The New India Assurance Co. Ltd. vs Late Smt. Babita And Others
2012 Latest Caselaw 3646 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. 33
 

 

 
		        First Appeal From Order No.3284 of 2012
 

 
New India Assurance Company Ltd. 			  ...........Appellant. 
 
					Vs. 
 
Late Smt. Babita & others 					.......Respondents.
 
*******
 
Hon'ble Rakesh Tiwari, J.

Hon'ble Anil Kumar Sharma, J.

Heard learned counsel for the appellant and perused the record.

This FAFO has been filed challenging the validity and correctness of the judgment and order dated 21.05.2012 passed by M.A.C.T./Additional District Judge, Court No. 5, Ghaziabad in M.A.C.P. No. 527 of 2007: Smt. Babita & others vs. Krishna Pal & others, by which a compensation of Rs.4,36,500/- has been awarded to the claimants-respondents in this appeal.

The facts culled out from the record are that Trilok Singh son of Sri Malkit Singh died in a road accident which is alleged to have been caused by Truck No. U.S.T. 7555. The claimants/respondents filed claim application on 24.10.2007 for compensation amounting to Rs.5,45,200/- through Smt. Babita wife of Malkit Singh and mother of respondent nos. 2 and 3 (minors). Smt. Babita also expired on 23.5.2011 during pendency of claim application, therefore, matter was prosecuted by Dilip Singh son of Sri Swarn Singh on behalf of respondents no. 2 and 3, being their only guardian. According to claim application, the age of Trilok Singh was about 29 years and his monthly income was Rs.3,300/- per month on which claimants were dependent.

It appears from the record that on 23.9.2007 at about 7.00 p.m., when Trilok Singh was returning home on foot and when he reached towards Mohan Nagar Chauki, he was hit behind his back by Truck No. UST 7555 which was driven rashly and negligently, resulting grievous injuries on his person . The public on the spot took the

injured Trilok Singh for treatment in Narendra Mohan Hospital, where he was declared dead.

The owner of the vehicle/respondent no. 1 has denied the allegation of claim application, but admitted himself to be owner of vehicle in question and that the truck was insured during the period 25.6.2007 to 24.6.2008. Another objection to the claim application was taken that the claimant no. 1 had also moved claim petition no. 865 of 2007: Smt. Babita Vs. Krishna Pal & others at Meerut. In support of this contention, copies of documents filed therein, were also brought on record by him in the claim petition filed by Smt. Babita in M.A.C.P. No. 527 of 2007. The case of opposite party no. 1 before the Tribunal was that Pravin Kumar who was driver of the truck, had valid and effective licence on the date of accident. Photostat copies of driving licence and policy cover notes were also filed by her before the Tribunal. The respondent no. 2 in claim application/Insurance Company, have also denied the averments made in the application, but admitted that truck was under insurance cover only up to 25.6.2007 and that driver of the vehicle was neither in possession of effective and valid licence nor vehicle owner of offending truck had valid permit on the date of accident, as such, term and conditions of insurance have been violated and in case it is found that the accident has taken place on the date and time as claimed by the appellant, then in that case, the accident is caused by own negligence of the deceased.

So far as respondent no. 3 (truck driver) in claim application is concerned, he took stand that he had valid and effective licence and that claimant had filed another claim petition regarding same accident before the Tribunal at Meerut. The Tribunal framed the following issues on the basis of the pleadings of the parties:

^^1- D;k iz'uxr nq?kZVuk fnukad 23-9-07 dks le; 7-00 cts tc e`rd f=yksd flag vius ?kj fLFkr lat; dkyksuh vFkZyk ls iSny tkrs le; esguxj frjkgs ls vFkZyk dh vksj tkrs le; ihNs ls Vªd la[;k ;w-,l-Vh- 7555 ds pkyd us okgu dks rsth o ykijokgh ls pykrs gq, VDdj ekjh] ftlls mls xEHkhj pksVsa vkbZ vkSj mUgha pksVksa ds dkj.k f=yksd flag dh e`R;q gks xbZ\

2- D;k mDr nq?kZVuk ds le; mDr okgu pkyd dh ikl oS/k ,oa izHkkoh pkyu ykblsal Fkk\ ;fn gka rks izHkko\

3- D;k ;kphx.k dksbZ izfrdj izkIr djus ds vf/kdkjh gS] ;fn gka rks fdruk vkSj fdlls\**

The documents were filed by the parties in support of their case and oral evidence was led.

While deciding issue no. 1, the Tribunal held that first information report was lodged by Nasim Ahmad, P.W. 2, on 23.9.2007 at about 20.10 a.m. regarding accident in which Trilok Singh died. The police registered Case Crime No. 969 of 2007 against unknown driver. Smt. Babita who supports the averments made in the claim application was found not to be eye-witness on the spot and, therefore, her narration about accident was not relied upon. Sri Nasim Ahmad, P.W. 2, who was neighbour of deceased Trilok Singh, was also produced for evidence and on the basis of his evidence, the Tribunal came to the conclusion that Trilok Singh died due to grievous injuries caused in accident by truck no. UST 7555 which was being driven by its driver in negligent and rash manner.

