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2012 DIGILAW 146 (PAT)

Oriental Insurance v. Most. Masheda Khatoon

2012-01-24

SHAILESH KUMAR SINHA

body2012
JUDGMENT (Per: HONOURABLE MR. JUSTICE SHAILESH KUMAR SINHA) 1. Heard learned counsel for the appellant. 2. No one appears on behalf of the respondents. 3. This appeal is directed against the judgment and the award dated 29th of March 2008/23rd of March 2006 passed by the District Judge-cum- Accidents Claims Tribunal, Purnia (hereinafter referred to as the “Tribunal) in Claim Case No. 23 of 2006, whereby the appellant – Insurance Company has been directed to pay the compensation of Rs. 69,500/- in addition to the sum of Rs. 50,000/- paid earlier to the claimants under Section 140 of the Motor Vehicle Act (hereinafter referred to as the “Act”). 4. The aforesaid claim was allowed to the respondent No. 1 on account of the death of her husband due to accident of the Bus, in which, the deceased was traveling from village Rautara to Gulabbagh Bazar. The detail facts leading to the accident and awarding of the claim are not being repeated since noted in detail in the order of the tribunal, however, briefly stated relevant facts are that the husband of the respondent no. 1 namely, Naushad Ali along with his son Md. Tahir was travelling on the bus bearing Registration No. BR- 11A/9698 on 30th of December 2005 and after covering for some distance, the wheel of the said vehicle fell in the pit-whole due to which, the bus jerked and husband of the respondent no.1 was thrown out of the bus on the road and came under the wheel of the Bus as also the bus crossed over the body of Naushad Ali (deceased) due to which, he sustained injuries and in course of treatment, died. The First Information Report was lodged by Md. Tahir, son of the deceased, vide Korha (Katihar) P.S. Case No. 3 of 2006 under Sections - 279 and 304 (A) of the Indian Penal Code. The post-mortem was held vide Exhibit – E. Thereafter, the respondent nos. 1 to 3 filed the aforesaid claim case vide Claim Case No. 23 of 2006 before the Tribunal claiming compensation of Rs. 2,74,000/-. The Tribunal, however, allowed a claim of Rs. 1,19,500/- and after adjusting a sum of Rs. 50,000/-, the appellant – Insurance Company was directed to deposit the balance amount of Rs 69,500/- before the Tribunal for eventual payment to the claimant as per the judgment and award under appeal. 5. Mr. 2,74,000/-. The Tribunal, however, allowed a claim of Rs. 1,19,500/- and after adjusting a sum of Rs. 50,000/-, the appellant – Insurance Company was directed to deposit the balance amount of Rs 69,500/- before the Tribunal for eventual payment to the claimant as per the judgment and award under appeal. 5. Mr. Krishana Kishore Sinha, learned counsel appearing on behalf of the appellant – Insurance Company, submits that the Tribunal ought not to have allowed the claim for the reasons that the driver of the bus in question, was being driven without any valid licence and secondly; the manner of accident was also not consistent in the evidence adduced on behalf of the claimants. It is further submitted that since the deceased was standing near the gate of the bus, had fell down. In other words, he was negligent since standing near the gate of the bus and as such, having fell down from the said bus, sustained injury and succumbed to death, no claim could be allowed for such death. It was further submitted that the Tribunal was not justified in law in directing the insurance company that in case the insurance company is satisfied that the vehicle in question was being driven unauthorizedly for having no valid license, the compensation allowed, if so wishes by the insurance company may recover from the owner of the Bus. Besides the above, it is further submitted that the Tribunal allowed the multiplier of 11 taking the age of the deceased as 55 years even though from the evidences of the widow, assessed the age of the deceased to be between 60-70 years, as such, the multiplier of 11 was not correct. 6. Upon considering the submissions of the counsel for the appellant–Insurance Company and on the materials brought on the record and considered by the court below in its judgment, it would appear that it is not in dispute that the deceased was traveling in the bus in question. The son of the deceased namely, Md. Tahir who was also traveling in the said bus. The evidence adduced on behalf of the claimant vide PW1, the widow of the deceased, PW2, Md. Tahir son of the deceased and PW3 and Md. The son of the deceased namely, Md. Tahir who was also traveling in the said bus. The evidence adduced on behalf of the claimant vide PW1, the widow of the deceased, PW2, Md. Tahir son of the deceased and PW3 and Md. Shahjehan, Co-passenger have supported the case of the claimants with regard to the fact that deceased was traveling on the bus and fell down due to which, he sustained injuries under the wheel of the Bus and later on, succumbed to the injury. 7. Learned counsel for the appellant – Insurance Company further submits that there is inconsistency in oral evidence on the fact as to whether deceased was sitting near the gate or standing near the gate of the Bus. As regards the income, although the widow and son of the deceased adduced evidence that the deceased was earning a sum of Rs. 3000/- per month from the job of Raj Mistri. However, the Tribunal in absence of any documentary evidence, did not accept the claim of the monetary income of Rs. 3000/- and accordingly, fix the notional income of Rs. 15,000/- per annum. As regards the submissions of the appellant on the question of age of the deceased submission is that the age indicated by the widow of the deceased is between 60-70 years and as, such, the age of the deceased accepted by the Tribunal is 55 years is not correct. In this connection, it is relevant to state here that the post mortem of the deceased conducted in the Sadar Hospital and the age assessed by the Doctor as mentioned in post-mortem report (Exhibit -6) was 55 years and as such, in between the two, the Tribunal had accepted the age of the deceased as 55 years who was having the minor daughter and son aged about 12 and 7 years respectively. As such, in my opinion, the age of the deceased accepted by the Tribunal as 55 years cannot be said to be incorrect and having found the age of the deceased as 55 years, the multiplier of 11 adopted by the Tribunal is equally correct. As such, in my opinion, the age of the deceased accepted by the Tribunal as 55 years cannot be said to be incorrect and having found the age of the deceased as 55 years, the multiplier of 11 adopted by the Tribunal is equally correct. As regards the deduction, it would appear that the deceased had left behind his widow with two sons and one daughter and as such, deduction from the compensation amount ought to have been 1/4th instead of 1/3rd as indicted by the Apex Court in the case of Sarla Verma Vs. Delhi Transport Corporation reported in (2009) 6 SCC page 121, para 30. 8. In view of the discussions made above, it would be appropriate that deduction of 1/4th be made from the compensation amount allowed by the Tribunal instead of 1/3rd and the interest @ 6 percent per cent as allowed by the Court below on the compensation amount shall be payable from the date of claim application till payment. The difference of amount be deposited before the Tribunal for eventual payment to the claimant as per the direction of the Tribunal within a period of eight weeks as prayed for on behalf of the appellant–Insurance company. The award is accordingly, modified to the extent indicated above. The statutory amount deposited in this court in the appeal be sent to the court below. The Lower Court Record be also sent down without delay. 9. The above Appeal stands disposed of. No Cost.