Oriental Insurance Co. Ltd. vs Smt. Kamla Devi & Others
2017 Latest Caselaw 135 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

									A.F.R.		
 
Court No. - 34
 

 
Case :- FIRST APPEAL FROM ORDER No. - 619 of 1995
 
Appellant :- Oriental Insurance Co. Ltd.
 
Respondent :- Smt. Kamla Devi & Others
 
Counsel for Appellant :- K.S.Amist
 
Counsel for Respondent :- Rajsh Tandon
 
AND
 
Case :- FIRST APPEAL FROM ORDER No. - 620 of 1995
 
Appellant :- Oriental Insurance Co.Ltd.,Allahabad
 
Respondent :- Vinod Kumar Agarwal And Others
 
Counsel for Appellant :- K.S.Amist
 
Counsel for Respondent :- Rajesh Tandon
 
AND
 
Case :- FIRST APPEAL FROM ORDER No. - 621 of 1995
 
Appellant :- Oriental Insurance Co. Ltd.
 
Respondent :- Vinod Kumar Agarwal & Others
 
Counsel for Appellant :- K.S. Amist
 
Counsel for Respondent :- Rajesh Tandon
 

 
Hon'ble Ashok Kumar,J.

1. The above appeals, arising out of the same accident, have been filed under Section 173 of Motor Vehicles Act, 1988. The appellant Insurance Company has challenged the judgment and order dated 14.03.1995 passed by Motor Accident Claims Tribunal/Additional District Judge, Ghaziabad in MACP No.538 of 1993, 355 of 1993 and 356 of 1993 .

2. The Tribunal has decided three Motor Accident Claim Petitions being MACP Nos.538 of 1993, 355 of 1993 and 356 of 1993 by common judgment.

3. On 14.06.1993 Smt. Kamla Devi and others filed the petition for recovery of compensation on account of the death of one Amar Singh (Driver) in MAC No. 538 of 1993.

4. Another application has been filed by Sri Vinod Kumar Agarwal, which is registered as MACP No. 355 of 1993 for recovery of compensation consequence upon the death of his wife Deepa Agarwal, who was aged about 45 years at the time of accident and was allegedly earning Rs.4000/- per month.

5. Sri Vinod Kumar Agarwal has filed another claim petition being MACP No.356 of 2013 for recovery of Rs.2,00,000/- as compensation on account of the death of his son Sumeet Kumar, who was aged about 16 years at the time of accident.

6. Brief facts of the case are that on 14.06.1993, Sumeet Agarwal, Amar Singh (driver) and Smt. Deepa Agarwal were travelling in Maruti Car bearing registration no. DDP 3674. Amar Singh (driver) was driving the vehicle. When the car reached near the Telephone Exchange at Garh, a truck bearing registration no. U.P. 14-B 3142 came from the opposite direction in high speed and the driver of the truck negligently and rashly collided with the Maruti car, about 10.30 A.M.

7. It was a head on collision, therefore, all the three passengers travelling in the Maruti car namely Smt. Deepa Agarwal, Master Sumeet Agarwal and the driver Amar Singh died on the spot. At the time of accident, the driver was aged about 20 years and it is claimed that he was earning sum of Rs.2,000/- per month. Smt. Deepa Agarwal was 45 years old and the claimants has claimed that she was earning Rs.2000/- per month from the firm, which is being run by her husband the claimant and also sum of Rs. 2,000/- from a Boutique shop which is run by the deceased Smt. Deepa Agarwal herself. Sumeet Agarwal was studying in class XIth and at the time of accident he was 16 years old.

8. Consequent upon the death of the driver his family is left without livelihood.

9. On the death of Sumeet Agarwal, his father Vinod Kumar Agarwal is left without a son as also on account of the death of Smt. Deepa Agarwal, the husband Vinod Kumar Agarwal is left without company of his wife and as such suffered great loss of estate.

10. The claim petitions are filed by the father of Sumeet Kumar (deceased), husband of Smt. Deepa Agarwal (deceased) namely Sri Vinod Agarwal and Smt. Kamla Devi wife of the driver Amar Singh (deceased).

11. The claim petitions are being contested only by the Insurance Company, the appellant in the present proceeding.

12. Following two issues are framed by the Tribunal.

(i) Whether the accident took place due to the negligence of the driver ? If so, its effect ​?

(ii) Relief that extent and from whom?

13. All the three claim petitions were decided by the Tribunal by passing the common judgment as the claim petitions are clubbed.

