1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. ** 1. S.B.CIVIL MISC. APPEAL NO.71/1999 (Janki Bai and ors. Vs. Gunmala Jalan and ors.) 2. S.B.CIVIL MISC. APPEAL NO.283/1999 (United India Insurance Co. Ltd. Vs. Janki Bai and ors.) 3. S.B.CIVIL MISC. APPEAL NO.517/1999 (Ashok Kumar Sharma Vs. Gunmala Jalan and ors.) Date of Judgment : 30-06-2009 HON'BLE MR.JUSTICE GUMAN SINGH Mr.Kamal Gupta for Mr.Mahesh Gupta,for the appellants in CMA No.71/99. Mr.Jagdish Singh Chauhan, for the appellant- United India Ins. Co. in CMA No.283/99 Mr.Mohit Tiwari for Mr.Alok Sharma, for the appellant in CMA No.517/99. Mr.Sanjay Singhal ) Mr.M.M.Ranjan ) for the respondents Mr.Alok Sharma ) Heard learned counsel for the parties. 2. All these appeals are being decided together as they arise out of a common judgment passed by the learned Tribunal which is under challenge. 3. CMA No.71/99(claim case no.6/98) has been preferred on behalf of appellant- dependents of deceased Birdhilal for 2 enhancement of compensation, while CMA No. 283/99 (claim case no.6/98) is a cross appeal which has been preferred by the Insurance Company as against the judgment in claim case no.6/98 and the third appeal CMA No.517/99 (claim case no.65/97) has been preferred by the injured-appellant Ashok Kumar for enhancement of compensation. All the appeals have been filed against the Judgment & award dated 26.9.1998 passed by the learned Motor Accident Claims Tribunal, Baran whereby a sum of Rs.5,30,000/- was awarded by way of compensation to the dependents of deceased Birdhilal who died in an accident while a sum of Rs.25,000/- was awarded to injured Ashok Kumar for the injuries sustained in the accident resulting into 15% disability. Both these claim cases were consolidated vide order dated 12.6.98 by the Motor Accident Claims Tribunal, Baran. 4. The facts giving rise to the present appeals are that on 22.6.97 at 3.30 PM, Ashok Kumar, Birdhilal and others were going to Kota to attend the marriage of the daughter of one Prabhudayal Bansal in Tata Sumo vehicle No.RJ28-0558 being driven by 3 Sunder Jalan. At the turn near Gajanpura Bamaliya, the vehicle could not be managed on account of its fast speed and it dashed against the tree resulting in the accident causing serious injuries to Ashok Kumar and also to Birdhilal who succumbed to the injuries at Govt. Hospital. 5. As stated herein above, two claim cases, one by Ashok Kumar, injured and other by dependents of deceased Birdhilal came to be consolidated vide order dated 12.6.1998 by the learned Tribunal, Baran. In both the claim cases, following issues were framed: '' Èया Ǒदनांक 22.6.97 को सायंकाल 3 बजे जब ǒबरधी लाल पुऽ रघुनाथ महाजन एवं आहत अशोक कुमार शमा[ जब वाहन को ूभु दयाल कȧ लड़कȧ कȧ शादȣ मɅ सǔàमिलत होने के िलए सुÛदर लाल जालान कȧ जीप संÉया आर.जे.28 सी.0558 मɅ बैठकर कोटा जा रहे थे तो जीप तेज गित एवं लापरवाहȣ से चलाये जाने के कारण बàबूिलया के आगे मोड़ पर सड़क से नीचे उतरकर पेड़ से टकरा गई ǔजसके कारण आहत अशोक कुमार शमा[ के शरȣर पर गàभीर चोटɅ आई तथा ǒबरधी लाल के भी गंभीर चोटɅ आई ǔजन चोटɉ के पǐरणामःवǾप महाराव भीम िसंह अःपताल कोटा मɅ ǒबरधी लाल पुऽ रघुनाथ महाजन कȧ मृ×यु हो गई ? 2. Èया ूाथȸ अशोक कुमार ूाथ[ना पऽ कȧ मद संÉया 25 भाग {1} व {2} मɅ अंǑकत ǒववरण के अनुसार 2,78,496/- Ǿ० बतौर ¢ितपूित[ रािश ूाƯ करने का अिधकारȣ है ? 3. Èया Èलेम आवेदन संÉया 6/98 के ूाथȸगण आवेदन पऽ कȧ मद संÉया 27 के अनुसार ¢ितपूित[ रािश ूाƯ करने के अिधकारȣ हɇ? 4. Èया वƠ दघ[टना जीप साईवर के पास वैध एवं ूभावी साइǒवंग लाइसɅस नहȣं था ु ? 5. Èया वाहन चालक Ʈारा बीमा पॉिलसी कȧ शतɟ के ǒवǾƨ वाहन मɅ सवाǐरयां बैठाकर शतɟ का उãल◌ंघन Ǒकया गया इसिलए बीमा कàपनी ¢ितपूित[ के िलए उƣरदायी नहȣं है ् ?” Both the parties led their evidences on the issues framed and after hearing the parties, the matter was decided by the common judgment & award dated 26.9.98. 4 CMA No.71/1999 & CMA No.283/1999 (claim case No.6/98): 6. Learned counsel for the appellants- claimants submits that the learned Tribunal has failed to award adequate compensation as no compensation has been awarded for loss of consortium to the widow and only a sum of Rs.5000/- has been awarded by way of loss of love and affection to the widow while as many as five dependents including four children and an old mother of the deceased also deserve to be compensated for loss of love and affection. 