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2013 DIGILAW 296 (CHH)

ORIENTAL INSURANCE COMPANY v. DALBIR KAUR

2013-10-07

SANJAY K.AGRAWAL

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JUDGMENT 1. The disposal of this appeal would also govern the disposal of MA No. 292/2003 (Smt. Dalbir Kaur & others Vs. Pradeep Sarkar & another) as both have arisen out of one accident and common award dated 26/10/2002 passed by the Motor Accident Claims Tribunal, Durg (for short 'Claims Tribunal') in Claim Case No. 10/2001. Since common question of fact & law are involved, therefore, they were heard together and being decided by this common judgment. 2. Appellant/Insurance Company filed the appeal challenging the liability, whereas, claimants have filed their appeal seeking enhancement. 3. Learned Claims Tribunal by its impugned award held that the respondent No. 1 driver of the offending vehicle, owned by respondent No. 2 and insured with appellant-Insurance Company, while driving the offending vehicle, rashly and negligently, caused the accident, by which, Shri Sulkhan Singh suffered injuries and died. It was further held that there was no breach of insurance policy, while plying the offending vehicle; therefore, the Insurance Company is liable to make payment of compensation, it has further been held by the learned Claims Tribunal that deceased was earning Rs.7,465 per month and thereby yearly income comes to Rs.89,580 and after deducting 1/3rd towards his personal and living expenses, determined the dependency of Rs.4,977 per month and thereby yearly dependency comes to Rs.59,724, and by applying the multiplier of8, compensation would be Rs.4,77,792. In addition, Rs.5,000 towards loss of estate, Rs.5,000 towards loss of love & affection and Rs.2,000 towards funeral expenses were also awarded. Thus, claimants were held entitled for Rs.4,89,792 as compensation. 4. Mr. Sudhir Agrawal, learned counsel for the appellant/Insurance Company in M.A. No. 16/2003 submits that the learned Claims Tribunal has fallen into legal error in fastening the liability oh the Insurance Company as deceased himself was negligent in driving the vehicle and therefore, liability could not have been fastening upon him. 5. Per contra, Mr. Lokesh Yadav, learned counsel for the respondents No.1 to 4 (claimants) submits that the finding of the learned Claims Tribunal fastening liability on the Insurance Company is strictly in accordance with law. 6. I have heard the learned counsel for the parties and considered the rival submissions made therein. 7. 5. Per contra, Mr. Lokesh Yadav, learned counsel for the respondents No.1 to 4 (claimants) submits that the finding of the learned Claims Tribunal fastening liability on the Insurance Company is strictly in accordance with law. 6. I have heard the learned counsel for the parties and considered the rival submissions made therein. 7. First of all, I proceed to consider the appeal of the Insurance Company; it is true that the Insurance Company has fairly raised the plea in the written statement that the deceased was in the state of intoxication and accident occurred due to his own negligence. Apart from this, no specific pleading has been raised in the written statement. 8. Appellant-Insurance Company has examined Salim Soni (NAW-1) Investigator, who has simply said that he came to know during investigation that deceased was in state of intoxication, whereas other witness Dr. Manoj Kumar Sinha (NAW-2) has also been examined. He has deposed before the Court, during examination, he found that deceased was in state of intoxication. Apart from this, appellant-Insurance Company has not led any evidence to prove that the deceased himself was negligent while driving the offending vehicle. 9. In absence of specific pleadings to this effect written statement, the trial Court has also not framed issue with regard to the negligence of the deceased, while during the trial of the claim petition. I find that the contention of Mr. Agrawal that deceased was negligent in driving the vehicle is not established as neither specific pleading was raised during trial nor any evidence was led to that effect and for the first time, a plea was raised before this Court that the deceased was negligent in driving his motorcycle, no permission under Section 170 of the Motor Vehicles Act, 1988 (for short 'M.V. Act') was granted by the Claims Tribunal to the appellant/Insurance Company. In absence of permission under Section 170 of the M.V. Act, the Insurance Company is not entitled to challenge the finding of negligence. As such, appeal fails and is accordingly dismissed. 10. Now, I proceed to consider the appeal (M.A. No. 292/2003) filed by the appellants/claimants. The learned Claims Tribunal has recorded finding that the deceased was getting Net Salary of Rs.4,374 & DA Rs.3,091, thus, getting Rs.7,465 per month. As such, appeal fails and is accordingly dismissed. 10. Now, I proceed to consider the appeal (M.A. No. 292/2003) filed by the appellants/claimants. The learned Claims Tribunal has recorded finding that the deceased was getting Net Salary of Rs.4,374 & DA Rs.3,091, thus, getting Rs.7,465 per month. Thus, the annual income comes to Rs.89,580 and after deducting 1/3rd towards personal and living expenses of the deceased, determined the dependency of Rs.4,977 per month and thereby yearly dependency comes to Rs.59,724, and by applying the multiplier of 8, compensation assessed Rs.4,77,792. In addition, Rs.5,000 towards loss of estate, Rs.5,000 towards loss of love & affection and Rs.2,000 towards funeral expenses were also awarded. In this way, total compensation assessed to Rs.4,89,792. 11. In view of decision of Supreme Court in case of Sarla Verma (Smt.) and others Vs. Delhi Transport Corporation and another (2009) 6 SCC 121 , since there are more than 3 dependents, the deduction towards personal and living expenses would be 1/4th, and yearly dependency of the deceased would be of Rs.67,185. The appropriate multiplier would be 11, thus, the total amount comes to Rs.7,39,035 (67,185 x 11). In addition, Rs.7,000 towards funeral expenses and Rs.17,000 towards loss of love & affection were also a warded. Thus, total compensation comes to Rs.7,63,035. The Claims Tribunal has already been awarded a total sum of Rs.4,89,792, thus, the enhanced amount would be Rs.2,73,243 (7,63,035 - 4,89,792). As such, appeal is partly allowed. 12. Appellant-Insurance Company is granted 3 months time to deposit the enhanced amount off Rs.2,73,243 along with 12% interest before the concerning Claims Tribunal. 13. Thus, both the appeals are disposed of accordingly. 14. The original order be kept in the record of M.A. No. 16/2003 and the copy of the same shall be kept in the record of another connected M.A. No. 292/2003. Appeal of Insurance Company Dismissed. Appeal of Claimant Allowed.