So far as issue no. 2 is concerned, the Tribunal held that it is not the allegation of the insurance company that photostat copy of licence submitted by the driver is forged. On the basis of fitness certificate as well as insurance policy filed before the Tribunal, it was concluded that objections of the insurance company are baseless and that truck was fully covered by the term and conditions imposed in the insurance policy.

Issue no. 3 was decided by the Tribunal on the basis of the record that M.A.C.P. No. 865 of 2007 filed before M.A.C.T. at Meerut, was withdrawn on 14.7.2008 by Smt. Babita on the ground that she did not know about that case as some papers had got signed by her by misrepresentation and for the first time she came to know about that claim application having been filed at Meerut.

The Tribunal recorded its displeasure on the Regional Manager of the Insurance Company for not cooperating in the matter for the reason that after the death of Smt. Babita, there was no one to pursue the case on behalf of respondents no. 2 and 3 (minors), yet they oppose the matter to be prosecuted under the guardianship of Dilip Singh who was brother-in-law of the deceased.

Considering the fact that claimants would be fully satisfied by compensation of Rs.4,00,000/-, as they have claimed, then it will not have adverse effect on the Insurance Company which would only affect if compensation of amount more than Rs.4,00,000/- is awarded, for which the Regional Manager would also be affected. Considering the age of minors, the age of the deceased according to post mortem report, the Tribunal found that deceased was aged about 25 to 30 years, hence applied multiplier of 18. As regards monthly income of the deceased is concerned, taking him to be unskilled labourer, the Tribunal found that his monthly income would be about Rs.3000/-per month i.e. Rs.36,000/- per year. This view is fortified by the guidelines given by the Apex Court in the case of Smt. Sarla Verma Vs. D.T.C. and another 2009 (2) TAC 677. Taking 1/3rd of income for personal and living expenses of deceased, the loss of dependency of claimants has been calculated at Rs.24,000/- per year. Thus, total compensation by applying multiplier of 18 come to Rs.4,32,000/- to which respondents no. 2 and 3 were found entitled. Accordingly, the Tribunal awarded the aforesaid amount in addition to Rs.2000/- for funeral, and Rs.2,500/- for loss of property awarding total compensation of Rs.4,36,500/- to the respondents, by award dated 21.5.2012 which is impugned in the present appeal.

The contention of learned counsel for the appellant is that the Regional Manager of the Insurance Company could not have been saddled for payment of amount of Rs.4,36,500/- which was over and above to Rs.4,00,000/-, providing a right of recovery of aforesaid amount to the Insurance company from his salary on the ground that the Tribunal had no power to penalise the officer of the insurance company for not compromising the matter before Lok Adalat; that direction of the Tribunal for realization of part of the amount of compensation from the salary of the officer of the Insurance company is illegal and is liable to be set aside; that the Tribunal has wrongly determined the age of the deceased between 25-30 years as admitted by his wife Smt. Babita in her cross-examiantion; that amount of compensation is in excess of Rs.1,20,000/- as multiplier of 13 was applicable to the age of 37 years, whereas calculation was done on the basis of multiplier of 18 on wrongly determining the age between 25-30 years.

It is then argued that the Tribunal did not make any inquiry as to whether Dilip Singh has been appointed as guardian of minor claimants by the competent court in accordance with law as it is under obligation under Section 168 of the Motor Vehicles Act to make any inquiry in this regard. It is stated that on the application for impleadment as guardian filed by Dilip Singh on 5.12.2011, the counsel for the Insurance Company had made an endorsement to file objection, but time was not granted by the Tribunal and application of Dilip Singh was allowed on the same day i.e. 5.12.2011. It is vehemently urged that appellant also moved an application on 14.2.2012 before the Tribunal stating that no order was produced by Dilip Singh passed by any competent court under Guardianship Act, declaring him a guardian of the minors, but no order was passed on this application.

The next contention of learned counsel for the appellant regarding finding of negligence recorded by the Tribunal, is that the Tribunal has wrongly decided that only truck driver was on negligent, whereas from the evidence it is proved that the victim was also negligent and did not avoid accident. He has relied upon the site plan from which it appears that the victim was on the middle of the road and not on the side walk meant for public. According to him, P.W. 2 has made contradictory statement and was a 'concocted' witness, therefore, the Tribunal has committed error on believing his testimony. He has further emphasised upon photocopy of driving licence of Pravin Kumar, driver of the truck, which was containing an endorsement of rubber stamp that 'D.L. was not valid for NCT (National Capital Region) whereas accident took place within national capital territory, hence the Tribunal has erred in law in holding that licence of driver was valid, and that in spite of application moved on behalf of the Insurance Company stating therein that truck driver was not summoned even application dated 10.11.2010 for summoning the licensing authority for verification of the endorsement 'not valid in NCT' conditional order was passed by the Tribunal on condition of deposit of one way salary of the official. It is lastly argued that name of father of the victim was recorded as Malkit Singh in the first information report, but in the post mortem report father's name was recorded as Mahavir Singh, hence identity of victim was doubtful, but this fact has not been considered by the Tribunal. As such, the Tribunal has failed to conduct an enquiry on the relevant issue under Section 168 of the Motor Vehicle Act, even written argument filed by the appellant was not considered by the Tribunal, hence the impugned award is illegal, arbitrary and is liable to be set aside.