7. Per contra, the learned counsel for the appellant Insurance Company submitted that the appellant-company has also filed an appeal challenging the award dated 26.9.1998 in claim petition no.6/98 passed by the learned Tribunal, Baran on the ground that the said offending vehicle was being used for hire and reward in contravention to the conditions of the Insurance Policy. It was further contended that the vehicle could only be used for social and domestic purpose and not for carrying passengers on hire and 5 reward as has been done in the present case. The learned counsel for the appellant- Insurance Company has, therefore, challenged the finding of the Tribunal on issue no.5 whereby issue pertaining to breach of condition of policy by the owner has been decided against the Insurance Company. 8. Learned counsel appearing for the legal representatives of registered owner of vehicle has strenuously argued that the Company is debarred from challenging the finding on issue no.5, which has attained finality as no appeal has been filed against the said finding in claim case no.65/97 arising out of the same accident and decided by the common judgment. It is further submitted that the ground of challenge in both these claim cases was the same as the Insurance Company had taken a plea that there had been a breach of policy as vehicle could not be used for carrying the passengers for hire and reward. The learned counsel has placed reliance on the judgment delivered by the co-ordinate bench of this court reported in 2001 WLC (Raj.)UC 745- Chairman, MP State Road Transport 6 Corporation Vs. Amanullah Khan and ors. as well as on the judgment of apex Court reported in AIR 1997 SC 3760-Ram Prakash Vs. Smt.Charan Kaur and anr. Learned counsel for the Insurance Company has tried to impress that the claim petition no.6/98 pertaining to the death of Birdhilal and the claim case no.65/97 (CMA No.517/99) pertaining to the injured Ashok Kumar Sharma stand on different footing as from the evidence it appeared that deceased Birdhilal had paid fare and, as such, the consolidated finding on issue no.5 should not be regarded as against both claimants. 9. Having heard rival contentions, and on going through the award as also record of the case, it is revealed that in both the claim cases filed on behalf of injured Ashok Kumar and by the dependents of deceased Birdhilal, Insurance Company had taken a common stand in their reply that there was a breach of Insurance Policy on the part of owner as the vehicle was being used for hire and reward. It is further revealed that both the claim 7 petitions were consolidated and issue no.5 pertaining to challenge of breach of policy was decided by common judgment. The Judgment of the learned Tribunal on issue no.5 has dealt in detail the fact in issue and evidence adduced and the same has been decided against the Insurance Company. It is against this finding that the Insurance Company has preferred the present appeal as against the claim petition no.6/98 pertaining to death claim of Birdhilal but no appeal has been filed against the decision of claim case no.65/97 pertaining to injured Ashok Kumar and as such, finding on issue no.5 has attained finality and thus the finding on issue no.5 in claim case no.6/98 amounts to res-judicata. The Co- ordinate Bench of this High Court in Amanullah Khan's case (supra) had an occasion to consider this aspect in a similar case pertaining to Motor Accident Claim where the finding on a common issue in two claim petitions pertaining to rash and negligent driving by a common judgment was found to have attained finality and as such no contrary view could be taken in appeal. The law is well settled on the point and the 8 ratio indicated by the Hon'ble Apex Court in Ram Prakash's case (supra) as also in the latest pronouncement in Harbans Singh and other Vs. Sant Hari Singh and others-(2009) 2 SCC 526 can be referred on the point. 10. Thus in this view of the matter, the appeal filed by the Insurance Company challenging the finding on issue no.5 is not sustainable in law and same deserves to be dismissed. 