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2002 DIGILAW 347 (ALL)

ORIENTAL INSURANCE CO. LTD. v. KAMLA DEVI

2002-03-06

G.P.MATHUR, VINEET SARAN

body2002
VINEET SARAN, J. ( 1 ) THIS is an appeal by the insurance company against the judgment and award dated 29. 11. 2001 passed by Motor Accidents Claims Tribunal, Additional District Judge, Bareilly in Motor accident Claim Case No. 575 of 1998 awarding compensation of Rs. 2,50,000 along with 9 per cent interest in favour of the claimants-respondent Nos. 1 to 5. ( 2 ) BRIEFLY the facts of the case as set out in the claim petition are that on 17. 9. 98 at about 9. 30 a. m. when the deceased Ashok pal Singh was going on his cycle, a truck no. UP 25-7419, which was allegedly being driven rashly and negligently, hit the cycle of the deceased. In the said accident the deceased received fatal injuries. It was further stated that after hitting the cycle, the truck got unbalanced and dashed against another truck which was parked by the side, and thereafter it hit a transformer. The claimants-respondent Nos. 1 to 5 who are the widow, three minor children and mother of the deceased, claimed compensation of Rs. 5,00,000 from the owner of the truck (respondent No. 6) as well as the appellant insurance company on the ground that the deceased Ashok Pal Singh was aged about 30 years and was earning rs. 3,500 per month. ( 3 ) THE owner of the truck did not contest the claim petition. The insurance company filed its written statement and contested the claim. The insurance of the truck in question was not denied by the appellant insurance company, however, it was pleaded that the driver of the truck did not have a valid driving licence and hence there was violation of the terms and conditions of the policy of insurance and as such the insurance company was not liable for payment of compensation. ( 4 ) THE claimants produced respondent no. 1 Kamla Devi, widow of the deceased as well as one Udaiveer Singh as witnesses to prove their case. The insurance company produced Amitabh Bhaj, an investigator appointed by the appellant insurance company and one Adesh Kumar, a clerk in the office of the Regional Transport Officer, as witnesses. In support of their case, the claimants filed the first information report, post-mortem report, charge-sheet, site-plan, etc. , as well as the salary certificate of the deceased. The insurance company produced Amitabh Bhaj, an investigator appointed by the appellant insurance company and one Adesh Kumar, a clerk in the office of the Regional Transport Officer, as witnesses. In support of their case, the claimants filed the first information report, post-mortem report, charge-sheet, site-plan, etc. , as well as the salary certificate of the deceased. The appellant insurance company filed the policy of the insurance, report of their investigator and one photocopy of the alleged driving licence of the driver of the truck as well as a report of the licensing authority, R. T. O. , Bareilly. ( 5 ) THE Tribunal, after considering the evidence adduced by the parties, held that the accident was caused due to rash and negligent driving of the truck driver. It also held that it cannot be said that the driver of the truck did not have the valid licence and thus that the liability for payment of compensation would be that of the insurance company. On the question of quantum of compensation the Tribunal held that the deceased was getting a salary of Rs. 2,000 per month as against the claimed amount of Rs. 3,500. After deducting 1/3rd amount towards expenses of the deceased on himself, the annual pecuniary loss of the claimants was held to be Rs. 16,000. Although the claimants had mentioned the age of the deceased to be 30 years, the Tribunal, on the basis of the age indicated in the postmortem report, held the age of the deceased to be 35 years and applied a multiplier of 15 and awarded Rs. 2,40,000 as compensation for pecuniary loss to the claimants. Besides this, Rs. 2,000 was awarded towards funeral expenses, Rs. 3,000 towards loss to estate and Rs. 5,000 to the claimant-respondent No. 1, the widow of the deceased, towards loss of consortium. Thus, the Tribunal awarded Rs. 2,50,000 towards compensation payable to the respondent nos. 1 to 5 along with 9 per cent per annum interest from the date of filing of the claim petition till the date of payment. ( 6 ) WE have heard Mr. V. K. Birla, learned counsel appearing for the appellant insurance company at some length. Mr. Thus, the Tribunal awarded Rs. 2,50,000 towards compensation payable to the respondent nos. 1 to 5 along with 9 per cent per annum interest from the date of filing of the claim petition till the date of payment. ( 6 ) WE have heard Mr. V. K. Birla, learned counsel appearing for the appellant insurance company at some length. Mr. Birla has challenged the award of the Tribunal mainly on two grounds, namely: (a) that the driver of the truck did not have a valid driving licence; and (b) that the amount of compensation awarded is excessive. ( 7 ) WITH regard to the first ground of challenge, learned counsel for the appellant insurance company states that the appellant had appointed an investigator to enquire into the factum of the accident as well as the validity of the driving licence of the truck driver. In his report, the investigator has reported that the driver of the truck did not have a valid driving licence. Further one paper No. 52-Ga has also been filed by the insurance company which is stated to be photocopy of the driving licence of the driver of the truck