and she has broken-up the ties with the family of claimant nos.2 & 3. The aforesaid fact has been stated on oath. Assuming the oath to be correct, this Court directs that the remaining amount shall be paid to respondents no.2 Tanaji and respondent no.3 Smt. Sushila, if both are alive or in case of death of anyone, the compensation would be payable to the survivor. 9. The aforesaid fact has been stated on oath. Assuming the oath to be correct, this Court directs that the remaining amount shall be paid to respondents no.2 Tanaji and respondent no.3 Smt. Sushila, if both are alive or in case of death of anyone, the compensation would be payable to the survivor. 9. With the aforesaid modification in the compensation amount, the appeal stands dismissed.