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2018 DIGILAW 253 (UTT)

New India Assurance Co. Ltd. v. Kanchan Rana

2018-05-09

LOK PAL SINGH

body2018
JUDGMENT : Lok Pal Singh, J. All these three appeals have arisen out of the same incident, in which three members of a family, viz., father, mother and son lost their lives. Claimants filed separate claim petitions in respect of each deceased were preferred by the claimants, being claim petition nos. 369 of 2009 (New Case no. 677 of 2013), 368 of 2009 (New Case no. 676 of 2013) and 367 of 2009 (New Case no. 674 of 2013), on which separate judgments and awards were passed by the Motor Accident Claims Tribunal, Udham Singh Nagar. Since appellant Insurance Company has filed aforementioned Appeals before this Court with a prayer to set aside the impugned judgments and orders, all dated 17.07.2014, passed by the Tribunal in each claim petition filed by the claimants, the appeals are being decided together by this common judgment for the sake of brevity. Appeal from order no. 421 of 2014 will be the leading case. 2. Brief facts of the case are that one Kalu Singh alongwith his wife Hemlata and six years old son Udit was coming on motorcycle from Bilaspur. As he reached one kilometer north from village Jyohara Kalyanpur, P.S Barkheda, bus bearing no. UP-26-9082, which was being driven by its driver, rashly and negligently, came from north side (Pilibhit) and dashed the motor cycle of the Kalu Singh. The deceased sustained serious injuries and succumbed to the injuries on the spot. Report of the alleged incident was lodged and on the basis of report, case crime no. 1204 of 2009, under Sections 279, 304A, 427 IPC was registered against the respondent Surendra, the driver of the offending bus. 3. Claim petition no. 369 of 2009 Km. Kanchan Rana and another vs. Anil Kumar Gupta was filed in regard to the death of Late Kalu Singh. Claim petition no. 368 of 2009, Km. Kanchan Rana and another vs. Anil Kumar Gupta was filed in regard to the death of Smt. Hemlata, wife of late Kalu Singh, and claim petition no. 367 of 2009 was filed in regard to death of master Udit, aged about 6 years (son of late Kalu Singh and Smt. Hemlata). 4. It was contended in the claim petition no. 369 of 2009 (new no. 367 of 2009 was filed in regard to death of master Udit, aged about 6 years (son of late Kalu Singh and Smt. Hemlata). 4. It was contended in the claim petition no. 369 of 2009 (new no. 677 of 2013) that deceased Kalu Singh, head of the family, was working in the office of Consolidation, Bisalpur, District Pilibhit, Uttar Pradesh and was getting salary @ Rs. 10,000/-per month. 5. In claim petition no. 368 of 2009 (new no. 676 of 2013) it was contended that deceased Hemlata, wife of deceased Kalu Singh, was engaged in doing agricultural work besides household chores and used to earn Rs. 5,000/- per month. 6. In claim petition no. 367 of 2009 (new no. 674 of 2013) it was contended that deceased Udit was a school going boy. Due to his untimely death, claimants suffered mental pain and agony and they were deprived of the love and affection of their brother. 7. Appellant New India Assurance Co. Ltd. filed its written statement and denied most of the averments of the claim petitions. Appellant Insurance Company also reserved its right to file additional written statement under Section 170 of the Motor Vehicles Act. 8. On behalf of the claimants, certified copy of the FIR; Postmortem Report of late Kalu Singh; copy of Parivar Register depicting the name of the family members of the late Kalu Singh, including the name of claimants; Registration Certificate of bus bearing no. UP-26-9082; Permit of bus tax & Fitness and Pollution Control Certificate; photocopy of Driving Licence; photocopy of the Insurance of the bus, Registration Certificate of Motorcycle and Insurance of Motorcycle and driving licence of late Kalu Singh were produced. 9. Despite service of summons, owner and driver of the vehicle did not appear before the Tribunal and the Claim Petition proceeded ex parte against them. 10. On behalf of the claimants, evidence in the form of affidavit of Mahadev PW1, natural guardian of the minor claimants, was filed. PW1 supported each and every averment made in the claim petition. In his cross-examination, PW1 stated that Kalu Singh used to work in the Consolidation office and the driver of the bus hit the motorcycle of Kalu Singh. PW1 also stated that Kalu Singh was aged 35 years at the time of accident. He was suggested that at the time of accident he was having the valid driving license. In his cross-examination, PW1 stated that Kalu Singh used to work in the Consolidation office and the driver of the bus hit the motorcycle of Kalu Singh. PW1 also stated that Kalu Singh was aged 35 years at the time of accident. He was suggested that at the time of accident he was having the valid driving license. He was also cross-examined in regard to the income of deceased Hemlata. 