Oriental Insurance Company ... vs Phool Mati
2014 Latest Caselaw 6682 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 17							AFR
 

 
FIRST APPEAL FROM ORDER No.438 of 2009
 
The Oriental Insurance Company Limited 
 
through its Regional Manager, 
 
Regional Office at 43, Hazratganj, Lucknow
 

 
			Versus 
 
1.	Phool Mati wife of Jhurra Pal
 
	Resident of Village Gadriyan Purwa
 
	H/o Kataha, P.S. Kotwali Dehat, District Bahraich
 
2. 	Regional Manager, UPSRTC Tehri Kothi, 
 
	Pariwahan Bhawan, Lucknow, U.P.
 
3. 	Harikesh Kumar Yadav son of Bhagwan Deen Yadav
 
	Resident of 8/48, Indira Nagar, P.S. Gazipur, 
 
	District Lucknow. 
 
4. 	Driver Ram Vilas son of Sri Raghuveer 
 
	Resident of 215/04, Kaiserbagh, P.S. Kaierbagh, 
 
	District Lucknow. 
 

 
Counsel for Appellant :- Sri Vashudeo Mishra
 
Counsel for Respondent :-Sri Tahir Abbas Rizvi & Sri Sarvesh K. Saxena
 

 
Hon'ble Vishnu Chandra Gupta,J.

Heard Sri Vashudeo Mishra, learned counsel for the appellant, Sri Tahir Abbas Rizvi, learned counsel for the Uttar Pradesh State Road Transport Corporation (for short 'UPSRTC') and Sri Sarvesh K. Saxena, learned counsel for the respondent no.1-claimant. None appears on behalf of respondents no.3 and 4, who are owner and driver of the vehicle respectively. I have also gone through the record of this appeal as well as of the Tribunal.

This appeal under Section 173 of the Motor Vehicle Act, 1988 (hereinafter referred to as 'the M.V. Act') has been filed against the impugned judgment and award dated 13.01.2009 passed in MACT No.222/70/2004 decided by learned Additional District Judge/ Fast Track Court No.2/ Motor Accident Claims Tribunal, Bahraich (hereinafter referred to as 'the Tribunal') whereby the Tribunal awarded compensation to the tune of Rs.1,62,000/- with pendente lite and future interest at the rate of 6% per annum in favour of the claimant respondent.

The brief facts for deciding this first appeal from order are that on 18.11.2004, when the deceased Sita Ram was coming to his house from Maraucha Mod along with his father on bicycle, a bus having Registration No.UP 32-Z 3901 came from Lucknow side in a rash and negligence manner driven by its driver, hit the by-cycle from its back and run away from the spot. Consequently, Sita Ram, who was cycling, sustained injuries and succumbed to the injuries on the spot. The matter was reported to the police of Police Station Phakharpur on the same day. The deceased, who was unmarried, said to have earned Rs.2,000/- per month being casual labourer. Initially, the claim petition was filed by the father of the deceased but after his death, the mother the deceased was substituted. The claim petition was filed under Section 163-A of the M.V. Act. The bus in question was being plied under an agreement between UPSRTC and the owner of the vehicle. The claim petition was contested by the appellant Oriental Insurance Company and UPSRTC. The Tribunal after considering the evidence adduced by the parties decided the claim petition holding therein that the deceased died in the motor accident occurred on 18.11.2014. However, the Tribunal also decided the question of negligence on the part of the driver of the vehicle though it was not warranted at all in a claim under Section 163-A. The plea of non joinder of parties were negativated by the Tribunal. In Issue No.3, it was found that the offending vehicle was duly insured with the appellant Oriental Insurance Company on the date of accident. While deciding Issue No.6, the Tribunal after determining the notional income of the deceased at the rate of Rs.15,000/- per annum, deducted 1/3rd amount towards personal expenses, out of the aforesaid amount and decided the dependency at the rate of Rs.10,000/- per annum and applied multiplier of 16 considering the age of the deceased as 15-16 years and added Rs.2000/- towards funeral expenses awarded a total sum of Rs.1,62,000/- as compensation.

The impugned judgment and award has been challenged by the Insurance Company on two grounds:

(i). that; the bus was not having any permit and fitness at the time of accident, therefore, the terms of insurance policy has been violated and on this score, the Oriental Insurance company is liable to be exonerated from making any payment under the award.

