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2017 DIGILAW 1897 (ALL)

National Insurance Company Ltd. v. Karuna

2017-08-17

MAHENDRA DAYAL

body2017
JUDGMENT : Mahendra Dayal, J. I have heard Shri Waquar Hashim, learned counsel for the appellant and Shri Janardan Prasad, learned counsel appearing for respondents no. 1 and 2. No one has appeared on behalf of respondent no. 3. 2. The appellant National Insurance Company Ltd. has questioned the award dated 18.2.2003, passed by the Motor Accident Claims Tribunal/Additional District Judge, Court No. 16, Lucknow in Claim Petition No. 491 of 2001, whereby the respondents no. 1 and 2 have been awarded Rs. 2,16,000/- as compensation. 3. As per the claim petition filed by the respondents nos. 1 and 2, the deceased Rakesh Kumar Mishra was the son of the respondent no. 1 and brother of the respondent no. 2. He was aged about 28 years and had a business of selling cloth. He was also working as Home Guard. The accident took place on 1.8.1992 when the deceased was travelling in tempo Registration U.P. 32 A 6059. When at 8.00 P.M. the tempo reached near Bhitauli at Sitapur Road the tempo over turned on account of rash and negligent driving by its driver. The deceased Rakesh Kumar Mishra received serious injuries and he was admitted in Medical College, Lucknow where on 2.8.1992 he died. The respondents no. 1 and 2 being legal heirs, claimed compensation on the ground that on account of death of the deceased, they have suffered financial loss as well as the mental shock. 4. The respondent no. 3 who is the owner of the tempo, did not appear before the Tribunal and the case proceeded ex parte against him. The appellant National Insurance Company contested the claim by filing written statement and denying the allegations made in the claim petition. It was also said that if the accident is proved, the liability of the appellant company does not arise unless it is proved that the driver was having valid license and the tempo was being run in accordance with the terms and conditions of the Insurance Policy. 5. The learned tribunal framed 4 issues on the basis of the pleadings of the parties and upon consideration of the evidence, recorded a finding that the accident took place on account of rash and negligent driving by the driver of the tempo, as a result of which the deceased was badly injured and subsequently died. While deciding issue no. 5. The learned tribunal framed 4 issues on the basis of the pleadings of the parties and upon consideration of the evidence, recorded a finding that the accident took place on account of rash and negligent driving by the driver of the tempo, as a result of which the deceased was badly injured and subsequently died. While deciding issue no. 3 the learned Tribunal found that since the owner had not appeared and has not filed any document with regard to insurance and driving license and the Insurance Company has failed to prove that the driver was not having valid license, therefore, it can be presumed that the driver of the tempo was having valid license. The learned Tribunal determined the quantum of compensation keeping in view the fact that the income of the deceased was Rs. 18000/- per annum and after deducting 1/3 of the income towards his personal expenses, multiplier of 18 was applied and Rs. 2,16,000/- was found just compensation. The respondents-claimants were also found entitled to get interest @ 7% per annum. 6. Shri Waquar Hashim, learned counsel for the appellant has questioned the finding recorded by the Tribunal on issue no. 3 in which it was concluded that in the absence of any evidence by the appellant, it will be presumed that the driver of the tempo was having a valid license. The submission of the learned counsel for the appellant is that unless there is some material showing the license of the driver, it is not possible for the Insurance Company to verify the genuineness of the license. The driving license is issued by the Regional Transport Office of all the districts and unless it is known as to which office issued the license and in which year or on which date, the Insurance Company cannot give any evidence with regard to driving license. The initial burden to prove that the driver was having license, is upon the owner. Since the owner did not appear and the case proceeded against him ex parte therefore, the learned Tribunal ought to have recorded a finding that the driver was having no license. In that case the liability to pay compensation should have been fixed upon the owner and not upon the Insurance Company. 7. Since the owner did not appear and the case proceeded against him ex parte therefore, the learned Tribunal ought to have recorded a finding that the driver was having no license. In that case the liability to pay compensation should have been fixed upon the owner and not upon the Insurance Company. 