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2020 DIGILAW 736 (ALL)

National Insurance Co Ltd. v. Usha Devi

2020-03-06

KAUSHAL JAYENDRA THAKER

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JUDGMENT : 1. Sri Anand Kumar Sinha, learned counsel for the Insurance Company and Sri Om Prakash Yadav, learned counsel for the claimants are present. None appears for the owner. 2. By way of this appeal the Insurance Company has challenges the award and decree dated 29.07.2003 passed by the Motor Accident Claims Tribunal/Special Judge (SC/ST Act), Court No.3, Deoria, in MACP No.102 of 2001. 3. The brief facts are that on 02.11.2000 at about 6.00 P.M. deceased Ramnath Chauhan was returning from Shardiha Inter College to his home and as soon as he reached near ITI School, Motorcycle No. U.P.-52C-5319 dashed with him. He fell on the road and during his treatment he passed away in the Gorakhpur Medical College. The claimants are the legal heirs of the deceased. The incident was reported by way of first information report. The vehicle/motorcycle was owned by Abhinandan Yadav and was insured with appellant-insurance company. The vehicle was insured from 31.01.2000 to 30.01.2001. The deceased was 26 years of age and was a carpenter by profession. It was averred that he was earning Rs.150/- per day. 4. The owner of the vehicle filed his written statement contending that the accident occurred due to fault of the deceased and not by the fault of the driver of the vehicle, as the deceased came on the wrong side and that is why the accident was authored by the deceased and not by the driver of the motorcycle. The cover note was filed, which shows that vehicle was insured with the appellant insurance company. 5. Insurance Company filed reply contending that no accident occurred with the said vehicle, even denied that the deceased was a carpenter by profession and that they were breach of policy condition. 6. The Tribunal framed four issues and held all against the owner of the vehicle and the insurance company. The Tribunal also held that the deceased was earning Rs.3,000/-per month and not Rs.150/-per day, and deducted one third(1/3), and that the deceased was aged between 24-30 years, therefore, applied the multiplier of 18, and granted Rs.4,32,000/-and added Rs.9,500/- for non pecuniary damages with 9% interest. 7. The Insurance Company has contended that the FIR which was lodged on 11.11.2000 by the brother of the deceased was against an unknown vehicle, but the police was informed that Vehicle/Motorcycle No. U.P.-52C-5319 was involved in the said accident. 7. The Insurance Company has contended that the FIR which was lodged on 11.11.2000 by the brother of the deceased was against an unknown vehicle, but the police was informed that Vehicle/Motorcycle No. U.P.-52C-5319 was involved in the said accident. It is submitted by the counsel for the Insurance Company that the actual vehicle involved was not traced and therefore, the claimants planted this vehicle with the collusion of the owner. It is further submitted that the income should have been Rs.15,000/-per annum as per Schedule. The deceased was not earning Rs.3,000/- per month, as he was a daily wager. 8. While going through the record it is very clear that the Tribunal has considered the income of the deceased to be Rs.3,000/-per month and in the year of accident a laborer can earned the said amount. The Tribunal has not added any amount for future loss of income and has granted meager amount under the head of non pecuniary damages, hence the submission that the income is on higher side cannot be accepted, rather the amount is on conservative side, hence the said submission of the counsel for the appellant cannot be accepted. 9. The submission of the counsel for the appellant before this Court that the vehicle was not involved in the said accident and that no eye witness was examined who would prove that the vehicle was involved in the accident. It is further submitted that the FIR was lodged after nine days of the accident and that too against an unknown vehicle. The final report by police also showed that vehicle was not involved in the accident. 10. The submission of learned counsel for the appellant that accident was reported late and therefore, this Court should hold that the vehicle was not involved in the accident, cannot be accepted. Section 158 and 166(4) provide that particulars of vehicles involved in the accident have to be collected by investigating agency and forwarded to the Tribunal as accident information report in Form 54 which shall be treated as claim application. Motor Vehicles Act empowers the Tribunal to award compensation to the claimant even in absence of formal claim application. I am supported my view by the recent judgment of Gujarat High Court passed in the Case of Joshi Rajendrakumar Popatlal Vs. Motor Vehicles Act empowers the Tribunal to award compensation to the claimant even in absence of formal claim application. I am supported my view by the recent judgment of Gujarat High Court passed in the Case of Joshi Rajendrakumar Popatlal Vs. Thakor Ramnaji Hamirji and others, reported in 2020 ACJ 365, and therefore, it cannot be said that the vehicle was not involved in the accident. The further contention of the counsel for the appellant that the compensation awarded is on higher side also fails. 11. In this case the insurance company has not examined any investigating office and has not even raised any objections before the tribunal that the vehicle was not involved in the said accident. In his further statement also, the said contention has not been raised, rather the written statement was to the effect that the driver did not have proper driving license. Further, while going through the record, it is very clear that the insurance company also accepted that the vehicle was involved in the accident. No issue was raised to the said effect. 12. The appeal fails and is dismissed. 13. The record be sent back to the Tribunal.