11. On the basis of pleadings of parties, the Tribunal formulated the following issues :- (1) Whether the accident in question occurred on 03.10.2009 at 01:00 p.m., on account of rash and negligent driving of the driver of vehicle No. U.P.-26-9082 coming from Pilibhit side, who dashed the motorcycle no. U.K. 06-M-0311 of late Kalu Singh, who was returning from Bisalpur to his home and due to injuries sustained in the accident Kalu Singh died on the spot? If so, its effect? (2) Whether at the time of accident in question the driver of the bus was having valid driving and effective licence or owner of the vehicle was having the requisite valid and effective documents, viz insurance, registration etc.? If so, its effect? (3) Whether the claimants are entitled for compensation? If so, to what extent and from which of the opposite party? 12. The learned Tribunal, after considering the evidence and pleadings of the parties, recorded its finding on issue no.1 that at the time of accident on 03.10.2009 at 1:00 p.m., Kalu Singh along with his wife and son was returning from Bisalpur to his village Jyohara Kalyanpur, P.S. Barkhera. The bus, which was coming from the side of Pilibhit and, being driven at a high speed, rashly & negligently, dashed the motorcycle of the deceased from the wrong side. Kalu Singh died on the spot. A Case Crime No.1204 of 2009 under Sections 279, 304A, 427 of I.P.C. was lodged against the driver of the bus bearing registration no. U.P. 26-9082. The owner as well as driver of the bus did not appear, despite the service affected upon them, and the claim petition proceeded ex parte against them. PW1 Mahadev supported the averments made in the claim petition and proved the income certificate of the deceased Kalu Singh to the effect that he was getting Rs.10,000/- per month. U.P. 26-9082. The owner as well as driver of the bus did not appear, despite the service affected upon them, and the claim petition proceeded ex parte against them. PW1 Mahadev supported the averments made in the claim petition and proved the income certificate of the deceased Kalu Singh to the effect that he was getting Rs.10,000/- per month. The learned tribunal also recorded the findings that at the time of accident, the driver of the bus no. U.P.26-9082 was driving the vehicle rashly and negligently. On behalf of the appellant, no documentary or oral evidence were adduced. The findings were recorded in favour of the claimant on issue no.1. 13. The learned Tribunal has recorded the finding that at the time of accident, there were necessary valid papers with the owner of bus no. U.P. 26-9082. The learned Tribunal held that from the perusal of Driving Licence of driver of the bus Surender Kumar, bearing D.L. No.30643/BLY/98, it was found that he was having the driving licence to drive the L.M.V. The driving licence was not valid to drive the bus, which is a heavy motor vehicle (H.M.V.), and recorded the findings that since the driver of the offending bus was not having the valid driving licence, thus the insurance company/ appellant herein is responsible to pay the compensation but with the recoverable rights from the owner of the vehicle. Ld. Tribunal decided issue no.1 accordingly. 14. Learned Tribunal held that at the time of accident, Kalu Singh was getting salary @ Rs.10,000/- per month and after deduction, as is apparent from the salary certificate, he was getting net salary of Rs.8929/- in the month of September 2009 just preceding month of the accident and after coming to the conclusion that the deceased was earning Rs.8929/- per month, assessed his annual income at Rs.1,07,148/-. A deduction of 1/3rd was made towards personal expenses of the deceased, whereafter amount was calculated as Rs.71,432/-. For determination of age of the deceased, the learned Tribunal perused the post-mortem and on the basis of post-mortem report, the Tribunal held that on the relevant date and time, deceased Kalu Singh was aged 35 years. This fact was further strengthened by the statement adduced by PW1 Mahadev to this effect. For determination of age of the deceased, the learned Tribunal perused the post-mortem and on the basis of post-mortem report, the Tribunal held that on the relevant date and time, deceased Kalu Singh was aged 35 years. This fact was further strengthened by the statement adduced by PW1 Mahadev to this effect. Relying