Allahabad High Court
United India Insurance Co. Ltd. vs Rajveer Singh And 2 Others on 23 August, 2017
Bench: Satyendra Singh Chauhan, Krishna Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD
A.F.R.
Reserved
Case :- FIRST APPEAL FROM ORDER No. - 2930 of 2014
Appellant :- United India Insurance Co. Ltd.
Respondent :- Rajveer Singh And 2 Others
Counsel for Appellant :- Rahul Sahai
Counsel for Respondent :- Vidya Kant Shukla,R.S.Yadav
Hon'ble Satyendra Singh Chauhan,J.
Hon'ble Krishna Singh,J.
[Delivered by Hon'ble Krishna Singh, J.]
This appeal has been filed by the appellant being aggrieved against the impugned judgment and award dated 28.7.2014 passed by the Motor Accident Claims Tribunal/Additional District Judge Kanpur Nagar in MACT No.1150 of 2011 (Rajveer Singh and another vs. Jai Singh Sachan and another) awarding compensation to the tune of Rs.11,45,854/- alongwith interest @ 6% per annum to the respondents-claimants, inter alia, on the ground that awarded amount of compensation is excessive and also that the Tribunal has not calculated the compensation as contemplated in law.
The brief facts giving rise to the instant appeal are that on 12.9.2011 at about 3 p.m, while deceased Vikrant Singh was going from Vijay Nagar to his home (driving) by motor cycle, met with an accident near OFC Gate Kaalpi Road. At the time of accident, deceased was hit from behind by the motor vehicle/car (bearing Registration No. UP 78 BX - 2707). Accident had occurred due to the rash and negligence driving of the driver of the said vehicle. Respondent No.3 is the owner-cum-driver of the said offending vehicle. At the time of accident, the said offending vehicle was insured with the appellant. The age of deceased was 22 years. Deceased was bachelor and earned about Rs.1,34,570/- per annum through property dealing. Respondents No.1 and 2 (father and mother respectively) are the legal representatives of the deceased. On 29.9.2011, the First Information Report was lodged by respondent No.1 against the driver of the said offending vehicle at Police Station Armapur. After investigation of the case, police submitted the charge-sheet under Sections 279, 338, 304-A and 427 IPC against the owner-cum-driver of the said offending vehicle. Post mortem of the deceased was conducted and doctor submitted the post mortem report on 13.9.2011.
Respondents-claimants No.1 and 2 have examined three witnesses in support of their claim including Rajveer Singh, PW-1 (father of the deceased).
We have heard learned counsel for the parties and perused the record.
Learned counsel for the appellant has submitted that accident in question has not taken place with the vehicle in question which has been stated in the claim petition and the Tribunal has failed to consider the fact that the FIR had been registered after an in-ordinate delay of more than 12 days. Learned counsel further submitted that the Tribunal has failed to consider the fact that at the time of accident, the deceased was not wearing helmet, as such worst to worst under any circumstances contributory negligence on the part of the deceased was fully established. The Tribunal has in fact mis-construed the site plan on record. The deceased was unmarried and the Tribunal has wrongly applied multiplier upon age of deceased when in fact it should have been applied upon the age of parents of the deceased.
Per contra, learned counsel for the respondents/claimants has submitted that compensation awarded by the Tribunal in favour of the respondents/claimants is just and proper as such present, appeal is liable to be dismissed.
It is true that the FIR of the accident had been lodged at Police Station Armapur on 24.9.2011 i.e. after 12 days of the accident. In our opinion, claim/evidence adduced by the claimants cannot be disbelieved on the ground of delay in lodging the FIR because an explanation for the delay has been given by the informant/Rajveer Singh-PW-1 which is as under:-
"मैं अपने एकलौते पुत्र की मृत्यु के गम में होने के कारण व क्रिया-करम में व्यस्त होने के कारण अभी तक रिपोर्ट नहीं लिख सका था"
Considering the entire facts and circumstances of the case, we are of the view that explanation given by the informant is reasonable and plausible.
In view of the evidence adduced by the respondents/claimants before the Tribunal, we are of the considered view that the deceased had died on account of injuries sustained by him in the road accident on 12.9.2011 at about 3 p.m. and the said accident had occurred due to the rash and negligent driving of the driver of the said offending vehicle. It is evident from the testimony of the eye witness Sanjay Singh PW-2 as well as site plan and charge-sheet filed by the police that the deceased was not guilty of contributory negligence.
Learned counsel for the appellant has tried to dispute the award on the ground that at the time of accident, the deceased was not wearing helmet as such it amounted to contributory negligence. The submission of learned counsel has to be tested in the light of the pleadings and evidence adduced by the parties.
Non-wearing of helmet by the deceased whether can lead to contributory negligence?
The contributory negligence has to be taken into consideration in the light of the fact when both the parties are negligent to a certain extent. In the present case, it is proved from the pleadings and evidence adduced by the respondents/claimants that the deceased was hit from the back by the offending vehicle/car. Once the deceased was hit from the back, the submission of learned counsel for the appellant that non- wearing of the helmet resulted in contributory negligence cannot be accepted. The compensation has to be awarded on the basis of rash and negligent driving of the particular vehicle, coupled with the fact that the rash and negligent driving of the offending vehicle is established from the record that the deceased was hit from the back side.
In the case of Munna Lal Jain and anothers vs. Vipin Kumar Sharma and another 2015 Law Suit (SC) 536, the Apex Court has held that when deceased was Bachelor, 50% deduction for personal and living expenses is to be made from the income of the deceased and multiplier is to be used with reference to the age of the deceased.
We find that in awarding the compensation, the Tribunal has taken into account the relevant multiplier applicable to the age of deceased and adequate deduction has been made.
In view of the law laid down by the Apex Court, we are of the view that the multiplier used by the Tribunal with reference to the age of deceased is correct. For awarding the just and proper compensation to the claimants, the Tribunal assessed the income of the deceased on the basis of Income Tax Return filed by the deceased for the year 2010-2011.
After considering the entire facts and circumstances of the case, we are of the view that compensation awarded by the Tribunal is just and proper. The finding recorded by the Tribunal is duly supported by the evidence and in our opinion, there is no illegality or infirmity in the impugned judgment and award. Hence, no interference is required by this Court.
Appeal is devoid of merit and is dismissed accordingly.
Order Date:- 23.8.2017
Rishabh
(Krishna Singh,J) (Satyendra Singh Chauhan,J.)
