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2016 DIGILAW 164 (UTT)

National Insurance Co. Ltd. v. Gita Pal

2016-04-12

SERVESH KUMAR GUPTA

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JUDGMENT : Servesh Kumar Gupta, J. All the cases, shown in the title, have arisen out of the same accident, hence are being adjudicated together. The only difference is that AO No.403 of 2010 has been adjudicated by the Tribunal at Haldwani (Nainital) which has fastened the liability upon Mr. Uttam Singh, owner of the offending vehicle, whereas rest of the appeals have been filed against the judgment and order rendered by the Tribunal at Pithoragarh, whereby the liability has been fastened upon the National Insurance Co. Ltd. It would not be out of place to mention here that the liability in the case at Haldwani was fastened upon the owner because after filing the written statement as well as other papers of the vehicle including the registration certificate, driving licence and insurance, he could not appear during the course of evidence, so the Tribunal fixed the liability on him. Having heard the learned Counsels of all concerned, it transpires that the controversy is similar in all these matters and the core of such dispute is that the driver of the offending vehicle also lost his life on account of the accident at the spot whose name was revealed, at the relevant time, as Rajendra S/o Dhan Singh. His body was identified at the spot as well as at the time of autopsy by his father Mr. Dhan Singh, whereas the driving licence, so produced by the vehicle owner, was in the name of one Mr. Surendra S/o Dhan Singh. Learned Tribunal at Pithoragarh in paragraph nos.15 and 16 of the impugned judgment, has clarified this discrepancy elaborately as under:- “15. Opposite party no. 2 national insurance company limited has stated in its written statement that as per the F.I.R., inquest report, postmortem report and final report Shri Rajendra Singh Mehta was the driver of the offending vehicle at the time of accident as his dead body was identified by his father Shri Dhan Singh Mehta at the time of inquest. Opposite party no. 1 Uttam Singh owner of the offending vehicle has also stated in his written statement that Surendra Singh Mehta was driving the jeep at the time of accident, who died at the spot. Driving license paper no. 38c which is on record is also the driving license of Surendra Singh Mehta. Ld. Opposite party no. 1 Uttam Singh owner of the offending vehicle has also stated in his written statement that Surendra Singh Mehta was driving the jeep at the time of accident, who died at the spot. Driving license paper no. 38c which is on record is also the driving license of Surendra Singh Mehta. Ld. counsel has submitted that Shri Rajendra Singh Mehta who was driving the offending vehicle at the time of accident was not having a valid driving license and Shri Surendra Singh Mehta whose driving license is on record was not driving the offending vehicle at the time of accident. And it appears that Shri Rajendra Singh was not having valid and effective driving license therefore the owner of the offending vehicle subsequently planted Shri Surendra Singh Mehta as the driver just of escape from the liability of compensation. 16. Ld. Counsel for the claimant as well as the opposite party no. 1 has submitted that it is true that Shri Rajendra Singh Mehta alias Surendra Singh Mehta was driving the offending vehicle at the time of accident. Shri Rajendra Singh Mehta was known by the name of Shri Surendra Singh also and since he also died in the accident, he was identified by his father Shri Dhan Singh Mehta as Rajendra Singh because he was popular known by the name of Rajendra Singh Mehta. But in F.I.R. as well as inquest report the name of the father of Shri Rajendra Singh Mehta is shown Dhan Singh Mehta and in the driving license of Shri Surendra Singh his father’s name is shown Dhan Singh. The father of the driver Shri Dhan Singh Mehta was examined as o.p.w.1, who has clearly stated in his evidence that his son was known with the name of Surendra Singh alias Rajendra Singh alias Raju and he identified the photograph of the deceased Rajendra Singh which is paper no.51c on record and the same photograph is in the license of Surendra Singh which is paper no.38c. Opposite party no.1 filed the copy of the family register of Shri Dhan Singh which is paper no. 80c/14 and in his family register Shri Surendra Singh alias Rajendra Singh is shown as son of Dhan Singh and his date of death is shown also 10.12.2008 which is paper no.57c. Opposite party no.1 filed the copy of the family register of Shri Dhan Singh which is paper no. 80c/14 and in his family register Shri Surendra Singh alias Rajendra Singh is shown as son of Dhan Singh and his date of death is shown also 10.12.2008 which is paper no.57c. Paper no.58c is the certificate, which is issued by the village pradhan, in which he has stated that late Shri Rajendra Singh Mehta alias Surendra Singh s/o Dhan Singh r/o Village Gogna (Matela) was residing presently at Cinema line, Pithoragarh and late Shri Rajendra Singh alias Surendra Singh was the name of one and the same person. Although the opposite party no. 2 insurance company has filed the paper no.38c which also appears to be the driving license of Surendra Singh s/o Dhan Singh in which a different photograph is fixed but it is the photocopy and on this paper address of Cinema line is given. The burden lies on insurance company to prove this paper and also to prove that Shri Surendra Singh Mehta did not die in the accident and he is still alive and Rajendra Singh Mehta s/o Dhan Singh Mehta and Surendra Singh Mehta s/o Dhan Singh Mehta are two different persons. Since opposite party no. 2 insurance company has not filed any oral or documentary evidence to prove this fact, therefore there is no reason to disbelieve this fact that Shri Rajendra Singh Mehta was known with the name of Shri Surendra Singh and his license was in the name of Surendra Singh s/o Dhan Singh and this fact has been certified by village pradhan by issuing the certificate in this regard and this fact has been proved by o.p.w.1 Shri Dhan Singh father of the driver Rajendra Singh Mehta alias Surendra Singh and since Rajendra Singh alias Surendra Singh was the name of same person who died in the motor accident in the spot. And license which is on record was valid and effective at the time of