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2004 DIGILAW 52 (UTT)

Dilshad Parveen v. New India Assurance Co. Ltd.

2004-05-13

P.C.VERMA, RAJESH TANDON

body2004
JUDGMENT By the present appeal, the appellants have challenged the award dated 12.2.1999 passed by Motor Accident Claims Tribunal, Nainital by which, the claim of the claimants has been rejected. The claimants/appellants are the wife and children of the deceased Mohd. Subhan. 2. Brief facts of the case are that on 9.11.1997 at about 7 p.m. Mohd. Subhan was travelling in a Maruti from Bageshwar. The Maruti Van met with an accident due to rash and negligent driving by its driver. In this accident, Mohd. Subhan and his son Adnan suffered serious injuries and on 19.11.1997 at about 7 p.m. Mohd. Subhan died in Krishna Nursing Home due to the injuries sustained in the said accident. According to the claim petition, the age of the deceased Mohd. Subhan was 50 years and he was working in Shimla Boot House, Haldwani and he was drawing a sum of Rs. 5,000/- per month. The Maruti Van in question bearing No. UP 21 V / 1832 was owned by respondent No.2, namely, Mohd. Abdul Raoof and it was insured with New India Assurance Co. Ltd. The deceased was the only bread earner of his family and he has left behind his wife and six minor children. Therefore, a claim of 10,00,000/- was lodged by the claimants. 3. Respondent No.1, i.e., The New India Assurance Co. Ltd. contested the case and filed its written statement, in which it has been stated that in the FIR nobody's death or injuries were shown regarding the said accident and it was also stated that it was a conspiracy between the owner of the vehicle in question and the claimants. 4. Owner of the vehicle in question, Abdul Raoof has also filed his written statement, in which the accident has been admitted and it was also stated that the accident was not the result of rash and negligent driving by the driver. It was also stated that the vehicle in question was fully insured with the Insurance Company, therefore, the liability to pay the compensation was put on the New India Assurance Company Ltd. 5. On the pleadings of the parties, following issues were framed by the Claims Tribunal: i. Whether Mohd. It was also stated that the vehicle in question was fully insured with the Insurance Company, therefore, the liability to pay the compensation was put on the New India Assurance Company Ltd. 5. On the pleadings of the parties, following issues were framed by the Claims Tribunal: i. Whether Mohd. Subhan died due to the injuries sustained by him in the accident, which took place on 9.11.97 at about 7 p.m. near Pilkholi under Police Station Ranikhet, when he was coming from Bageshwar to Haldwani in the Maruti Van No. UP 21 V 1832 ? ii. Whether the accident took place on account of rash and negligent driving of the Maruti Van No. UP 21 V 1832 by its driver? iii. Whether the Maruti Van No. UP 21 V 1832 was insured with the respondent No.1 i.e. The New India Assurance Co. Ltd. for the period from 2.5.97 to 1.5.98 ? iv. Whether the driver of Maruti Van No. UP 21 V 1832 was holding a valid driving license? v. As to what account of compensation the claimants are entitled? 6. While deciding issues No.1 & 2 together, a finding was recorded by the Claims Tribunal that it is not clear from the records that whether on 9.11.97 the accident had occurred from Maruti Van No. UP 21 V 1832 resulting in the death of Mohd. Subhan. Therefore, issues No.1 & 2 were decided against the claimants. So far as the issue No.3 is concerned, a finding was recorded that the owner of the Maruti Van No. UP 21 V 1832 has recovered the amount of loss from the New India Assurance Co. Ltd., therefore, the vehicle in question was fully insured with the New India Assurance Co. Ltd. with regard to issue no. 4, a finding has been recorded that as the loss of vehicle has been recovered from the insurance company, therefore, the driver of the vehicle must have been holding a valid driving license. So far as the issue No.5 is concerned with regard to compensation, it has come on record that Mohd. Subhan died due to an accident and a sum of Rs. 3500/- was also calculated as the income of the deceased Mohd Subhan. So far as the issue No.5 is concerned with regard to compensation, it has come on record that Mohd. Subhan died due to an accident and a sum of Rs. 3500/- was also calculated as the income of the deceased Mohd Subhan. But, the claim petition was rejected on the ground that on 9th November, 1997, it is doubtful as to whether the accident had occurred from the Maruti Van No. UP 21 V 1832, which was owned by Abdul Raoof. 7. We have perused the entire evidence on record. 8. It is clear that the accident had occurred from Maruti Van No. UP 21 V 1832 as the loss was recovered from the New India Assurance Company by the owner of the vehicle in question. PW1 Smt. Dilshad Parveen has stated in her evidence that she was informed about the incident on 9th November, 1997 at about 9 p.m. and at about 1 p.m. she admitted her husband and her son in Krishna Nursing Home, Haldwani. The Claims Tribunal has taken a very erroneous view of the matter from certain contradictions in the statement of PW 1 Smt. Dilshad Parveen. From the documents on record, it appears that the accident had taken place as the recovery of the damages have also been claimed by the owner of the vehicle in question. Statement of PW 3, namely, Dr. Harbhajan Singh is also there, who has clearly stated that Mohd. Subhan was admitted to his hospital for treatment. So in this case, occurrence of accident of Maruti Van No. UP 21 V 1832 is clear and it is also clear that the deceased Mohd. Subhan was admitted to the Hospital on account of the injuries sustained by him and he died on 19.11.1997. 9. It is a case, where facts on record speaks itself and theory of res ipsa loquitur applies to the facts of the case. Therefore, the Claims Tribunal should not have rejected the claim petition of the claimants. 10. The deceased was earning a sum of Rs. 3,500/- as will appear from the finding recorded by the Claims Tribunal and his age was about 50 years. In this case, multiplier of 12 can be easily applied. Out of Rs. 3,500/- the deceased must have been spending Rs. 2,000/- on maintenance of his family, which comes to Rs. 24,000/- per annum. By applying the multiple of 12 to Rs. In this case, multiplier of 12 can be easily applied. Out of Rs. 3,500/- the deceased must have been spending Rs. 2,000/- on maintenance of his family, which comes to Rs. 24,000/- per annum. By applying the multiple of 12 to Rs. 24,000/- the total amount comes to Rs. 2,88,000/-. Therefore, in our opinion, a sum of Rs. 2,00,000/- as compensation would meet the ends of justice. 11. Accordingly, we allow this appeal and set aside the award dated 12.2.1999, passed by the Motor Accident Claims Tribunal, Nainital. Respondent No.1 i.e. The New India Assurance Company Ltd. Is directed to pay an amount of Rs. 2,00,000/- as compensation to the claimants.