The New India Assurance Co. Ltd. vs Smt. Rekha And Others
2022 Latest Caselaw 1182 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved 
 
Court No. - 7
 
Case :- FIRST APPEAL FROM ORDER No. - 3959 of 2012
 
Appellant :- The New India Assurance Co. Ltd.
 
Respondent :- Smt. Rekha And Others
 
Counsel for Appellant :- Rakesh Bahadur
 
AND
 
Case :- FIRST APPEAL FROM ORDER No. - 1542 of 2017
 
Appellant :- Smt. Rekha And Others
 
Respondent :- The New India Assurance Co. Ltd. And Others
 
Counsel for Appellant :- ,B.P. Verma
 
Counsel for Respondent :- Rakesh Bahadur
 

 
Hon'ble Vipin Chandra Dixit,J.

1. The first appeal from order no.3959 of 2012 has been filed by the appellant insurance company against the judgment and award dated 9.8.2012 passed by Additional District Judge, Court No.1/M.A.C.T., Mathura in M.A.C.P. No.336 of 2011 (Smt. Rekha and others Vs. The New India Assurance Company Limited and others), by which the claim petition filed by respondent nos.1 to 4 has been allowed and compensation of Rs.44,64,700/- along with 7% interest has been awarded and the liability has been fixed upon the appellant insurance company being insurer of indigo car.

2. The first appeal from order no.1542 of 2017 has been filed by the claimants for enhancement of compensation against the same award dated 9.8.2012 passed in M.A.C.P. No.336 of 2011.

3. Both the appeals have been filed against the same impugned award dated 9.8.2012 and as such both the appeals are being decided by a common judgment.

4. The brief facts of the case are that claimants had filed claim petition under Sections 166 and 140 of Motor Vehicles Act, claiming compensation of Rs.72,00,000/- along with interest on account of death of Hari Om Singh in a road accident which was alleged to be occurred on 5.3.2011. It was the case of the claimants that deceased was Inspector in U.P. Police and while discharging his official duty by official Jeep, came from Bhauti Tiraha and parked the Jeep under the over-bridge for checking the suspected persons. It is further pleaded that in the meantime the offending indigo car bearing no.U.P.-78/B.Y-3679 came from Ram Mita side which was driven by its driver very rashly and negligently and hit the official Jeep of the deceased. The deceased had received grievous injuries in the accident and died on account of injuries received by him on 19.3.2011.

5. The appellant insurance company has put in appearance before the Claims Tribunal and filed its written statement denying the claim allegation. It was pleaded that the accident was occurred on account of negligence of the deceased, who was sitting in the official Jeep, which was parked on wrong side and in any case it was a case of contributory negligence. It is further pleaded that deceased was performing his official duty at the time of accident and as such the dependents of the deceased are entitled to get entire salary and there was no financial loss to the claimants.

6. The owner of the vehicle has also appeared before the Claims Tribunal and filed his written statement denying the rash and negligent driving of driver of car and it was pleaded that accident was occurred on account of negligence of driver of Jeep. It is further pleaded that car in question was duly insured with New India Assurance Company Limited and the driver of car had a valid and effective driving license at the time of accident.

7. The driver of car did not appear before the Claims Tribunal and the case was proceeded ex-parte against him.

8. The Claims Tribunal after exchange of pleadings had framed four issues for determination regarding rash and negligent driving of driver of indigo car, insurance of car, validity of driving license of car driver as well as quantum of compensation.

9. The claimants had produced Smt. Rekha as P.W.-1, Constable Rajendra Singh as P.W.-2. and Khalid Mustafa as P.W.-3 and had also produced documentary evidence. The owner as well as insurance company had not produced any witness in evidence but had filed documentary evidence in support of their case.

10. The Claims Tribunal while deciding issue no.1 has recorded the finding that accident was occurred on account of rash and negligent driving of driver of car. The issue no.2 was also decided by the Claims Tribunal holding that car was duly insured with the appellant insurance company and while deciding the issue no.3 the Tribunal has recorded the finding that driving license of car driver was valid and effective on the date of accident. The compensation has been assessed as Rs.44,64,700.

11. Learned counsel appearing for insurance company has submitted that Claims Tribunal had erred in deciding the issue no.1 holding the negligence of driver of car whereas the deceased himself was negligent and responsible for the accident. He placed reliance on the site plan which is annexed as Annexure-2 to the affidavit filed in support of appeal. It is submitted by learned counsel for insurance company that official Jeep was parked on wrong side on the instructions of deceased i.e. right side of the road and as such there must be some negligence on the part of the deceased and the Claims Tribunal had erred in holding the sole negligence of driver of car. It is further submitted that the claimants themselves had relied the site plan and filed the same before the Claims Tribunal which clearly demonstrate that official Jeep was parked at wrong side. It is further submitted that from the own evidence of the claimants, it is apparent that official Jeep was parked on the instructions of the deceased who was Inspector in U.P. Police and was on official duty and as such there must be some negligence on the part of the deceased also.

