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2024 DIGILAW 1690 (ALL)

New India Assurance Co. Ltd. v. Balak Ram

2024-07-16

VIPIN CHANDRA DIXIT

body2024
JUDGMENT : Vipin Chandra Dixit,J. 1. The First Appeal From Order No.2200 of 2015 has been filed by the appellant Insurance Company under Section 173 of MOTOR VEHICLES ACT against the judgment and award dated 1.5.2015 passed by Additional District Judge, Court No.16/Motor Accident Claims Tribunal, Meerut in M.A.C.P. No.694 of 2011 (Balak Ram and others Vs. Anil Kumar and others), by which compensation of Rs.1,72,000/- has been awarded in favour of claimants on account of death of Peetam aged about 25 years and the liability has been fixed upon the appellant Insurance Company being insurer of bus. 2. The First Appeal From Order No.1870 of 2015 has been filed on behalf of claimants-appellants for enhancement of compensation against the same impugned judgment and award dated 1.5.2015 passed by Additional District Judge, Court No.16/Motor Accident Claims Tribunal, Meerut in M.A.C.P. No.694 of 2011 (Balak Ram and others Vs. Anil Kumar and others). 3. Since both the appeals were filed against the same impugned judgment and award dated 1.5.2015, the same are being heard together and are being decided by a common judgment. 4. Heard Sri Anubhav Sinha, Advocate holding brief of Sri Amaresh Sinha, learned counsel for Insurance Company and Sri Nigamendra Shukla, learned counsel for claimants and perused the record. No one is present for the owner of bus. 5. Brief facts of the case are that the claim petition was filed by the claimants under Sections 140 and 166 of MOTOR VEHICLES ACT , 1988 claiming compensation of Rs.32,50,000/- along with 12% interest on account of death of Peetam, who died in a road accident which was occurred on 11.5.2011. It was the case of the claimants before the Claims Tribunal that the deceased was going on motorcycle bearing No.UP-16E-0518 along with his friend Rajeev and Lavkush and when he reached near village Dotai, the offending Bus bearing no.UP-15Z-9665, coming from opposite direction hit the motorcycle. The bus was driven by its driver very rashly and negligently and there was no negligence on the part of the deceased, who was driving the motorcycle. 6. The claim petition was contested by the owner as well as insurer of Bus denying the rash and negligent driving of Bus driver and it was pleaded that the deceased alone was rash and negligent and was responsible for the accident. 6. The claim petition was contested by the owner as well as insurer of Bus denying the rash and negligent driving of Bus driver and it was pleaded that the deceased alone was rash and negligent and was responsible for the accident. The claimant Balak Ram was appeared as P.W.-1 and had also produced one Gurmeet Singh, an eye witness of the accident as P.W.-2. The claimants had also produced documentary evidence in support of their claim. The owner of bus had produced Sonu Kumar, who was driver of bus at the time of accident, as D.W.-1. 7. The Claims Tribunal after considering the entire evidence and materials which are available on record has recorded the finding while deciding issue nos.1 and 5 that it was a case of head on collision and both the vehicles were equally negligent and responsible for the accident. The Claims Tribunal has further recorded the finding that driving licence of bus driver, fitness and road permit of the bus were valid and effective on the date of accident. The income of deceased as Rs.10,000/- per month claimed by claimants from selling milk was disbelieved by the Claims Tribunal and compensation was calculated accepting Rs.100/- per day as income of the deceased. The claim petition filed by claimants was partly allowed by the Claims Tribunal vide judgment and award dated 1.5.2015 awarding compensation of Rs.1,72,000/-. It is further provided that if the compensation has not been paid within 30 days, then the claimants are also entitled for 7% interest on the awarded amount. 8. It is submitted by learned counsel for the appellant Insurance Company that the accident was occurred on account of sole negligence of the deceased, who was driving the motorcycle and there was no negligence on the part of bus driver. The Claims Tribunal has erred in holding negligence of both the vehicles in the ratio of 50-50% and only 50% was deducted in terms of contributory negligence of the deceased. It is further submitted that road permit of the bus was not valid on the date of accident and the bus was plied in violation of terms and conditions of insurance policy. The Claims Tribunal has committed gross illegality in fixing the liability upon the appellant Insurance Company being insurer of bus, whereas the owner of bus is liable to satisfy the award. 9. The Claims Tribunal has committed gross illegality in fixing the liability upon the appellant Insurance Company being insurer of bus, whereas the owner of bus is liable to satisfy the award. 9. On the other hand, learned counsel appearing for claimants- respondents submits that the accident was occurred on account of sole negligence of bus driver and there was no negligence on the part of the deceased, who was driving the motorcycle. The claimants had produced Gurmeet Singh, who was an eye witness of the accident as P.W.