Smt. Kamal Marwah And Others vs M/S Owens Bilt Limited And Another
2021 Latest Caselaw 11184 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R
 

 
Court No. - 37
 

 
Case :- FIRST APPEAL FROM ORDER No. - 2688 of 2011
 

 
Appellant :- Smt. Kamal Marwah And Others
 
Respondent :- M/S Owens Bilt Limited And Another
 
Counsel for Appellant :- Swetashwa Agarwal
 
Counsel for Respondent :- Tarun Agrawal,Akhilesh Mishra,R.D. Singh,S.S. Nigam
 

 
Hon'ble Dr. Kaushal Jayendra Thaker,J.

Hon'ble Subhash Chand,J.

1. Heard Sri Swetashwa Agarwal, learned counsel for the appellant. None appears for respondent no. 1 as Shri S.S.Nigam, learned counsel for the respondent conveys that client has already taken back the file. For a period of fifteen years none has appeared for Insurance Company, though duly served. We take up this appeal for final disposal as the claim petition filed was contending involvement of truck no. U.P. 08-3024. The claim petition was dismissed as the Tribunal answered issue no. 1 against the appellants, who have lost the only bread winner of the family.

2. This appeal, at the behest of the claimants, challenges the judgment/award dated 4.3.2006 passed by Additional District Judge (Court No.4), Meerut/Motor Accident Claims Tribunal, Meerut (hereinafter referred to as 'Tribunal') rejecting the M.A.C. No. 91 of 1998 preferred by the claimants.

3. Brief facts as culled out from the record are that the deceased was travelling in a taxi from Delhi to Dehradun with his colleague on 28.08.1997. At that point of time the truck bearing no. U.P. 08-3024 came from the opposite side dashed with the car in which deceased was travelling. The driver of the taxi and two other people received several injuries, unfortunately the driver of the said vehicle died on the spot. Of the two the deceased Luv Kumar Marwah also received several injuries and was rushed to the hospital where he succumbed to injuries. The claimants filed claim petition and examined P.W.-1 and he died out of the injuries on 06.09.1997. He was taken to Sir Ganga Ram Hospital, New Delhi where he was in coma and on 06.09.1997 at the age of 51 years he died. He was Deputy General Manager in Oil And Natural Gas Corporation and was earning Rs. 30,000/- p.m plus L.T.C. and other allowances were also made available to him. Respondent no. 2 appeared before the Tribunal and filed his reply of denial contending that the claim petition could not proceed as the driver, the owner and the Insurance Company of taxi bearing no. D.L.1 Y-1879 was not a party and contended that the accident occurred due to negligence of the driver of the car and not that of the truck. It was further contended that the driver of the taxi was also negligent and that the driver of the truck was not driving the truck in a rash and negligent manner and the truck was been driven against the Motor Vehicle rules in breach of policy condition. The owner of the truck M/s Owens Bilt Limited did not appear, did not file their reply.

4. As far as the issue no. 1 is concerned, the claimants examined P.W.-1- A.G. Pramanik, P.W.-2- Smt. Kamal Marwa, P.W.-3-V.K. Verma and P.W.-4- Vineet Kumar and filed documentary evidence the F.I.R, charge-sheet, postmortem report, medical report, his salary certificate, death certificate given by Sir Ganga Ram Hospital, New Delhi, his income tax reports, his date of birth also.

5. The Tribunal after hearing the parties held that it was not proved that the vehicle was involved in the accident. If we go by the written statement filed by the Insurance Company, it was even not their case that the vehicle insured by them was not involved in the accident. They have pleaded that the driver of the car was negligent and not the driver of the truck. We are conveyed by the learned counsel for the appellant that the deceased was not driver of the taxi he was an occupant of the taxi and for him it was case of composite negligence. The evidence of passenger is not believed as when he was in the vehicle he had gone to sleep when the accident occurred and he become unconscious. This is one reason why the learned Tribunal did not accept his version. The evidence on record goes to show that he was eye witness, he was present in the car and has narrated the incident. There is no point for not believing the said witness. The learned Tribunal has unfortunately fallen in error in ignoring the charge-sheet and ignoring the other evidence on record. The Tribunal has fallen in error in holding that the other witnesses did not see the accident. The other witnesses were examined for proving the income of the deceased and not the factum of the incident.

6. The learned Tribunal has in our view grossly erred by not accepting the version of P.W.-1. The judgement of the Apex Court in Jai Prakash Vs National Insurance Company Ltd., (2010) 2 SCC 607 cited by the learned counsel for the appellant and the judgement in Vimla Devi & Ors. Vs. National Insurance Company Limited & Anr., reported in 2019 (2) SCC 186 vehmently applies on the facts of this case. In our case the documents are already there on record. There was sufficient evidence adduced and the documents established the identity of the offending vehicle and vehicles involved in that view of the matter also the Tribunal has fallen in error. We are further fortified in our view by the recent judgments of Apex Court titled Sunita Sharma and others Vs. Rajasthan State Road Transport Corporation and another [2019 LawSuit (SC) 190] dealing with similar issues. The decision in Anita Sharma Vs. New India Assurance Co. Ltd. (2021) 1 Supreme Court Cases 171 were also aid the appellants. This takes us to the next point namely that as it was of composite negligence qua the deceased the way the accident occurred, the driver of the truck has not even stepped into the witness box. The driver of the car succumbed to the injuries. The principle of res-ipsa-loqitur will apply to the facts of this case. We hold driver of the truck to be solely negligent as the charge-sheet is laid against him, he was named as offender in the F.I.R and we are convinced by the submission of Shri Swetashwa Agarwal, learned counsel for the appellants that the accident occurred due to sole negligence of the driver of the truck. We are even fortified our view by the judgment of Archit Saini Vs. Oriental Insurance Company Limited and others 2018 0 AIR (SC) 1143, hence issue no. 1 as decided by the Tribunal is out turn, we hold driver of the truck negligent.

