National Insurance Co. Ltd. vs Smt. Farzana Khatoon And 8 Ors.
2013 Latest Caselaw 2442 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 35
 
Case :- FIRST APPEAL FROM ORDER No. - 1404 of 2013
 
Appellant :- National Insurance Co. Ltd.
 
Respondent :- Smt. Farzana Khatoon And 8 Ors.
 
Counsel for Appellant :- Arvind Kumar
 

 
Hon'ble Rakesh Tiwari,J.

Hon'ble Karuna Nand Bajpayee,J.

(Delivered by Hon'ble Rakesh Tiwari,J.)

Heard Sri Arvind Kumar, learned counsel for the appellans and perused the impugned award.

The appeal has been preferred by the National Insurance Co. Ltd. challenging the validity and correctness of order datd 14.2.2013 passed by Special Judge (E.C.Act) Rampur/ Motor Accident Claims Tribunal in M.A.C.P. No. 184 of 2010. By the aforesaid award a compensation of Rs.19,72,703/- with 6% interest has been awarded to the claimants from the date of filing of the claim petition till its actual payment.

Briefly stated the facts of the case are that on 17.5.2010, the ill fated day, Nawab Jaan met with an accident at about 8.00 a.m. when he was going to village Khanpur Mjra Harpalnagar Block Mundapandey on government duty. He was pillion rider on motorcycle No. U.P.-21S/1837 which was driven by Ahok Kumar Pal when the duo reached near Mankara turning near block Mundapandey, an Alto Maruti Car No. H.R.26/A.R.-4953 driven in rash and negligent manner came from the opposite direction and dashed into the side of the motorcycle causing grievous injuries to Nawab Jaan. He died in the way of hospital. The F.I.R. of this incident was lodged in the police station Mundapandey, district Moradabad where a case crime no. 279 of 2010, under Sections 279, 304-A, 427 and 338 I.P.C. was registered.

Nawab Jaan (Since deceased) was aged about 48 years at the time of accident. He was regular goverment employee in Irrigation Division Moradabad at proximate salary of 20,000/- per month. He left behind his wife Smt. Farzana Khatoon and claimant respondent nos. 2 to 7, sons and daughters.

A claim petition No.184 of 2010 was preferred by the legal representatives of late Nawab Jaan for compensation to the tune of Rs.47,50,000/- + 10% interest per annum and also interim relief of Rs. 50,000/- under Section 140 of the Motor Vehicle Act, 1988. The claim was contested by the appellant-:- National Insurance Co. Ltd. by filing written statement. The written statement has been divided into four heads.

1. Preliminary facts.

2. Statutory defence.

3 General defence and

4. Reply on merits.

Under the first head of Preliminary facts the appellant has denied the allegations made in the claim petition and as stated that all the allegations made therein are denied accepting those which are specifically admit hereunder in the written statement . Under the second head of Statutory defence, the appellant has raised the following five objections:

'II. Statutory Defences:

5. The person driving the vehicle has "no relation in force" as on the date of accident to drive the vehicle.

6. The driver of the vehicle has no valid and effective driving licence at the time accident and the respondent No.2 knowing the same wilfully handed the vehicle to the driver.

7. The driver of the vehicle was under the influence of alcohol at the time of accident, thereby violated the terms and condition of the policy.

8. The deceased Nawab Jaan was solely negligent in causing the said accident and thereby totally contributed in causing the said accident. The driver of the car said to be involved in the said accident tried his level best to avoid the accident till the last moment, hence too the answering respondent is not liable for any liability.

9. That the driver of the alleged car No. HR 26 AR 4953 and the owner, driver and insurer of the Motor Cycle No. UP 21 S 1837 are necessary and proper parties to this petition and thus the same is barred because of non joinder of necessary parties and deserves dismissal at this score alone.'

