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2001 DIGILAW 1377 (PNJ)

Oriental Insurance Company Limited v. Vijay Kapur

2001-12-07

BAKHSHISH KAUR

body2001
Judgment Bakhshish Kaur, J. 1. Oriental Insurance Co. Ltd. (hereinafter referred to as the insurance company) against whom an award under sec. 166 of Motor Vehicles act was passed by the Motor Accidents claims Tribunal, Panipat (hereinafter referred to as the Tribunal) has preferred this appeal. Respondents in whose favour the award was made, were also not satisfied with the quantum of compensation paid to them, therefore, they have also filed cross-objections. Hence both the appeal as well as cross-objections will be decided together. 2. On 27.9.1991, Rajesh Kapoor, was returning from Panipat to Delhi in a Maruti van No. DAE 154 driven by him. At about 7 p. m. , when he reached near Haryana border a truck No. PAT 767 driven by narvail Singh, rashly and negligently, coming from the opposite side, struck against the van. Rajesh Kapoor suffered grievous injuries. He succumbed to the injuries in the Civil Hospital at 7.45 p. m. Nirvail Singh was challaned for rash and negligent driving under sec. 304-A, indian Penal Code. Nirvail Singh controverted the averments contained in the claim petition saying that he was not driving the truck rashly and negligently and, in fact, it was deceased who was under the influence of liquor and driving the van in a rash and negligent manner. He had taken all precautions to avoid the accident. The respondent No.2 (now appellant) had also raised objections. It was pleaded, inter alia, that the petitioner has no locus standi to file the petition and the petition was bad for non-joinder of the insurance company of Maruti van No. DAE 154. Secondly, the driver of the truck and Rajesh Kapoor deceased had no driving licence. 3. The above controversy gave rise to the following issues framed by the Tribunal on 14.4.1992: " (1) Whether Rajesh Kapoor had died in accident with truck No. PAT 767 due to rash and negligent driving of the respondent No.1? OPP (2) Whether the claimants are entitled to compensation? If so, how much and from whom? OPP (3) Relief. " The learned Tribunal on the strength of evidence brought on the record awarded compensation of Rs.6,00,000 along with interest at the rate of 15 per cent per annum, in favour of the respondents and against the appellant and Nirvail Singh driver which they were made liable to pay jointly and severally. 4. I have heard Mr. OPP (3) Relief. " The learned Tribunal on the strength of evidence brought on the record awarded compensation of Rs.6,00,000 along with interest at the rate of 15 per cent per annum, in favour of the respondents and against the appellant and Nirvail Singh driver which they were made liable to pay jointly and severally. 4. I have heard Mr. Alok Jain, learned counsel for the appellant and Mr. S. K. Midha, learned counsel for the respondent. 5. Nirvail Singh, driver, has not come forward to challenge the award given by the Tribunal whereas the appellant alone has challenged the award on the ground that Nirvail Singh was not holding a valid driving licence. The licence has also been produced on record. In fact, the prayer of the appellant for summoning the driver along with driving licence was rejected. 6. The matter was referred to the Lok adalat for settlement of the claim, but it did not materialise. However, in the wake of the objection taken by the petitioner with regard to the validity of the licence of Nirvail Singh, it has been observed by the learned President and Member of the lok Adalat as under: ". . . Since PW 4 Suresh Kumar, Ahlmad of the criminal court, deposed about the validity of the licence of Nirvail Singh up to 24.9.1991, it is taken that particulars of the driving licence of Nirvail singh must be available on the file of the criminal case. At this stage, opportunity is allowed to the appellant insurance company to verify particulars of the driving licence of Nirvail Singh as available on the file for the criminal case and its verification regarding validity from the licensing authority. " 7. The objection raised on behalf of the appellant that no opportunity was given to the appellant to lead evidence regarding validity of the licence of the respondent as the original is not placed on record, therefore, the appellant is not liable to pay the compensation, is devoid of merit. On issue no.3, under para 15 of the judgment, the learned Tribunal has discussed that "pw suresh Kumar Ahlmad stated that driving licence of respondent No.1 Narvail Singh was on the file which was valid up to 24.9.1991 and had taken it on superdari. Most probably he must have taken it on superdari for renewal purposes. On issue no.3, under para 15 of the judgment, the learned Tribunal has discussed that "pw suresh