11. As regards the appeal of the appellant- dependants of deceased for enhancement of compensation, it may be noted that the learned Tribunal has awarded only sum of Rs.5000/- by way of loss of love and affection to the widow while the deceased had left behind him four minor children and an old mother and hence they also deserve to be compensated by awarding a sum of Rs.5000/- each for loss of love and affection. Thus total sum of Rs.20,000/- deserves to be awarded for loss of love and affection after taking into account Rs.5000/- already awarded by the Tribunal. That apart, instead of love and affection, a 9 sum of Rs.15,000/- deserves to be awarded for loss of consortium to the widow Janki Bai. Thus total sum of Rs.35,000/- deserves to be awarded in addition to the amount already awarded by the Tribunal. 12. Accordingly, CMA No.71/99 filed by the claimant-appellants of deceased Birdhilal is partly allowed and the Award passed by the learned Tribunal is modified to the extent that the appellants shall get a sum of Rs.35,000/- by way of additional enhanced compensation from the date of appeal i.e. 4.1.1999, with 6% interest to be paid within three months. Thereafter interest shall be paid @9% per annum. The rest of the terms of award shall remain unchanged. Likewise, CMA No.283/99 filed by the appellant Insurance Company is dismissed. CMA No.517/1999 (claim case no.65/97): 13. Learned counsel for the injured- appellant Ashok Kumar Sharma has submitted that the learned Tribunal has only awarded a sum of Rs.25,000/- as lump sum by way of compensation. It is further submitted that the second schedule to the M.V.Act had 10 already come into force in the year 1994 while the accident is of the year 1996, therefore, compensation deserves to be assessed by taking second schedule to be the guideline. 14. Per contra, learned counsel for the respondents supported the judgment of the Tribunal and submitted that the learned Tribunal has taken into consideration evidence adduced during inquiry and has awarded adequate compensation and calls for no interference. It is further submitted that injured is a Government servant, having stable job and thus the loss of future income during service tenure can be take care of by the State Government and, as such, multiplier should be reduced accordingly. It is further submitted that the disability caused to the injured is found to be 15% by the treating doctor and, as such, percentage of disability has not been assessed by the Board of Doctors. 15. Having heard rival contentions, and on going through the award as also record of the case, it is revealed that as per certificate Ex.6 issued by treating doctor, the accident had taken place on 22.6.97 11 while the certificate Ex.6 has been prepared on 17.10.97 i.e. after examining the injured in person four months after the accident and the Doctor has opined that the injured had sustained 15% disability on the basis of disabilities noticed by him. Thus the certificate is based on material finding and there is no ground to suspect any variation in percentage of disability in favour of the injured. That apart, at the time of accident the injured was serving as Junior Engineer. in the Government Department and was drawing salary of Rs.7133/- and, as such, compensation deserves to be computed so as to adequately compensate him under second schedule to the M.V.Act by applying multiplier of 8 which is available at the age of 60, retiring age of Government servant as the loss of income to the injured during service tenure shall be adequately taken care of by the State Government as the injured was having stable job. Thus the compensation can be computed as under: 7133x12x8(multiplier)x15%(disability) =102715-25000(already awarded)=77,715/- (to be additionally awarded) 12 16. Accordingly, appeal of the injured- appellant is partly allowed and the Award passed by the learned Tribunal is modified to the extent that the appellants shall get a sum of Rs.77,715/- by way of additional enhanced compensation from the date of appeal i.e. 22.12.98, with 6% interest to be paid within three months. Thereafter interest shall be paid @9% per annum. The rest of the terms of award shall remain unchanged. Record be sent forthwith. 17. Resultantly, CMA No.283/1999 filed by the United Insurance Company is dismissed while the CMA No.71/1999 filed by dependents of deceased Birdhilal and CMA No.517/1999 filed by injured Ashok Kumar, are allowed as above with no order as to costs. (GUMAN SINGH),J. Sandeep/- item no.40-41-42