Allahabad High Court
The Oriental Insurance Co. Ltd. vs Prashant Kumar And 6 Ors. on 16 May, 2024
Author: Vipin Chandra Dixit
Bench: Vipin Chandra Dixit
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2024:AHC:88570
Court No. - 9
Case :- FIRST APPEAL FROM ORDER No. - 1524 of 2016
Appellant :- The Oriental Insurance Co. Ltd.
Respondent :- Prashant Kumar And 6 Ors.
Counsel for Appellant :- Arvind Kumar
Counsel for Respondent :- Vashistha Tiwari
With
Case :- FIRST APPEAL FROM ORDER No. - 1824 of 2022
Appellant :- Prashant Kumar And 3 Ors.
Respondent :- Chandrashen Rao And Another
Counsel for Respondent :- Arvind Kumar
Hon'ble Vipin Chandra Dixit,J.
Heard Sri Anchit, Advocate holding brief of Sri Arvind Kumar, learned counsel appearing on behalf of Insurance Company and Sri Vashistha Tiwari, learned counsel appearing on behalf of claimants-respondents and perused the record.
First Appeal From Order No. 1524 of 2016 has been filed on behalf of Insurance Company against the judgment and award dated 28.03.2014, passed by Motor Accident Courts Tribunal / Additional District Judge, Court No. 4, Deoria, in M.A.C.P. No. 279 of 2010 (Prashant Kumar and others vs. Chandra Sen Rao and another) by which compensation of Rs. 22,97,725/- along with 6% interest has been awarded to the claimants-respondents and liability has been fixed upon the appellant Insurance Company.
First Appeal From Order No. 1824 of 2022 has been filed on behalf of claimants-appellants against the same impugned judgment and award dated 28.03.2014, passed by Motor Accident Courts Tribunal / Additional District Judge, Court No. 4, Deoria, in M.A.C.P. No. 279 of 2010 (Prashant Kumar and others vs. Chandra Sen Rao and another) for enhancement of compensation.
Both the aforesaid appeals have been filed against the same impugned judgment and award dated 28.03.2014, hence, both the appeals are being decided by common judgment.
It is submitted by learned counsel for the Insurance Company that the Motor Accident Claims Tribunal, Deoria has got no jurisdiction to decide the claim petition as the claimants are permanent resident of District Kushi Nagar and only the Motor Accident Claims Tribunal, Kushi Nagar has got jurisdiction to decide the claim petition. It is further submitted that it was a case of head on collusion in between motorcycle and insured truck and the accident was occurred almost in the middle of the road. The motorcycle was driven by the deceased at the time of accident and he himself was rash and negligent and was responsible for the accident but nothing has been deducted in terms of contributory negligence of the deceased and the entire liability has been fixed upon the Insurance Company, being insurer of offending truck, holding rash and negligent driving of truck driver.
On the other hand, learned counsel appearing on behalf of claimants-respondents submits that the claimants are permanent resident of district Kushi Nagar but they are residing in district Deoria since 2006. After the death of husband, the widow Smt. Manjula along with her sons are living with her brother at Deoria. The claimants had also produced Munna Barnwal as PW-4, who is real brother of claimant-respondent no. 3 Manjula has stated on oath that after the death of husband, his sister along with children are residing with him at Deoria. The claims tribunal has rightly decided issue no. 5 in favour of claimants-respondents. It is further submitted that the claims tribunal after considering the entire evidence and materials which are available on record has decided issue no. 1 in favour of claimants-respondents holding that the driver of truck alone was rash and negligent and was responsible for the accident. Lastly, it is submitted that the claims tribunal has erred in deducting 1/3 towards personal expenses, whereas, there are six dependents on the income of the deceased and as such, deduction should be 1/4th in view of law laid down by Hon'ble Apex Court in the case of Smt. Sarla Verma vs. D.T.C. reported in 2009 (2) T.A.C. 677 (S.C.). It is also submitted that nothing has been awarded towards future prospects, whereas, the claimants are entitled for 15% future prospects in view of law laid down by Hon'ble Apex Court in the case of National Insurance Company Ltd. vs. Pranay Sethi reported in 2017 (4) T.A.C. 673.
Considered the rival submissions of learned counsel for the parties and perused the record.
From perusal of array of parties, it is apparent that the claimants are permanent resident of Village Pipra Kapoor, Post and P.S. Hata, District Kushi Nagar and presently reside in the house of Shyam Bihari Baranwal, Mohalla Ram Gulam Tola, P.S. Kotwali, District Deoria. The claimant Manjula, who appeared as PW-1 has stated that she is presently resides at Deoria. The brother of claimant Manjula who appeared as PW-4 has also stated that Manjula is his real sister and is residing with him since 2006. No evidence was adduced by the Insurance Company that the claimants are not residing at Deoria. The claims tribunal after considering the evidence and materials which are available on record has rightly decided issue no. 5 holding that the claimants are presently residing at district Deoria and the Motor Accident Claims Tribunal, Deoria has got jurisdiction to decide the claim petition.
So far as, issue of negligence is concerned, the first information report was lodged against the driver of the offending truck and the Investigating Officer after due investigation has submitted charge sheet against the truck driver. The claimants has also produced eye witness Laxmikant as PW-2, who has stated that the truck was driven by its driver very rashly and negligently. No evidence in rebuttal has been adduced by the Insurance Company and even the driver of the truck was not produced to deny his negligence. The claims tribunal has rightly decided issue no. 1 holding the rash and negligent driving of truck driver. The findings recorded by the claims tribunal in respect of negligence is based on evidence and materials which are available on record and there is no illegality in any manner.
So far as, quantum of compensation is concerned, the claims tribunal has erred in deducting 1/3rd towards personal expenses ignoring the fact that there are six dependents and deduction would be 1/4th as per law laid down by Hon'ble Apex Court in the case of Sarla Verma (supra). The claimants are also entitled for 15% future prospects in view of judgment passed by Hon'ble Apex Court in the case of Pranay Sethi (supra).
In view of above, the First Appeal From Order No. 1524 of 2016 filed by Insurance Company is dismissed and First Appeal From Order No. 1824 of 2016 filed by claimants is partly allowed. The compensation awarded by the claims tribunal is reassessed as under :-
1. Monthly Income : Rs. 26,180/-
2. Annual Income : Rs. 26,180/- x 12 = Rs. 3,14,160/-
3. Future prospects : (15%) = Rs. 47,124/-
4. Total annual income : Rs. 3,14,160/- + Rs. 47,124/- = Rs. 3,61,284/-
5. Deduction towards personal expenses (1/4) : Rs. 3,61,284/- - Rs 90,321/- = Rs. 2,70,963/-
6. Multiplier applicable (11) : Rs. 2,70,963/- x 11 = Rs. 29,80,593/-
7. Non Pecuniary Damages : Rs. 65,000/-
Total : Rs. 29,80,593/- + Rs. 65,000/- = Rs. 30,45,593/-
The award of the Claims Tribunal is modified and compensation awarded by the Claims Tribunal is enhanced from Rs. 22,97,725/- to Rs. 30,45,593/-.The claimants are also entitled for interest at the rate of 6% on the enhanced amount from the date of award i.e. 28.03.2014.
The Oriental Insurance Company Ltd. is directed to pay enhanced amount along with interest to the claimants within two months from today.
Any amount deposited by the Insurance Company shall be adjusted towards the amount paid to the claimants.
No order as to costs.
Order Date :- 16.5.2024
sailesh
