Research › Search › Judgment

Orissa High Court · body

2007 DIGILAW 526 (ORI)

New India Assurance Co. Ltd. v. Smita Mishra

2007-07-11

B.P.DAS

body2007
JUDGMENT B. P. DAS, J. : The New India Assurance Co. Ltd. has pre¬ferred this appeal under Section 173 (1) of the Motor Vehicles Act, 1988 challenging the judgment and award passed by the 3rd Motor Accidents Claims Tribunal, Bhubaneswar, in Misc. Case No.24 of 1999 whereby respondent Nos. 1 to 3 have been awarded compen¬sation to the tune of Rs.21,18,880/- with interest @ 9% per annum from the date of the claim petition till payment, for the untime¬ly death of Pyari Mohan Mishra, who was the husband of respondent No.1 and father of respondent Nos.2 and 3, in a motor vehicular accident. 2. Brief facts necessary for the disposal of the present appeal may be stated thus. Deceased-Pyari Mohan Mishra, while serving as Lt. Colonel in the 2nd. Battalion of the N.C.C. Visakhapatnam, was travelling on 27.6.1998 in a passenger bus from Visakhapatnam to Srikakulam on National High way No.5. While the said bus was proceeding on its left in normal speed, at about 3.45 P.M. a truck bearing registration No.AP-37-T-9449 being driven in a rash and negligent manner came from the opposite direction at a high speed and collided with the bus as a result of which the deceased along with some other passengers of the bus sustained severe injuries and died at the spot. The deceased at the time of his death was drawing a gross salary of Rs.20,000/- out of which he was maintaining the claimants. The widow and the two sons of the deceased, the present respondent Nos.1 to 3 re¬spectively, filed a claim application before the Tribunal claim¬ing compensation to the tune of Rs.75 lakhs making the owner and the insurer of the offending truck as parties. The owner of the offending truck, i.e., O.P. No.1 before the Tribunal, filed his written statement but did not contest the case for which he was set ex parte. The insurer-O.P. No.2 contested the claim by filing written statement and denied the stand taken by the claimants regarding the accident, rash and negligent driving of the offending truck, the income of the deceased and the entitlement of the claimants to get compensation as claimed by them. The insurer-O.P. No.2 contested the claim by filing written statement and denied the stand taken by the claimants regarding the accident, rash and negligent driving of the offending truck, the income of the deceased and the entitlement of the claimants to get compensation as claimed by them. The insurer also filed a petition under Section 170 of the Act which was allowed and the insurer was permitted to contest the case on merit and take all such pleas as were available to be taken by the owner of the vehicle. 3. On the pleadings of the parties, the Tribunal framed three issues, namely, (i) whether the death of Pyari Mohan Mi¬shra, occurred due to the motor vehicle accident involving vehi¬cle No.AP-37-T-9449 (Truck) ? (ii) whether the driver of the offending vehicle was rash and/or negligent in causing the acci¬dent ? (iii) whether the petitioners are entitled to compensation and, if so, to what extent and from which O.Ps. ? The claimant-petitioners examine done witness, i.e., the widow of the de¬ceased, as P.W.1 and exhibited as many as 11 documents in support of their case. Similarly, on behalf of O.P. No.2-insurer, one witness was examined and 7 documents were exhibited. 4. The Tribunal considering the materials on record an¬swered all the issues in favour of the claimant-petitioners. The Tribunal found that age of the deceased at the time of the acci¬dent was 45 years and his net salary was 13,074/- per month and Rs.1,56,888/- per annum. Taking the age of the deceased at the time of accident as 45 years, the Tribunal applied 15 multiplier and worked out the amount to Rs.23,53,320/- and after deducting 1/3rd therefrom, fixed the compensation towards loss of dependen¬cy at Rs.15,68,880/-. That apart, the Tribunal awarded a sum of Rs.5 lakhs towards loss of future income to the claimant-peti¬tioners due to the untimely death of the deceased and Rs.50,000/- towards funeral expenses of the deceased. Thus, the Tribunal awarded a total compensation of Rs.21,18,880/- to the claimant-petitioners and directed the insurer to pay the said compensation along with interest at the rate of 9% per annum from the date of the claim petition till actual payment. 