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2008 DIGILAW 598 (PNJ)

Oriental Insurance Company Limited v. Kamla Devi

2008-02-29

K.C.PURI

body2008
Judgment K. C. Puri, J. 1. - The Motor Accidents claims Tribunal, Jind vide the impugned award dated 11.9.1995 has awarded an amount of Rs.2,16,000 as compensation to the claimants for the death of Om Parkash who allegedly met with an accident on 4.6.1992 and succumbed on 6.6.1992, due to the injuries received by him in the said accident. The claimants were also awarded interest at the rate of 12 per cent from the date of petition till realization of the amount of compensation. The appellant and Ram Phal, respondent who allegedly caused the accident were jointly and severally held liable to pay the amount of compensation. 2. The claimants, now respondents in this appeal, filed a petition under section 166 of Motor Vehicles Act, 1988 , for grant of compensation on the averments that on 4.6.1992 at about 6.15 p. m. deceased Om parkash was going on his motor cycle bearing registration No. HYC 5031 from safidon to his village Butani. When he reached at the turning of village Singhpura on Safidon-Hatt Road, respondent No.1 came from Butani side on his red colour eicher tractor. He was driving the tractor at a very fast speed. He did not blow any horn and turned his tractor suddenly while driving it rashly and negligently towards singhpura side, without giving any signal. The front side of the tractor struck against the head and right side of Om Parkash. Consequently, he sustained multiple grievous injuries on his head and other parts of the body resulting into fractures. The accident was witnessed by Lehna Singh Saini, resident of village Sarfabad who was going from Safidon side on his tractor. The other witnesses of the accident were Hari Chand and Mohinder Singh, brothers of the deceased, who were going on another motor cycle to village Butani and were just at a distance of 50 yards behind the deceased. The deceased was taken to Safidon and was treated by Dr. Janak Raj Garg who referred him to Panipat due to his critical condition. Dr. Sudhir Sabharwal of Panipat referred the injured to L. N. J. N. Hospital, delhi on 5.6.1992 where he was admitted and succumbed to the injuries on 6.6.1992. The claimants who are widow, minor son and parents of the deceased have suffered great loss due to his death as they were dependent on him. Dr. Sudhir Sabharwal of Panipat referred the injured to L. N. J. N. Hospital, delhi on 5.6.1992 where he was admitted and succumbed to the injuries on 6.6.1992. The claimants who are widow, minor son and parents of the deceased have suffered great loss due to his death as they were dependent on him. The age of the deceased was 28 years and he was an efficient and expert mason. He was earning Rs.2,500 per month. The claimants, therefore, claimed a compensation of Rs.7,00,000 along with interest at the rate of 18 per cent per annum. Respondents contested the claim petition. 3. Respondent No.1 pleaded that the claim petition was not legally maintainable as no motor accident had taken place; that the claimants have not impleaded the owner and insurer of the motor cycle No. HYC 5031; that the petition was bad for non-joinder and mis-joinder of necessary parties; that the claimants were not the legal heirs of deceased Om Parkash; that the deceased was not having valid and effective driving licence; that the deceased was not earning anything; that no accident took place as alleged by the claimants; that respondent No.1 is the owner of Eicher tractor but the tractor was not involved in any accident and that the tractor was insured vide cover note No.114314 w. e. f.3.6.1992 to 2.6.1993. 4. The respondent No.2 averred in the written statement that the petition did not disclose any cause of action because no accident had taken place; that claimants had no cause of action to file the petition; that the petition had not been drafted in accordance with the Rules under Motor vehicles Act, 1988; that the court had no jurisdiction to try the case; that the claimants ought to have filed an application before the claim insurance officer under the Solatium Fund Scheme, 1982; that the vehicle was not being driven by a competent person at the time of accident and that the deceased did not incur any amount on his treatment. 5. From the pleading of the parties, the following issues were framed: (1) Whether the accident in question took place due to rash and negligent driving of the tractor, make Eicher, as detailed in the claim application, by its owner-cum-driver Ram Phal, respondent No.1 and which tractor was insured with Oriental Insurance Co. 5. From the pleading of the parties, the following issues were framed: (1) Whether the accident in question took place due to rash and negligent driving of the tractor, make Eicher, as detailed in the claim application, by its owner-cum-driver Ram Phal, respondent No.1 and which tractor was insured with Oriental Insurance Co. Ltd. , respondent No.2, at that time and whether om Parkash suffered injuries in the said accident and whether he succumbed to those injuries? OPP (2) Whether the present claimants are the legal heirs/legal representatives/dependants of the deceased Om Parkash and whether they alone are his legal heirs/legal representatives/dependants? opp (3) Whether Ram Phal, respondent No.1, was not holding a valid driving licence at the time of accident in question? opr2 (4) Whether deceased Om Parkash was holding a valid driving licence at the time of alleged accident? opr (onus objected to) (5) To what amount of compensation, if any, are the claimants entitled to receive due to death of Om Parkash in the accident in question? If so, from whom? opp (6) Relief. 