7. The next ground taken by the appellant to question the validity of the impugned award is that the deceased was a bachelor and as such in view of the law laid down by the Hon'ble Apex Court in the case of Sarla Verma, 50% deduction as personal and living expenses ought to have been deducted instead of 1/3 of his income. In the case reported in AIR 2009 SC 3104 , the Hon'ble Supreme Court Smt. Sarla Verma and others v. Delhi Transport Corporation has considered it. The Hon'ble Supreme Court has held that where the deceased was married, the deduction towards personal and living expenses of the deceased, should be one-third. However, where the deceased was bachelor and the claimants are the parents, the deduction follows a different principle. In regard to bachelors, normally, 50% is deducted as personal and living expenses, because it is assumed that a bachelor would spend more on himself. Even otherwise, there is also possibility of his getting married in a short time, in which event the contribution to the parents or the brother is likely to be cut. 8. The submission of the learned counsel for the appellant is that in view of the law of the Hon'ble Apex Court, the quantum of compensation should be recalculated. 9. Shri Janardan Prasad learned counsel for the respondents nos. 1 and 2, has submitted that the deceased was the son of the respondent no. 1 and the brother of the respondent no. 2 and all of them were living jointly in the same house. Thus it can safely be presumed that the income of the deceased was being spent towards the joint family expenses. Moreover the respondents no. 1 and 2 are the legal representatives of the deceased and have a right to get compensation in accordance with Section 166 of the Motor Vehicles Act. He has also submitted that so far as the deduction towards the personal expenses is concerned, there is no hard and fast rule to deduct 50% of the income towards the personal expenses. 1 and 2 are the legal representatives of the deceased and have a right to get compensation in accordance with Section 166 of the Motor Vehicles Act. He has also submitted that so far as the deduction towards the personal expenses is concerned, there is no hard and fast rule to deduct 50% of the income towards the personal expenses. The learned Tribunal has found 1/3 deduction as proper and there is no ground to interfere in the discretion exercised by the Tribunal. 10. On perusal of the record and the pleadings of the parties, I find that it is not disputed that the deceased was a bachelor. The Hon'ble Supreme Court has framed guidelines as to how the compensation should be determined by the Tribunal. In the case of Smt. Sarla Verma referred to above, the Hon'ble Supreme Court has observed that if the deceased was married, the deduction towards the personal and living expenses should be 1/3 but in the case of bachelor 50% should be deducted as personal and living expenses because it is assumed that a bachelor would spend more on himself. This observation of the Hon'ble Supreme Court, is binding upon all the courts of India. Thus keeping in view of the law laid down by the Hon'ble Supreme Court the compensation payable to the claimants respondents no. 1 and 2 has to be redetermined. The father of the deceased is admittedly not alive. The respondent no. 1 is the mother and the respondent no. 2 is his brother. The learned Tribunal has assessed the income of the deceased as Rs. 18,000/- per annum. After deducting half of the amount towards the personal expenses and applying multiplier of 18 the amount of compensation comes to Rs. 1,62,000/-. In my opinion the claimants-respondents are entitled to get this much amount as compensation. 11. So far as the liability to pay compensation is concerned, the same is upon the owner of the tempo, because it has not been proved, that the driver of the tempo was having any valid license. The owner neither appeared before the Tribunal nor before this Court. 12. In the result the appeal is partly allowed and the award is modified to this extent that the respondents no. 1 and 2 shall get Rs. 1,62,000/- as compensation instead of Rs. The owner neither appeared before the Tribunal nor before this Court. 12. In the result the appeal is partly allowed and the award is modified to this extent that the respondents no. 1 and 2 shall get Rs. 1,62,000/- as compensation instead of Rs. 2,16,000/- along with the interest @ 7% per annum and the liability to pay the same will be upon the respondent no. 3 who is the owner of the tempo. However, considering the fact that the appellant Insurance Company has already deposited the awarded amount, it is provided that the remaining amount, if any, shall be deposited by the appellant before the Tribunal within six weeks from today with right to recover the same from the respondent no. 3. The statutory amount of Rs. 25,000/- deposited before this Court, shall be remitted to the Tribunal concerned and shall be paid to the respondents nos. 1 and 2 in equal shares. The appellant may move an application for recovery of the awarded amount from the respondent no. 3, upon which the learned Tribunal shall issue notice to respondent no. 3, owner and call upon him to give security and pay the amount to the appellant - Insurance Company. In case of failure to do so, it will be open for the Tribunal to recover the same from owner of tempo respondent no. 3, in the manner provided under the Motor Vehicle Act. 13. The appeal is partly allowed.