Thereafter some objection have been taken under the heading of "general head" under this head the duties of the insured have been enumerated. Where the insurance company has sought protection under Sections 134 (C), and 158 (6), 147 and 149 of the Motor Vehicle Act, as well as under the Rules framed by the State of Uttar Pradesh under the said Act. In the last part of the written statement i.e. No. IV reply on merits has been given to the claimant/applicants, the relevant reply in paragraphs 16 and 21 reads thus:

'IV. Reply on Merits

16.That the answering respondent does not admit and denies the allegation that the car bearing No.HR 26 AR 4953 was involved in the above alleged accident and it was driven in a rash and negligent manner and the petitioners are put to strict proof of the same.

21. This respondent specifically denied that the deceased received any injuries in the said accident and consequently died. The petitioners are put to strict proof of the same with documentary evidence. The respondents specifically denies that the petitioner .......................... amount as compensation for the death,

Apart from above leave was also sought from the court for taking of defence available to the Insurer under Section 170 of the Motor Vehicle Act,1988 and to contested the case on all grounds apart from those specified under Section 149 (2) of the Act. Leave was also sought for filing an additional written statement or amend this written statement at a later stage for bringing better particulars regarding the said accident. Importantly in paragraph no.24 the appellant averred thus:

'24. That without prejudice to the above contentions, this respondent submits that the amount of Rs.47,50,000/- with interest at the rate of 12% claimed by the petitioner in the petition is more excessive, flimsy exorbitant and highly exaggerated'

Driver of the offending car on behalf of the defendant deposed before the Tribunal that on 17.5.2011 he has been going towards Moradabad at about 8.00 a.m. in his car No.H.R.26/A.R.-4953 when he reached at Mundapandey just before police Station, "Mankara Tiraha" he saw a motorcycle and two person lying on the side of the road. He stopped the car and saw that the motorcycle had met with accident by some other vehicle which had earlier passed the spot. While he was helping these persons, the police and some pedestrians came who accused him saying that the accident has been caused by his Maruti car. The car was taken into custody by the police and he after arrest was taken police station where he was put in lock up. It was also sated that he had valid and effective driving licence. The car belonged to one Sri Parwat Kumar Panda and was being driven by Mohd. Ajaz Salman. It was ensured by Insurance Company. He also stated that he had been falsely implicated by crowed near by the place of incident and that charge sheet had been filed against him. In the cross examination he stated that no accident has taken place from his car as such no insurance has been claimed by the Insurance Company, that had no role in the said accident and was not driving car in rash and negligent manner rather.

The learned counsel for the appellant at the outset has placed before us the statement of Mohd. Ajaz Salman, driver of the car and site plan appended as annexure-4 to this appeal. On the basis of those, he would argue that the car in question was not involved in the said accident, hence there was no question of rash and negligent driving by the driver of the Alto car. He would also argue that since the accident was a head on collision between the two vehicles, therefore, the deceased was also liable for contributory negligence on his part.

With regard to his contention of negligent and rash driving of the driver, the counsel for the appellant has referred the finding recorded by the Tribunal on issue no.4 which read thus:

