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Allahabad High Court · body

2019 DIGILAW 1229 (ALL)

New India Assurance Co. Ltd. v. Vineeta

2019-05-07

HARSH KUMAR

body2019
JUDGMENT : Harsh Kumar, J. 1. The present first appeal from order has been filed against the judgment dated 30.1.2013 and decree dated 16.3.2013 passed by the Motor Accident Claims Tribunal/Additional District Judge, Court No. 17, Kanpur Nagar (hereinafter referred as "Tribunal") in Motor Accident Claim Petition No. 1311 of 2010, by which Tribunal has partly allowed the claim petition granting a compensation of Rs. 4,15,000/- to claimants-respondent Nos. 1 to 4 with interest @ 6% per annum against The New India Assurance Company Limited (hereinafter referred as "Insurance Company"). Feeling aggrieved, appellant-Insurance Company has preferred this appeal. 2. The brief facts relating to the case are that claimants-respondents filed claim petition No. 1311 of 2010 seeking compensation of Rs. 10,98,000/- with averments that on 7.11. 2010 Kamal Kishore, the husband of claimant-respondent No.1, son of claimant-respondent Nos.2 and 3 and father of claimant-respondent No.4 was going on motorcycle No. U.P. 78 CA 4226 of his relative, as a pillion rider from village Chirana to village Heeniya, Maharajpur along with his wife and at about 12:00 in noon when motorcycle reached within limits of P.S. Chakeri, a new Santro Car without any registration number being driven rashly and negligently came from opposite direction and dashed with motorcycle, resulting in badly damaged to motorcycle and grievous injuries to Kamal Kishore, who was taken to Hallet Hospital and succumbed to injuries at 3:00 a.m. on 8.11.2010. 3. It was also contended that deceased was earning Rs. 7,000/- per month from work as Mason and at the time of accident, the Car in question was being driven by duly licensed driver Sanjay Singh and was duly insured with The New India Assurance Company Limited. 4. The Tribunal framed various issues and on disposal of issue Nos. 1 and 2, it came to the conclusion that accident in question did take place due to sole rashness and negligent driving on the part of driver of Santro Car, which dashed the motorcycle by going on wrong side of road and there was no contributory negligence of motorcyclist. On issue Nos. 3 and 4, it found that Santro Car in question was duly insured with The New India Assurance Company and at the time of accident, was being driven by a driver holding valid driving license. On issue No. 5 after analyzing evidence on record, it assessed monthly income of deceased at Rs. On issue Nos. 3 and 4, it found that Santro Car in question was duly insured with The New India Assurance Company and at the time of accident, was being driven by a driver holding valid driving license. On issue No. 5 after analyzing evidence on record, it assessed monthly income of deceased at Rs. 3000/- and granted a compensation of Rs. 4,15,000/- with interest 6% per annum. 5. Heard Sri P.K. Sinha, learned counsel for appellant and Sri Vidya Kant Shukla, learned counsel for respondents and perused the record. 6. Only two points were raised by learned counsel for appellant challenging the impugned award and contended that (i) offending vehicle was not bearing any registration number on the date of accident i.e. 7.11.2010 as temporary registration was issued to it after 02 days of accident only on 9.11.2010 and so the vehicle was being plied without any registration number, which was not only punishable offence, but also a fundamental breach of terms and condition of policy contract; that due to above reasons, Insurance Company is entitled to be exonerated from the liability of making payment of compensation and only the owner of vehicle, may be held responsible; that Tribunal has acted wrongly in applying multiplier of 17 in place of 16, on the assessed amount of dependency. 7. Per contra, learned counsel for claimants-respondents supported the impugned award and contended that Rule 47 of Central Motor Vehicles Rules, 1989 provides that "An application for registration of a motor vehicle shall be made in Form 20 to the registering authority within a period of 07 days from the date of taking delivery of such vehicle, excluding the period of journey and shall be accompanied by various requisite papers." 8. It is not disputed that offending vehicle was purchased by respondent No. 5 Sanjay Singh on 4.11.2010 and was insured by appellant, the same day for a period from 4.11.2010 at 2:24:18 p.m. till 3.11.2011 upto 11:59:59 p.m. vide insurance cover note issued by appellant, paper No. 15-C/3 on lower court record and at the time of accident was duly insured with appellant. 9. 9. It is also not disputed that registration had been applied by owner of offending vehicle well before the accident upon purchase of it and it was in process with the transport authority and temporary registration certificate in respect of offending vehicle was issued by transport authority on 9.11.2010 i.e. after two days of accident dated 7.11.2010. 10. In case of Narindra Singh v. New India Assurance Company Limited and others, 2014 (4) T.A.C. 1 (S.C.) : ( AIR 2014 SC 3761 ) relied by learned counsel for appellant, the temporary registration of offending vehicle had expired on 2.2.2006 and vehicle was being plied without registration on the date of accident i.e. 2.2.2006 and there was nothing on record to show that prior to 11.1.2006 i.e. before expiry of temporary registration period, the owner of offending vehicle either applied for permanent registration as contemplated under section 39 of the Act or made any application for extension of period of temporary registration on some special ground and in absence of such evidence in case of repudiation of owner damage claim by pick up owner, the Apex Court held that "using a vehicle on public road without any registration is not only an offence punishable under section 192 of Motor Vehicles Act, but also a fundamental breach of terms and condition of policy contract". 11. The facts of above mentioned case are entirely different from the case in hand, where undisputedly registration had been applied within time just after purchase of offending vehicle and was under process with the authorities concerned. 12. It is pertinent to mention that there is nothing on record to show as to breach of which specific condition of insurance policy was committed by owner while Insurance Company has not even filed insurance policy on record and has not disputed the policy papers i.e. 'certificate of insurance' 15/C3 on lower record filed by the owner of offending vehicle. 13. Learned counsel for appellant has failed to show any breach of condition of insurance policy by owner of offending vehicle. 14. As far as using of multiplier is concerned, the age of deceased has been mentioned as 25 years. Petitioner No.1, the widow of deceased in her statement on oath before Tribunal as P.W. 1 has stated that her husband was 25 years old. 14. As far as using of multiplier is concerned, the age of deceased has been mentioned as 25 years. Petitioner No.1, the widow of deceased in her statement on oath before Tribunal as P.W. 1 has stated that her husband was 25 years old. The Tribunal in its findings on issue No. 5 has observed that age of wife of deceased was 20 years, child of deceased 06 months and parents of deceased was between 50-55 years, so it will be proper to assess the age of deceased between 25-35 years and further assessing his age between 30-35 years, multiplier of 17 was applied. It is not disputed that in case of age of deceased between 31 to 35 years, multiplier of 16 should have been applied, but in this case, there is no justification for assessing age of deceased between 31 to 35 years, while Tribunal itself has mentioned that it should be assessed between 25 to 35 years and even in case of deceased taken to be 30 years old, multiplier of 17 is in accordance with law laid down by the Apex Court in the case of Smt. Sarla Verma and others v. Delhi Transport Corporation and another, 2009 (6) SCC 121 : ( AIR 2009 SC 3104 ). 15. Upon hearing parties counsel, perusal of record and in view of discussions made above, I find that two points raised by appellant have no force. The appeal is devoid of merits and is liable to be dismissed. 16. The appeal is dismissed, accordingly and impugned award is affirmed. The appellant shall deposit entire decretal amount under impugned award with the Tribunal within two months from today, which shall be paid to claimants in accordance with impugned award. The amount of statutory deposit be sent to court below/Tribunal. Let a copy of this order be sent to court below/Tribunal for ascertaining necessary compliance.