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Allahabad High Court · body

2020 DIGILAW 394 (ALL)

Oriental Insurance Co. Ltd. v. Lilly Stephen

2020-02-05

VIVEK AGARWAL

body2020
JUDGMENT : 1. Heard Sri Arun Kumar Shukla, learned counsel for the appellant-The Oriental Insurance Company Ltd. and Sri Amit Kumar Sinha, learned counsel for the respondents. 2. Sri Amit Kumar Sinha, learned counsel for the respondent submits that respondent nos.1 to 6 proceeded ex parte vide order dated 13.12.2018. He has filed C.M. Delay Condonation Application No.5 of 2019 along with C.M. Recall Application No.6 of 2019. C.M. Delay Condonation Application No.5 of 2019. Heard. For the reasons mentioned in the application delay in filing the recall application is condoned. Accordingly, application is allowed. C.M. Recall Application No.6 of 2019 Heard. For the reasons mentioned in the application duly supported by an affidavit as sufficient cause is made out to set aside the ex parte proceedings against the respondent nos.1 to 6. Order dated 13.12.2018 directing to proceed ex parte against the respondent nos.1 to 6 is recalled. Accordingly, Recall Application is allowed. On merit. 3. This appeal has been filed by the Insurance Company being aggrieved of Award dated 28.08.2015 passed by learned Motor Accident Claims Tribunal/Additional District Judge, Court No.10, Allahabad whereby learned Claims Tribunal has awarded a sum of Rs.2,73,600/- in favour of the claimants. 4. Learned counsel for the appellant has raised two issues to challenge the award; namely that there was contributory negligence of the deceased and, therefore, the award amount should have been reduced in puportion to the extent of contributory negligence of the deceased. Secondly, it is submitted that incorrect multiplier of 16 has been applied by learned Claims Tribunal whereas multiplier of 15 will be applicable as per the law laid down in case of Sarla Verma (Smt.) and others Vs. Delhi Transport Corporation and another as reported in (2009) 6 SCC 121 . 5. Sri Sinha, submits that there is no evidence on record to prove the factum of contributory negligence. In fact, the offending vehicle had hit the deceased from behind when she was travelling towards the side of Hindu Hostel in front of Company Garden. It is submitted that from the spot map which is available on record, it is evident that factum of contributory negligence could not be proved by the Insurance Company. It is also an admitted fact that Insurance Company did not examine any witness to prove the factum of contributory negligence. It is submitted that from the spot map which is available on record, it is evident that factum of contributory negligence could not be proved by the Insurance Company. It is also an admitted fact that Insurance Company did not examine any witness to prove the factum of contributory negligence. However, he gracefully admits that the multiplier of 16 has been wrongly applied and in place of 16 multiplier of 15 should have been applied. It is also submitted that only a sum of Rs.5000/-under the head of last rites another sum of Rs.5000/-under the head of loss of love and affection and further sum of Rs.5000/-under the head of loss of estate has been awarded whereas as per the law laid down in case of Pranav Sethi and others Vs. National Insurance Company Ltd. as reported in (2017) 16 SCC 680 , this amount should have been Rs.30,000/-in place of Rs.15,000/- 6. In view of such submission, since the annual dependency has been taken at Rs.1,40,000/-, when multiplier of 15 is applied then total compensation will come out to Rs.17,10,000/-in place of Rs.18,24,000/-as has been computed by learned Claims Tribunal. When 50 % of this is added towards future prospects total compensation will come out to Rs.25,65,000/-in place of Rs.27,36,000/- computed by learned Claims Tribunal. 7. However, when a sum of Rs.30,000/-is added to this under the head of loss of estate and for the funeral expenses, total compensation will come out to Rs.25,95,000/-in place of Rs.27,51,000/-as has been awarded by learned Claims Tribunal. Therefore, the award is suitably modified and it is directed that in place of Rs.27,51,000/-, Insurance Company will be liable to pay only a sum of Rs.25,95,000/-as computed above. 8. It shall carry the interest @ 7% from the date of filing of the claim petition. 9. With the aforesaid modification, appeal is allowed/disposed off in part.