Oriental Insurance Co. Ltd. v. Saraswati Devi and Others
2012-09-18
DEVI PRASAD SINGH, VISHNU CHANDRA GUPTA
body2012
DigiLaw.ai
Vishnu Chandra Gupta, J.— Heard learned counsel for the parties. This is an appeal under Section 173 of Motor Vehicles Act preferred against the impugned award dated 9th July, 2012 passed by Motor Accident Claims Tribunal/Additional District Judge, Lucknow in the Motor Accident Claim Case No. 380 of 2007. Brief facts of the case are that deceased Ravindra Nath Verma retired from the post of Junior Engineer and after retirement he was engaged in a firm namely M/s Prithivi Spun Pipes as a Production Manager. On 3rd July, 2012 at about 7.30 A.M. when he was travelling on Tempo Taxi bearing registration No. U.P.-78-BN-4886 from Rawatpur to Kalyanpur, just before Kanpur a truck bearing registration No.UP-70-R-9572 coming from opposite direction hit the Tempo. In consequence thereof, the deceased suffered grievous injuries. After accident, he was taken to Rama Dental Hospital, Kanpur where doctor declared him dead. At the time of death the deceased was receiving pension at the rate of Rs. 7336. According to material available on record, he was receiving Rs. 15,000/- per month. At the time of death deceased was aged about 59 years. The claimants approached and preferred the claim petition before the tribunal. The tribunal framed five issues with regard to accident in question, insurance policy, identity of truck and driving licence of driver. Before the tribunal employer appeared in person and made a statement that the deceased was receiving salary of Rs.15,000/-. per month. However, originally claimants gave statement that deceased was getting only Rs. 10,000/- per month. While assailing the impugned award, learned counsel for the appellant raised two fold of arguments. Firstly, on behalf of the claimants, a photostat copy of Insurance Policy was filed before the Tribunal. It has not been proved by the cogent and trustworthy evidence. The second limb of appellant's counsel is that there is discrepancy in the salary of the deceased which requires reconsideration. So far as the first limb of argument is concerned, the specific query was made by the Court as to whether the respondent-appellant had denied while filing the written statement that the vehicle was not insured by the appellant-company. In response, it has been submitted that there is no specific denial, but it is clear that insurance policy should be proved during the oral statement. Witnesses stated that the vehicle was insured by the appellant-company.
In response, it has been submitted that there is no specific denial, but it is clear that insurance policy should be proved during the oral statement. Witnesses stated that the vehicle was insured by the appellant-company. However, nothing has been brought on record that photostat copy of insurance policy filed is fraudulent or forged one. While making statement, it is asserted that the vehicle was not insured by insurance company in the present case and photostat copy of the insurance certificate is filed which has not been proved by the cogent and trustworthy evidence that the vehicle was insured by it. However, so far as the present case is concerned, it appears that there was no specific denial with regard to insurance policy, hence finding recorded by the Tribunal does not seem illegal or suffering from any impropriety. Now coming to the second limb of argument that, there is discrepancy in statement in regard to the income of the deceased. Admittedly, the deceased was receiving monthly pension at the rate of Rs. 7336/-. The question relates to salary receiving on post retrial employment whether it is Rs. 10,000/- or 15,000/- makes no difference, since the tribunal had gone through lower side of Rs. 10,000/- as post retrial employment. The deceased was getting pension at the rate of Rs.7336/- per month. The tribunal had assessed his income as Rs. 10,000/-, out of it Rs. 7336/- is from pensionary benefit and remaining has been is the part of post retiral employment. It appears that income assessed by the Tribunal since to be on lower side. Even in case Rs. 10,000/- as post retiral employment the Tribunal could assessed the income at the rate of Rs. 17336 per month but assessed at the rate of Rs. 10,000/- seems to be on lower side. Deceased was in between the age of 69 to 65 years, multiplier of 5 has been applied. It also reveals that Tribunal has proceeded to award compensation keeping in view of the structure formula, the settled proposition of law. Learned counsel for the appellant has fairly made statement before the court that in trial court specific denial of positng is available in written statement of appellant.
It also reveals that Tribunal has proceeded to award compensation keeping in view of the structure formula, the settled proposition of law. Learned counsel for the appellant has fairly made statement before the court that in trial court specific denial of positng is available in written statement of appellant. However, we feels that while filing appeal under Section 173 of Motor Vehicles Act or in any other provisions before this Court, the old practice has been stopped and no certificate given to the effect that the appeal is based on pleadings before the trial court, this cause hardship and creates problem for appellate court at the admission stage while deciding the appeal under Section 173 of Motor Vehicles Act or under Order 41 Rule 11 of the Code of Civil Procedure. In FAFO No. 756 of 2012 (The Oriental Insurance Co. Ltd. Vs. Ram Ratan & Ors) order dated 24th August, 2012, we have considered this aspect of the matter and held that first appeal filed from order under Section 173 of Motor Vehicles Act may be decided at the admission stage. This is in tune with the provision contained in order 41 Rule 11 of the Code of Civil Procedure wherein appeal may be decided at the admission stage. We have relied upon the earlier judgment of this Court. In view of the above, it is necessary while filing the appeal whether it is first appeal or appeal of any other nature nature, in the memo of appeal it must be indicate that grounds raised are based on pleadings and material on record of the Trial Court or Tribunal. While affirming the impugned award, we direct the Registrar of this Court to ensure that Stamp Reporter shall see that while preferring the appeal lawyers should make following endorsement:- "Present appeal is preferred on the basis of material and pleading on record before the Trial Court/Tribunal." The aforesaid endorsement be made by lawyers in every appeal while preferring in this Court. Subject to above, we do not find any ground for interference in the impugned award. Tribunal's order does not suffer from any impropriety or illegality. Appeal lacks merit and is liable to be dismissed.
Subject to above, we do not find any ground for interference in the impugned award. Tribunal's order does not suffer from any impropriety or illegality. Appeal lacks merit and is liable to be dismissed. Appellant is directed to deposit the entire compensation amount in terms of award within two months and the tribunal shall release the compensation in favour of the claimants in terms of award within two months thereafter. Let the record be remitted to the trial court forthwith, say within one month and the amount deposited shall also be remitted by the Registry of this Court. Subject to above, the appeal is dismissed. Registrar of this Court shall comply with this order within a week and issue appropriate order. _____________