6. Motor Accidents Claims Tribunal, jind decided issue Nos.1, 2, 3 and 4 in favour of the claimants and against the respondent. Under issue No.5, the Tribunal held the dependency of the claimants on the deceased at Rs.12,000 per annum and by applying a multiplier of 18, worked out the compensation at Rs.2,16,000. Therefore, the said amount was awarded to the claimants as noticed above. 7. Oriental Insurance Co. Ltd. feeling aggrieved against the said award has filed the present appeal. 8. The claimants also referred Cross-Objection No.10-CII of 2005 for enhancement of compensation. 9. The facts and question for consideration of this court in the appeal and the cross-objection are common and, therefore, with this common judgment, these cases shall stand disposed of. 10. I have heard Mr. S. K. Jain, counsel for the respondents and have gone through the record of the case. The main contention raised by the counsel for the appellant is that no F. I. R. was lodged and there was no identification of the tractor in question. The injured was not taken to any government hospital. The deceased has died in l. N. J. N. Hospital, New Delhi on 6.6.1992. 11. All these submissions are without any substance and no case for interference in the judgment of the learned Tribunal is made out. The injured was not taken to any government hospital. The deceased has died in l. N. J. N. Hospital, New Delhi on 6.6.1992. 11. All these submissions are without any substance and no case for interference in the judgment of the learned Tribunal is made out. The learned Tribunal while deciding issue No.1 has elaborately dealt with this issue. It is not the requirement of law that the deceased should be taken to a government hospital alone. He was in a serious condition and the attendants were more concerned to provide him best medical aid and on that count he was transferred to a hospital at Delhi. Registration of F. I. R. is also not the criteria to prove the negligence. The case has to be decided on the preponderance of evidence. Hari Chand, pw 2 and Lehna Singh, PW 3, have deposed about the manner of accident and have stated that on 4.6.1992, the accident had taken place due to rash and negligent driving of red colour Eicher tractor. Nothing useful could be brought out from the statements made by both these witnesses on oath despite lengthy cross-examination. Otherwise also, there are no reasons for the claimants to falsely implicate the respondents and to allow the actual culprit go scot-free. 12. So, in view of the above discussion, no ground for interference in the finding of learned Tribunal on issue No.1 is made out. 13. The counsel for claimants-cross-objectors has submitted that the amount awarded by the learned Tribunal is on the lower side. The income of the deceased should have been taken at Rs.2,500 per month and not Rs.1,500 per month. Even a daily wager earned Rs.80 to Rs.100 per day in the year 1992. 14. I have considered the said submissions but do not find any force in the same. 15. No documentary evidence regarding income of the deceased had been placed on the file. So, in these circumstances, learned Tribunal has rightly held the income of the deceased at Rs.1,500 per month and the dependency of the claimants at rs.12,000 per annum. 16. Learned counsel for the claimants has submitted that multiplier of 18 is on the lower side but that submission cannot be accepted. Multiplier of 18, on the age of the deceased, has been correctly applied. 17. 16. Learned counsel for the claimants has submitted that multiplier of 18 is on the lower side but that submission cannot be accepted. Multiplier of 18, on the age of the deceased, has been correctly applied. 17. Lastly, the counsel for the cross-objectors has submitted that no amount regarding expenses on cremation, loss to the estate and loss of consortium has been allowed but he was fair enough to concede that there was no request for grant of these reliefs before the learned Tribunal. So, that argument also cannot be accepted. 18. In view of the above discussion, the appeal as well as cross-objection are without any merit and as such the same stand dismissed. There is no order as to costs so far as appeal and the cross-objection are concerned. Memo of costs be prepared. A copy of this judgment be placed on the file of the cross-objection. This file be consigned to the record room after due compliance. Appeal dismissed.