-2, who has stated on oath that the bus was driven by its driver very rashly and negligently and hit the motorcycle from wrong side. The Investigating Officer after due investigation has also submitted the charge-sheet against the driver of bus which also proves that the driver of bus was rash and negligent and was responsible for the accident. The Claims Tribunal has committed gross illegality in deducting 50% compensation holding 50% contributory negligence of the deceased. It is further submitted that the claimants had fully proved the income of the deceased as Rs.10,000/- per month from selling milk and there was no evidence in rebuttal by the opposite party and the Claims Tribunal has erred in accepting Rs.100/- per day as the income of the deceased. Lastly, it is submitted that nothing has been awarded towards future prospects and only Rs.10,000/- was awarded for non-pecuniary damages whereas the claimants are entitled for 40% future prospects and Rs.30,000/- for non-pecuniary damages as per law laid down by Hon'ble Apex Court in the case of National Insurance Company Ltd. Vs. Pranay Sethi reported in 2017(4) T.A.C. 673 10. Considered the submissions of learned counsel for the parties and perused the record. 11. It is admitted fact that it was a case of head-on collision in between motorcycle and bus. The motorcycle was driven by deceased and bus was insured with the Insurance Company. The eye witness Gurmeet Singh produced by the claimants as P.W.-2 has stated on oath that bus was driven by its driver very rashly and negligently and he alone was responsible for the accident. The Investigating Officer has also submitted the charge-sheet against the driver of bus after found that the bus driver was negligent and responsible for the accident. The eye witness Gurmeet Singh produced by the claimants as P.W.-2 has stated on oath that bus was driven by its driver very rashly and negligently and he alone was responsible for the accident. The Investigating Officer has also submitted the charge-sheet against the driver of bus after found that the bus driver was negligent and responsible for the accident. So far as the evidence of D.W.-1 Sonu is concerned, he was driver of bus and the F.I.R. as well as charge- sheet was submitted against him and he was an accused in criminal case and as such his evidence is not reliable. No other independent witness has been produced by the owner of bus as well as insurer of bus to establish rash and negligent driving of deceased who was driving the motorcycle. From the evidence it is apparent that both the vehicles were negligent and responsible for the accident but since bus is big vehicle in comparison to motorcycle, the driver of bus is more responsible to avoid the accident and the Claims Tribunal has erred in holding the negligence in the ration of 50- 50%. The Court is of the view that bus driver was more negligent and his negligence is accepted as 60% and motorcyclist was negligent to the extent of 40%. 12. So far as the route permit of offending bus is concerned, no issue was framed and no evidence was led by Insurance Company. The Claims Tribunal while deciding the M.A.C.P. No.697 of 2011 arising out of same accident has recorded the finding that route permit no.587 for the route of Meerut to Kankerkhera for one day i.e. 11.5.2011 was valid. The appeal preferred by Insurance Company against the award passed in M.A.C.P. No.697 of 2011 being F.A.F.O. No.2201 of 2015 was also dismissed. So far as the quantum of compensation is concerned, the accident was occurred on 11.5.2011 and the Claims Tribunal has erred in accepting Rs.100/- per day (Rs.3,000/- per month) as notional income of the deceased. The Court is of the view that notional income of Rs.4,500/- is appropriate to calculate the just compensation. The claimants are also entitled for 40% future prospects and Rs.30,000/- towards non-pecuniary damages as per law laid down by Hon'ble Apex Court in the case of Pranay Sethi (supra). 13. The Court is of the view that notional income of Rs.4,500/- is appropriate to calculate the just compensation. The claimants are also entitled for 40% future prospects and Rs.30,000/- towards non-pecuniary damages as per law laid down by Hon'ble Apex Court in the case of Pranay Sethi (supra). 13. In view of above discussion, the First Appeal From Order no.2200 of 2015 filed by New India Assurance Company Limited is hereby dismissed. 14. The appeal preferred by claimants being First Appeal From Order no.1870 of 2015 for enhancement of compensation is partly allowed. The compensation awarded by the Claims Tribunal is reassessed as follows :- 1. Monthly Income : = Rs.4,500/- 2. Annual Income : = Rs.4,500/- x 12 = Rs.54,000/- 3. Future prospects : (40%) = Rs.21,600/- 4. Total annual income : = Rs.54,000/- + Rs.21,600/- = Rs.75,600/- 5. Deduction towards personal expenses (1/2):= Rs.75,600/- - Rs.37,800/- = Rs.37,800/- 6. Multiplier applicable (18) : = Rs.37,800/- x 18 = Rs. 6,80,400/- 7. Deduction towards contributory negligence (40%):= Rs.6,80,400/- - Rs.2,72,160/- = Rs.4,08,240/- 8. Non-pecuniary damages: =Rs.30,000/- Total : Rs. 4,08,240/- + Rs.30,000/- = Rs. 4,38,240/- 15. The award of the Claims Tribunal is modified and compensation awarded by the Claims Tribunal is enhanced from Rs.1,72,000/- to Rs.4,38,240/-. The New India Assurance Company Limited is directed to pay enhanced amount of Rs.2,66,240/- along with 6% interest from the date of judgment of Claims Tribunal i.e. 1.5.2015 to the claimants, within two months from today. 16. No order as to costs.