w w w . L a w y e r S e r v i c e s . i n



National Insurance Company Ltd. v/s Prabha Ojha & Others


Company & Directors' Information:- NATIONAL INSURANCE COMPANY LIMITED [Active] CIN = U10200WB1906GOI001713

Company & Directors' Information:- NATIONAL CO LTD [Strike Off] CIN = U51909WB1917PLC002781

Company & Directors' Information:- V PRABHA AND CO PVT LTD [Active] CIN = U22211MH1948PTC006814

Company & Directors' Information:- NATIONAL CORPORATION PVT LTD [Not available for efiling] CIN = U51909PB1942PTC000480

Company & Directors' Information:- I.N. INSURANCE COMPANY PRIVATE LIMITED [Strike Off] CIN = U67200DL1994PTC062554

    Special Appeal (Civil) No. 32 of 2002

    Decided On, 16 November 2011

    At, High Court of Rajasthan

    By, THE HONOURABLE MR. JUSTICE A.M. SAPRE & THE HONOURABLE MS. JUSTICE BELA M. TRIVEDI

    For the Appellant: Praveen Jain, Advocate. For the Respondents: Sushil Pujari on behalf of D.P. Pujari, Advocates.



Judgment Text

Bela M. Trivedi, J.

1. The present appeal, filed under section 18 of Rajasthan High Court Ordinance, 1949 read with section 134 of the Rules of High Court of Judicature for Rajasthan, 1952, is directed against the judgment dated 28.11.2001 passed by the learned Single Judge in Civil Misc. Appeal No. 1504/2000, whereby the learned Single Judge partly allowed the appeal of the appellant- Insurance Company and reduced the amount of compensation to Rs. 26,81,000/- from Rs. 53,62,000/- awarded by the Motor Accident Claims Tribunal, Beawar, Ajmer (hereinafter referred to as the 'Tribunal').

2. The short facts giving rise to the present appeal are that the present respondents No. 1 to 5 (original-claimants) had filed a claim petition seeking compensation under section 166 of Motor Vehicles Act, 1988 (hereinafter referred to as the 'M.V.Act') before the Tribunal, for the death of Shri Prabhudayal Ojha, who happened to be the husband of the respondent No. 1, father of respondents No. 2 and 3 and son of respondents No. 4 and 5. The said Prabhudayal Ojha had died in an accident which took place when he was travelling in a Car bearing registration No. WNC- 4093 which was hit by the Truck bearing registration No. HR-13-4455. According to the respondents claimants, the said accident had taken place due to the rash and negligent driving of the driver of the said Truck and therefore they were entitled to get the compensation from the driver, owner and the insurance company of the said truck. The claimants had also alleged in the petition before the Tribunal that the deceased was doing his business of garments and leather in foreign country and was earning in pounds and that at the relevant time the value of one pound was equivalent to about Rs. 47 to 52. The said respondents-claimants had, therefore, claimed the compensation to the tune of Rs. 39,60,000/- with interest thereon. The said claim petition was resisted by the present appellant-insurance company by filing the reply denying the allegations and averments made in the petition and also further contending inter alia that there was no evidence produced by the claimants in respect of the income of the deceased.

3. The Tribunal after appreciating the oral and documentary evidence adduced by the claimants, awarded the compensation of Rs. 53,62,000/- with interest, vide award dated 15.5.2000. Being aggrieved of the said award, the present appellant had filed the Civil Misc. Appeal No. 1504/2000 before the learned Single Judge, who vide order dated 28.11.2001 partly allowed the said appeal by reducing the amount of compensation from Rs. 53,62,000/- to Rs. 26,81,000/-. Being aggrieved by the said order passed by the learned Single Judge, the appellant insurance company has preferred the present appeal.

4. It has been submitted by the learned counsel Mr. Praveen Jain for the appellant-insurance company that the impugned award and order passed by the Tribunal as well as the learned Single Judge respectively are ex-facie arbitrary and illegal, inasmuch as such a huge amount of compensation has been awarded though there was no evidence adduced by the claimants to show the income of the deceased. He further submitted that the learned Single Judge while observing that the claimants had failed to produce any evidence with regard to the income of the deceased had materially erred in confirming the finding of the Tribunal that the deceased must be earning minimum 1000 pounds per month. According to the learned counsel, though the learned Single Judge had reduced the amount of compensation to about 50% of the amount awarded by the Tribunal, the same was also exorbitant. In absence of any evidence adduced by the claimants, runs the submissions of Mr. Jain for the appellant, the income of the deceased was required to be taken only to the extent of Rs. 15,000/- per month as per the second schedule appended to the M.V. Act.

5. However, learned counsel Mr. Sushil Pujari appearing on behalf of Mr. D.P. Pujari for the respondents raising question of maintainability of the appeal submitted that the appeal filed against the order passed by the learned Single Judge under section 173 of the M.V.Act, was not maintainable. He further submitted that the Tribunal had taken into consideration the oral evidence of the wife and mother of the deceased as also the bank statements of the deceased for determining the income of the deceased. He also submitted that the findings arrived at by the Tribunal as well as learned Single Judge as regards the income of deceased being findings of fact, this court, exercising appellate jurisdiction under section 18 of the Rajasthan High Court Ordinance, may not disturb the said findings. According to him, there being no error in the impugned order passed by the learned Single Judge, the present appeal preferred by the appellant deserves to be dismissed.

