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Allahabad High Court · body

2016 DIGILAW 3487 (ALL)

Uma Devi v. Prem Chandra

2016-10-19

K.J.THAKER, SUDHIR AGARWAL

body2016
JUDGMENT 1. This is First Appeal From Order is preferred by the claimants Uma Devi and others whereas the Insurance Company has also felt aggrieved by the award and has challenged the award. 2. Parties are referred to as claimants and respondents as they appeared before the Tribunal. 3. The claimants instituted the claim-petition before the Tribunal, Allahabad which was numbered as Claim Petition No.44 of 1994. As per the facts the accident took place on 11.2.1993 at about 2.00 AM at night when the deceased Raj Kumar Yadav was plying his Scooter No. UV 4018 from Jhunsi to Allahabad when he returning back after attending a marriage. Shri Mukund Madhav Mishra was a pillion rider. When scooter was passing through Shastri Bridge, at that point of time. Driver of Vehicle No.UP 78/B-0018 drove his vehicle rashly and negligently and dashed the scooter from behind. Raj Kumar that is the driver of the vehicle died. Claimant pleaded that the incident occurred due to rash and negligent driving of vehicle no. U.P 78/B-0018. 4. It was submitted that deceased was earning 4000/- per month and there are seven persons who were dependent upon the earning of the deceased. Driver and the owner of the offending vehicle appeared before Tribunal but did not contest the petition nor stepped into witness box. The Insurance Company has filed its reply contending that the driver of vehicle was not authorized to drive the said vehicle. He next contended that the accident occurred due to the negligence of the deceased and not that of was driver and therefore, they are not supposed to indemnify the owner of vehicle. After leading evidence, the Tribunal raised three issues and all the three issues were held against the opponents. 5. The learned counsel for petitioner has restricted the arguments on the quantum only. In a recent judgment of the Apex Court in UPSRTC versus Km. Mamta and others, reported in AIR 2016 SCC 948, Apex Court has held that the Appellate Court should decide on every issue and therefore, we propose to decide the issues which have been raised in this appeal and appeal by Insurance Company. In paragraphs 24 and 27, Court observed as under: "24. Mamta and others, reported in AIR 2016 SCC 948, Apex Court has held that the Appellate Court should decide on every issue and therefore, we propose to decide the issues which have been raised in this appeal and appeal by Insurance Company. In paragraphs 24 and 27, Court observed as under: "24. An appeal under Section 173 of the M.V.Act is essentially in the nature of first appeal alike Section 96 of the Code and, therefore, the High Court is equally under legal obligation to decide all issues arising in the case both on facts and law after appreciating the entire evidence. [See National Insurance Company Ltd.v.Naresh Kumar & Ors.(2000) 10 SCC 198 and State of Punjab & Anr.v.Navdeep Kuur & Ors. (2004) 13 SCC 680 ]. 27. As observed supra, as a first appellate Court, it was the duty of the High Court to have decided the appeal keeping in view the powers conferred on it by the statute. The impugned judgement also does not, in our opinion, satisfy the requirements of Order XX, Rule 4(2) read with Order XLI, Rule 31 of the Code which requires that judgement shall contain a concise statement of the case, points for determination, decisions thereon and the reasons. it is for this reason, we are unable to uphold the impugned judgement of the High Court." 6. Therefore, as far as issue of negligence is concerned, the Insurance Company has not challenged the same and we uphold the same. This takes us to the issue of quantum raised by appellants. According to the appellants the Tribunal has assessed quantum on surmises and conjuncture even if the Tribunal had gone through the facts, the income would not have assessed at Rs.1000/- per month. The deceased was a young man of 24 years of age though the PW-1 and PW-2 have in their oral testimony stated that the deceased was earning 4000/- by selling newspapers and dalmot. However, one Jai Shanker gave a certificate that Raj Kumar was being paid between 1000-1200/- for newspapers. The Tribunal ought to have considered the income at 1500/- per month. It could not have deducted Rs.400/- as his personal expenses when there were so many dependents. 7. However, one Jai Shanker gave a certificate that Raj Kumar was being paid between 1000-1200/- for newspapers. The Tribunal ought to have considered the income at 1500/- per month. It could not have deducted Rs.400/- as his personal expenses when there were so many dependents. 7. The learned counsel for the appellant has relied on the decision of this Court in FAFO No.1818 of 2012 Bajaj Allianz General Insurance Co.Ltd. versus Smt.Renu Singh and others decided on 19.7.2016 and therefore, has submitted that only 10% has to be deducted and therefore, 1500x12 is 18000/- per anum to which 50% will have to be added as per the judgement of Sarla Verma versus DTC, (2009) 6 SCC 121 even on thumb rule. 2250/- per month out of which 10% will have to be deducted. Hence, the amount which would be available to the family would be a sum of Rs.2000x12 and looking to the age of the deceased 18 multiplier will have to be awarded. Hence, the claimants would be entitled to 2000x12x18 which comes to Rs.4,32,000/- to which we would add a sum of Rs. 10,000/-. No other additions are made. As according to us the Tribunal has protected the interest of the claimants by giving 10% as rate of interest. The rate of interest has not been contested by the Insurance Company, hence we do not disturb the rate of interest awarded by the Tribunal. However, on the additional amount, 9% rate of interest is being awarded. 8. The only submission of the Insurance Company in its appeal is that the driver of the vehicle which was insured with, was not having effective driving licence. We are unable to upset the finding of the Tribunal as far as the liability of the Insurance Company is concerned as the Insurance Company has not proved anything in the rebuttal so as to persuade us to take a different view on on the finding regarding its liability to indemnify the claimants who were 3rd party. 9. FAFO No.1579 of 2003 succeeds and allowed in part. Enhanced amount of Rs.98,000/- be paid with 9% interest. 10. The cross appeal being FAFO No.331 of 2001 filed by the Insurance Company is dismissed.