(ii). that; in this case, the deceased was bachelor at the time of accident and in view of the judgment rendered by the Apex court in Smt. Sarla Verma and others Vs. Delhi Transport Corporation and another; 2009 (2) TAC 677 (SC), the deduction ought to have been made to the extent of one-half (50%).

Point No.1

At page 12 of the impugned award, it has been categorically mentioned that tax was paid up to 31.03.2007 but fitness of the vehicle on the date of accident was not there though after the accident the fitness was done from 20.11.2004 to 19.11.2005. The Tribunal is also observed that on the date of accident, all other relevant documents relating to vehicle were valid and effective. The Oriental Insurance Company-appellant has submitted that in the absence of fitness, the Oriental Insurance Company could not be held responsible to pay compensation.

The Tribunal categorically held that the Oriental Insurance Company failed to establish any breach of the terms of policy. Moreover, the policy document has not been produced. Therefore, the Oriental Insurance Company cannot be exonerated from its liability to pay the compensation. It is also important to mention here that the policy documents have also not been filed in this appeal to establish the alleged breach.

In the case of Uttar Pradesh State Road Transport Corporation Vs. Kulsum and others; 2011 (29) LCD 1648, the Apex Court ruled that in the cases, where buses are plying under an agreement of contract executed in between the Corporation and the owner of the vehicle and the owner of the vehicle obtained a policy from the Insurance Company, the Insurance Company cannot be exonerated from its liability to pay compensation to a third party unless the Insurance Company proves the breach of terms of the policy. Admittedly in this case, the Oriental Insurance Company has failed to establish any breach of terms of the policy. Hence, on this score, the insurance company cannot be exonerated from its liability to pay the compensation to a third party.

It has been contended by learned counsel for the appellant that in view of the section 4-A of the M.V. Act, if the fitness of vehicle is not established, the permit shall deemed to have been suspended but here, it is not a case of the appellant that there was no permit at all. It is well settled principle of law that if Insurance Company pleaded a breach of policy, it is incumbent upon the Insurance Company to establish it. Insurance Company cannot take advantage of absence of the owner or non production of the document by the owner. Hence, I do not find any substance in the argument of the Insurance Company. Consequently, on this score, the Insurance Company cannot be exonerated from making the payment of compensation.

Point No.2

So far as the second ground relating to deduction towards the personal expenses of the deceased is concerned, the claim petition was filed under Section 163-A of the M.V. Act and the same has been disposed of by the Tribunal on the basis of structured formula given in the Second Scheduled of the M.V. Act. The Tribunal has determined the minimum income in terms of the Second Scheduled and applied the statutory mandate for deducting 1/3rd amount towards personal expenses of the deceased and determined the compensation by applying the appropriate multiplier for which the Insurance Company has no objection.

In support of his contention, learned counsel for the claimant/respondent has relied upon the judgment of the Apex Court in the case of Smt. Sarla Verma (Supra). In paragraph 18 of the said judgment, the Apex Court has categorically observed that the principle relating to determination of quantum of compensation and liability to pay the same are different for claims made under Section 163-A and under Section 166 of the M.V. Act. The claim petition under Section 163-A ought to have been decided in terms of the Second Scheduled. The Second Scheduled cannot be applied in claim petitions filed under Section 166 of M.V. Act. The principle laid down in judgment of Smt. Sarla Verma's case (Supra) with regard to deduction from income of deceased relates to the claim petitions filed under Section 166 and these principles are not applicable in claim petition under Section 163-A, therefore, in view of the provisions contained in Second Scheduled of the M.V. Act, which specifically provides the deduction of 1/3rd as pocket expenses, shall be applied in the present the case. Therefore, I do not find any illegality or irregularity in the impugned award by which deduction of 1/3rd amount towards the pocket expenses has been made.

No other point has been raised or pressed before this Court by either of the parties.

The appeal sans merit and is accordingly dismissed.

Office is directed that if the amount deposited in this Court has not yet been remitted to the Tribunal, the same shall be remitted forthwith.

The Oriental Insurance Company is directed that in case, the entire amount under the award, if not deposited, the same shall be deposited in terms of the impugned judgment and award within four weeks from today before the Tribunal.

The claimant may apply for withdrawal of the amount before the Tribunal by filing appropriate application.

Order Date :- 19.9.2014

akverma