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2009 DIGILAW 3750 (ALL)

NEW INDIA ASSURANCE CO. LTD. , ALLAHABAD v. RADHA

2009-12-15

RAJESH CHANDRA, S.P.MEHROTRA

body2009
JUDGMENT Hon’ble Rajesh Chandra J.—The New India Assurance Company Ltd., opposite party appellant, has filed this appeal under Section 173 of the Motor Vehicles Act, 1988 against the award dated 10.8.2009 passed by Motor Accident Claims Tribunal/ Additional District Judge Court No. 1 Kanpur Nagar in Motor Accidents Claim Case No. 1064/2007 allowing compensation to the tune of Rs. 2,19,000/- to the claimants Smt. Radha and others for the death of Shivdas in a motor accident. 2. In brief the facts of the case are that the wife, daughters and sons of Shivdas filed a petition under Section 166 of the Motor Vehicles Act, 1988 for a compensation of Rs. 13,34,000/- for the death of Shivdas in a motor accident. 3. The claimants alleged that on 28.11.2007 Shivdas was standing on the road side near Shambhua crossing at Hamirpur Kanpur Road and was waiting for a vehicle so as to go to Kanpur. At about 8 AM truck No. UP78 AT-8340 came from the Ghatampur side. The truck was being driven rashly and negligently and the same after coming to the wrong side of the road hit the said Shivdas and thereafter overturned. Shivdas sustained injury and died at the spot. The first information report regarding this accident was lodged at P.S. Bidhnoo & was registered at crime No. 518/2007 for the offences under Sections 279, 337, 338, 304 A, I.P.C.. 4. The claimants further alleged that the deceased Shivdas was earning his livelihood by carrying goods on the push cart etc. He was earning Rs. 300 per day and was maintaining his family. 5. According to the claimants the truck was owned by the opposite party No. 1 Alok Purva and was insured with the opposite party No. 2, the New India Assurance Company. 6. The opposite party No. 1 Alok Purva filed his written statement and admitted that he is the owner of the aforesaid truck. He further alleged that the truck was being driven by Jagjivan Ram who was duly licensed at the time of accident and that the truck was insured with the opposite party No. 2, the New India Assurance Company. He further alleged that the papers relating to permit etc. were also valid and the liability to pay the compensation if any is that of the Insurance Company. 7. He further alleged that the papers relating to permit etc. were also valid and the liability to pay the compensation if any is that of the Insurance Company. 7. The opposite party No. 2 the New India Assurance Company also filed its written statement denying all the allegations made in the claim petition. The company also denied the insurance of the vehicle and alleged that the driver was not holding a valid and effective driving licence. The company made sweeping allegations that the truck was not being plied according to the terms and conditions of the insurance policy and as such the claim petition is liable to be dismissed. In the alternative the company pleaded that the accident took place due to the sole negligence of Shiv Das. 8. The Tribunal on the pleadings of the parties framed the following issues. 1. Whether Sheo Das died due to accident dated 28.11.2007 at about 8.00 AM occurred at Shambhua Railway crossing, Hamirpur Kanpur road, within P.S. Bidhnoo, Kanpur Nagar, when he was standing on the side of the road, near Shambhua crossing and was waiting for the vehicle and he was hit by rashly and negligently driven truck No. UP 78AT-8340, coming from the side of Ghatampur, as alleged the accident occurred due to sole and absolute negligence of the deceased himself as alleged in Para 11 of the W.S. of the O.P. No. 2? 2. Whether the offending truck No. UP 78 AT-8340 was not insured with the O.P. No. 2, the New India Assurance Co. Ltd. on the date of accident? 3. Whether the offending truck No. UP 78 AT-8340 was not being driven by a person having a valid and effective D/L and he was not having valid and effective R.C., fitness certificate, permit etc. of the said truck at the time of alleged accident? 4. Whether the deceased Sheo Das was travelling as a gratuitous passenger in the alleged truck No. UP 78AT- 8340, at the time of alleged accident? 5. Whether the claimants are entitled to any compensation, if so, its amount and from which of the Opposite Parties? 9. The Tribunal while deciding issue No. 1 held that the accident in question took place due to the rash and negligent driving of the truck by its driver causing death of Shivdas. 10. 5. Whether the claimants are entitled to any compensation, if so, its amount and from which of the Opposite Parties? 9. The Tribunal while deciding issue No. 1 held that the accident in question took place due to the rash and negligent driving of the truck by its driver causing death of Shivdas. 10. In issue No. 2 the Tribunal decided that the truck in question was insured with the opposite party New India Assurance Company. 11. Giving finding on issue No. 3, the Tribunal held that the driver of the truck was duly licensed at the time of accident and the owner of the truck was having valid fitness certificate and permit etc. relating to the truck in question. 12. In issue No. 4 the Tribunal decided that the said Shivdas was not a gratuitous passenger on the truck and in fact he was waiting for the vehicle on the road side when he was dashed by the truck causing his death. 13. The Tribunal while deciding issue No. 5 came to the conclusion that the claimants are entitled to a compensation amounting to Rs. 2,19,000/- together with interest at the rate of 6% per annum. 14. It is against this award dated 10.8.2009 that the appeal has been filed. 15. In this appeal we have heard Sri Amaresh Sinha, learned counsel for the appellant Insurance Company and we have also gone through the papers as have been filed with the appeal. 