Allahabad High Court
New India Assurance Co. Ltd. Thru ... vs Smt. Savitri Singh & 5 Ors. on 7 September, 2012
Bench: Devi Prasad Singh, Vishnu Chandra Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Reserved on: 24.08.2012.
Delivered on: 07.09.2012.
A.F.R.
HIGH COURT OF JUDICATURE AT ALLAHABAD,
LUCKNOW BENCH, LUCKNOW
F.A.F.O. no. 588 of 2003
The New India Assurance Co. Ltd., Branch Kannauj,
through Branch Manager, presently through Deputy Manager,
Legal Cell. The New India Assurance Co. Ltd.,
94-M.G. Marg, Hazratganj, Lucknow
------Appellant/Insurer
-: Versus:-
1. Smt.Savitri Singh, widow of late Ashok Kumar Singh,
2. Km. Anju Singh, aged about 17 years, D/O late Ashok Kumar Singh,
3. Vineet Singh, aged about 12 years, S/O late Ashok Kumar Singh,
4. Km. Renu Singh, aged about 9 years, D/O late Ashok Kumar Singh,
5. Km. Khushu Singh, aged about 6 years, D/O late Ashok Kumar Singh,
All the resident of village & Post Kenaura, Distt..- Sultanpur.
6. Rasheed Ahmed, S/O Hazi Noor Mohammed,
R/O village Kakrahi Bazar, Kasba Dibiyapur, District Oraiyya.
----------- Respondents / Opposite parties.
Petitioner's Counsel :- Anand Mohan
Respondents' Counsel :- S.N. Srivastava,Mohammad Saeed-Ii
Hon'ble Devi Prasad Singh,J.
Hon'ble Visnhu Chandra Gupta,J.
(Delivered by Hon'ble Vishnu Chandra Gupta)
JUDGMENT
(1) Heard learned counsel for the parties and perused the lower court record.
(2) This appeal is directed against an award passed by the Motor Accident Claims Tribunal/Special Judge, E.C.Act, Unnao (hereinafter referred to as 'Tribunal') in Claim Petition No. 15 of 2001 (Smt. Savitri Singh and others Vs. Rasheed Ahmad and another).
(3) The brief facts of the case in short, are that on 24.9.2000 deceased Ashok Kumar Singh, being driver of Deputy Director Agriculture (Prasar), Unnao was coming on the government Jeep having registration no. U.M.R. 7008 from Unnao to Lucknow. At 7.20 a.m. on Lucknow-Kanpur Highway near Mongali Water Park within the police station Ajgain, District Unnao a bus having registration no. U.P. 76/9181 driven by its driver in rash and negligent manner hit the Jeep, resulting into severe injuries to Ashok Kumar Singh, who succumbed to injuries in District Hospital,Unnao.
(4) The claim petition was filed by his wife (Smt. Savitri Singh) three daughters (Km. Anju Singh, Km. Renu Singh and Km. Khusbu Singh) and one minor son (Vineet Singh) claiming compensation of Rs.10,57,000/- under section 166 of Motor vehicles Act, 1988 (Hereinafter referred to as the M.V. Act).
(5) Claim petitioners stated that at the time of death, Ashok Kumar Singh aged about 34 years was getting salary of Rs. 4192/- per month, supported by the certificates issued by the competent authority. The claim petition was filed against the owner and insurer of the bus. The owner Shri Raseed Ahmad was initially arrayed a party to the claim petition, who contested the case by filing the written statement alleging therein that the bus was stationed at the time of accident on account of mechanical disorder(Broken Kamanies). Actually, it was the driver of the Jeep, who was driving the vehicle rashly and negligently hit the stationed bus. Therefore, this is the case of sole negligence of the Jeep driver, as such, the claimants would not be entitled for compensation. In the alternative it was pleaded that it is a case of contributory negligence. Hence the petition is bad for nonjoinder of necessary parties, i.e.,owner and insurer of the jeep. It was further pleaded that the driver of the bus Harnam Singh was having a valid and effective driving licence to drive the bus on the date of accident. It was further pleaded that the vehicle was also insured with the New India Insurance Company Ltd., Branch Kannauj, District Kannauj under the cover note duly issued after receiving the payment of premium in cash of Rs. 12,268 /- . The cover note number was 554871 and the vehicle was insured from 31.8.2000 to 30.8.2001 , therefore, if any liability occurs to make the payment of compensation to the claim petitioners, the insurance company is bound to pay the same.
(6) After filing of the written statement by the owner, the respondents/claim petitioners impleaded the New India Insurance Company Ltd., Branch Kannauj through its Branch Manager as O.P. No.2.