7. This takes us to the next question whether we should remand the matter or decide quantum here. The Apex Court in Bithika Mazumdar and another Vs. Sagar Pal & Ors., AIR 2017 SC 965. The Apex Court in the said decision has held that the first appellate court can decide the appeal for quantum also if the record is available. The appeal has remained pending before this Court for a period of 15 years. The record is before this Court and it is case where sole bread winner was non tort feasor has passed away. We would decide what is known as just and fair compensation. On the facts we hold that quantum also can be decided here in light of the said decision which we venture to decide. The Apex Court in Bithika (Supra) has held that when the matter is pending since long the appellate can decide compensation as the accident occurred in the year 1997. The petition was dismissed in the year 2006. The petition remained pending for five years on the defective board and thereafter it was taken up and numbered, we also therefore, venture to decide the quantum as the record is before us. The age of the deceased was 51 years which is proved by the evidence of the officers of O.N.G.C, he was Deputy General Manager of O.N.G.C, his monthly salary as culled out from the record and as per the evidence would be Rs. 30,000/- per month which is proved by document at Annexure-39 on G, his revised and re-revised salary the chart is given. The salary was received from 01.01.1997 namely from the date he was in service but the effect was given only in the month of March, 2020. We hold his income to be Rs. 30,000/-p.m out of which we deduct 15% as income tax, hence Rs. 25,000/- p.m is his income plus as he was 51 years of age as per the U.P. Motor Vehicle Rules, 1998 and the judgment of the Apex Court in New India Assurance Company Ltd. Vs. Urmila Shukla 2021 SCC online SC 822, we grant future loss of income at 15% which is in consonance with the judgment of National Insurance Co. Ltd. Vs. Pranay Shetty and Others, 2017 0 Supreme (SC) 1050, hence Rs. 25,000/- plus 15% as he was survived by his wife and two minor daughters, one -third is to be deducted for personal expenses. The deceased was in the age bracket of 51 years we grant multiplier of 11 plus Rs. 70,000/- under the head of non- pecuniary head.

8. Hence, the total compensation payable to the appellants is computed herein below:

i. Income Rs.25,000/-

ii. Percentage towards future prospects : (15%) Rs.3750/-

iii.Total income : Rs. 25,000 + 3,750= Rs.28,750/-

iv. Income after deduction of 1/3 : Rs. 19,166/-

v. Annual income : Rs. 19,166 x 12 = Rs.2,30,000/-

vi. Multiplier applicable : 11

vii. Loss of dependency: Rs.2,30,000 x 11 = Rs.25,30,000/-

viii. Amount under non-pecuniary head= 70,000/-

ix. Total compensation :RS: 26,00,000/-

9. As far as issue of rate of interest is concerned, it would be 6% but for period when delay occurred namely of one month in filing appeal as per the judgment of Apex Court reported in AIR 2021 SC 3301, the appellants should not be entitled to interest as it is a matter of the year 1998 which remained pending to this Court. Special case we grant interest at 6% through out.

10. In view of the above, the appeal is allowed. Judgment and award passed by the Tribunal is set aside. The respondent-Insurance Company shall deposit the amount within a period of 12 weeks from today with interest at the rate of 6% from the date of filing of the claim petition till the amount is deposited. The Insurance Company will deposit the entire amount can have their right to recover the amount from owner and the Insurance Company of the other vehicle.

11. In view of the ratio laid down by Hon'ble Gujarat High Court, in the case of Smt. Hansagori P. Ladhani v/s The Oriental Insurance Company Ltd., reported in 2007(2) GLH 291 and this High Court in , total amount of interest, accrued on the principal amount of compensation is to be apportioned on financial year to financial year basis and if the interest payable to claimant for any financial year exceeds Rs.50,000/-, insurance company/owner is/are entitled to deduct appropriate amount under the head of 'Tax Deducted at Source' as provided u/s 194A (3) (ix) of the Income Tax Act, 1961 and if the amount of interest does not exceeds Rs.50,000/- in any financial year, registry of this Tribunal is directed to allow the claimant to withdraw the amount without producing the certificate from the concerned Income- Tax Authority. The aforesaid view has been reiterated by this High Court in Review Application No.1 of 2020 in First Appeal From Order No.23 of 2001 (Smt. Sudesna and others Vs. Hari Singh and another) and in First Appeal From Order No.2871 of 2016 (Tej Kumari Sharma v. Chola Mandlam M.S. General Insurance Co. Ltd.) decided on 19.3.2021 while disbursing the amount.

12. Record be sent back to tribunal forthwith.

13. This Court is thankful to the young counsel who has ably assisted us for getting this old matter disposed of during this pandemic.

Order Date :- 05.10.2021/PS