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Allahabad High Court · body

2017 DIGILAW 2059 (ALL)

NATIONAL INSURANCE COMPANY LTD. v. CHAYA MISHRA

2017-09-04

DEVENDRA KUMAR ARORA, RANG NATH PANDEY

body2017
JUDGMENT : (Delivered by Hon'ble Rang Nath Pandey, J.) 1. Heard Sri Waquar Hashim, learned Counsel for the appellant and Sri Rajendra Jaiswal, learned Counsel for the respondents no. 1 to 6. 2. The instant First Appeal From Order has been filed by the Insurance Company under Section 173 of the Motor Vehicle Act, 1988 against the judgment and award dated 18.08.2012 passed by the Motor Accident Claim Tribunal in Motor Accident Claim Petition No.295 of 2012: Smt. Chaya Mishra Vs. Smt. Shivani Jaiswal and others, whereby the Tribunal has awarded a sum of Rs.8,89,120/- along with interest as compensation to the claimants. 3. Sri Waquar Hashim, learned Counsel for the appellant, has attacked the award on various grounds; firstly, regarding the age of the deceased on the ground that in the post-mortem report, the age of the deceased has been shown as 35 years which has not been looked into by the learned Tribunal while applying the multiplier. The second ground taken by learned Counsel for the appellant is that the father of the deceased cannot be treated to be dependent until and unless the same has been led through some evidence, and, therefore, the dependency shown as 4 ½ will reduce to 3 ½ and accordingly it will also affect the multiplier. The third ground of challenge is that no evidence, either documentary or oral, except the income tax return for the last year was produced with regard to income of the deceased. The fourth and the last ground of challenge is with regard to grant of 10% towards future prospects, which is not admissible in the case of a self-employed person, as the issue has been referred by the Hon'ble Apex court to a Larger Bench. 4. The brief facts of the case are that on 01.10.2007, Sri Sanjay Mishra (husband of claimant no. 1) was travelling from Sitapur to Lucknow by his personal motorcycle bearing registration No. UP 32 BU 9222, when he reached between village Maanpara and Village Dashrathpur situated at Sitapur-Lucknow State Highway, a car (Wagon R) bearing registration No. UP26 D 9383, which was being driven rashlessly and negligently, hit the motorcycle of Sanjay Mishra, which resulted in damage to the motor cycle and death of Sanjay Mishra on the spot. It is said that after the accident, the driver had left the car at the place where accident took place and ran away. Further, Sri Deepchandra (uncle of Sanjay Mishra) who was coming from behind and saw the accident, informed the police in writing about the accident. 5. In respect of the aforesaid accident, a claim petition was filed against the respondents under Section 166/140 of the Motor Vehicle Act claiming compensation of Rs.26,65,000/- showing Sanjay Mishra to be about 27 years of age, who was running grocery business in the name of M/s Mishra Trading Company. He also had a truck which was being operated by himself. Apart from this, there was sufficient agricultural income and annual income of Rs.1,20,000/- was shown by him on which he had paid income tax. It was also stated in the claim petition that entire family was dependent on deceased Sanjay Mishra. 6. The claim petition was contested by the respondent no. 1 and filed a written statement stating therein that on 01.10.2007, she along with her husband was going to Lucknow by car bearing registration No. UP-26 D 9383 which was being driven by the driver, namely, Maharaj Singh s/o Anokhe Lal, who was having valid driving license with effect from 01.11.2006 to 31.10.2009 issued from RTO Bareilly. It has been further mentioned in the written statement that the vehicle in question was insured through National Insurance Company Limited with effect from 17.01.2007 to 16.01.2008 and lastly, denied the accident from the vehicle in question. 7. The written statement has also been filed on behalf of the Insurance Company wherein objection has been raised that neither the First Information Report nor the site plan of the accident has been filed, and, therefore, it was the responsibility of the claimants to prove the accident. It is also stated that at the time of accident, the vehicle in question should have possessed all the valid documents and if there are no valid documents then there would be no responsibility of the Insurance Company to pay any compensation. It is also alleged that driver was not having valid and effective license and the motor cycle was being driven in high speed and recklessly. The Insurance Company through which the motor cycle was insured has not been arrayed as party and the amount of compensation is highly exaggerated. 8. The driver, Maharaj Singh (respondent no. It is also alleged that driver was not having valid and effective license and the motor cycle was being driven in high speed and recklessly. The Insurance Company through which the motor cycle was insured has not been arrayed as party and the amount of compensation is highly exaggerated. 8. The driver, Maharaj Singh (respondent no. 3 in the claim petition), has also filed his written statement alleging that he was driving the vehicle in question on 01.10.2007 and was going towards Lucknow, and as he reached near Sidhauli, his vehicle was stopped by police and a forged report was lodged with respect to the alleged accident. He denied the accident and accepted that he was having valid and effective license with effect from 01.11.2006 to 31.10.2009 issued from RTO Bareilly. It has also been alleged that the claim has been filed just to fetch the compensation. 