(7) The Insurer/O.P. no.2 also filed written statement pleading therein that the owner has not informed about the accident to the Insurance Company. It was further pleaded that the accident occurred due to rash and negligent driving of jeep by the deceased. At least, there was contributory negligence of the deceased in the alleged accident. It was further pleaded in para-24 of written statement that unless the full premium in advance is paid under the policy, no liability would be fastened on the respondents in view of Section 64VB the Insurance Act. The driver of the vehicle in question was not having a valid and effective driving licence and therefore, on account of breach of policy, the insurance company is not liable to pay the compensation.
(8) On the basis of the pleadings, issues were framed by the tribunal. The first issue relates to the alleged accident and death of Ashok Kumar Singh due to rash and negligence driving of the bus driver. Second issue relates to the insurance of the bus with respondent- appellant in this case. Third issue relates to the validity of the driving licence of the bus driver. Fourth issue was in relation to non joinder of registered owner of the Jeep and insurance company. Fifth issue is in relation to quantum, liability to pay the compensation if any,and the entitlement for the same.
(9) The parties adduced evidence in support of their claims. However, the insurance company did not adduce any oral or documentary evidence. Appellant No.1 Smt. Savitri Singh examined herself as P.W. 1 and proved the death of her husband in the accident. She also filed the documents relating to salary of deceased, postmortem of deceased, site plan prepared by the police and the High School certificate wherein the age of the deceased mentioned as 12.7.1966. Eye witness Bhagauti Prasad was examined as P.W. 2.The claim petitioners filed a copy of the First Information Report lodged by one police constable Sri Ravi Shanker Dwivedi just after the accident.
(10) Driver of bus Harnam Singh was also examined as D.W.1. He deposed that the bus was standing on the left side of the road on account of mechanical defect. The Jeep hit the standing bus . He proved the validity of his driving licence and filed the same before the tribunal. The owner filed Registration Certificate of the vehicle , fitness, original cover note of the bus, photostat copy of the driving licence of Harnam Singh and a letter addressed to S.O., police station Ajgain, Unnao given by driver Harnam Singh on 27.9.2000.
(11) After considering the evidence on record, the tribunal decided different issues.
(12) While deciding issue no.1 the tribunal came to the conclusion that the bus was being driven by its driver in rash and negligent manner and hit the Jeep, due to which Ashok Kumar Singh received serious injuries, later on succumbed to those injuries.
(13) While deciding issue no. 2, the tribunal finds that the vehicle was duly insured with the Appellant-Insurance Company on the date of accident under the cover note made available on record by the owner of the bus and for want of any evidence contrary to it.
(14) While deciding issue no. 3 the tribunal has categorically held that the bus driver was having a valid and effective driving licence and no breach has been established by the insurance company in terms of the policy of the insurance.
(15) While deciding issue no. 4 it was held that the accident was occurred due to sole negligence of the driver of the bus, hence the owner of the jeep and its insurance company were not the necessary parties in the claim petition and the claim petition was not bad for non -joinder of those parties.
(16) Lastly, Under issue no. 5 the tribunal after considering the salary of the deceased, deducting 1/3rd amount of his own expenses and applying the multiplier of 17 awarded the compensation of Rs. 5,70,180/-. Beside this, Rs. 2000 for funeral and Rs. 5000/- as consortium to the wife of the deceased was awarded. Thus, the tribunal awarded total compensation of Rs. 5,77,180/-.
(17) Being aggrieved by the said award the Appellant-Insurance Company filed the present appeal.
(18) The appeal has been contested on two points:-
Firstly; in this case the premium was paid to the insurance company, through cheque which was dis-honored and policy was cancelled by the Insurance Company.
Secondly; that this is the case of contributory negligence because there is head on collusion between two vehicles.
(19) At the very outset, it is necessary to mention here that Insurance Company did not adduce any oral or documentary evidence and is fully relying upon the oral and documentary evidence adduced by the driver and owner of the vehicle.
Re: First Point
(20) So far as this plea of dis-honour of cheque of premium is concerned has not been specifically taken or raised before the tribunal by the Appellant. No issue has been framed by the tribunal. Moreover, burden to prove it rest on the shoulders of the Appellant-Insurance Company. It has not been proved by any oral or documentary evidence adduced by the Appellant or evidence available on record of the tribunal or even of this appeal. No specific plea in this regard has been taken by the Appellant-Insurance Company in the memo of appeal.
(21) This Court in FAFO NO.756 of 2012, Oriental Insurance Company Ltd. Vs. Ram Ratan and others, decided 0n 24.08.2012 has discussed the importance of pleading in detail
(22) It has been categorically pleaded by the owner of the vehicle that the premium was paid in cash. The pleadings of owner of vehicle before tribunal had not been controverted. Therefore, in absence of any evidence adduced by the Appellant-Insurance Company, we do not find any substance in the submission made by the learned counsel for the appellant on this issue.