upon the judgment of Hon’ble Apex Court in the case of Smt. Sarla Verma & others v. Delhi Transport Corporation & another, [2009 (20 TAC 677)], the Tribunal applied the multiplier of 16 on the age of deceased Kalu Singh. After applying multiplier of ‘16’, the total loss of dependency was assessed Rs.11,42,912/-. In addition to the loss of dependency, the Tribunal also awarded an amount of Rs.5000/- towards loss of estate and Rs.10,000/- towards funeral expenses and as such total amount of compensation was assessed at Rs.11,57,912/- with a condition that the compensation be deposited before the Tribunal within two months and, in case, the amount is not paid within two months by the Insurance Company it shall be liable to pay simple interest at the rate of 6% from the date of filing of claim petition till the date of actual payment. 15. In claim petition no. 368 of 2009, filed in respect of death of Smt. Hemlata, the Tribunal has taken the notional income of the deceased as Rs.36,000/- per annum and has deducted 1/3rd towards personal expenses of the deceased. The Tribunal has applied multiplier of ‘17’ on the age of deceased and, in this way, has determined total loss of dependency as Rs.4,08,000/-. On this amount, the Tribunal has further awarded Rs.5,000/- towards loss of estate and Rs.10,000/- towards funeral expenses, whereafter, the Tribunal has granted Rs.4,23,000/- as compensation in favour of the claimants. 16. In claim petition no. 367 of 2009, filed in respect of death of Master Udit, the Tribunal has taken the notional income of the deceased as Rs.36,000/- per annum and has made a deduction of 1/2 towards personal expenses of the deceased. The Tribunal has applied multiplier of ‘15 on the age of deceased and, in this way, has determined total loss of dependency as Rs.2,70,000/-. On this amount, the Tribunal has further awarded Rs.5,000/- towards loss of estate and Rs.10,000/- towards funeral expenses, whereafter, the Tribunal has granted Rs.2,85,000/- as compensation in favour of the claimants. 17. Mr. The Tribunal has applied multiplier of ‘15 on the age of deceased and, in this way, has determined total loss of dependency as Rs.2,70,000/-. On this amount, the Tribunal has further awarded Rs.5,000/- towards loss of estate and Rs.10,000/- towards funeral expenses, whereafter, the Tribunal has granted Rs.2,85,000/- as compensation in favour of the claimants. 17. Mr. M.K Goyal, learned counsel for the appellant would submit that there was a breach of terms and conditions of the policy by the owner of the offending vehicle as the driver was not having valid and effective driving licence, therefore, the learned Tribunal has committed illegality in fastening the liability upon the appellant Insurance Company. At the first instance, liability had to be fastened upon the owner of the offending vehicle. 18. Admittedly, the offending bus was insured with the appellant Insurance Company. Though, the driving license of driver of the bus is on record but it is in regard to L.M.V., which cannot be considered as a valid driving license. Hence, it is held that the driver of the offending vehicle was not having valid driving licence on the relevant date and time. In such circumstances, the Tribunal has rightly fastened the liability upon the Insurance Company to first satisfy the award and thereafter to recover the same from the owner of the offending vehicle. The same view was also expressed by this Court while deciding Appeal from Order no. 441 of 2012, New India Assurance Co. Ltd. Vs. Smt. Meena Joshi and others, vide judgment and order dated 14.12.2017, wherein this Court, relying upon the judgment of Hon’ble Apex Court in the case of Manuara Khatun and others vs. Rajesh Kr. Singh and others, 2017 (2) T.A.C. 5 (S.C.), has directed the Insurance Company to pay the awarded sum to the claimants and then to recover the said sum from the insured by applying the principle of "pay and recover". Thus, the arguments advanced by the appellant that the Tribunal has committed illegality in fastening liability upon the Insurance Company and then to recover it from the owner of the vehicle, has no substance. 19. Thus, the arguments advanced by the appellant that the Tribunal has committed illegality in fastening liability upon the Insurance Company and then to recover it from the owner of the vehicle, has no substance. 