Kumar Ahlmad stated that driving licence of respondent No.1 Narvail Singh was on the file which was valid up to 24.9.1991 and had taken it on superdari. Most probably he must have taken it on superdari for renewal purposes. He further stated that Rajinder Kumar also known as rajesh Kapoor, was having driving licence bearing No. R 2269 of 1989 which was valid up to 27.1.1994". The Tribunal has observed that respondent No.2, i. e. , Oriental Insurance Co. Ltd. appellant had not led any evidence to prove that respondent was not competent to hold valid driving licence. Thus, it has been rightly held by the Tribunal that respondent No.2, i. e. , the appellant is liable to pay compensation. Under these circumstances, there is no merit in the appeal preferred by the appellant. The same is hereby rejected. 8. As regards the cross-objections filed by claimants-respondents for the enhancement of the compensation, there is merit in the averments made by the respondents in the cross-objections. Reference is made to the discussion contained under issue no.2. The relevant portion of the judgment given by the learned Tribunal under issue no.2 is reproduced as under: ". . . It is in evidence of PW 5 Ram chander, ASI that there was another girl with Rajesh Kapoor deceased, namely, meena who had been mentioned by him in the list of witnesses in the criminal case as second wife. PW 1 and PW 2 and PW 3 have categorically stated that rajesh Kapoor deceased has no second wife. There is no satisfactory evidence that Rajesh Kapoor had performed any second marriage. However, it appears that he had brought her with him to enjoy life. She may be his keep. Therefore, he must be spending on himself more than 1/3rd of his income. In such circumstances, it is presumed that he was spending half of the income upon himself. Therefore, loss to the estate is assessed at Rs.2,500 per month or rs.30,000 per annum. " 9. It is well settled that evidence recorded in a criminal case and forming part of another file cannot be looked into. In such circumstances, it is presumed that he was spending half of the income upon himself. Therefore, loss to the estate is assessed at Rs.2,500 per month or rs.30,000 per annum. " 9. It is well settled that evidence recorded in a criminal case and forming part of another file cannot be looked into. Assuming that Meena, the aforesaid girl, was living with the deceased as his keep, as observed by the Claims Tribunal, even then whether the original claimants can be deprived of the amount of compensation on the assertion that the deceased must have been spending more than 1/3rd of his income on himself as well as on Meena, the girl who was living with the deceased as his keep. This factor of second wife cannot be taken into consideration. The finding of the Tribunal that the deceased was spending half of the income upon himself cannot take away the right of the claimants or their entitlement of compensation over and above 1/3rd of the amount usually spent by a person upon himself. It is well settled that the ratio of amount spent by a person upon himself is calculated not more than 1/3rd of his income. Therefore, the income of the deceased Rajesh Kapoor, which has been assessed at Rs.5,000 p. m. comes to Rs.60,000 per annum, the finding recorded by the Tribunal assessing the estate of the deceased to the extent of rs.2,500 per month or Rs.30,000 per annum is not correct. Thus, after deducting 1/3rd from monthly income of Rs.5,000 which roughly comes to Rs.1,700, the dependency is assessed at Rs.3,300 x 12 x 20 = Rs.7,92,000. The claimants are, therefore, entitled to this amount of compensation, which is hereby allowed. 10. The objection raised by the learned counsel for the appellant that the insurance company is not liable to pay the entire amount cannot be accepted. In fact, in view of the law laid down in Oriental Insurance co. Ltd. V/s. Cheruvakkara Nafeesu, 2001 acj 1 (SC), the company is liable to pay the entire amount to the claimants. It is also held therein that upon making such payment, insurance company can recover the excess amount from the insured by executing the award against the insured to the extent of such excess as per section 149 (4) of the Motor Vehicles Act, 1988 . The appeal filed by Oriental Insurance co. It is also held therein that upon making such payment, insurance company can recover the excess amount from the insured by executing the award against the insured to the extent of such excess as per section 149 (4) of the Motor Vehicles Act, 1988 . The appeal filed by Oriental Insurance co. Ltd. is dismissed while the crossobjection filed by the claimants is allowed to the extent indicated above. The disbursement of the amount, if deposited, shall be according to the shares already apportioned by the learned Tribunal. Appeal dismissed.