Re: Second Point
(23) In order to prove that this case was based on contributory negligence reliance has been placed on the evidence of D.W.1. Relying upon the documents available on record, and on the basis of the FIR which has been lodged by an independent person, a police constable and site plan prepared by the Investing Officer after the accident occurred and on the basis of evidence adduced by claimants, the tribunal passed the impugned order holding therein that the accident was occurred due to sole negligence of bus driver and disbelieved the evidence of D.W. 1, the driver of the bus.
(24) From perusal of the contents of the FIR it appears that the driver of the bus , in rash and negligent manner, came on wrong side and hit the jeep. This position has also been shown in the site plan prepared on spot by the I.O. The driver of the bus has stated in his statement that the bus was stationed on the road side on account of mechanical failure. The evidence to this effect has not been believed by the tribunal.
(25) The Apex Court in National Insurance Co. Ltd. v. Rattani, AIR 2009 SC 1499 has held in regard to utility of FIR in deciding the claims before Tribunal that F.I.R. though not per se admissible in evidence can be looked into. The relevant paragraphs 6 and 7 are quoted below :-
"6. As a reference has been made to the first information report bearing No. 98 dated 16th May, 2002, which was lodged against the driver, first respondent in the claim petition, we may also notice the relevant portion of the contents thereof from the award of the Tribunal :-
"...He referred to the contents of FIR Ex. P2 wherein it is mentioned that all the members of marriage party were the occupants of the four wheeler and there was no mention that dowry articles or some furniture etc. were loaded in the vehicle."
7. We are not oblivious of the fact that ordinarily an allegation made in the first information would not be admissible in evidence per se but as the allegation made in the first information report had been made a part of the claim petition, there is no doubt whatsoever that the Tribunal and consequently the appellate courts would be entitled to look into the same."
(26) In the present case FIR contains that the bus came in very rashly and negligently and hit the jeep. Similar pleadings were also made in the claim petition. The evidence adduced by the claimant was found in consonance of pleadings and contents of FIR lodged in this matter, the certified copy of the same is available on record.The tribunal after considering all the material on record the finding that this accident was occurred due to sole negligence of the bus driver.
(27) The Supreme Court in Machindranath Kernath Kasar v. D. S. Mylarappa, AIR 2008 SUPREME COURT 2545 almost in similar facts and circumstances ruled that merely because there was head on collision does not necessarily means that driver of both the vehicle were negligent.
(28) In Usha Rajkhowa v. M/s. Paramount Industries,AIR 2009 SUPREME COURT 1951 the Apex Court after considering the evidence on record held that if there is evidence to establish the negligence of one of the two vehicle involved in the accident than even in case of head on collision of two vehicle contributory negligence could not be presumed of drivers of both the vehicles as is evident from the following para9,10 and 11 of the judgment, quoted below :-
".9. We must say that the criticism by the Learned Counsel for the appellants that the High Court, as well as, the Tribunal have not applied their mind to the matter, is quite justified. We, ourselves, have seen the evidence of PW-3. In the Examination-in-Chief, the witness very specifically asserted that the truck was coming from the opposite direction in a high speed from Jorhat side and it hit the Car, as a result of which Shri Jadhav Rajkhowa and Shri Dhiren Hazarika died, while he had received injuries. He was undoubtedly right in saying that he could not say clearly as to which vehicle was at fault, however, he was quick to deny the suggestion thrown at him that the accident took place because of the fault of Maruti Car. He has very specifically denied that suggestion in the following words : -
"It is not a fact that accident took place because of fault of Maruti Car."
As if all this was not sufficient, he then in his Cross-Examination at the instance of Oriental Insurance Company Ltd., asserted that Maruti Car was going on its own side (when the truck hit the Maruti Car). Now, the following factors are clear from this evidence :-
1. The truck was coming in high speed.
2. It was the truck, which hit the Car and not vice versa.
3. The Maruti Car was going on its own side.
It seems that the Tribunal, as well as, the High Court had chosen to go by the inference drawn by PW-3 or at any rate, his inability to fix the liability. It is not the judgment of the witness, which is decisive in the matter. In fact, the Tribunal, as well as, the High Court should have framed their own opinion, instead of going by the judgment or as the case may be, inference by PW- 3.
Under such circumstances, applying the doctrine of res ipsa loquitur, it is clear that it was because of the negligence on the part of the truck that the accident took place. After all the hit given by the truck was so powerful that two persons in the Car died on the spot, while the third escaped with serious injuries. When we see the award of the Tribunal, as also the appellate judgment, they are astonishingly silent on these aspects. We are, therefore, convinced that there was no question of any contributory negligence on the part of the driver of the Maruti Car and it was solely because of the negligence on the part of the truck that the accident took place.