5. Thus, the Tribunal awarded a total compensation of Rs.21,18,880/- to the claimant-petitioners and directed the insurer to pay the said compensation along with interest at the rate of 9% per annum from the date of the claim petition till actual payment. 5. In support of the appeal, Shri G. P. Dutta, learned counsel for the insurer-appellant, submits that the insurer has successfully brought into evidence through O.P.W.1, who was the Assistant Administrative Officer working under O.P. No.2 at Bhubaneswar, that the offending vehicle at the time of accident was not being driven by its driver but by its helper, namely, P. Raghu. On a bare perusal of the evidence of said O.P.W.1, it appears that O.P.W.1 has stated that in the investigation report submitted by the Investigator of the company, it is stated that the driver did not have a valid licence at the time of the acci¬dent. Neither there is any direct evidence that at the time of accident, the truck was being driven by its helper P. Raghu, nor the M.V.I. was summoned to prove the report. The Investigator was also not examined by the insurer. On perusal of the judgment, I find that the evidence of O.P.W.1 has been rightly dealt with by the Tribunal. However, as per the settled position of law, as enunciated by the apex Court in New India Assurance Co., Shimla, Kamla, AIR 2001 S.C. 1419 , the insurer and the insured are bound by the conditions enumerated in the policy and the insurer is not liable to the insured if there is violation of any policy condi¬tion. But the insurer, who is made statutorily liable to pay compensation to third parties on account of the certificate of insurance issued, shall be entitled to recover from the insured the amount paid to the third parties, if there was any breach of policy conditions on account of the vehicle being driven without a valid licence. Accordingly, in this case I grant liberty to the appellant-insurer to proceed against the owner of the vehicle for recovery of the amount of compensation. 6. So far as the quantum of compensation is concerned, law is well settled that the insurer cannot dispute the quantum. But in this case the insurer was permitted under Section 170 of the Act to contest the case on merit. 6. So far as the quantum of compensation is concerned, law is well settled that the insurer cannot dispute the quantum. But in this case the insurer was permitted under Section 170 of the Act to contest the case on merit. Learned counsel for the appel¬lant submits that as per the service book of the deceased, his age at the time of the accident was more than 50 years and, therefore, the correct multiplier would be 11.1, therefore, accept the submission of the learned counsel for the appellant that the age of the deceased was more than 50 years at the time of the accident and hold that the correct multiplier would be 11 instead of 15 as adopted by the Tribunal. Keeping the annual income of the deceased intact and applying the multiplier 11, and after deducting one-third therefrom, the loss of dependency comes to Rs.11,50,512/-, which is rounded to Rs.11,50,000/- and reduced to that extent.The amounts to awarded as compensation on other heads shall remain intact. Therefore, the total compensation comes to Rs.17,00,000/- (seventeen lakhs). 7. The insurer has deposited the entire amount of compensation as awarded by the Tribunal in this Court. During the pendency of this appeal, the claimant-respondents have already been allowed to withdraw a sum of Rs.10 lakhs out of such depos¬it.Let the balance amount be calculated along with the interest thereon and released in favour of the claimant-respondents. 50% of the amount so directed to be released in favour of the claim¬ants shall be kept in a fixed deposit account of any nationalized bank in the name of respondent No.1-Smita Mishra for a period of five years and the balance shall be equally apportioned and kept in fixed deposit account in the names of respondent Nos.2 and 3 for a period of five years. The balance amount along with the interest accrued thereon, if any, shall be refunded to the insur¬er-appellant. It is needless to mention that if there will be any short-fall, that will be deposited by the insurer within a month. 8. The appeal is allowed in part. There shall be no order as to cost. Appeal allowed in part.