Shriram General Insurance Co. ... vs Smt. Seema Devi And 7 Ors.
2021 Latest Caselaw 10823 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

          RESERVED ON :-    4.8.2021                    
 
DELIVERED ON :- 25.8.2021                    
 

 
Case :- FIRST APPEAL FROM ORDER No. - 342 of 2014 
 

 
Appellant :- Shriram General Insurance Co. Ltd. 
 
Respondent :- Smt. Seema Devi And 7 Ors. 
 
Counsel for Appellant :- Nishant Mehrotra 
 
Counsel for Respondent :- S.K. Singh,Vikash Pathak,Vinod Kumar Pandey 
 

 
Hon'ble Siddharth,J. 

Heard Sri Nishant Mehrotra, learned counsel for the appellant, Sri S.K. Singh, learned counsel for the claimant-respondent nos. 1 to 7 and Sri Vikash Pathak, learned counsel for the opposite party no. 8.

This First Appeal From Order has been preferred against the judgement and award dated 19.11.2013 passed by Additional District Judge/Motor Accidents Claims Tribunal, court no.8., Mathura in M.A.C. Petition No. 762 of 2010(Smt. Seema Devi Vs. Bachu Singh and another) by the opposite party no.2, Shriram General Insurance Co. Ltd. in the claim petition and appellant in this appeal.

The claimants filed an application under Section140/166 of Motor Vehicles Act,1988 praying for compensation of Rs. 44,49000/- along with 18% interest for the death of one Om Veer Singh by Car No. U.P. 85-H-4969.The aforesaid application was registered as M.A.C. Case No. 762 of 2010.

The opposite no.1 Shri Bachchu Singh,owner of the vehicle aforesaid filed his written statement denying the averments made in the claim petition. He admitted that he is registered owner of the vehicle involved in the accident. He further stated that the vehicle was being driven carefully by the driver but suddenly a motorcycle came before the car and the driver of the motorcycle fell before the car, hence the accident took place.The driver had valid driving licence at the time of accident and if the tribunal finds the opposite party no.2 liable for payment of any compensation, his vehicle is insured with the opposite party no.2, Sri Ram General Insurance Company Limited.

The opposite party no.2 and appellant in this appeal, Shriram General Insurance Company Limited, denied the contents of claim petition. It further stated that the opposite party no.1 never informed him about the accident.The claimants have not produced the copy of First Information Report,charge-sheet,site plan, injury report,postmortem report, inquest report, technical report of the vehicle, driving licence and registration certificate. The driver of the vehicle did not had valid driving licence at the time of accident. The owner of the motorcycle and insurance company have not been impleaded as parties in the Claim Petition. The accident was caused due to negligence of the deceased.The First Information Report has been lodged with five days delay. The claimants and the owner of the vehicle are colluding and the vehicle in dispute has wrongly been involved in the incident.

The Motor Accidents Claims Tribunal framed the following issues:-

1.Whether on 15.10.2010 at about 12 hours the husband of claimant no.1, Omveer Singh, was going on his motor cycle to the house of in-laws of his sister in village Nagala Ganga, police station Raya and as soon as he reached near Gausna Tila, Car No. U.P. 85- H,4969 driven at a high speed and negligently came from behind and hit him resulting in serious injuries and death of Om Veer Singh during treatment?"

2.Whether on the date and time of the accident car driver had valid licence?

3.Whether on date and time of accident the disputed vehicle was insured with insurance company, opposite party no.2.

4.Whether the claimants are entitled any compensation regarding the disputed accident, if yes, then to what amount and from which opposite party?

The tribunal decided the issue no. 1, holding that the accident was caused due to rash and negligent driving by the driver of the car on 15.10.2010 and the deceased died on 20.10.2010 during treatment in hospital.The tribunal relied upon the statement of P.W.2,Balveer, who claimed himself to be eye witness of the accident.

Regarding issue nos. 2 and 3 the tribunal found that the car in dispute was insured with the insurance company, opposite party no.2.The driver of the car had valid licence at that time.The copy of the insurance policy, registration certificate of the vehicle, etc., were filed in evidence.

Regarding issue no. 4, the tribunal, on the basis of the claim made under the different heads, awarded compensation of Rs.42,90,925/- to the claimants.

Learned counsel for the appellant-insurance company has submitted that liability has wrongly been fastened on the appellant-insurance company by the tribunal for payment of the awarded amount. It has been submitted that the accident took place on account of negligence on the part of the deceased. It was established on record that it was a case of death caused due to head on collision of the two vehicles at noon.Hence it is a case of contributory negligence. The presence of the P.W.2 was completely doubtful at the place and time of accident and his testimony was full of contradictions and not trustworthy. There was unexplained delay in lodging the First Information Report and it was lodged against unknown vehicle. The police filed charge sheet against Vijay Kumar Kohli, who was driving the vehicle in question. The driver has not been impleaded as party in the claim petition. The employment and income of the deceased was not proved and tribunal has presumed his income as Rs.19,833/- per month.The tribunal illegally deducted 1/5 of the alleged income towards personal expenses of deceased.Interest of 7% per annum on the awarded amount of compensation awarded is on higher side.50% of the income of the deceased has wrongly been awarded as future prospects. The right of recovery has not been given to the insurance company.

Learned counsel for the appellant has relied upon the judgement of the Apex Court in the case of Bijoy Kumar Dugar Vs. Bidyadhar Dutta and others, reported in AIR 2006, SC 1255, in support of his contention that it was a case of head on collision.