10. The question of contributory negligence on the part of the driver in case of collision was considered by this Court in Pramodkumar Rasikbhai Jhaveri v. Karmasey Kunvargi Tak and Ors., reported in 2002 (6) SCC 455. That was also a case of collision in between a Car and a truck. It was observed in Para 8:-
"The question of contributory negligence arises when there has been some act or omission on the claimant's part, which has materially contributed to the damage caused, and is of such a nature that it may properly be described as 'negligence'. Negligence ordinarily means breach of a legal duty to care, but when used in the expression "contributory negligence", it does not mean breach of any duty. It only means the failure by a person to use reasonable care for the safety of either himself or his property, so that he becomes blameworthy in part as an "author of his own wrong."
This Court further relied on an observation of High Court of Australia in Astley v. Austrust Ltd., reported in 1999 (73) ALJR 403, to the following effect :-
"A finding of contributory negligence turns on a factual investigation whether the plaintiff contributed to his or her own loss by failing to take reasonable care of his or her person or property. What is reasonable care depends on the circumstances of the case. In many cases, it may be proper for a plaintiff to rely on the defendant to perform its duty. But there is no absolute rule. The duties and responsibilities of the defendant are a variable factor in determining whether contributory negligence exists and, if so, to what degree. In some cases, the nature of the duty owed may exculpate the plaintiff from a claim of contributory negligence; in other cases, the nature of the duty may reduce the plaintiffs share of responsibility for the damage suffered; and in yet other cases, the nature of the duty may not prevent a finding that the plaintiff failed to take reasonable care for the safety of his or her person or property. Contributory negligence focuses on the conduct of the plaintiff. The duty owed by the defendant, although relevant, is one only of many factors that must be weighed in determining whether the plaintiff has so conducted itself that it failed to take reasonable care for the safety of its person or property."
Keeping these principles in mind, we find that there was absolutely no evidence to suggest that there was any failure on the part of the Car driver to take any particular care or that he had breached his duty in any manner. Such breach on his part had to be proved by Insurance Company as it was its burden and for that, the Panchanama of the spot, showing tyre marks caused by brakes, the Panchanama of the damaged car and the truck could have been brought on record. The Insurance Company has obviously failed to discharge its burden. We, therefore, respectfully follow the above mentioned judgment.
11. Under the circumstances, there would be no question of restricting the claim to the 50% of the assessed amount of compensation."
(29) In view of the above ,we find no perversity or illegality in recording the aforesaid findings. Therefore, we do not find any substance in the arguments of the learned counsel for the appellant on this count too.
(30) No other points has been pressed before this court by the learned counsel for the appellant.
(31) In New India Assurance Co. Ltd. v. Kiran Singh, AIR 2004 SUPREME COURT 3884, the role of Insurance Companies while contesting the claims has been discussed and their Lordship held that the insurance companies are the trustee of the public and Keeper of the public coffer.
"6. Insurance is a covenant of good faith, where both parties are convenanted to abide by the terms and conditions of the policy. In the premises aforesaid, it is clear that the company has made a deliberate attempt to escape the liability by introducing a copy of the policy other than the insured. Often, the terms and conditions are being respected more in breach than observance. Insurance company must bear in mind that they are the trustee of the public. Keeper of the public coffer. Often, even genuine claims are being hotly contested in a routine manner by dragging the parties to Courts, wasting enormous time and money for the claimants to get their claims settled. The Act like Motor Vehicles Act being a beneficial legislation aimed at quick redressal of the victims of accident arising out of the use of motor vehicles, the attitude routinely adopted by the Insurance Company would render the object of the Act frustrated. If such instances are brought to the Court, the Court would be obliged to dismiss the appeal with heavy costs, apart from deprecating such practices."
(32) In this case to the Appellant-Insurance Company very casual and routine manner contested the claim knowing it well that neither there are pleadings nor evidence behind there ground of attack in this appeal and dragged the Claimants up to this Court on unfounded premises for almost 9 years. Therefore while dismissing this appeal we find it to be fit case where heavy cost must be imposed against the Appellant Company
(33) The appeal sans merit and is dismissed with costs which is quantified at Rs. 20000/- for contesting the appeal on frivolous ground. The same shall be deposited by the Appellant Company within a month from the date of this order in this court, failing which the same shall be recovered as arrears of land revenue through Collector. Out of this amount of costs a sum of Rs. 10000/- shall be paid to Mediation Center of this Court at Lucknow. The remaining cost shall be payable to respondents- claimants.
(34) The appellant-Insurance company is directed to deposit the entire compensation amount within one month from the date of this order before the Tribunal after adjusting the amount already in deposit made by the appellant-Insurance Company. The statutory amount deposited with this court or any other amount deposited with this court be remitted forthwith to the tribunal but not later than one month from today. The tribunal will disburse the amount of compensation to the claimants in terms of the award.
The Registrar of this Court to take follow up action.
(Hon'ble Vishnu Chandra Gupta J.) (Hon'ble Devi Prasad Singh J.)
Dated: 7th, September 2012
GSY