19. The next argument of learned counsel for the appellant is that there was contributory negligence on the part of driver of the offending vehicle and the deceased Kalu Singh, but tribunal did not consider the contributory negligence on the part of the driver of motorcycle in the accident. In this regard, the Court finds that neither there is pleading by the appellant nor any evidence was led to substantiate that the deceased was liable of contributory negligence. In the absence of any evidence there cannot be any presumption of contributory negligence. An opportunity was given to the appellant to prove the contributory negligence, but the appellant itself has chosen not to lead evidence, thus, appellant Insurance Company cannot blame the other side and the Tribunal has rightly recorded its finding that the deceased was not responsible for contributory negligence and has rightly not deducted 50% amount towards contributory negligence on the part of the deceased. 20. It is also contended that three separate claim petition viz. claim petition nos. 369 of 2009 (New Case no. 677 of 2013), 368 of 2009 (New Case no. 676 of 2013) and 367 of 2009 (New Case no. 674 of 2013) were filed by the claimants in regard to death of three deceased and the Tribunal has awarded compensation to the claimants in each claim petition. Learned counsel for the appellant would further submit that deceased Kalu Singh was the sole earning member of the family and, on account of his death only, the claimants were entitled for compensation. As far as Smt. Hemlata and Master Udit are concerned, they were not the earning members, as such learned Tribunal has committed illegality in awarding compensation in respect of their death. The argument advanced by the learned counsel for the appellant has no substance. It was an unfortunate case, in which the claimants lost their father, mother and the sole brother. Both the claimants were minor at the time of accident and the claim petition was filed through next to kin. No one was left in the family to look after the minor claimants at that time. In fact, the claimants were left orphaned. 21. Both the claimants were minor at the time of accident and the claim petition was filed through next to kin. No one was left in the family to look after the minor claimants at that time. In fact, the claimants were left orphaned. 21. The appellant Insurance Company failed to contest the claim petition before the Tribunal in appropriate manner, as neither proper pleading were raised nor any evidence was led by the appellant. Further, the driver of the offending vehicle could not appear before the Tribunal and also could not prove its case. It is the case of the owner and driver of the offending vehicle that the driver was having valid driving license, meaning thereby, that he was possessing license to ply heavy motor vehicle. During the pendency of these appeals, on behalf of the driver and the owner, an application was filed before this Court for taking on record driving licence of the driver as the additional evidence. Said application was rejected by the Court on the ground that the photocopy of driving license is not admissible. Against said order of dismissal of application, no appeal has been preferred by the owner and driver of the offending vehicle. In such circumstances, this Court cannot upset the findings recorded by the learned Tribunal in regard to the liability of owner on account of non-filing the driving license in the absence of any appeal filed by the owner and driver of the offending vehicle. 22. Insofar as the argument advanced by learned counsel for the appellant that exorbitant amount has been awarded to the claimant, this argument is misconceived as in case of death of three members of a family, just and proper compensation has not been awarded by the Tribunal. It would have been a case for enhancement of compensation in view judgment of Hon’ble Apex Court in the case of National Insurance Company vs Pranay Sethi, reported in AIR 2017 SC 5157 , but in the absence of any appeal for enhancement, compensation cannot be enhanced on the principle that an appellant cannot be reduced to a position worse than the one he would be in if he had not hazarded to file an appeal. 23. In the light of aforesaid, appeals lack merit and the same are hereby dismissed. 23. In the light of aforesaid, appeals lack merit and the same are hereby dismissed. As stated above, proper compensation has not been awarded to the claimants, instead the appellant Insurance Company has unnecessarily dragged the claimants to the Court to contest the appeals. Hence, cost of Rs.25,000/- in each appeal is imposed on the appellant, which shall be paid by the appellant to the claimants along with the compensation. 24. Lower court record be sent back. The statutory amount, deposited before this Court in all the three appeals, along with the interest accrued on it, if any, be also remitted to the Tribunal forthwith.