The Oriental Insurance Co.Ltd. vs Smt.Gulab Rani And Another
2022 Latest Caselaw 407 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

                Reserved On:- 10.03.2022 
 
   Delivered On:- 04.04.2022 
 
Case :- FIRST APPEAL FROM ORDER No. - 1111 of 1999
 
Appellant :- The Oriental Insurance Co.Ltd.
 
Respondent :- Smt. Gulab Rani And Another
 
Counsel for Appellant :- Saral Srivastava, Ashok Kumar Srivastava
 
Counsel for Respondent :- K. Murari, M.P. Sarraf, M.P. Singh, Shreeprakash Singh
 

 
Hon'ble Siddharth, J.

1. Heard Sri Ashok Kumar Srivastava, learned counsel for the appellant, Sri Shreeprakash Singh, learned counsel appearing on behalf of the respondent nos. 1 to 5 and perused the lower court record.

2. This First Appeal From Order has been preferred by the insurance-company appellant against the judgment and award dated 25.08.1999 passed by Motor Accidents Claims Tribunal / 6th Additional District Judge, Jhansi in Motor Accident Claim Case No. 372 of 1995 (Smt. Gulab Rani vs. Smt. Malti Devi and Others) whereby compensation of Rs. 4,85,000/- along with 10 percent interest has been awarded by the Motor Accident Claims Tribunal in favour of the claimants.

3. The brief facts of the case are that the deceased, Ram Deen Ahirvar, was sitting in a shop beside a road when he was hit by truck no. MKK 6759 (hereinafter referred to as "truck" only) driven rashly and negligently, resulting into his death. The claimants-respondent nos. 1 to 5 are the widow and children of the deceased. The respondent nos. 6 and 7 and the owner and driver of truck who have been sufficiently served as per office report dated 19.02.2022, but none appears on their behalf.

4. Learned counsel for the appellant has submitted that the driving license of the driver of the truck was found to be fake. The insurance company got report from R.T.O., Agra dated 29.06.2016 which revealed that the driving license produced before the Tribunal belonged to one Ramesh Chandra Mittal and was valid for driving a motorcycle and it was not in the name of the driver of the truck, namely, Narendra Singh, respondent no. 7. Insurance Company-appellant gave number of applications before the tribunal, praying for summoning the officials of R.T.O., Agra but the tribunal did not summoned them. It wrongly relied upon an earlier report of R.T.O., Agra filed by the owner of the vehicle, respondent no. 6 and decided the claim petition. The second argument for the counsel for the appellant is that the Tribunal has passed the award on the basis of entire salary of the deceased for the remaining period of his life when only the take home salary of the deceased was required to be considered for assessing the compensation. It has disregarded the multiplier system. The take home salary of the deceased was only Rs. 3,554/- per month and after 1/4 deduction it should have been taken to be Rs. 2,666/- per month. The relevant multiplier for the age group 50-55 is 11 and hence the total compensation should have been determined as Rs. 3,51,912/-.

5. Learned counsel for the claimants-respondents has submitted that the insurance company - appellant only produced the report of investigator dated 12.03.1997 which had no evidentiary value, in view of the judgment of this court in the case of Smt. Kamla and Others vs. Rohan Saxena reported in 2013(97) ALR 882 (DB). He has submitted that such a report has been considered to be only hear say evidence and not admissible in evidence. The claimants filed the cover note of the insurance which was not denied by the insurance company of the truck.

6. Learned counsel for the insurance company- appellant has relied upon the judgment in the case of Oriental Insurance Company Limited vs. Uma Charan and others, 1998(1) TAC 594 (Oddisa) and National Insurance Company Limited vs. Bula Devi, 1997(2) TAC 567 (PNH) and has submitted that the tribunal was bound to summon the R.T.O officials to prove that the driving license produced by the owner of the vehicle was fake document. Counsel for the claimant-respondent nos. 1 to 5 has relied upon the judgment of the Apex Court in the case of Narcinva V. Kamat And Anr. Etc vs Alfred Antonio Doe Martins And Ors, 1985 AIR 1281 (SC) and has submitted that the burden of proving driving license of the driver of the truck produced by the owner was fake was on the insurance company and if the insurance company failed to prove the same, its liability under the contract of insurance remains intact and unhampered and it is bound to satisfy the award of the tribunal. The Apex Court held that the burden of proving the plea taken up by the insurance company was on it and applying the test, who would fail if no evidence is led, the obvious answer is, the insurance company.