After hearing counsel for the appellant and perusal of record, we are of the opinion that the impugned award has in detail dealt with the aforesaid contention of learned counsel for the appellant.

Section 168 of the Motor Vehicle Act, 1988 reads thus:

"168. Award of the Claims Tribunal.- On receipt of an application for compensation made under section 166, the Claims Tribunal shall, after giving notice of the application to the insurer and after giving the parties (including the insurer) an opportunity of being heard, hold an inquiry into the claim or, as the case may be, each of the claims and, subject to the provisions of section 162 may make an award determining the amount of compensation which appears to it to be just and specifying the person or persons to whom compensation shall be paid and in making the award the Claims Tribunal shall specify the amount which shall be paid by the insurer or owner or driver of the vehicle involved in the accident or by all or any of them as the case may be:

Provided that where such application makes a claim for compensation under section 140 in respect of the death or permanent disablement of any person, such claim and any other claim (whether made in such application or otherwise) for compensation in respect of such death or permanent disablement shall be disposed of in accordance with the provisions of Chapter X.

(2) The Claims Tribunal shall arrange to deliver copies of the award to the parties concerned expeditiously and in any case within a period of fifteen days from the date of the award.

(3) When an award is made under this section, the person who is required to pay any amount in terms of such award shall, within thirty days of the date of announcing the award by the Claims Tribunal, deposit the entire amount awarded in such manner as the Claims Tribunal may direct."

It appears from the record that Smt. Babita Singh was not eye-witness of the accident. However, on the basis of evidence of Nasim Ahmad, P.W. 2, a finding of fact was recorded that Truck No. UST 7555 was being driven in negligent and rash manner by its driver and the truck was also not found fully covered by insurance policy. Considering the conduct of the Regional Manager, Insurance Company, the Tribunal has directed that any amount above to Rs.4,00,000/-, has to be paid by him. This part of the award pinched the Insurance company and the Insurance company preferred this appeal.

In our considered opinion, we find that the Regional Manager who has been saddled with over and above to Rs.4,00,000/- for payment to the claimant, was because of his bad conduct. A Court or a Tribunal, having all trappings of the Court can impose cost or reasonable compensation in peculiar facts and circumstances of the case upon a person for the reasons given by it. We find that reasons of the Tribunal in imposing Rs.36,500/-, part of compensation due to conduct of the Regional Manager, is not excessive, rather is reasonable. The Regional Manager, aggrieved by part payment of compensation of award, has not come in appeal instead Insurance company filed this appeal who has no locus to challenge that part of the award. The Tribunal has determined the age of the deceased between 25 to 29 years and has rightly used multiplier of 18 in computing the compensation of award.

As regards question of Dilip Singh being appointed as guardian of minor claimants is concerned, the Tribunal overruled the objections of the Insurance company and allowed the application filed by Dilip Singh on 5.12.2011 as the minor claimants were to be represented by a person in court proceedings after the death of their parents and as the minor children were living and being brought up by him and he was the brother-in-law of the deceased Trilok Singh to this fact before appointing him as guardian for proceeding the case. It is, therefore, wrong to say that the Tribunal had not applied its mind in the fact and circumstances of this case in which minor's interest was to be seen by the Tribunal itself. The Tribunal is having all the trappings of the Court, and is duty bound to watch the interest of the minors also, therefore, having allowed the application of Dilip Singh, did not commit any illegality in the facts and circumstances of this case.

The question of negligence has also been rightly determined by the Tribunal as the deceased was found to be on middle of road at the time of accident hence this contributory negligence is apparent on record.

In so far as validity of licence is concerned, it may be noted that once licence is issued, it means that driver is competent to drive the vehicle on the road. Therefore, there is no error committed by the Tribunal in holding that the driver had a valid and effective licence which has a different commotion. As regards difference in name of deceased is concerned, it was only inadvertent mistake.

For all the reasons, and particularly for the fact that the Regional Manager did not come forward to challenge the impugned award by which he has been directed to pay Rs.36,500/- from his own pocket over and above the amount of Rs. four lacs directed to be paid by New India Insurance Company which approached this Court, in our considered view the Insurance company has no locus standi to challenge the aforesaid part of impugned award made against the Regional Manager. The appellant has also failed to make out any case on merits for interference in the impugned award.

In view of the aforesaid, the appeal is dismissed. No order as to costs.

Dated: 23.8.2012

RCT/-