Court No. - 2
1. Case :- FIRST APPEAL FROM ORDER No.702 of 1994 Appellant :- New India Assurance Co. Ltd.
Respondent :- Smt. Malti Devi Counsel for Appellant :- Amit Singh Counsel for Respondent :- Sabhapati Tewari AND
2. Case :- FIRST APPEAL FROM ORDER No.1055 of 1994 Appellant :- Smt Malti Devi & Ors. Respondent :- Ram Das Shukla & Ors. Counsel for Appellant :- Shabhapati Tiwari Counsel for Respondent :- P.P.Pandey,A.B. Saran,A.K.Saxena,Vineet Saran
Hon'ble Dr. Kaushal Jayendra Thaker,J.
1. Both these appeals arise out of the judgment whereby the Tribunal granted a sum of Rs. 28,200/- and also added a sum of Rs.15,000/- rounding up the amount to Rs.43,200/- with 12% rate of interest if the amount is not deposited within 3 months from the date of the award.
2. This has aggrieved both the Insurance company as well as the claimant. The Insurance company has preferred the appeal on several grounds.
3. The claimants appeal, being F.A.F.O. No.1055 of 1994, is for claiming a sum of Rs.3,55,176/- meaning thereby the amount which was not granted.
4. The factual data as culled out from the record is deceased Hirdai Ram 35 years of age, serving as a Teacher and drawing a salary of Rs.1,347.40 at the time of accident. A Tractor on 3.4.1987 at about 9.30 hours came and dashed the deceased. The deceased received several multiple injuries out of the said accident and succumbed to the injuries on his way to the hospital.
5. It is an admitted position of fact that the deceased was not the tortfiesor. The accident took place between the motorcycle and the tractor owned by opponent no.2 against whom a sum of Rs.3,98,376.00 was claimed. It is the say of the owner and the driver of the tractor that the tractor was plying in a stationary condition and it was the motorcyclist, who came on the wrong side and dashed with the tractor. The rear portion of the tractor was hit by the motorcycle and the death was caused due to the negligence of the driver of the motorcycle and not that of the tractor.
6. The Insurance company also disputed the income, age and that the vehicle was not insured with it and, therefore, they were not liable to pay any compensation. The claimants examined one Trilokinath, the driver of the motorcycle and Malti Devi, the widow of the deceased. PW2- Ram Jawahit was the father of the deceased. The person who performed the postmortem Dr. P.K. Srivastava and the postmortem prepared by him was proved by PW3. PW4 being the Head Constable proved the F.I.R. and the case diary and the registration of the case. PW5 was one Shiv P. Chaudhary, who was the Principal of the Inter College and who proved the income of the deceased, who testified that the deceased would have earned a gross salary of Rs.4,050/- if he was alive when he deposed namely 1993.
7. The co-owner of the vehicle namely tractor was examined as DW1 and According to him, the vehicle of whom he was a co-owner was parked on the side line of the road. P.K. Gautam, clerk of transport department proved the driving licence of the driver of the tractor. DW3 Nirankar was driver of the offending vehicle.
8. The Tribunal while discussing the question of negligence has held as follows:-
“The other co-related question is whether the liability of the accident can still be fastened on the O.P. No.1 and 2.
On the question of liability being fastened on the O.P. No.1 and 2, the matter is very plain and simple. It is not denied that the accident did not take place. It is not denied that the offending tractor was not involved in the accident. Only a different version is given by the owners about the accident. This version has been given for the first time in court. It is not shown that the owners of the offending tractor lodged a first information report to disclose their version of the accident at the earliest opportunity. That being so the statement made before the court must be deemed to be an after thought and cannot be believed. This statement cannot be believed for another reason also. When two vehicles are involved in the accident the responsibility of the heavier vehicle is greater. That being so, jthe liability on the tractor owner was much greater than that of the driver of the motorcycle.”
9. The deceased was a non-tortfiesor. The factum of contributory negligence as has been decided by the Tribunal herein above cannot be found fault with on the facts of this case.
10. This takes this court to the question of quantum. At the first flush the Tribunal has erred in holding that the widow having been given appointment on compassionate ground, the quantum would be deducted. This is contrary to the decision of the Apex Court in Vimal Kanwar and others Vs. Kishore Dan and others, (2013) 7 SCC 476, and Helen C. Rebello (Mrs.) and others Vs. M.S.R.T.C. and others (1999) 1 SCC 90.
11. The fact that the deceased was aged 35 years. He was having a fixed income as he was a Teacher. He was survived by 3 persons. 1/3rd could have been deducted from his income just because his widow was appointed, there cannot be any deduction. The Tribunal at one stage felt that the value of money was deteriorated but granted only Rs.27,000/- as it deducted even the amount of provident fund and without applying the multiplier method or the principle enunciated by the Apex Court, granted the meager amount and therefore, the same requires to be recalculated. The claimants would be entitled to Rs.900/- per month multiplied by 12 multiplied by 15 would be the just compensation in the year 1987 which would come to Rs. 1,62,000/- to which additional amount of lump sum Rs.38,000/- would meet the ends of justice. The conditional interest could never have been granted. 9% rate of interest from the date of filing of the claim petition till the disposal of the petition and 4% thereafter till the amount is deposited. The Insurance company to work out the difference and deposit the same within 12 weeks from today.
12. The Insurance company has submitted that their liability was only for Rs.50,000/- and that the driver did not have a valid driving licence. The submission that it was a limited liability policy was never raised before the Tribunal. The Tribunal has held that there was nothing to show that the it was a limited liability policy as except the cover note, the insurance policy was not filed and, therefore, the insurance company cannot now plead this fact. There was no breach of policy also. The Tribunal relied on judgments more particularly the judgment in Ishwar Devi Vs. Reoti Raman, 1978 ACJ 340, a Division Bench of the Hon'ble Allahabad High Court laid down that even if the driver held a learner licence, it was sufficient compliance of the provisions of Motor Vehicle Act. In National Insurance Company Vs. Jugal Kishore, 1988 ACJ 270, it was laid down by the Supreme Court of India that a specific agreement had to be arrived at between the owner and the Insurance Company under the Insurance policy to cover the risk.
13. Hence, the appeal preferred by the Insurance company will fail. The appeal of claimants is allowed. The amount be deposited as herein above ordered. The judgment and decree dated 2.3.1994 shall stand modified to the aforesaid extent. The amount shall not be kept in Fixed Deposit as much time has passed.
Order Date :- 31.5.2018 Irshad