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2013 DIGILAW 582 (ALL)

TATA AIG GENERAL INSURNACE CO. v. MURARI LAL

2013-02-20

ANIL KUMAR SHARMA, RAKESH TIWARI

body2013
JUDGMENT By the Court.—Heard learned counsel for the appellants and perused the impugned award and also the papers filed alongwith the memo of appeal. 2. Challenge in this appeal is to the award dated 6.11.2012, passed by the Motor Accident Claims Tribunal/Additional District Judge, Court No. 1, Mathura in M.A.C.P. No. 497 of 2011, whereby the compensation of Rs. 1,88,648.00 together with simple interest at the rate of 7% per annum has been awarded to the claimants/respondent No. 1 and 2. 3. It appears that in the accident dated 4.3.2011 the driver of Motor cycle U.P. 88-AA 2163 owned by Smt. Nanno Devi, respondent No. 4 (wrongly and incorrectly mentioned as respondent No. 2 in the memo of appeal) driving the vehicle rashly and negligently and knocked down pedestrian Pooran Singh, who later on died in Pushpanjali Hospital, Agra on 13.3.2011 on account of the fatal injuries in the accident. It was alleged that the deceased aged about 58 years and was earning Rs. 5000/- per month from the Agriculture and and animal husbandry. The claimants being his sons and legal representatives filed claim petition for an award of Rsl 8.25 lac. The driver and owner of the vehicle denied the accident with motor-cycle No. U.P. 85 AA- 2163. It was further alleged that the FIR of the accident was lodged 24 days after the accident against the driver of the motor-cycle U.P. 85- 2365 and by way of amendment registration number of the motor-cycle has been amended during pendency of the claim petition. The appellant being insurer of the aforesaid motor cycle reiterated the contention of opposite party Nos. 1 and 2 further stating that the motor-cycle was not insured with them and its driver has no valid and effective driving licence. The claimants adduced oral and documentary evidence. Opposite party No. 1 filed verification report of his driving licence. However, the opposite parties did not lead any oral evidence in the case. The Tribunal after hearing the parties counsel has held that the accident took place due to rash and negligent driving of the motor-cycle U.P. 85- AA-2163 by its driver and the deceased succumbed to the injuries in the hospital at Agra on 13.3.2011. However, the opposite parties did not lead any oral evidence in the case. The Tribunal after hearing the parties counsel has held that the accident took place due to rash and negligent driving of the motor-cycle U.P. 85- AA-2163 by its driver and the deceased succumbed to the injuries in the hospital at Agra on 13.3.2011. The Tribunal further held that in the facts and circumstances of the case, the delay in filing the FIR and incorrect mentioning of registration number of the motor cycle has been sufficiently explained through the testimony of Murari Lal PW1 and Ashok Saini (eye-witness) PW2. The issues regarding insurance of the motor-cycle with the appellant insurance of the motor-cycle with the appellant and non possessing of the valid driving licence by the driver of the motor-cycle on the date of accident were decided against the appellant. It was further held by the Tribunal that the claimants have spent Rs. 83,648.00 in the medical treatment of the deceased after the accident; that the deceased was aged 65 years; that his notional income was Rs. 3000/- per month and after deducting from his annual income using multiplier of ‘5’ compensation of Rs. 90,000/- for the death of the deceased was awarded. Rs. 15000/- were further awarded to the claimants for funeral expenses and loss of estate. Since the motor cycle in question was insured with the appellant, so they were directed to indemnify the award. 4. Learned counsel for the appellant has argued that the accident did not take place due to rash and negligent driving of the driver of motor-cycle U.P. 85-AA- 2163, because in the FIR lodged 24 days after the accident the number of motor-cycle mentioned was U.P. 85-2365. He has further argued that the compensation awarded to the claimants is highly excessive and arbitrary as the claimants were not dependent upon the income of the deceased. 5. He lastly contended that the claimants are not entitled for the expenses incurred in the treatment of the deceased as they were spent by the deceased himself. 6. We have carefully gone through the award as also the papers filed by the appellants alongwith memo of appeal. 7. The instant accident took place on 4.3.2011. 5. He lastly contended that the claimants are not entitled for the expenses incurred in the treatment of the deceased as they were spent by the deceased himself. 6. We have carefully gone through the award as also the papers filed by the appellants alongwith memo of appeal. 7. The instant accident took place on 4.3.2011. It has been mentioned in the claim petition that after the accident the deceased was taken to Chauhan Nursing Home, Mathura, but on account of his precarious condition, the doctor advised him to admit in Pushpanjali Hospital, Agra for better treatment, where he died on 13.3.2011. It has been stated by Murari Lal PW1 that after death of his father he was engaged in other religious and social ceremonies and could not lodge the report with the police. He is not an eye-witness of the accident. Ashok Saini PW-2 was examined as eye-witness of the accident, whose deposition has been filed by the appellant as Annexure-6. He has stated the manner in which the accident took place. He further stated that he went alongwith the injured to Chauhan Hospital, Mathura, who died in Agra on account of accidental injuries. He further stated that he scribed the report on the dictation of Murari Lal who has kept the number of the motor-cycle written on a parcha in his pocket, which had been blurred, so the incorrect number of the motor-cycle was mentioned in the F.I.R. In his cross- examination he has stated that he has noted the registration number of the motor-cycle at the spot, which was handed over by him to Murari Lal. In the claim petition the same registration number of the motor-cycle was written, which was mentioned in the F.I.R. by claimant No. 1. It appears to us that on the basis of the contents of the F.I.R. the claim petition was drafted by the Advocate and filed before the Tribunal and when the mistake was detected the petition was accordingly amended. The Tribunal has held that the claimants have sufficiently explained the delay in reporting the accident to the police and had also given plausible explanation for noting incorrect registration number of the motor-cycle in the F.I.R. In the facts and circumstances of the case, we do not find any error in the findings of the Tribunal. 8. The Tribunal has held that the claimants have sufficiently explained the delay in reporting the accident to the police and had also given plausible explanation for noting incorrect registration number of the motor-cycle in the F.I.R. In the facts and circumstances of the case, we do not find any error in the findings of the Tribunal. 8. As regards the quantum of compensation, it has come in the evidence that the deceased aged about 65 years was engaged in Agriculture and animal husbandry. His alleged monthly income was Rs. 5000/-. However, in the absence of any cogent and reliable evidence about income of the deceased, the Tribunal has taken his monthly income at Rs. 3000/-. The view of the Tribunal is fortified by the law laid down by Hon’ble Apex Court in the case of Laxmi Devi and others v. Mohd. Tabbar and another, 2008 (2) TAC 394. Since both the claimants were major and claimant No. 2 was disabled, so he was held dependent on the income of the deceased. The Tribunal had deducted 50% from the income of the deceased for calculating the just and reasonable amount of compensation. Multiplier of ‘5’ was taken to calculate the amount of compensation as per the age of the deceased. Thus we find that the Tribunal has not erred in calculating just and reasonable compensation payable to claimants. 9. As regards the payment of Rs. 83,648.00 incurred by the claimants on the medical treatment of the deceased, we find that the deceased was not having his own family, because the two claimants who have filed the claim petition are his major real brothers. Since the deceased was seriously injured in the accident and he continued to remain in the hospital as an indoor patient after the accident till his death, so the expenses incurred in his treatment were naturally borne by the claimants. Thus, the Tribunal has not erred in awarding the amount spent on the medical treatment of the deceased to the claimants. 10. In view of above, we do not find any force in the instant appeal, which is dismissed at the stage of admission. 11. The statutory amount deposited by the appellant in this Court is remitted back to the Tribunal concerned for adjustment. ——————