The Oriental Insurance Company Ltd. vs Jagdish Prasad Karadia and Others

R.S. Chauhan, J.—The Oriental Insurance Company Ltd. is aggrieved by the award dated 8.7.2013 passed by Additional District Judge No. 17, Jaipur Metropolitan, Jaipur whereby the learned Judge has granted a compensation of Rs. 4,83,000/-to the claimant-respondent Nos. 1 to 7. Briefly the facts of the case are that on 20.2.2011, Smt. Gulab Devi was going with her son, Krishan Kumar to their plot situated in Village Hathoj. While they were returning back home, Krishan Kumar was driving the motorcycle on the correct side of the road. However, around 2:00 - 2:15 P.M. near Mangaldham Dharam Kanta, a tractor along with a trolley without any number plate, being driven rashly and negligently, came from the wrong side of the road and hit the motorcycle. Consequently, Smt. Gulab Devi fell from the motorcycle. The tractor went over her stomach. Resultantly, she died on the spot. The claimant-respondents filed a claim petition before the learned Judge. In order to support their case they examined two witnesses and submitted twenty documents. The Insurance Company, on the other hand, examined a single witness, and submitted three documents. After going through the oral and documentary evidence, the learned Judge granted the compensation as aforementioned. Hence this appeal before this Court.

Mr. Rakesh Dhankar, the learned counsel for appellant, has vehemently contended that although the tractor was insured for agricultural purpose but at the time of accident it was being used for commercial purpose. Since a condition of the policy was breached, therefore, the Insurance Company cannot be held to be liable. Secondly, that although the learned Judge has taken the notional income of Smt. Gulab Devi as Rs. 3000/- per month, he has not made the statutory deduction of one-third of the said income as the part the deceased would have spent on herself. Thirdly, that out of the seven claimant-respondents, four of them happen to be major. Therefore, they were not financially dependent upon the deceased. Hence they have not suffered any pecuniary loss. Therefore, the impugned award deserves to be interfered with.

Heard the learned counsel for the appellant and perused the impugned award.

The learned Judge has meticulously examined the evidence. According to him, undoubtedly, the offending vehicle - the tractor was insured for agricultural purpose. However, the Insurance Company could not prove the fact that it was being employed for commercial purpose at the time of accident. Therefore, there was no evidence to show that there was any breach of the insurance policy. Hence the first contention raised by the learned counsel for appellant is clearly untenable.

The learned Judge has also noticed the fact that Smt. Gulab Devi was a housewife. Hence relying on the case of Lata Wadhwa and Others Vs. State of Bihar and Others, the learned Judge has concluded that her notional income should be taken to be Rs. 3000/- and the same cannot be subjected to any deduction as laid down in Second Schedule attached to the Motor Vehicles Act. Hence the learned Judge was certainly justified in not deducting one-third of the said amount in compliance of the principle enumerated in the case of Lata Wadhwa (supra). Therefore, the second contention raised by the learned counsel is clearly unacceptable.

Lastly, there is no bar in law that a person who happens to be major cannot file a claim petition. Moreover, the Insurance Company has failed to prove the fact that claimant-respondent Nos. 2, 3, 4 and 5 were not financially dependent on the deceased. Therefore, the third contention raised by the learned counsel is equally unacceptable. For the reasons stated above this Court does not find any illegality or perversity in the impugned award dated 8.7.2013. This appeal being devoid of any merit is hereby dismissed.