6. At the outset, it is required to be noted that the question as to whether the special appeal under section 18 of the Rajasthan High Court Ordinance, 1949 would lie or not against the judgment of learned Single Judge passed under section 110-D of Motor Vehicles Act, 1939 or under section 173 of Motor Vehicles Act, 1988 was referred to the full bench of this court and the said question was answered in the affirmative by the full bench in the case of New India Assurance Company Ltd. v. Santosh and ors., 1996 (3) WLC (Raj.) 674. Thus, the issue of maintainability of the special appeal against the order passed by the learned Single Judge having been set at rest, the submission made by the learned counsel for the respondents with regard to the maintainability of the present appeal would not survive.

7. It is not disputed that the present appellant-insurance company had already submitted an application before the Tribunal under section 170 of the M.V. Act and the same was also allowed by the Tribunal. Hence, the appellant-insurance company was entitled to contest the claim on all the issues including the issue of quantum of compensation in the claim petition.

8. It is true that this court hearing the intra court appeal or Letters Patent Appeal, being second appellate court has limited scope of interference in the concurrent finding facts recorded by the two courts. However, the Apex Court in the case of Smt. Asha Devi v. Dukhi Sao and Another, (1974) 2 SCC 492, while distinguishing the powers of court hearing Letters Patent Appeal, and the court hearing Second Appeal observed as under:

"A Letters Patent appeal from the judgment of a learned Single Judge in a first appeal to the High Court is not exactly equivalent to a second appeal under s. 100 of the Code of Civil Procedure, and therefore it cannot be held that a Letters Patent appeal of this kind can only lie on a question of law and not otherwise. The matter would have been different if the Letters Patent appeal was from a decision of a learned Single Judge in a second appeal to the High Court. In these circumstances it will be open to the High Court to review even findings of fact in a Letters Patent appeal from a first appeal heard by a learned Single Judge, though generally speaking the Letters Patent Bench would be slow to disturb concurrent findings of fact of the two courts below. But there is no doubt that in an appropriate case a Letters Patent Bench hearing an appeal from a learned Single Judge of the High Court in a first appeal heard by him is entitled to review even findings of fact."

Keeping in view the above stated legal position, let us examine whether this is a fit case requiring any interference in the concurrent findings of facts recorded by the two courts.

9. Having regard to the submissions made by the learned counsel for the parties and to the record of the case, it transpires that the respondents- claimants had examined the respondent No. 1 Smt. Prabha Ojha and respondent N.4 Smt. Rama Devi in support of their claim before the Tribunal. From the record, it transpires that the evidence of PW-2 Smt. Rama Devi was recorded on 12.5.2000 and on the same day, the arguments were heard by the Tribunal. Thereafter Tribunal had passed the award within three days i.e. on 15.5.2000 awarding compensation to the tune of Rs. 53,62,000/- with interest at the rate of 12% per annum from the date of filing of application till the payment. From the record, it clearly transpires that the Tribunal without affording sufficient opportunity to the non applicant i.e present appellant had closed the right of the appellant to lead evidence on 12.5.2000 and on the very day the matter was fixed for hearing of arguments and the award was passed on 15.5.2000 awarding such a huge amount of compensation. This court fails to understand as to what was the hurry in deciding the matter involving such a high-stake within three days and that too without affording sufficient opportunity of hearing to the appellant to lead their evidence.

10. Be that as it may, it further transpires that there was no documentary evidence whatsoever produced by the claimants as regards the income of the deceased before the Tribunal. The Tribunal simply relying upon on oral evidence of respondent No. 1 Smt. Prabha Ojha and respondent No. 4 Smt. Rama Devi presumed that the deceased had a business in some foreign country and was earing 1000 pounds per month. Surprisingly, the learned Single Judge also upheld the said finding, though observing that the evidence of income of the deceased was not brought on record by the claimants.

11. It is true that this court hearing Special Appeal in the Letters Patent Appeal would normally not interfere with the concurrent findings of facts recorded by the two courts, however, in the instant case, the findings as regard to the income of the deceased recorded by the Tribunal as well as by the learned Single Judge have been found to be ex-facie based on no evidence and shocking to the conscience of the court. Admittedly, the claimants had failed to produce any documentary evidence to show that the deceased was carrying on some particular business at London or at any other place in foreign country. There was also no evidence to show that the deceased was maintaining the books of accounts either in the foreign country or in India or was paying income tax in India. If the deceased was earning 1000 pounds per month, he was expected to pay income tax. No evidence was produced to show as to by which name or what type of business the deceased was carrying on in the foreign country. There was also no evidence to show that the deceased was employed by any businessman in foreign country. The claimant Smt. Prabha Ojha who happened to be the wife of the deceased had categorically admitted in her cross examination that she did not have any evidence to show the income of her husband. Under the circumstances, in the opinion of this court, the Tribunal as well as the learned Single Judge had materially erred in law in presuming the income of the deceased to be 1000 pounds per month, merely on the basis of some bank statements and passport of the deceased. It cannot be gainsaid that the said evidence could not be treated as the evidence of income of the deceased by any stretch of imagination. In that view of the matter, it is held that the said findings as regards the income of the deceased being based on 'no evidence' are required to be interfered with and could not be countenanced.