accident. Therefore, it can be said that the driver of the offending vehicle was having valid and effective driving license at the time of accident.” I perfectly concur with the view as expressed as also the conclusion, as arrived at by the learned Tribunal at Pithoragarh, and hold that Rajendra Singh @ Surendra Singh @ Raju was one and the same person. So, on this score, the liability cannot be fastened upon the owner of the vehicle and it must certainly be borne by the insurance company. Now, the next controversy remains about the quantum of compensation which this Court would like to consider one by one. A.O. No. 233 of 2011 In this case, deceased Km. Monika Pal, a 23-year old unmarried brilliant student, who had completed her Engineering Degree from the University of Petroleum & Energy Studies, Dehradun, and she also did job for some time in Indian Glycols Ltd., Kashipur, has rightly been considered taking her monthly income as Rs.8,000/-, nonetheless, she was unemployed at the time of such accident because after such high education, she could not kept herself idle within the four corners of her house and she was, as claimed and proved, earning the wherewithal from taking some tuitions. However, the Court do agree with the contention of learned counsel for the insurance company that since she was a bachelor, hence the parents of the deceased were entitled to get only one-half of her annual income, so assessed, because she could have been supposed to spend rest half of income for her own expenses. This way, fifty percent of the annual income, after making the deduction, comes to Rs.48,000/- (4000 x 12). After applying the multiplier of ‘11’ as per Sarla Verma’s case 2009 (2) TAC 677 (SC), it becomes Rs.5,28,000/-. The Court is not inclined to disturb the amount of Rs.2,000/- and Rs.2,500/- towards the funeral expenses and loss of estate respectively. This way, the net amount payable by the insurance company to the claimant, who is none other but the mother of deceased, will be Rs.5,32,500/- (rupees five lakh thirty two thousand and five hundred only) along with six percent interest from the date of institution of petition i.e. 7.2.2009 till the date of actual payment. This appeal (AO 233/2011) stands disposed of accordingly. A.O. No. 403 of 2010 Since, this Court has held hereinabove that the liability in this appeal should be fastened upon the insurance company, so it sets aside the judgment as regards holding the owner responsible for making payment of compensation. But, at the same time, I appreciate the contention of learned counsel for the insurance company on the score that since the deceased Km. But, at the same time, I appreciate the contention of learned counsel for the insurance company on the score that since the deceased Km. Babita was a bachelor, hence she would have spent one-half of her income to meet out her own expenses. Only the notional income has been taken by the Tribunal. So, instead of reducing 1/3rd (as the Tribunal has done) this Court reduces one-half out of the notional income of Rs.18,000/-, which also comes to Rs.18,000/-. When it is multiplied by ‘10’, then it becomes Rs.1,80,000/-. The Court, however, is not inclined to disturb the amount of Rs.2,000/- and Rs.2,500/-, so granted by the Tribunal towards the funeral expenses and loss of estate respectively. The amount of Rs.60,750/- awarded towards the medical expenses is also left intact. This way, the net amount of compensation to be payable to the dependants of deceased by the National Insurance Company is determined as Rs.2,45,250/- (rupees two lakh forty five thousand two hundred fifty only). The quantum of award is modified to the above extent along with six percent simple interest from the date of presentation of petition till the date of actual payment. The Insurance Company will deposit the said amount before the Tribunal within four weeks from the date of production of certified copy of this order; in case of failure, the claimants would be at liberty to proceed with the execution. It also needs to be mentioned here that the owner of the vehicle, in compliance of the order dated 29.10.2010 passed by the Co-ordinate Bench of the Court, has deposited a sum of Rs.1.00 lakh adjusting the statutory deposit made in this Court. It was further directed that the deposited amount will be invested by the Tribunal in a fixed deposit. Since, the owner (Uttam Singh) has been absolved from his liability by this Court, thus, the amount, so deposited by him, shall be returned to him along with the interest earned thereon. A.O. No. 403 of 2010 stands disposed of in the above terms. A.O. No. 231 of 2011 In this case, deceased was a lawyer having 9-year practice and registration in the Bar since 1999. His annual income has been assessed as Rs.1.12 lakh in view of the income tax return, so filed before the Tribunal. A.O. No. 403 of 2010 stands disposed of in the above terms. A.O. No. 231 of 2011 In this case, deceased was a lawyer having 9-year practice and registration in the Bar since 1999. His annual income has been assessed as Rs.1.12 lakh in view of the income tax return, so filed before the Tribunal. Looking to the members of the family, 1/3rd deduction towards the personal expenses has rightly been made while evaluating the compensation. Otherwise also, learned counsel appearing for the insurance company does not dispute the quantum in this regard. So, this appeal (AO 231/2011) filed by the insurance company is dismissed upholding the award made by the Tribunal. The amount, so deposited by the appellant, shall be released in favour of the claimants as per their respective shares. The amount lying in this Court in the form of statutory deposit be also remitted to the concerned Tribunal for being paid to the claimants. A.O. No.232 of 2011 In this appeal also, I am of the view that the quantum of compensation has rightly been assessed by the Tribunal, which too has not been disputed by learned counsel for the insurance company. Hence, this appeal filed by the insurance company is also dismissed. The amount, so deposited by the appellant, shall be released in favour of the claimants as per their respective shares. The amount lying in this Court in the form of statutory deposit be also remitted to the concerned Tribunal for being paid to the claimants. Let a copy of this judgment and order along with LCR be transmitted to the concerned Tribunal for compliance of the order, as above.