16. The learned counsel for the Insurance Company vehemently argued that the deceased was not standing on the road side. In fact he was travelling in the truck as a gratuitous passenger. His contention is that the learned Lower Court has committed illegality in recording this finding that the deceased was not travelling in the truck and was hit by the truck when he was standing on the road side waiting for a vehicle. 17. We have given our anxious consideration to the above said argument and we feel that the same is not convincing. 18. The claimants in order to prove the negligence of the driver of the truck have examined Ganga Prasad as a witness. He has stated on oath that on 28.11.2007 he was present at Shambhua Railway crossing and was waiting for a vehicle so as to go to Kanpur. 18. The claimants in order to prove the negligence of the driver of the truck have examined Ganga Prasad as a witness. He has stated on oath that on 28.11.2007 he was present at Shambhua Railway crossing and was waiting for a vehicle so as to go to Kanpur. At about 8 AM truck No. U.P. 78AT- 8340 came from Ghatampur side and hit the said Shivdas who was standing on the road side. After this accident the truck overturned. Shivdas died at the spot. The witness has been cross-examined at length but there is nothing in his cross-examination which may create any doubt in his testimony with regard to the manner of accident. He has categorically stated that the accident was caused by the truck which was being driven rashly and negligently. He denied this suggestion that Shivdas was travelling in the truck itself. He reiterated in the cross-examination that Shivdas was standing on the road side. The learned counsel for the Insurance Company argued that the name of this witnesses was not mentioned in the FIR which was lodged by Gaya Prasad at the police station on 28.11.2007. We considered over this argument and we feel that the argument is devoid of merits. The FIR was lodged by Gaya Prasad and it is not necessary that Gaya Prasad was knowing each and every person who was present at the scene of occurrence and had witnessed the accident. A perusal of the FIR does not disclose as to whether Gaya Prasad himself had seen the accident or not. Moreover the Insurance Company did not make any effort to examine Gaya Prasad as a witness so that he would throw any light on the question as to whether he (Gaya Prasad) was present at the spot or not and whether any person who was standing on the road side was dashed by the truck and died at the spot. The Insurance Company has not even examined the driver of the truck in this case who would be the best person to state as to whether the deceased Shivdas was travelling in the truck or was standing on the side of the road. The driver if examined would have stated as to whether there was any negligence on his part in causing the accident or not. The driver if examined would have stated as to whether there was any negligence on his part in causing the accident or not. In the absence of any evidence of the driver we do not find any reason to discard the eye witness account given by the claimants’ witness Ganga Prasad. The Insurance Company has withheld the evidence of the driver of the truck and a presumption can be raised against the Insurance Company under Section 114 of the Indian Evidence Act that if the driver had been examined he would have stated against the Insurance Company. The Tribunal after discussing the evidence on record has rightly come to the conclusion that the accident in question was caused due to the rash and negligent driving of the truck by its driver. 19. Though the appellant Insurance Company has argued that the deceased was travelling in the truck but there is not an iota of evidence in this regard. The burden was upon the Insurance Company to prove this fact but the Insurance Company did not lead any evidence in this regard. Even in the FIR it has not been mentioned that the deceased Shivdas was travelling in the truck. Thus the Insurance Company has failed to prove that Shivdas was travelling as a gratuitous passenger in the truck and the finding of the Tribunal in this regard is upheld. 20. The Insurance Company had challenged the award only on the point that the deceased was travelling as a gratuitous passenger in the truck and that point has already been discussed by us in the preceding paragraphs. The Insurance Company has not challenged the award with regard to the quantum. Even otherwise the Tribunal has assessed the annual income of the deceased at Rs. 1500/- per month that is Rs. 18,000/- per year. We are in agreement with this finding of the Tribunal as in our opinion also a family consisting of Shivdas, his wife, five minor daughters and two minor sons cannot be maintained until unless the deceased was earning Rs. 1500/- per month. The annual income of the deceased thus comes to Rs. 18,000/-. The Tribunal then deducted 1/3rd towards the personal expenses of the deceased and worked out the dependency of the claimants at Rs. 12,000/- per year. The Tribunal adopted the multiplier of 17 as the age of the deceased was 32 years. 1500/- per month. The annual income of the deceased thus comes to Rs. 18,000/-. The Tribunal then deducted 1/3rd towards the personal expenses of the deceased and worked out the dependency of the claimants at Rs. 12,000/- per year. The Tribunal adopted the multiplier of 17 as the age of the deceased was 32 years. The compensation was thus assessed at Rs. 2,04000/- and to this amount was added an amount of Rs. 10,000/- for the loss of love and affection and Rs. 5,000/- for the funeral and other expenses. Thus the total amount of compensation awarded comes to Rs. 2,19,000/-. We are convinced that the Tribunal has not committed any illegality in awarding the aforesaid amount as compensation and the finding in this regard is also confirmed. 21. In view of the above the appeal is liable to be dismissed. 22. The appeal is dismissed. No order as to costs. 23. The amount of Rs. 25,000/- deposited by the appellant Insurance Company at the time of the filing of the appeal shall be remitted to the Tribunal so as to be adjusted in the amount to be deposited by the appellant Insurance Company. ————