Learned counsel for the claimant- respondent no.1, has submitted that award passed by the Motor Accidents Claims Tribunal is based on material on record and does not suffers from any illegality. He has submitted that the statement of P.W.2, Balbir, the eye witness is very clear .He has stated that on 15.10.2010 at about 12 hours when he was going on his motorcycle from his village Raya at Laxshmi Nagar he met his friend, Vijay Pratap, who was also going to Raya and boarded his motorcycle. As soon as he reached Gausana Tila, the motorcycle in front of him was hit by Maruti Car No. U.P. 85- H- 4969.The driver of the car was driving car at high speed and negligently and he hit the motorcycle on the wrong side. He stopped his motorcycle and picked up the injured and from the identity card recovered from his pocket, his name was found to be Omveer Singh. The identity card was of Army.The crowd has collected and police had also come.He informed number of the car, his name and address to the police.Police took the deceased for treatment and later recorded his statement regarding the accident.In his cross examination, he admitted that on the date of accident the deceased was alone on the motorcycle. He could not tell the speed of the motorcycle.The car hit the motorcycle from the front, it suffered no damage. After hitting the deceased, the car went away. He did not lodged the First Information Report but made phone call to the family members of the deceased on the information given by the deceased. The police had come on the spot before him and his statement was recorded by the police.

P.W.3, Ramjeet Singh, posted on the post of Grenadier in Army proved that the deceased was employed in army on post of Grenadier. His total pay was Rs.19,833/- and his salary certificate on record was proved by him alongwith signatures of the accountant thereon.

P.W.1, Seema Devi is wife of the deceased, who is not the eyewitness of the accident but she proved that her husband was employed in the army and was getting salary of Rs. 21,000/- per month.

It has been submitted by the learned counsel for the claimants that award of the tribunal is already on the lower side.The tribunal has applied multiplier of 15 for the age of the deceased as 33 years , when as per the case of Smt. Sarla Verma and others Vs. Delhi Transport and another, 2009(2), T.A.C,667(SC), it should have been 16.The tribunal has rightly deducted 1/5th of income of the deceased for his personal expenses and relied upon the judgment of Smt.Sarla Verma(Supra). He has also justified award of 50% of the income for future prospects of deceased. In the judgement of Apex Court in the case of National Insurance Company Vs. Pranay Sethi and others, 2017 (16) SCC,380,Rs.70,000/- has been awarded towards loss of estate,loss of consortium and funeral expenses.The Apex court has allowed 9 % interest in the case of Kishan Gopal and another Vs. Lala and others,2013 Law Suit,S.C. 751.It has finally been submitted that this court in the case of National Insurance Company Vs. Vidyawati Devi and others, 2016 Law Suit, (ALL), (4467) enhanced the compensation on the oral submission of the claimants that award is on the lower side and hence award of the tribunal deserves to be modified and further amount of compensation should be awarded to the claimants.

After hearing the learned counsel for the parties, this court finds in the case of Bijoy Kumar Dugar(Supra) it was found that bus was being driven by the driver abnormally in a zigzag manner and it was held that deceased should have taken due care and precaution to avoid head on collision when he saw the bus from long distance coming from opposite direction. In this case the Apex Court held that both the vehicles are liable being case of contributory negligence.

In the present case, the site plan, paper number 28C/7 is already on record, which shows that the motorcycle was going on its correct side, when the car of the opposite party no.2 waivered to the wrong side of the road and hit motor cycle from the front. The accident has taken on extreme left side on road and not in the middle of the road. The car was coming from the opposite direction of motorcycle and it waivered towards its wrong side lane of the motorcycle and hit it. The site plan prepared by the police is very clear in this regard.

Regarding the income of the deceased the original salary slips were brought on record.The original statements of account of the deceased is on record. The photocopy of his dependent identity card was also brought on record.

Regarding the submission of the learned counsel for the appellant-insurance company that driver of the vehicle was not impleaded in the claim petition and,therefore for his fault owner of vehicle is liable and not the insurance company, this court finds that it was for the tribunal to insist for the impleadment of the driver in the claim petition at the appropriate stage. The Apex court in the case of The Oriental Insurance Company Limited Vs. Meena Variyal and another, reported in AIR, 2007 SC1609 has held in paragraph-9 that it is the duty of the tribunal to insist on driver of the vehicle being impleaded when a claim petition is filed. In this case the Apex court held that tribunal ought to have directed the claimant to implead the driver of the car, which was allegedly insured by the appellant-insurance company. Being in respectful agreement to the ratio of the Apex Court in the above case, this Court finds that in the present case such a plea was not pressed before the tribunal before the issues were framed nor any objection was raised by the appellant-insurance- company for non-framing of any such issue.Therefore award of the tribunal cannot be set aside on this account.

Regarding the objection raised to the quantum of compensation awarded to the claimant by the appellant-insurance company, this Court finds that as per judgement of the Apex court in the case of Smt.Sarla Verma and others (Supra), the award can be modified but keeping in view the overall facts and circumstances of the case and non filing of any cross objection by the claimants, merely on oral submissions, the quantum of compensation does not deserves to be enhanced in this appeal since award is substantially correct and is hereby affirmed.

The appeal is dismissed. Interim order dated 5.2.2014 is vacated. However there shall be no order as to costs.

Order Date:-25.8.2021

Atul kr.sri,