fuLrkj.k okn fcUnq la0&4

vf/kdj.k dks ;g ns[kuk gS fd D;k nq?kZVuk e`rd uokc tku dh iw.kZ ykijokgh ds ifj.kkLo:i ;k ;ksxnkbZ mis{kk ds dkj.k gqbZ gSA bl lEcU/k esa chek dEiuh dh vksj ls ;g rdZ fn;k x;k gS fd ;g ;ksxnkbZ mis{kk ds ifj.kke Lo:i ;g nq?kZVuk dkfjr gqbZ gS Fkh vkSj lkeus ls VDdj gksuk lk{kh }kjk crk;k x;k gS ds vk/kkj ij chek dEiuh dk mRrjnkf;Ro ek= 50 izfr'kr rd gh curk gS] ftl eksVj lkbZfdy dk fify;u jkbZMj ds :i esa Fkk ml okgu Lokeh o chek dEiuh ls izfrdj izkIr dj ldrk gSA Mh0MCyw0&1 ,oa p{kqn'khZ lk{kh ih0MCyw0&2 ds vuqlkj ,slk dksbZ lk{; ugh vk;k gS fd ;ksxnkbZ mis{kk ds ifj.kkeLo:i ;g nq?kZVuk dkfjr gqbZ gksA D;ksafd chek dEiuh dh vksj ls dksbZ lk{; bl lEcU/k esa ugh fn;k x;k gS] cfYd pkyd }kjk ubZ dgkuh crk;h x;h gS fd og pqVSy dks ns[kus ds fy, lgk;rkFkZ gsrq :dk Fkk vkSj mlds okgu dks nq?kZVuk esa 'kkfey dj fn;k x;kA bl izdkj ;ksxnkbZ mis{kk dk dksbZ lk{; u gksus ds dkj.k okn fcUnq la0&4 foi{khx.k ds fo:) fuLrkfjr fd;k tkrk gSA

He lastly submits that the Tribunal has committed an error by deducting 1/5 of the income towards living and personal expenses ignoring of Sri Nawab Jaan (since deceased) as claimant nos. 2,3 and 4 are major sons and daughters of the deceased. Therefore, only 1/3 deduction ought to have been made from the assessed income for the purpose of computation.

After hearing learned counsels and perusal of record we find that the contention of the learned counsel for the appellant is sans merit. Admittedly no technical report of the car was submitted by the appellant company before the Tribunal from which it could have been ascertained as to whether Alto car in question did in fact caused the accident head-on in which Nawab Jaan succumbed to the injuries. Therefore, the statement of the driver of the vehicle before the Tribunal that alleged accident did not occurred from and he has been falsely implicated does not appear to be correct. The Tribunal has rightly come to the conclusion and rightly so that no person at the place of accident had any motive or enmity with him to falsely implicate him.

The site plan shows that there are various tea stalls and shops on either side of the road where the said accident took place and that Ashok kumar Pal who was driving the motorcycle was on his left side of the road. He had tried to avoid the accident by going to his extreme left but the Alto car foresaid involved in the accident had hit the motorcycle from front at place "A" by going on the wrong side of the road. The Tribunal on issue no.4 regarding contributory negligence has found the D.W.1 produced by the appellant had not stated anything about contributory negligence. Rather a new story had been unfolded that the car in question was stopped to help the injured who was lying on side of the road after being hit by some other vehicle. Admittedly, also in this case the motorcycle was not driven by Nawab Jaan who was pillion driver of the motorcycle. therefore,the claim Tribunal has rightly held that the alleged accident occurred due to sole negligence of the driver of the Alto car. It is apparent from the site plan of the said accident that it neither had occurred in the middle of the road nor it was head on collision. It rather come on record that the car had hit near the back wheel of the motorcycle by coming on the wrong side which also supported the finding of the Tribunal that it was not head on collision and the driver of the motorcycle Sri Ashok Kumar Pal had tried his level best to avoid the accident..

The last contention of the learned counsel for the appellant that 1/3 should have been deducted towards the personal and living expenses instead of 1/5 as has no force. We are constraint to say that this plea had not been taken by the appellant company in its written statement though number of dependants had been shown in the claim application, even it was not argued before the Tribunal.

In fact the defence of the appellant in his written statement is merely of general nature in which plea has been taken for the claimant to prove their case. The Tribunal, on the basis of evidence and the facts and circumstances of the case has recorded finding of fact that the claimant have succeeded to improve his case.

From the discussion in detail aforesaid, we have no hesitation in holding that the appellant has miserably failed to even dent the findings record by the Tribunal in the impugned award. We also find that there is no doubt about the manner in which the accident had taken place. No illegality or infirmity in the award could be shown by the learned counsel for the appellant and as a result, the appeal fails and is dismissed. No order as to costs.

Order Date :- 21.5.2013

Rkb