12. Learned counsel appearing for claimants-respondents had submitted that negligence of driver of car was fully established by the claimants by producing cogent evidence and the Investigating Officer after due investigation had also submitted the charge-sheet against the driver of car and as such the finding has rightly been recorded by the Claims Tribunal in respect of negligence of driver of car while deciding the issue no.1.

13. Learned counsel for the claimants-respondents has placed reliance on a judgment of Division Bench of this Court dated 19.7.2016 passed in F.A.F.O. No.1818 of 2012 (Bajaj Allianz General Insurance Co. Ltd. Vs. Smt. Renu Singh and others). Para 16 of the aforesaid judgment is very relevant on the point of determination of negligence which is quoted herein below:-

"16. Negligence means failure to exercise required degree of care and caution expected of a prudent driver. Negligence is the omission to do something which a reasonable man, guided upon the considerations, which ordinarily regulate conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. Negligence is not always a question of direct evidence. It is an inference to be drawn from proved facts. Negligence is not an absolute term, but is a relative one. It is rather a comparative term. What may be negligence in one case may not be so in another. Where there is no duty to exercise care, negligence in the popular sense has no legal consequence. Where there is a duty to exercise care, reasonable care must be taken to avoid acts or omissions which would be reasonably foreseen likely to caused physical injury to person. The degree of care required, of course, depends upon facts in each case. On these broad principles, the negligence of drivers is required to be assessed."

14. From perusal of site plan as well as other evidence adduced by the parties, it is apparent that official Jeep was parked under the over-bridge at wrong side i.e. right side of the road and as such there must be some negligence on the part of driver of Jeep as well as of the deceased on whom instructions the official Jeep was parked at the right side of the road.

15. Considering the entire evidence and materials which are available on record, it is apparent that there must be some negligence on the part of deceased and the Claims Tribunal has committed illegality in not deducting any amount towards contributory negligence of the deceased. From the evidence which are available on record, there was at least 10% negligence on the part of the deceased who was sitting in the official Jeep at the time of accident, which was parked at wrong place on his instructions.

16. So far as quantum of compensation is concerned, it is submitted by learned counsel for claimants-respondents that age of the deceased was 44 years at the time of accident and the multiplier of 15 ought to have been applicable but the Tribunal had applied the multiplier of 14. It is further submitted that compensation under different heads as claimed by the claimants-respondents were not awarded by the Claims Tribunal and the rate of interest is also on lower side.

17. In reply, learned counsel for insurance company has submitted that age of the deceased was 44 years and the Claims Tribunal has rightly applied the multiplier of 14 relying on the judgment of Hon'ble Apex Court in the case of Smt. Sarla Verma Vs. Delhi Road Transport Corporation reported in 2009(2) TAC 677, and there is no illegality.

18. Considering the rival submissions of learned counsel for the parties, both the appeals are disposed of and the compensation awarded by the Claims Tribunal is modified and is re-assessed as follows:-

1. Monthly Income : 	     = Rs. 30,527/- 
 
2. Annual Income : 		     = Rs. 30,527/- x 12 = Rs. 3,66,324/- 
 
3. Future prospects : (30%)     = Rs. 1,09,897.2/- (round figure Rs.1,09,900/-) 
 
4. Total annual income :	     = Rs.3,66,324/- + Rs.1,09,900/- = Rs.4,76,224/- 
 
5. Deduction towards 
 
personal expenses (1/3) : 	     = Rs.4,76,224/- - Rs.158,741/- = Rs.3,17,483/-
 
6. Multiplier applicable (14) : = Rs.3,17,483/- x 14 = Rs.44,44,762/-
 
7. Non-pecuniary damages :   = Rs. 70,000/- 
 
				     = Rs.44,44,762/- + Rs. 70,000/- = Rs. 45,14,762/-
 
8. Deduction towards contributory
 
 negligence (10%) :                = Rs. 45,14,762/- - Rs.4,51,476/- = Rs.40,63,286/-
 

 
	Total Compensation	     = Rs.40,63,286/-
 
19.	Both the appeals are hereby disposed of and award of the Claims Tribunal is modified and compensation awarded by the Claims Tribunal is reduced from Rs.44,64,700/- to Rs.40,63,286/-.
 
20.	Interim order, if any, stands vacated.
 

21. The appellant Insurance Company was directed to deposit the entire awarded amount vide interim order dated 8.11.2012 passed in F.A.F.O. No.3959 of 2012 and claimant no.1 was permitted to withdraw Rs.12,50,000/- and rest amount was directed to be invested in fixed deposit scheme. The Insurance Company is entitle for refund of Rs.4,01,414/- from the deposited amount and remaining deposited amount with interest is payable to claimants-respondents.

22. No order as to costs.

Order Date :-12.04.2022

Kpy