9. Learned Tribunal after exchange of the pleadings framed four issues in all, which are as under:- (i) Whether on 01.10.2007, accident took place due to rash and negligent driving of the driver of Wagon R bearing registration No. UP-26 D 9383? (ii) Whether the vehicle (Wagon R) bearing registration No. UP-26 D 9383 was insured by National Insurance Company Limited and was being operated under the terms and conditions of the Insurance Company? (iii) Whether the accident took place due to contributory negligence of the motorcyclist? (iv) Claimants are entitled to how much compensation and from whom? 10. Smt. Chhaya Mishra (Claimant no. 1) appeared as P.W.1 and one Ravi Prakash, eye witness of the accident, appeared as P.W.2. In support of the income, three copies of income tax return were placed on record. Further, report of the In-charge P.S.-Kotwali and an application presented to In-charge of P.S.-Kotwali Sitapur, post-mortem report of the deceased Sanjay Mishra and certified copy of the First Information Report along with the copy of the charge-sheet were placed on record. From the respondent side, no oral evidence was produced. Respondents no 1 and 3 produced the copy of the insurance cover of the vehicle in question, driving license of respondent no. 3 (Maharaj Singh) and registration book of vehicle No. UP 26 D 9383. Respondent no. 2-Insurance company has filed the copy of Form-54 as paper no. 29ga, copy of site plan as 30ga and copy of the charge-sheet as 31ga. 11. 3 (Maharaj Singh) and registration book of vehicle No. UP 26 D 9383. Respondent no. 2-Insurance company has filed the copy of Form-54 as paper no. 29ga, copy of site plan as 30ga and copy of the charge-sheet as 31ga. 11. Learned Tribunal examined the issue no. 1 and 3 together and after examining the statement and the record has observed that as per version of the claim petition, the deceased was coming to Lucknow from Sitapur on 01.10.2007 through his motor cycle bearing registration no. UP 32 BU 9222 in low speed and in between village Maanpara and village Dashrathpur at Sitapur-Lucknow State Highway, one car (Wagon R) bearing registration No. UP26-D-9383, which was being driven rashlessly and negligently, hit the motorcycle. As a result thereof, Sanjay Mishra died on spot. The car driver ran away after leaving the vehicle at the spot. Sri Deep Chand, uncle of the deceased Sanjay Mishra, was coming from behind and informed the police about the accident in writing. 12. The Tribunal has further examined the written statement of the owner, who was present in the vehicle at the time of accident. The owner of the vehicle has not stated anything about stopping of the vehicle by police and lodging forged F.I.R. Learned Tribunal has come to the conclusion that there is a material contradiction between the written statement of the driver and owner of the vehicle regarding non-involvement of the vehicle in question in the accident. P.W. 2 Ravi Prakash, who was an eye witness, has stated that at about 06:30 PM he was also going on the same road and Sanjay Mishra was about twenty steps ahead from him on his motorcycle, when a car (Wagon R) hit the motorcycle from the front side. He also verified the number of car (Wagon R) and has stated that the motorcycle was being driven in a slow speed and accident took place due to rash and negligent driving of Wagon R car by its driver. 13. Learned Tribunal has observed that the said witness has proved the accident of motorcycle with the car being the eye witness. 13. Learned Tribunal has observed that the said witness has proved the accident of motorcycle with the car being the eye witness. No cross examination was done either by the owner or by the driver and learned Tribunal after examining the site map, copy of the F.I.R. and the charge-sheet held that the accident took place due to fault of both the drivers as there was head on collision. 14. The issue no. 2 was decided in affirmative holding that the same was being driven as per the terms and conditions of the insurance policy. 15. The learned Tribunal while examining issue no. 4 regarding compensation took into consideration the Income Tax Return of three years wherein income was shown as Rs.95,000/- for the year 2004-05, Rs.1,05,000/- for the year 2005-06 and Rs. 1,18,400/- for the year 2006-07, and at the time of death of the deceased, the annual income of the deceased was Rs. 1,18,400/-. There is no denial of this fact by the respondents in any manner. 16. Learned Tribunal after examining Rule 220 (A) of Uttar Pradesh Motor Vehicle Rules, 1998 observed that minor has to be treated as half member and as there are three minor children, therefore, wife will form one unit and three minor children will form 1 ½ units while father and mother of the deceased would form two units, as such the dependency would be 4 ½ units. As per the said rules, if the dependents are between 4 to 6, then the deduction for personal expenditure will be ¼th and the Tribunal, accordingly, after deducting 29,600/- from the assessed annual income of 1,18,400/- determined the amount as Rs. 88,800/-. It may be noted that in the Income Tax Return, date of birth of the deceased has been shown as 20.07.1980 and the accident had taken place in the month of October, 2007. In these circumstances, learned Tribunal determined the age of the deceased as 27 years and applied the multiplier of 18 as per the second schedule provided under Section 163 (A) of the Motor Vehicle Act. 17. It is relevant to point out that ten percent has been calculated towards future prospects after examining the fact that the deceased was doing business and was also driving truck and after his death the business and operation of the truck cannot be said to have completely stopped. 