HDFC ERGO General Insurance Co. Ltd. vs Ramlal and Others

Pratap Krishna Lohra, J.—By this appeal under Section 173 of the Motor Vehicles Act, 1988 (for short, ''Act of 1988''), the appellant Insurance Company has challenged the Award dated 16th of December 2001 passed by the Motor Accident Claims Tribunal, Dungarpur (for short, ''Tribunal''). By the award impugned, the learned Tribunal has adjudicated the claim of the respondent-claimants under Section 166 of the Act pertaining to death of their kith and kin, and while deciding the issues framed in favour of respondent-claimants, has fastened liability to pay the awarded amount of compensation Rs. 4,00,000/- on appellant as well as other non-claimant-applicants jointly and severally.

Succinctly stated, the facts of the case are that respondent-claimants laid a claim petition under Section 166 of the Act of 1988 before the learned Tribunal claiming compensation to the tune of Rs. 10,86,000/-, inter-alia, on the ground that on the fateful day of 8th January 2010 at about 11 AM, when deceased Adarsh was playing outside shop by the side of road, Jeep No. GJ-17-C-1698 driven rashly and negligently in a very high speed by its driver and owner respondent Gautamlal Garasiya dashed him, which caused grave and serious injuries to the deceased on his head and various parts of body, and he succumbed to the injuries. The incident was reported at police station and thereupon FIR was registered. After investigation, chargesheet under Section 279, 304A IPC was filed against non-claimant respondent No. 3 Gautam Lal, the driver and owner of the offending Jeep. The respondent claimants have attributed total negligence on the part of the driver and owner of the jeep and pleaded that life of deceased Adarsh was shortened due to this tragedy when he was hardly six years old. For quantifying the compensation, respondent-claimants relied on imaginary income of deceased as Rs. 3,000/- per month notionally as per Second Schedule under Section 163 of the Act of 1988. To support their case, the respondent-claimants relied on various judgments of Hon''ble Apex Court and this Court.

Neither anybody appeared on behalf of driver and owner of the vehicle, nor reply to the claim petition was filed on his behalf despite service. The claim petition was contested by appellant Insurance Company and it submitted return in which the averments contained in the claim petition were denied. A specific plea was raised in the return by the appellant Insurance Company that the driver and owner of jeep was not having a legal and valid driving licence.

After framing of issues by the learned Tribunal on the basis of pleadings of parties, on behalf of respondent-claimants, father of the deceased AW1 Ramlal appeared who testified on oath and produced 9 documents. In counter, no evidence was adduced by the non-claimants including appellant Insurance Company.

The learned Tribunal adjudicated the claim and awarded compensation to the tune of Rs. 4,00,000/- to the respondent-claimants, as aforesaid, and all the non-claimants including the appellant were held jointly and severally liable to pay the compensation amount.

Mr. Vinay Kothari, learned counsel for the appellant, submits that in the present case only on the basis of averments made in the claim petition the Tribunal has calculated the amount of compensation to be awarded to the claimants and erred in deciding the issues in favour of respondent-claimants. Laying challenge to the rate of interest awarded on the amount of compensation, learned counsel submits that it is higher than the prevailing rate as per RBI guidelines. The learned counsel further submits that while deciding issue relating to rash and negligent driving of the insured vehicle, the learned Tribunal has not pressed into service the doctrine of res ipsa loquitur rendering the award as such vulnerable. He, therefore, submits that finding on Issue No. 1 is dehors the settled proposition of law which has vitiated the impugned award.

I have heard learned counsel for the appellant and perused the impugned judgment and award.

Upon perusal of the impugned award and the record, it is crystal clear that on appreciation of ocular and documentary evidence, the learned Tribunal has found that accident has occurred due to rash and negligent driving of the offending vehicle jeep by its driver and owner Gautam Lal Garasiya. This finding of the learned Tribunal cannot be faulted in the backdrop of facts and circumstances of the instant case and in absence of evidence of the driver and owner of the offending vehicle. The Driver and owner of the offending vehicle has not contested the claim and appeared in the witness box to impeach the ocular and documentary evidence available on record. In this background, there appears to be no reason to interfere with the finding of the learned Tribunal on Issue No. 1. Issue No. 3 in respect of liability of insurer is also decided by the learned Tribunal while taking into account a catena of judgments rendered by Hon''ble Apex Court and this Court, which also requires no interference. As regards Issue No. 4 pertaining to quantum of compensation, suffice it to state that the learned Tribunal on objective analysis of the entirety of the case has arrived at the amount of compensation which in my opinion is just quite just and reasonable and has done substantial justice to gauge the wounds of bereaved family. The present appeal is by the insurer and legal position is no more res-integra that scope of interference in an appeal by the insurer is very much limited. In Kishan Gopal and Another Vs. Lala and Others, , the Hon''ble Apex Court, taking into consideration the age of deceased, who was 10 years old at the time of accident, allowed the claimants compensation of Rs. 5,00,000/- with interest @9% per annum, as such awarding of compensation of Rs. 4,00,000/- by the learned Tribunal in the instant case cannot be said to be on higher side, more particularly when there is a finding about proven rash and negligent driving of the insured vehicle. I am not impressed by the argument of the learned counsel for the appellant that interest awarded by the learned Tribunal is higher than the prevailing market rate. As the Tribunal has exercised its jurisdiction judiciously, I am not inclined to interfere with the rate of interest determined by the learned Tribunal. Thus, I am not persuaded to interfere with the impugned judgment and award passed by the learned Tribunal.

Resultantly, the appeal fails and same is hereby dismissed summarily.