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2019 DIGILAW 181 (ALL)

NATIONAL INSURANCE CO LTD. v. INDRA KALI DEVI

2019-01-23

RAM KRISHNA GAUTAM

body2019
JUDGMENT Ram Krishna Gautam, J. This appeal under Section 173 of Motor Vehicles Act, 1988 has been filed by National Insurance Co. Ltd. against judgment and award dated 08.01.2003, passed by Motor Accident Claims Tribunal/Additional District Judge, Court No. 12, Allahabad in M.A.C.P. No. 157 of 2001, with this contention that Tribunal failed to appreciate the facts and law placed before it. 2. The accident was the result of contributory negligence of the driver of Tractor No.MP-17/D-8998 and the driver of the offending Truck, but no apportionment of liability in between the appellant and the owner of Tractor was made by the Tribunal, whereas deceased was sitting on the attached trolly when accident occurred and this was owning to rashness and negligence of Tractor driver. There was no rashness of Truck driver (DW-1), as was proved by him, but Tribunal failed to appreciate it. The future prospects was taken, whereas no such law was there at the time of accident. The salary of the deceased was Rs.8,000/- per month. The scheduled deduction of 1/3rd income towards dependency and multiplier of 15 will resulted compensation of Rs.9,60,120/-, whereas the Tribunal has awarded compensation of Rs.11,77,000/-. The interest over prospective income was awarded, which may not be awarded in view of judgment of Supreme Court in 1995 A.C.J. 366. 3. Heard learned counsel for both sides, gone through the impugned judgment and material placed on record. 4. The claim petition was filed by Smt. Indra Kali Devi against Virendra Singh for award of compensation of Rs.32,20,000/- under Section 166 read with 140 of Motor Vehicles Act, before the Motor Accident Claims Tribunal on the ground that claimant's husband Sri Lal Bahadur Singh was met with an accident on 18.12.2000 at about 1.30 A.M. in nigh at Rewa Road near J.P. Cement Go-down within the area of village Semra Kalauna, Police Station Ghoorpur, District Allahabad in which the Truck driver of Truck, bearing registration No. UHY 108, driving the same rashly and negligently, dashed the trolly of the tractor and it turned in which Lal Bahadur Singh was badly injured and subsequently died. He was a Teacher having salary and money obtained by way of tuition to the tune of Rs.5,000/- per month, by which he was maintaining claimant and his family members. He was a Teacher having salary and money obtained by way of tuition to the tune of Rs.5,000/- per month, by which he was maintaining claimant and his family members. The First Information Report was instantly lodged after interval of one hour by Dhanvendra Prasad Shukla at Police Station on 18.12.2000 as Case Crime No. 293 of 2000 and after investigation the charge sheet was submitted against Badri Prasad. The written statement of owner of vehicle denied above accident owing to rash and negligent driving of driver concerned, but mentioned that the tractor was validly and effectively insured from 06.11.2000 to 15.11.2001 by National Insurance Company Limited and it was being driven by a driver having valid and effective driving licence within the term of policy. The liability, if any, was of Insurance Company. 5. The Insurance Company vide its written statement 13A denied the entire facts of petition and asked to prove by claimant and owner of the vehicle that vehicle was validly and effectively insured by the above Insurance Company as well as this was being driven by a driver having valid and effective licence within the term of the policy. The Tribunal framed four issues as to whether on 18.12.2000 at about 1.30 A.M. in nigh at Rewa Road near J.P. Cement Go-down within the area of village Semra Kalauna, Police Station Ghoorpur, District Allahabad, driver of the Truck bearing registration No.UHY 108, driving the same rashly and negligently, caused accident resulting grievous hurt and subsequent death of Lal Bahadur Singh; whether above vehicle was being driven by a driver having valid and effective driving licence on the date, time and place of accident?; whether above vehicle was validly and effectively insured by Insurance Company? and compensation, if any, and from whom claimant is entitled for? 6. The claimant examined herself as PW-1 and informant of the case crime number Dhanvendra Prasad Shukla as PW-2. Beside this, the documentary evidence of first information report, autopsy examination report, inquest report, salary slip, driving licence was filed by list 16C. The owner of the vehicle examined DW-1 Badri Prasad and filed the documentary evidence of insurance cover note of above Truck along with driving licence of driver concerned. 7. Beside this, the documentary evidence of first information report, autopsy examination report, inquest report, salary slip, driving licence was filed by list 16C. The owner of the vehicle examined DW-1 Badri Prasad and filed the documentary evidence of insurance cover note of above Truck along with driving licence of driver concerned. 7. The main argument is regarding contributory negligence, but since the filing of petition it was said that tractor trolly after loading sand over it was ready to move when the Truck by coming on the wrong side dashed the trolly as a result it was turned covering the deceased Lal Bahadur Singh and he succumbed due to above injury sustained in above accident. There was a instant report after one hour at Police Station concerned and this case crime number was got investigated in which the investigation resulted filing of charge sheet for offence of rash and negligent driving thereby causing death of Lal Bahadur Singh. The Magistrate has taken cognizance over it. No recital by Truck driver was ever made before Police Station or before the Magistrate before whom he was presented that this accident was owning to rash and negligent driving of tractor concerned. 8. From the perusal of site map prepared during the investigation of above case crime number, it is apparent that the accident was at the wrong side of the tractor concerned, truck came at above side and dashed the tractor, hence the very argument of the accident was result of contributory negligence is not sustainable and Tribunal has rightly done so. 9. Regarding quantum of compensation it has been argued by learned counsel for appellant that it is to be taken notice that the Tribunal has not awarded compensation on the basis of present salary which was Rs.8,007/- per month, given under the salary certificate, rather the Tribunal took into consideration the future prospects to that persons who died was a Government servant and he would have been promoted as Head Master, Principal etc. and he would have secured the future progress and after considering all those facts it comes to Rs.10,000/- per month as the secured income and dependency of claimants comes to 25% of the settled income though the Constitution Bench in National Insurance Company Limited v. Pranay Sethi and others, (2017) 16 SCC 680 has held the future prospect to be taken into consideration to the tune of 40% and 50% in the case of death of a 40 years man or of other age group in above judgment. In the present case deceased was a government servant; at the time of his death his age was 40 years; his future prospect was considered on the basis of this loss and it was at only 25% to his salary of Rs.8,000/- per month and salary of Rs.10,000/- was taken into consideration for making the compensation, which was concurrent and cogent one for determining just and proper compensation, which was duty of Tribunal to award in this welfare claim legislation. 10. The multiplier has not been challenged. Multiplier taken as per the settled law. Hence, the Tribunal has rightly and cogently calculated the compensation and awarded it. There is no illegality or irregularity in appreciation of facts and evidence placed before the Tribunal. This appeal merits its dismissal. 11. The appeal is dismissed accordingly.