17. It is relevant to point out that ten percent has been calculated towards future prospects after examining the fact that the deceased was doing business and was also driving truck and after his death the business and operation of the truck cannot be said to have completely stopped. However, additional hand is required to be engaged. After adding ten percent of Rs.88,800/- i.e. Rs. 8,880/- to the assessed annual income towards future prospects, the annual dependency comes to Rs.97,680/-. By applying the multiplier of 18, the quantum of compensation has been assessed as Rs. 17,58,240/-. Further, Rs.5,000/- was paid towards funeral expenses, Rs. 5,000/- was paid towards loss of estate and Rs. 5,000/towards loss of company etc. to the wife. 18. As regard the assertion of learned Counsel for the appellant that as per the post mortem report, the deceased has been shown as 35 years, whereas, learned Tribunal has treated the age of deceased as 27 years is concerned, it may be pointed out that in the Income Tax Return, the age of the deceased has been shown as 20 July, 1980. In our considered view, learned Tribunal has not committed any mistake while taking the date of the birth of the deceased as 27 years on the basis of the Income Tax Return, which is a genuine Government document and much value is given to the Income Tax Return in all walks of life. 19. The other ground regarding no proof of income except Income Tax Return is concerned, in our considered view, Income Tax Return of a self-employed person is a concrete sufficient proof to establish the annual income until, of course, it is challenged and proved by the respondents by leading evidence and since no evidence has been led on behalf of the respondents, either documentary or oral, therefore, determining the income on the basis of Income Tax Return, where there is gradual increase in the income of the deceased, is perfectly justified and reasonable. 20. As regard the dependency, nothing has been brought on record by the respondents to proof that the father was not dependent upon the deceased. Moreover, there is averment in the claim petition with regard the dependency of all the claimant which has been noted by the learned Tribunal. 20. As regard the dependency, nothing has been brought on record by the respondents to proof that the father was not dependent upon the deceased. Moreover, there is averment in the claim petition with regard the dependency of all the claimant which has been noted by the learned Tribunal. Even otherwise, while deciding the dependency, the Tribunal found the dependency of 4½ units/persons as dependency of the deceased which is in consonance with the provisions of Rule 122 (A) (ii) of the Uttar Pradesh Motor Vehicle Rules, 1998. It is settled law that ¼th of the income is to be deducted towards the personal expenses if the dependents are in between 4 - 6 and in the present case, the learned Tribunal has calculated the dependency of 4 ½ persons/unit, and deducted ¼ towards personal expenses. If for a argument sake, it is presumed that father was not a dependent even then, there will be no affect in the ultimate calculation as if dependency of 3 ½ is round of, it would come as 4 and the net result will be the same. Therefore, we do not think it proper to examine the issue of dependency of father as it is not going to affect the ultimate deduction from the annual income of the deceased towards personal living expenses. 21. As regard taking into account the future prospects while calculating the income of the deceased is concerned, learned Counsel for the appellant relied upon the para 11 of Sarla Verma and others Vs. Delhi Transport Corporation 2009 ACJ 1298 and submitted that where the deceased is self-employed or was on fixed salary (without provisions of annual increments etc), the Court will take only the actual income at the time of death, therefore, addition of ten percent towards future prospects given by learned Tribunal is erroneous and this amount deserves to be deducted. 22. We have examined para-11 of the Sarla Verma (supra), wherein it has been specifically mentioned that "a departure should be made only in rare and exceptional cases involving special circumstances" . In the instant case, on examining the facts and evidence on record, the learned Tribunal opined that the deceased was a business man and was also operating a truck. We have examined para-11 of the Sarla Verma (supra), wherein it has been specifically mentioned that "a departure should be made only in rare and exceptional cases involving special circumstances" . In the instant case, on examining the facts and evidence on record, the learned Tribunal opined that the deceased was a business man and was also operating a truck. There was a rise in his income which is evident from the Income Tax Return, which shows that deceased's annual income was 95,000/- in the year 2004-05, which enhanced to Rs.1,05,000/- in the year 2005-06 and later on to Rs. 1,18,400/- in the year 2006-07. Therefore, progress in the business was imminent resulting in increase of yearly income and in giving ten percent towards future prospects, the learned Tribunal has not committed any error or irregularity. 23. Considering the facts in its entirety, we do not find any illegality or infirmity in determination of the compensation by the Tribunal, which is just and proper in the circumstances of the case. 24. In view of the above, we confirm the award of the Tribunal and the appellants are directed to make good the award within a period of six weeks. The amount shall be disbursed as mentioned in the impugned Award dated 18.08.2012. 25. The appeal stands dismissed accordingly.