Court No. - 27
Reserved on 02.02.2018 Delivered on 23.03.2018
Case :- FIRST APPEAL FROM ORDER No. - 190 of 2010 Appellant :- Smt. Bhanmati And Others Respondent :- The New India Assurance Company Ltd. And Another Counsel for Appellant :- Sharve Singh Counsel for Respondent :- Abinash Mishra,Avanish Mishra
Hon'ble Dr. Kaushal Jayendra Thaker,J.
Heard Sri Sharve Singh, learned counsel for the appellants and Sri Avanish Mishra, learned counsel for the respondent- Insurance Company and perused the material available on records.
The appellant has felt aggrieved by dismissal of the claim petition by the Motor Vehicle Tribunal in Case No. 594 of 1996. The claimant had claimed a sum of Rs.5,00,000/- but the Tribunal awarded the amount under the head of no fault liability namely, only 25,000/- as the accident, according to the Tribunal, occurred when the amount was pacified to Rs. 25,000/-. The accident took place in the year 1993 at 12:00 noon. The written statement was filed by all the respondents which was one of denial.
The Tribunal dismissed main petition holding that if it was a case of mechanical defect and if trying to save a cow, no amount can be paid just because in the F.I.R. which was lodged by the father of the deceased who was not an eye witness did not mention of mechanical failure. The Tribunal held against the claimants who are illiterate and minor children of the deceased.
This appeal requires to be allowed as the Tribunal has committed gross error of law in rejecting the claim petition though the deceased who was a driver not at fault. The judgment of Smt. Kaushnuma Begum and others vs. The New India Assurance Co. Ltd. (2001) 2 SCC 9 will come to the aid of the appellants as it has been stated in the evidence that the driver died on the spot and the accident took place because of the technical fault. The failure of the vehicle on the road entails the Insurer of liability to indemnify the insured even if the Tribunal believed that the driver was saving the cow and it was the fault of the driver and the owner will be the liable. In that view of the matter, this appeal requires to be allowed definitely being perverse or upturn as far as issue of the negligence is concerned.
The other issue held against the Insurer Company that the vehicle was insured and the driver had driving license. The deceased was a driver in the year 1996 when the accident occurred, hence in view of the latest decision of the Apex Court in the case of Bithika Mazumdar and another vs. Sagar Pal and others (2017) 2 SCC 748 has held that the compensation claim petition which was pending for more than 9 years due to one or other legal technicalities and considering the peculiar and unprecedented circumstances of case and availability of evidence on record, this Court can decide compensation instead of remanded the matter.
The driver would earn Rs. 3,000/-p.m., however, on a conservative side his income be considered as Rs.24,000/- per annum and he has left behind him his wife and their heirs. The driver who was covered under the policy as he was a paid driver and policy covered his premium also. The deceased was about 30 years old. He had about 8 children and hence, he would expenses income of ¼ on himself. Amount of Rs.20,000/- per year x 16 would be appropriate multiplier looking to the age of the deceased as it is a case of year 1996. Thus, the amount would be Rs.3,20,000/- to which additional amount of Rs.30,000/- is added as I am unable to accept the submissions of Sri Avanish Mishra that the Insurance did not cover the vehicle.
In that view of the matter, this appeal is allowed.
The awarded amount of Rs.3,50,000/- be deposited within 12 weeks from today with interest calculated at 9% from date of filing claim petition till disposal of petition and 4% thereafter.
Record, if any, be sent back to trial court forthwith.
Order Date :- 23.3.2018 Atmesh