12. It is well settled proposition of law that what the victims of the vehicular accidents are entitled to is 'just compensation'. The expression 'just' must be given its logical meaning, having regard to the evidence on record. Whereas it cannot be a bonanza or source of profit or a windfall for the victims, it should not be niggardly or a pittance. It is the duty of the courts and tribunals to weigh the evidence adduced by the parties and decide as to what should be the just compensation payable to the claimants-victimise.

13. Recently, the Hon'ble Supreme Court in the case of Smt Sarla Verma and ors v. Delhi Transport Corporation and anr., AIR 2009 SC 3104 : 2009 (2) WLC (SC) Civil 323 has also in order to have uniformity and consistency laid down the principles for determining the compensation in the cases of death caused as a result of motor accidents. The Apex Court considering various earlier judgments, has held in the said case that:

"9. Basically only three facts need to be established by the claimants for assessing compensation in the case of death : (a) age of the deceased; (b) income of the deceased; and (c) the number of dependents. The issues to be determined by the Tribunal to arrive at the loss of dependency are (i) additions/deductions to be made for arriving at the income; (ii) the deduction to be made towards the personal living expenses of the deceased; and (iii) the multiplier to be applied with reference of the age of the deceased. If these determinants are standardized, there will be uniformity and consistency in the decisions. There will lesser need for detailed evidence. It will also be easier for the insurance companies to settle accident claims without delay. To have uniformity and consistency, Tribunals should determine compensation in cases of death, by the following well settled steps:

Step 1 (Ascertaining the multiplicand) The income of the deceased per annum should be determined. Out of the said income a deduction should be made in regard to the amount which the deceased would have spent on himself by way of personal and living expenses. The balance, which is considered to be the contribution to the dependant family, constitutes the multiplicand.

Step 2 (Ascertaining the multiplier) Having regard to the age of the deceased and period of active career, the appropriate multiplier should be selected. This does not mean ascertaining the number of years he would have lived or worked but for the accident. Having regard to several imponderables in life and economic factors, a table of multipliers with reference to the age has been identified by this Court. The multiplier should be chosen from the said table with reference to the age of the deceased.

Step 3 (Actual calculation) The annual contribution to the family (multiplicand) when multiplied by such multiplier gives the 'loss of dependency' to the family."

14. As discussed earlier, the claimants having failed to produce any documentary evidence as regards the income of the deceased, the notional income is required to be taken at Rs. 15,000/- per month as per clause six of the second schedule appended to the M.V.Act. As per the guidelines set out by the Apex Court in the case of Sarla Verma (supra), a deduction is required to be made from the said amount which the deceased would have spent on himself by way of personal expenses. Having regard to the fact that there were five dependents, the appropriate deduction would be one-fifth of the said amount, which the deceased would have spent on himself, which comes to Rs. 3,000/- per annum. The balance amount after deducting the said amount of Rs. 3,000/- would come to Rs. 12,000/- per annum, which is required to be considered as the contribution to the dependents of the deceased, constituting multiplicand. Since the age of the deceased was 40 years, the multiplier

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of 15 is required to be applied as per the said guidelines contained in the case of Sarla Verma (supra). The total amount of loss of dependency therefore would come to Rs. 1,80,000/- on applying the said multiplier of 15 to the multiplicand of Rs. 12,000/-. Considering the age of the claimant-wife and the children, a sum of Rs. 25,000/- is awarded to them towards the loss of consortium, love and affection. They are also awarded Rs. 10,000/- under the head of funeral and other expenses. Thus, the claimants would be entitled to the just compensation of Rs. 2,15,000/- with interest at the rate of Rs. 9% per annum from the date of filing the claim petition before the Tribunal till the payment. 15. It appears that the appellant insurance company has already deposited Rs. 41,56,505/- before the Tribunal pursuant to the interim order dated 19.9.2000 passed by the learned Single Judge in S.B. Civil Misc. Appeal No. 1504/2000 and that out of the said amount, the respondents-claimants were permitted to withdraw Rs. 20,00,000/- as per the order dated 19.12.2000 by the learned Single Judge. Be that as it may, the appellant shall be at liberty to recover the excess amount paid to the claimants after following the due procedure. 16. In that view of the matter, the award dated 15.5.2000 passed by the Tribunal and the order dated 28.11.2001 passed by the learned Single Judge are set aside. It is held that the respondents/claimants would be entitled to the compensation only to the extent of Rs. 2,15,000/- with interest at the rate of 9% per annum from the date of application before the Tribunal till payment. The appeal stands partly allowed accordingly. Appeal allowed as above.
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