7. In view of the above consideration, the first argument of the appellant is turned down.

8. The second argument regarding quantum of compensation directed to be paid to the claimants deserves consideration.

9. Learned counsel for the appellant has submitted that the tribunal has granted compensation considering the salary of the deceased as Rs. 3,554/- it should have been Rs. 2,666/- after deduction of ¼ of the same towards personal expenses of the deceased.

10. Learned counsel for the claimant-respondent nos. 1 to 5 has submitted that the deceased was aged about 47 years and was working on the post of Krishi Sahayak (Agriculture Assistant) and was earning Rs. 3,554/-. The submission is that the accident took place on 30.04.1995 and the date of retirement of the deceased was 31.01.2005. He had 9 years 9 months of service left. The tribunal has illegally deducted transportation allowance from the salary of the deceased and after determination of amount of Rs. 3,334/- deducted 1/3 of the same towards personal expenses of the deceased. Keeping in view the number of dependents of the deceased being 5, only 1/4th deduction was permissible. The amount payable towards spousal consortium and parental consortium to the children deserves to be awarded at the rate of Rs. 44,000/- per claimants, in view of the judgment of the Apex Court in the case of N. Jayasree vs. Cholamandalam MS General Insurance Company Limited, 2021 (12) Scale 585 (paras 29 to 35).

11. After hearing the rival contention and keeping the judgment of the Apex Court in the case of Pranay Sethi and Another 2017(4) UP LBEC 2633 in view of the award of the MAC Tribunal is modified as follows :-

1. Salary drawn on the date of accident by deceased = Rs. 3,554/-

       2. Number of claimants are 5, hence deduction would be 1/4th in view of Rule 220-A (2)(ii) of U.P. Motor Vehicle Rules, 1998                                 		 			              	     = Rs.3,554 - 888 = 2,670/-
 
       3. Towards future prospects 30% of the income of deceased would be added for age group of 40 to 50 of salaried person 										= 2,670 + 801 = Rs. 3,471/-
 
       4. Salary of one year 				= 3471 x 12 = 41,652/-
 
       5. Total loss of dependency on the basis of relevant multiplier	                    						        = 41,652 x 13 = 5,41,476/-
 
       6. Spousal Consortium to widow (with revision of 10%)  = 44,000/-
 
       7. Parental Consortium to 4 children (with revision of 10%)                       						    = 44,000 x 4 = 1,76,000/-
 
       8. Loss of Estate					= 15,000/-				
 
       9. Funeral expenses				= 15,000/-
 
       Total award = Rs. 7,91,476/- + 10%
 

12. Sixty percent of enhanced amount of compensation along with interest upto date shall be paid to the claimants-respondent no. 1 (Smt. Kamla Rani) and 10 percent compensation each with interest upto date shall be paid to the claimant-respondent nos. 2, 3, 4 and 5, namely, Surendra Singh, Virendra Singh, Neeraj Kumar and Km. Neeta Devi. The amount already paid / deposited by the insurance company - appellant shall be deducted from the aforesaid amount and remaining amount of the compensation shall be deposited by the insurance company-appellant before the tribunal concerned within a period of two months from today with interest @ 7.5 % per month from the date of filing of the claim petition.

13. The shares of the claimants in the amount of compensation deposited before the tribunal shall be released in their favour with interest upto date in their bank accounts by way of ECS mode within three days of furnishing of bank account details by the claimants-respondents.

14. The prayer of the appellant for setting aside the award is declined. The award is enhanced as above in favour of claimants.

15. The appeal stands disposed of, accordingly.

Order Date :- 04.04.2022

Rohit