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Allahabad High Court · body

2011 DIGILAW 1196 (ALL)

RAM SUMERI v. ORIENTAL INSURANCE CO. REGD.

2011-05-10

ABHINAVA UPADHYA, YATINDRA SINGH

body2011
JUDGMENT By the Court.— THE FACTS Moti Lal (the Deceased) was going on foot at 18:00 hours on 4.2.1994. He was overrun by truck No. DIG 1536 (the Truck) that was coming from Allahabad and going to Kanpur. He died on the spot. 2. An FIR of the incident was also lodged by the brother of the Deceased at 17:00 hours. It was registered as case Crime No. 31 of 1994 under Sections 279 and 304 IPC, PS Puramufti, district Allahabad. In the FIR, the Truck namely DIG-1536 was mentioned. 3. The mother of the Deceased (the Claimant) filed Claim Petition No. 262 of 1994. In order to prove her claim, she examined herself as PW-1 and Sri Moti Lal (an eye-witness) was examined as (PW-2). 4. The owner of the Truck did not appear and no witness was examined on behalf of the opposite parties. 5. The Claim Petition was dismissed by Motor Accident Claims Tribunal/Special Judge, Allahabad (the Tribunal) on 5.7.1995 on the ground that the claimant could not prove the accident with the Truck. Hence the present appeal by the claimant. THE DECISION 6. We have heard counsel for the appellant and Sri AK Shukla, counsel for the Oriental Insurance Company. Ltd. (the Company). No one has put up appearance on behalf of the Truck owner. 7. The counsel for the Company submits that the claimant has not been able to prove that the accident took place with Truck No. DIG-1536 for the following reasons: The Claimant (PW-1) in her statement had mentioned the Truck number as DIG-2536; In the charge-sheet, the number of the Truck is mentioned as DIG-2536. 8. Motilal (PW-2) is the eye-witness of the spot. He has not stated the number of the Truck. The Claimant (PW-1) is not an eye-witness. She has stated the truck number. However there is some cutting in the same. 9. We have seen the original record. In the Truck number the first figure is not clear. It is not clear if 2 was written then it was made 1 or in fact 1 was written. However, it is not signed by anyone. There is no suggestion that it was subsequently manipulated. It is possible that was a mistake and was corrected by the person recording the statement but he forgot to sign. 10. It is not clear if 2 was written then it was made 1 or in fact 1 was written. However, it is not signed by anyone. There is no suggestion that it was subsequently manipulated. It is possible that was a mistake and was corrected by the person recording the statement but he forgot to sign. 10. No one has been produced to show how Truck number was DIG-2536 or in the charge-sheet the Truck number was correctly mentioned. There is no suggestion to PW-1 or PW-2 that Truck no. 2536 was involved. There is also nothing on the record to show that Truck No. DIG-2536 was involved. 11. The FIR was lodged immediately after the incident and the Truck number has been mentioned as Truck No. DIG-1536. The same number has also been mentioned in the claim petition. 12. In view of above, we see no reason to doubt that the truck involved was the Truck namely the truck No. DIG-1536. 13. Motilal (PW-2) is the witness of the spot. He has stated that the Truck was being driven negligently. There is nothing discredit his testimony. In view of this, we hold that the negligence was of the Truck driver. 14. The Claimant (PW-1) has stated that the Deceased was a labourer and was earning Rs. 50/- per day. There is also no cross-examination on this point. In view of this, it is held that the Deceased was earning ‘50/- per day at that time. 15. A daily labourer does not get work every day and on average he may get work for 20 days in a month. In view of this the monthly/annual income of the Deceased would be Rs. 50/-x 20 = Rs. 1000/- per month and Rs. 12000/- per annum. 16. The Deceased was unmarried. In Sarala Verma v. DTC, 2009 (6) SCC 21, it has been stated that in case of bachelor deceased, half may be taken for personal expenses and half may be taken as family dependency. In view of this, the family dependency would be Rs. 6000/- per annum. 17. The Claimant is mother of the Deceased. Her age is mentioned as 56 years in her statement and this age is taken for considering multiplier. In the Sarla case, the Supreme Court has also approved the multiplier mentioned in the Triloki Chandra case. In view of this, the family dependency would be Rs. 6000/- per annum. 17. The Claimant is mother of the Deceased. Her age is mentioned as 56 years in her statement and this age is taken for considering multiplier. In the Sarla case, the Supreme Court has also approved the multiplier mentioned in the Triloki Chandra case. For 56-60 years of age, the multiplier of 9 has been approved. 18. In view of above, the family dependency comes out to Rs. 6000 x 9 = 54000/-. Apart from this, the claimant would also be entitled to Rs. 2000/- ffor funeral expenses and Rs. 2500/- for loss of estate thus totalling to Rs. 58000/-. The Claimant is also entitled to 6% interest on the amount from date of filing of the claim petition. 19. In the Claim Petition, it has been mentioned that the Truck was insured with the Company. This was denied in the written statement filed by the Company. There is nothing on record to show that the Truck was insured. In view of this, this claim is allowed and is awarded against Sri Shri Kant Gupta, respondent No. 2 (the owner of the Truck). 20. In view of above, the appeal is partly allowed. The Claimant is entitled to ‘58500/- alongwith 6% interest from Sri Shri Kant Gupta owner of Truck No. DIG-1536. 21. We have partly allowed the Claim Petition against the owner of the Truck as there was nothing to show that the Truck was insured. We hereby clarify that in case the Truck was insured then this order will not estop the owner of the Truck to be indemnified by the Company. 22. With the aforesaid observations, the appeal is partly allowed. —————