which was allegedly handed over to the appellant insurance company by one Mr. S. K. Agarwal, Advocate, said to be the counsel for the claimant before the Lok Adalat (when the case was posted before the Lok Adalat for compromise which ultimately did not materialise ). It is not the case of the appellant that the said paper No. 52-Ga was filed before the Claims Tribunal by the claimants. The appellant, basing its claim on the said photocopy went on to disprove the authenticity of the said driving licence by producing the clerk of the R. T. O. office, DW 2 who has stated that the said paper was fabricated and no such licence existed on the record of the licensing authority. It is surprising that the insurance company itself filed a photocopy of some driving licence and proceeded to disprove the same so as to hold it to be a fabricated document/driving licence. The explanation given by the insurance company that the said paper No. 52-Ga was handed over to them in their office by the said Mr. It is surprising that the insurance company itself filed a photocopy of some driving licence and proceeded to disprove the same so as to hold it to be a fabricated document/driving licence. The explanation given by the insurance company that the said paper No. 52-Ga was handed over to them in their office by the said Mr. S. K. Agarwal, Advocate, cannot make the photocopy of the driving licence an authentic piece of evidence to show that the driver of the truck did not have a valid driving licence. Although, it was denied by the claimants that Mr. S. K. Agarwal was their counsel and the Tribunal has held that there was no vakalatnama of the said mr. S. K. Agarwal on the record of the case, but the appellant has filed a photocopy of the said vakalatnama as Annexure-7 to the affidavit filed along with the stay application. Even assuming that the said vakalatnama was on record, a perusal of the terms of the same would show that it only authorised the said counsel to appear and plead the case on behalf of claimants in court. It did not, however, authorise the said counsel to handover papers of the claimants to other parties privately outside the court. As such the explanation of the insurance company as to how they obtained the said paper No. 52-Ga is not acceptable. ( 8 ) THE learned counsel for the appellant has also stated that with regard to the said accident, the charge-sheet filed by the police in the court of the A. C. J. M. V, Bareilly was against the same person whose driving licence had been filed as paper No. 52-Ga. In our opinion, the same also would not establish that the driving licence, the alleged photocopy of which has been filed by the insurance company, is authentic and could form the basis of holding that the driver of the truck did not have a valid driving licence. ( 9 ) IT is true that the insurance company did take the plea that the driver of the truck was not made party in the claim petition on which issue No. 3 had been framed and the Tribunal rightly held that the driver is not a necessary party to the claim petition. ( 9 ) IT is true that the insurance company did take the plea that the driver of the truck was not made party in the claim petition on which issue No. 3 had been framed and the Tribunal rightly held that the driver is not a necessary party to the claim petition. However, the insurance company did not make any application for summoning the driver of the truck and examining him to prove its case that the driver did not have a valid driving licence at the time of the accident. Thus, in our view, the finding recorded by the Tribunal on this point is correct and on the facts of the case, it cannot be held that the driver of the truck did not have a valid driving licence. ( 10 ) AS regards the other grounds raised by the counsel for the appellant insurance company with regard to the quantum of compensation, the learned counsel for the appellant could not show any document or evidence produced by the appellant to disprove that the salary certificate filed by the claimants showing that the deceased was getting a salary of Rs. 2,000 per month from Mahabir Dari Bhandar,. was incorrect. However, since no proof was given by the claimants with regard to the further income of Rs. 1,500 per month from the private business of sale of darees allegedly being carried on by the deceased, the same was rightly not accepted by the Tribunal. On this basis, after holding that the deceased was having an income of Rs. 24,000 per annum, the Tribunal deducted 1/3rd of the same, i. e. , Rs. 8,000 towards the personal expenses of the deceased and held the annual pecuniary loss of the claimants at rs. 16,000. Considering the age of the deceased, which the Tribunal has taken as 35 years, the multiplier of 15 applied by the tribunal cannot be said to be unreasonable. The further sum of Rs. 10,000 awarded by the Tribunal towards funeral expenses, loss of consortium, etc. , also appears to be justified. Thus, in our opinion, even the quantum of compensation awarded appears to be justified and does not warrant interference by this court in appeal. The further sum of Rs. 10,000 awarded by the Tribunal towards funeral expenses, loss of consortium, etc. , also appears to be justified. Thus, in our opinion, even the quantum of compensation awarded appears to be justified and does not warrant interference by this court in appeal. ( 11 ) IN view of the above, we are of the opinion that the appeal is devoid of merit and is accordingly dismissed under Order 41, rule 11, Code of Civil Procedure. Appeal dismissed. .