Oriental Insurance Company Ltd, @APPELLANT@Hash Devki Devi w/o Late Sh. Trilok Chand and ors

Appellant, the Oriental Insurance Company Ltd., has laid this appeal to challenge judgment & award dated 15th of February, 2018, passed by Motor

Accident Claims Tribunal-I, Jodhpur (for short, ‘Tribunal’). The learned Tribunal, by the impugned judgment & award, upon

adjudicating the claim of respondent- claimants, partly allowed it and awarded compensation to the tune of Rs.33,55,232/-. Succinctly stated, facts of

the case are that on fateful day of 21st of January, 2013, when deceased Trilok Chand was traveling in pick-up vehicle, bearing registration No.RJ-19-

GC-7418, carrying glazed tiles for installation in his house, at about 11:00 PM, it turned turtle due to sudden appearance of cattle (Blue Bull) and the

vehicle hitting cattle in between villages Shekhala and Deda. Due to the accident, Trilok Chand suffered grave and serious injuries which resulted in

his death. Respondent-claimants, being dependents of the deceased, in order to claim compensation, filed petition under Section 166 read with Section

140 of the Motor Vehicles Act, 1988 (for short, ‘Act’) before the learned Tribunal. In the claim petition, it was specifically pleaded that the

accident occurred due to rash and negligent driving of pick-up vehicle by its driver. While claiming compensation amount, claimants averred in the

petition that deceased Trilok Chand was 31 years of age at the time of death and was earning Rs.3,56,000/- per annum from his business as Goldsmith

and income derived from agriculture. It is also stated in the petition that deceased was income-tax payer and in support thereof requisite proofs are

also furnished. Under different heads, claimants quantified total compensation of Rs.1,58,03,000/-. In the claim petition, besides sixth respondent Aksar

Khan @ Askar Ali-owner & driver, appellant-insurer was also impleaded as non-claimant.

After issuance of notices by learned Tribunal, none appeared on behalf of owner & driver of the vehicle despite service of notice, and therefore, the

learned Tribunal proceeded ex-parte against him. The appellant-insurer joined issue with the respondent-claimants before the learned Tribunal and

contested the claim. In the return, the appellant-insurer, while acknowledging factum of insurance of the offending vehicle on the crucial day, seriously

disputed quantum of compensation. Apart from these averments, as usual, appellant Insurance Company also incorporated all the legal objections for

seeking its absolvement from its liability to pay compensation.

Learned Tribunal, on the basis of pleadings of rival parties, settled three issues for determination. For proving their case, on behalf of respondent-

claimants, A.W.1 Devki (widow of deceased) and A.W.2 Punaram appeared in the witness box. Besides producing documentary evidence, in all,

twenty-one documents were produced by the respondent-claimants, which were exhibited. For substantiating its defence, no documentary or oral

evidence was tendered by the appellant Insurance Company.

The learned Tribunal, after conclusion of evidence of rival parties, heard final arguments and partly allowed the claim petition. On the basis of material

available on record, the learned Tribunal decided all the issues in favour of respondent-claimants and against the appellant Insurance Company for

awarding aforementioned compensation.

I have heard learned counsel for the appellant, learned counsel for the respondent-claimants, perused impugned judgment & award and thoroughly

scanned record of the case.

Upon perusal of the impugned judgment & award as well as available material, it is abundantly clear that learned Tribunal, while deciding Issue No.1,

regarding rash and negligent driving of the offending vehicle, has rightly placed reliance on documentary and ocular evidence of the respondent-

claimants. It is also noteworthy that apart from pertinent documentary evidence to prove rash and negligent driving of the insured vehicle, respondent-

claimants have also adduced evidence of eye-witness A.W.2 Punaram. During cross-examination, the witness has remained unruffled, and therefore,

his testimony has been rightly relied upon by the learned Tribunal for recording its finding in favour of respondent-claimants.

Adverting to finding on Issue No.2, suffice it to observe that deceased was traveling in the insured vehicle as owner of the tiles after paying freight

charges, and therefore, it cannot be said that he was travelling in the capacity of gratuitous passenger. This positive assertion of respondent-claimants

is also fortified from the statements of both the witnesses and, thus, in absence of any counter evidence by the Insurance Company, the learned

Tribunal has rightly relied upon unimpeached testimony of both the witnesses of the claimants. If the finding of the learned Tribunal pertaining to this

issue is examined in the light of legislative provision contained under Section 147(1)(b) of the Act, then there remains no room of doubt that it is

satisfying the requirements envisaged therein and consequently same cannot be categorized as infirm. In this view of the matter, in my opinion, the

findings and conclusions of the learned Tribunal on Issue No.2 cannot be faulted.

I am aghast to observe that when owner & driver of the offending vehicle has not contested the claim then why the appellant-insurer has not joined

issue to contest claim of the respondent-claimants with full potential. In the wake of the fact that learned Tribunal proceeded ex-parte against owner

& driver of the vehicle, it was expected of the appellant-insurer to tender requisite evidence for authenticating its defence. Taking into consideration

all these aspects, it is a clear case of not discharging burden to prove issue No.2 by the appellant-insurer. Any pleading by a party to the litigation

without proof is of no consequence inasmuch as evidence is to be tendered on a plea properly raised in the written statement. Therefore, finding on

Issue No.2 warrants no interference.

Lastly, the crucial issue, i.e., Issue No.3, pertaining to quantum of compensation, suffice it to observe that learned Tribunal, while assessing the amount

of compensation for loss of dependency, has relied upon Ex-20, the Income-tax Returns of deceased and the amount of tax paid by him. The learned

Tribunal, while considering age of deceased as 32 years, applied multiplier of 16 by relying on a decision of Supreme Court in Sarla Verma (Smt.) &

Ors. V/s. Delhi Transport Authority & Anr. [(2009) 6 SCC 121]. Furthermore, the learned Tribunal has also rightly assessed annual income of the

deceased as per Income-tax Return of 2012-13 to the tune of Rs.1,97,564/- and by making one-forth deduction for personal expenses rightly added

40% for future prospects. Being a self-employed person, the learned Tribunal for adding 40% future prospects has relied on latest decision of

Supreme Court in the case of National Insurance Company Ltd. V/s. Praney Sethi & Ors. [(2017) 16 SCC 680]. Accordingly, the assessment of

compensation for loss of dependency to the tune of Rs.32, 85,232/- is just and reasonable. Besides that, the learned Tribunal has also awarded

compensation for loss of consortium to the tune of Rs.40,000/- and Rs.15,000/-for loss of estate so also an amount of even denomination for funeral

expenses as per verdict in Praney Sethi (supra). Thus, the total compensation amount is worked out to the tune of Rs.33,55,232/-. In totality of the

circumstances, the amount of compensation awarded by the learned Tribunal is based on fair assessment and same is satisfying the requirements of

just compensation within the four corners of Section 166 of the Act. By no stretch of imagination, the amount of compensation determined by the

learned Tribunal can be categorized as excessive or exorbitant warranting interference in exercise of appellate jurisdiction by this Court.

Resultantly, the instant appeal fails and same is, hereby, rejected.