Shriram General Insurance Co. ... vs Gaffar Khan And 3 Ors.
2018 Latest Caselaw 4308 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 26
 

 
Case :- FIRST APPEAL FROM ORDER No. - 2631 of 2014
 
Appellant :- Shriram General Insurance Co. Ltd.
 
Respondent :- Gaffar Khan And 3 Ors.
 
Counsel for Appellant :- Nishant Mehrotra
 
Counsel for Respondent :- Rakesh Kumar Verma
 

 
Hon'ble Ram Krishna Gautam,J.

This First Appeal From Order u/s 173 of Motor Vehicle Act, 1988, has been filed by appellant Shriram General Insurance Company Limited through its Regional Manager against Gaffar Khan and three others, challenging validity and correctness of judgment and order dated 14.3.2014 passed by Motor Accident Claims Tribunal/ Additional District Judge, Court No. 3, Moradabad, in M.A.C.P. No. 47 of 2012, Gaffar Khan and another Vs. Akeel Ahmad and others, with this contention that the Tribunal failed to appreciate the facts and law placed before it.

In the earlier award dated 15.2.2013 the claimants were awarded compensation against which proceeding was taken and the alleged occurrence of accident was not established on the basis of material on record. Involvement of Truck bearing registration number U.P. 21N 3615 (hereinafter referred as vehicle in question) was not established on the basis of evidence on record. Death of Firoz Khan occurred in the alleged accident was wrongly held by the Tribunal. Driver of the vehicle in question was not driving the same rashly and negligently resulting the above accident. Finding of Tribunal was based on surmises and conjectures, rather the alleged accident occurred due to sole negligence on the part of Firoz Khan, who was motorcycle driver and was driving motorcycle rashly and negligently. Moreso, it may be a result of contributory negligence on the part of deceased Firoz Khan, but no consideration was made. Eyewitness account of the accident was not trustworthy. His presence on the spot was doubtful. Unexplained delay in lodging F.I.R. was there. Findings over issue nos. 1 and 2 were erroneous as per law propounded in United India Insurance Company Limited Vs. Anbari and others, (2010) 10 SCC 523. Claimants- respondents 1 and 2 ought to have proved the reasonable expectation of pecuniary benefit, if the deceased had lived, as a condition precedent propounded by Hon'ble Apex Court in Kaushalya Devi Vs. Sri Karan Arora and others, 2007(3) TAC 16 (SC) and Narendra Tandon Vs. U.P. State Road Transport Corporation and others, (2002) ACC 515 (DB).

Instant case was death of a minor, hence lump sum amount has to be awarded. There was nothing on record to prove the age of the deceased or employment and income of the deceased, whereas notional income of Rs. 3000/- has been fixed on assumption. Hence this appeal with request for setting aside the impugned Award.

At the time of argument learned counsel for the appellant only pressed the law propounded by Hon'ble Apex court in Sarla Verma (Smt) and others Vs. Delhi Transport Corporation and another, (2009)6 SCC 121 and argued that the multiplier applied by the Tribunal was 15 for the age group of 41 to 45 for the age of the father of the deceased i.e. present claimant no. 1, who was held to be of 41 years of age, whereas the multiplier may be 14 for 41 to 45 years age group, as has been propounded by the Hon'ble Apex Court in the above cited precedent and his argument is for this point only.

Learned counsel for the respondents argued that the deceased was an unmarried minor of 15 years of age and the Tribunal has taken the notional income of Rs. 3000/- per annum and on the basis of age of the father, who was elder than the mother, the multiplier was rightly taken and applied by the Tribunal.

Claim petition was filed by parents of the deceased for award of compensation for the death of their son Firoz Khan, who died in the accident on 27.11.2011 owing to rash and negligent driving of vehicle by O.P. No. 2, Salim, driver of the Truck bearing registration number U.P. 21N 3615 owned by Aquil Ahmad, O.P. No. 1, and was insured on the date by Shriram General Insurance Company Limited, O.P. 3. It was written in the claim petition that the deceased was a young boy of 20 years of age, doing business of dairy and earning Rs. 6000/- per month and was maintaining his parents with his earning and owing to rash and negligent driving of the Truck in question, this accident took place in which he died. A claim of Rs. 20 lacs as compensation was made. Joint written statement of owner and driver of the Truck (paper no. 23Ka) was filed with denial of those contentions of the petition but registration number of the Truck, ownership of O.P. No. 1 and valid and effective insurance of the above Truck by O.P. No. 3 on the above date of accident have been admitted. Liability, if any, was prayed to be fixed upon the Insurance Company, as the Truck was being driven with valid papers within the terms of Insurance Policy.

This was replied by the Insurance Company in its written statement (paper no. 38A) that the Truck was validly and effectively insured by the Insurance Company, O.P. No. 3, on the date of accident and was being driven by a driver having valid and effective driving licence with all valid papers as per terms of Insurance Policy were to be proved by the claimant and the owner and driver of the vehicle in question.

The Tribunal framed issues and issue no. 1 was as to whether the accident had occurred by rash and negligent driving of Truck No. U.P. 21N 3615 at the above date, time and place resulted in dashing of Motorcycle bearing registration no. U.P. 21 AK 1811 causing death of driver of motorcycle Firoz Khan on the spot. Issue no. 2 was as to whether this accident occurred owing to contributory negligence and rashness of the deceased, the motorcycle driver himself. Rest of the issues were regarding insurance policy, validity and effective driving license, monthly income of the deceased and what compensation was to be awarded and from whom.

Documentary and oral evidence submitted by the parties were considered and the impugned award was passed in which notional income of the deceased was fixed at Rs. 3000/- per annum with expenses upon himself to the tune of 50% then multiplier of 15 was applied along with funeral and other expenses.

The only argument for assailing the impugned judgment was application of multiplier.

No doubt, the Hon'ble Apex Court in the above cited case Sarla Verma (supra) has propounded that multiplier to be applied for the age group of 41 to 45 was 14, whereas the Tribunal has applied the multiplier of 15 for calculating the award. Rest of the calculation done by the Tribunal is proper and based on the evidence adduced on record, hence this appeal merits partly allowance regarding above multiplier and for rest of the facts this appeal merits dismissal.

The appeal is partly allowed. Application of multiplier 15 is being reduced to multiplier of 14 in the assessed dependency loss of Rs. 18000/- per annum of claimants- parents of the deceased. Rest of funeral expenses and loss of estate to the tune of Rs. 15000/- and Rs. 10,000/- respectively, and the rate of interest payable thereon will remain intact. Hence, the Award be prepared accordingly within a period two months. The condition of deposit in the tune of STDR, as directed by the Tribunal, will operate as such. The statutory deposit made in this appeal as well as in the Tribunal, if any, shall be adjusted.

Order Date :- 14.12.2018

Pcl