14. The tribunal has recorded a finding in paragraphs no. 8 and 9 of the judgment dated 14.03.1995. The Tribunal arrived to the conclusion that the truck driver was driving the truck rashly as also negligently and on account of negligence of the truck driver, there was unfortunate accident took place causing the three deaths of the persons, who are going on Maruti Car. The Tribunal has decided the issue no.1 by holding that the accident took place due to the negligence of the driver of the truck and according to the Tribunal the same is proved, therefore, the issue no.1 has been decided in favour of the claimants.

15. Issue no.2, which relates to relief to what that extent and from whom, has been dealt with by the Tribunal and the discussion so recorded by the Tribunal in paragraphs 10, 11 and 12 of the judgment is quoted hereinbelow;

10. Now comes the question of compensation to be paid in the claim petitions. Let up take the case of Sumeet Agarwal in Case No. 356/93. Sumeet Kumar Agarwal at the time of his death was 17 years and was a student of 11th class. He was not earning anything. The parents did not depend on him. However, Sumeet, his father and mother were the business men, hence, it is expected that Sumeet Agarwal could have become a business-man also, if not gone in service. Sumeet Agarwal died at the young age. There must have been mental shock and agony and loss of love and affection in the family. Considering all the circumstances, I am of the view that a sum of Rs. 17,000/- should be awarded as the money solace in the head of mental shock and agony, loss of company and funeral expenses. A sum of Rs.25,000/- is awarded on no fault liability in this case and to my mind a sum of Rs. 25,000/- should be paid for the loss of life in the family. Thus, the total amount comes to Rs.67,000/- will be sufficient money solace in the petitions. Petitioners will be entitled to interest @ 11% per annum from the date of petition till the date of final/full payment.

11. In case petition no.355/93 in which Smt. Agarwal died, the compensation to be determined is based on simple principles. There is no income tax officer recorded or any balance sheet audited by the C.A. Or the income tax officer to say as to what was the exact amount of income of the lady concerned. The statement of Vinod Kumar Agarwal, husband of the deceased is that she was earning Rs.2000/- from the firm of Gift Brass and Rs.2000/- from the shop of Boutique. In the absence of any official record, it is not possible to hold that the lady was earning so much of amount per month. However, in a business community ladies do some work/business just for keeping themselves busy. Hence, to my mind, she must have been earning a sum of Rs. 1,000/- per month. She was 45 years age. Her earning was making the estate to the family. Her relevant income comes to Rs.8400/-and to my mind a multiplier of 9 is the ideal factor in this case. If a sum of Rs. 8400 is multiplied by 9 then a sum of Rs.75,600/-comes as the compensation to be paid. There must have been mental shock and agony and funeral expenses. Thus, to my mind, a sum of Rs.10,000/- will be sufficient. This sum of Rs.10,000/- is co-related with Rs.17,000/- awarded in case of death of the son Sumeet Agarwal in the head of mental shock and agony etc. Thus, a sum of Rs.85,600/- will be the total payment. With this amount the interest @ 11% per annum shall be awarded from the date of petition.

12. One Amar Singh, driver of the Maruti car died. Claim petition No. 538/93 has been filed by the widow of Amar Singh, driver, father of the driver, mother of the driver and son of the driver Master Netrapal. The driver was about 20 years. He was earning a sum of Rs.2000/- as private driver. There is no written proof that he was getting a sum of Rs. 2000/- per month. To my mind, he must have been getting Rs. 1200/- per month. After deduction of 1/3 annual income is Rs.9,600/-. Considering the age of the deceased claimant no.1 the wife and claimant no.4, his son aged about 6 months and uncertainties of life a multiplier of 15 will be sufficient, in this case. If this multiplier of 15 is multiplied by the annual income amounting to Rs.9,600/- then the total amount comes to Rs.1,44,000/-. In addition a sum of Rs.17,000/- should be paid as the money solace in the head of mental pain and agony, loss of love and affection and company and expenses of funeral. Thus, the total amount to my mind comes to Rs.1,61,000/-. Interest @ 11% per annum should also be awarded from the date of petition. There is no other point to be discussed in these claim.

16. From reading of the conclusion drawn by the Tribunal with regard to the death of Sumeet Kumar, the Tribunal has held that at the time of the accident/death, the deceased Sumeet Kumar was 17 years old and was studying in class XI.

17. The Tribunal has observed that he was not earning anything as such depending upon his parents. The Tribunal has concluded by recording a categorical finding that since Sumeet Agarwal belongs to business family, hence, it is expected that the Sumeet Agarwal could have become a businessman, in case, if he do not go into service. The Tribunal has further recorded the finding that on account of death of only son the father must have been mental shock and agony, as such loss of life and affection in the family.

