Court No. - 33
Case :- FIRST APPEAL FROM ORDER No. - 899 of 1996 Appellant :- Ashok Nath And Others Respondent :- Ram Kumar Singh And Others Counsel for Appellant :- Deepak Varma Counsel for Respondent :-
Hon'ble Dr. Kaushal Jayendra Thaker,J.
1. Heard Sri Deepak Verma, learned counsel for the appellant. None appeared on behalf of respondent-Insurance Company since 1996. I have requested Sri V.C. Dixit, Advocate. He conveys that officer of the National Insurance Company Ltd. has not given his vakalatnama. May that as it may be, the matter to proceed ex parte.
2. This appeal, at the behest of the claimants, challenges the judgment and award dated 6.8.1996 passed by Special/Additional District Judge, Mirzapur in M.A.C. Case No. 48 of 1990 awarding a sum of Rs.50,000/ under the head of no fault liability recoverable from the driver and the owner of the jeep.
3. The accident is not in dispute. The issue of negligence decided by the Tribunal is not in dispute. The issues to be decided are the compensation awarded and the liability.
4. It is submitted by the counsel for the appellant that the judgment of the Tribunal relying on the judgment of Dangri and others Vs. New India Insurance Co. Ltd., 1988 T.A.C. 1 is perverse as analogy cannot be looked into for a person studying in B.A. I and a lady of 30 years having three minor children and husband cannot be equated. It is further submitted that the income of the deceases was Rs.15,000/- per month. She was survived by six legal heirs. She was earning by selling milk and milk products. She was a non tortfeasor. It is further submitted that the Insurance Company did not prove that there was breach of policy condition. The accident according to the claimant-appellants was because of the negligence of both the vehicles. It is further submitted that the vehicle dashed with tree and just because the deceased was travelling in the jeep, there was no proof that she was a paid passenger. It was not prove that the owner had permitted the driver to carry passengers. Reliance can be placed on the decision of Shanta Bai and others Vs. Sakampa and others, 1996 TAC 9.
5. Recently the Apex Court in Bhagyalakshmi and others Vs. United Insurance Co. Ltd and others, 2009 (4) TAC 393 (SC) has held that in private car, if passenger are plied, it would not be a breach of a policy condition. Even if it was believed though not proved that there was breach of policy, the breach of policy was not so fundamental nor was it cause of the accident having taken place. The judgment of National Insurance Company limited Vs. Swaran Singh and others (2004) 3 SCC 297 and, therefore, it cannot be said that the owner has committed any breach of policy condition. The finding by the Tribunal while exonerating the Insurance Company is bad in eye of law and, therefore, in absence of a finding that the owner had permitted the use of the vehicle as fare paying passenger. I am even supported in my view by the decision in United India Insurance Co. Ltd. Vs. Chhatrasing Parbatsing Rathod and others, 1999 (2) GLR 1100.
6. The accident occurred in the year 1990. It cannot be accepted that her income was Rs.15,000/- per month. The claimant in the appeal memo has submitted that she was earning Rs.1400/- per month by selling milk. Her income can be considered to be Rs.1200/- per month namely Rs.14,400/-, to which as the deceased was below 40 years of age, 40 % of the income i.e. Rs. 5760/- requires to be added as future income of the deceased in view of the decision in National Insurance Company Limited Vs. Pranay Sethi and Others, 2017 0 Supreme (SC) 1050 which would come to Rs.14,400+5760 = 20,160/-. Deduction towards her personal expenses would be 1/3rd as she was survived by three minor children and her husband. Hence, after deduction of 1/3rd, the annual datum figure available to the family would be Rs.13,340/-. As the deceased was in the age bracket of 26-30, the applicable multiplier would be 17 in view of the decision of the Apex Court in Sarla Verma Vs. Delhi Transport Corporation, (2009) 6 SCC 121. In addition to that, Rs.30,000/- is granted under the head of non-pecuniary damages in view of the decision in Pranay Sethi (Supra). Hence, the claimants are entitled to a total compensation of Rs.13,340 x 17 + 30,000 = 2,56,780/-
7. The rate of interest will have to be 9% in view of the judgment of the Division Bench of Lucknow Bench in F.A.F.O. No. 199 of 2017 (National Insurance Company Limited Vs. Lavkush and another) decided on 21.3.2017 which has been followed by this Court time and again and which will enure for the benefit of the appellant.
8. No other grounds are urged orally when the matter was heard.
9. In view of the above, the appeal is partly allowed. Judgment and decree passed by the Tribunal shall stand modified to the aforesaid extent namely the judgment and decree shall be executable against the driver, owner and Insurance Company of the vehicle in dispute. The difference in amount be deposited with interest at the rate of 9% from the date of filing of the claim petition till award and 6% thereafter till the amount is deposited. The amount be deposited within a period of 12 weeks from today. The amount of no fault liability be deducted from the awarded amount.
10. A copy of the this order be sent to the National Insurance Company Ltd. so that the amount may be deposited within 12 weeks from today as herein above mentioned.
Order Date :- 21.8.2019 DKS