18. After considering the entire facts and circumstances, the Tribunal has awarded a sum of Rs.17,000/- as money solace in the head of mental shock and agony, loss of company and funeral expenses. The Tribunal has held that sum of Rs.25,000/- be awarded on no fault liability. Further a sum of Rs.25,000/- has been awarded for the loss of life in the family. Thus, the Tribunal has concluded and has awarded a sum of Rs.67,000/- to the claimant Vinod Kumar Agarwal the father of the Sumeet Agarwal (deceased).

19. So far as case of Smt. Deepa Agarwal is concerned, the Tribunal has decided the claim petition filed by her husband Vinod Kumar Agarwal after due consideration of the claim that Smt. Deepa Agarwal (deceased) was earning a sum of Rs.1,000/- per month, whereas the claim of the husband was that she was earning a sum of Rs.4,000/- (Rs.2000/- from business of the firm and Rs.2000 from her boutique shop). The Tribunal has held that she was 45 years of age and her earning was making the estate to the family. The Tribunal arrived to a conclusion that the deceased Smt. Deepa Agarwal at the relevant time was earning income of Rs.8400/- and therefore applying the multiplier of 9, it reaches to figure Rs.75,600/- and accordingly a compensation of the aforesaid amount of Rs.75,600/- has been awarded. Apart from the aforesaid amount, the Tribunal has also awarded the compensation for a sum of Rs.10,000/- in the head of mental shock and agony and funeral expenses. A sum of Rs.10,000/- is co-related with Rs.17,000/- awarded in the case of death of son Sumeet Agarwal in the head of mental shock and agony etc. A sum of Rs. 85,600/- in total has been awarded along with an interest at the rate of 11% per annum.

20. From the perusal of the impugned order of the Tribunal, it is clear that while clubbing the amount so awarded in the case of Smt. Deepa Agarwal (deceased), the Tribunal has determined total sum of Rs.85,600/- whereas if the figure so indicated by the Tribunal are clubbed together, it would be Rs.75,600/- + 10,000/- and again Rs. 10,000/- plus 17,000/- which would be 1,12,600/-. To this extent the order of the Tribunal requires modification/correction.

21. In the case of claim petition filed by Kamla Devi wife of deceased Amar Singh(driver), the Tribunal has considered the income so claimed by the claimant to the tune of Rs.2000/- per month. However, it has determined to the tune of Rs.1200/- per month. The Tribunal has deducted 1/3 annual income and after seeing the background of the family, the wife of the deceased Amar Singh and six months child as well as the uncertainties of life, the Tribunal has applied multiplier of 15 while determining the total compensation to the tune of Rs.1,61,000/- + interest.

22. Learned counsel for the appellant has placed a copy of the order passed in FAFO 620 of 1995 (Oriental Insurance Company Vs. Vinod Kumar Agarwal and others) arising out of the Motor Accident Claims Tribunal No. 356 of 1993 (Vinod Kumar Agarwal Vs. B.C.C Developer and Promoter (Pvt) Ltd.) in which the appellant Insurance Company has moved an application on 25.09.2010 mentioning therein that the appellant does not want to press the appeal any more.

23. In view of the aforesaid averment in the application moved by the appellant Insurance Company, the appeal filed by the Insurance Company has been dismissed as withdrawn by the order of Lok Adalat held on 25.09.2010. The contents of the order dated 25.09.2010 are quoted hereinbelow.

"The FAFO No. 620 of 1995 Oriental Insurance Company Limited vs. Vinod Kumar Agarwal and others was taken up in the Lok Adalat held on 25.09.2010 in the premises of High Court. The appellant Oriental Insurance Company Limited moved an application dated 25.09.2010 mentioning therein that the appellant does not want to press the appeal anymore.

Accordingly, the appeal stands dismissed as withdrawn. The application dated 25.09.2010 shall form part of the formal order."

24. On query being made by this Court, the learned counsel representing the Insurance Company has fairly agreed that since one of the appeal challenging the common judgment passed by the Tribunal has been withdrawn by the Insurance Company, there is no justification in keeping the other appeals arising out of the same award, pending.

25. Learned counsel for the appellant has submitted that once the Tribunal has held that the accident took place on account of negligence of the driver of the truck, there remains no reason to peruse the present appeal.

26. In view of the aforesaid facts and circumstances, all the appeals are decided and are, accordingly, dismissed.

27. The Tribunal is directed to pass an appropriate order in accordance with law.

28. The amount, if any, deposited before this Court be remitted to the Tribunal after due verification.

29. The Tribunal is directed to pass an order of release/disbursement of the amount within a month from the date of the certified copy of this order is produced/filed by the claimants.

Order Date :-05.05.2017

A.Kr.*