Court No. - 27
Case :- FIRST APPEAL FROM ORDER No. - 3326 of 2013 Appellant :- National Insurance Co. Ltd. Respondent :- Smt. Arti Singh And 3 Ors. Counsel for Appellant :- S.B.L. Gour Counsel for Respondent :- Ram Singh,Amit Kumar Singh
Hon'ble Saral Srivastava,J.
Heard Sri S.B.L. Gour, learned counsel for the appellant and Sri Ram Singh, learned counsel for the respondent no. 1.
The present appeal has been preferred by the appellant- insurance company challenging the judgment and award dated 03.08.2013 passed by Motor Accident Claims Tribunal/Additional District & Sessions Judge, Court No. 24, Allahabad, whereby the Commissioner has awarded Rs.16,88,590/- along-with 7% interest to the claimants- respondents.
The respondent no. 1 instituted a claim petition for the death of her husband Surendra Bahadur Singh, who while crossing the road had met with an accident with Truck No. U.P.-65-H-1940 (herein after referred as 'offending vehicle'). In the said accident, he had suffered injuries and died. The deceased was stated to be Lekhpal and was drawing a salary of Rs.15,801/- per month. In the aforesaid backdrop, a compensation of Rs.20,00,000/- along-with 18% interest has been prayed for.
Challenging the award, learned counsel for the appellant has contended that it was a case of false implication of offending vehicle inasmuch as, the F.I.R. in respect of alleged accident was lodged against the unknown vehicle. Police submitted final report on 19.1.2011 after about one month from the date of accident. Thereafter, two persons namely Randendra Singh and Diwakar Singh filed an affidavit stating therein that the alleged accident had taken plea before them by offending vehicle, and on the basis of said affidavit, Police started investigation and filed charge sheet against the driver of offending vehicle.
He submits that if these two persons namely Randendra Singh and Diwakar Singh were present on the spot then they could have immediately disclosed the number of offending vehicle to Police and this fact itself indicates that Randendra Singh and Diwakar Singh had filed false affidavit implicating the offending vehicle. Thus, he submits that in view of the aforesaid fact, the testimony of PW-2 Diwakar Singh alleged to be eye witness of the accident is not worthy reliance.
He further contends that the finding of the Tribunal in respect of negligence of driver of offending vehicle is wrong and illegal inasmuch as, in the said accident there was negligence of deceased in the accident and the finding of the Tribunal holding that the insurance company has not pleaded in the written statement in respect of negligence of deceased in the accident is wrong and perverse inasmuch as, a specific plea in this regard has been taken by the insurance company in Paragraph 18 of the written statement which is extracted herein below:
"That it is also denied that the alleged accident was consequence of rash and negligent driving of the alleged vehicle in question, rather it appears from the own averments of the claimant in the claim petition that the alleged accident occurred due to carelessness and negligence of the alleged deceased himself at the time of alleged accident, as such the liability for the alleged accident is solely upon the alleged deceased himself and therefore, the answering Opposite Party cannot be held liable to compensate for the same."
Lastly, he contends that the Tribunal has erred in awarding 20% towards future prospect inasmuch as, considering the age of the deceased the claimants are entitled to 15% towards future prospect.
Per contra, learned counsel for the respondent no. 1 submits that the testimony of PW-2 Diwakar Singh, eye witness of the accident, who has categorically stated that the accident had been caused by offending vehicle has not been rebutted by the insurance company.
He further submits that the owner of the offending vehicle in his testimony before the Tribunal has admitted the factum of the accident and thus, the submission of the learned counsel for the appellant in respect of false implication of offending vehicle in the accident is devoid of merit.
He further contends that the Tribunal has awarded a very meagre amount of Rs.15,000/- towards conventional heads and had the Tribunal awarded correct amount of compensation under the aforesaid head, the compensation would have been same.
I have considered the rival submissions of the parties and perused the record.
The record reveals that on the basis of affidavit filed by Diwakar Singh and Randendra Singh, Police conducted the investigation and found the involvement of the offending vehicle in the accident and has submitted charge sheet against the driver of the offending vehicle. The Tribunal in recording finding in respect of the occurrence of the accident by offending vehicle has placed reliance upon the testimony of PW-2 Diwakar Singh.
Further, the occurrence of the accident by offending vehicle has been admitted by the owner of the offending vehicle in his testimony, the insurance company did not lead any evidence to rebut the testimony of PW-2 Diwakar Singh or to demonstrate that the offending vehicle has been falsely implicated in the present case.
Thus, in view of the fact that the owner has admitted the factum of the accident and further, the claimant-respondent no. 1 had established on the basis of evidence that the accident had occurred by the offending vehicle, the finding of the Tribunal in respect of occurrence of the accident by the offending vehicle being finding of fact is not liable to be interfered with, and is accordingly affirmed.
So far as, the contention of the learned counsel for the appellant with respect to negligence of the deceased is concerned, the said contention is also misconceived for the reason that the deceased was crossing the road and the offending vehicle had hit the deceased, the driver of offending vehicle should have taken due care in driving the offending vehicle.
Further, the burden of proof that there was contributory negligence of the deceased in the accident is upon the insurance company, but the insurance company did not lead any evidence to discharge its burden. Though, the insurance company has taken a specific plea in written statement with respect to negligence of deceased in the accident, but the same is of no help to the insurance company, as the insurance company did not lead any evidence to establish the negligence of the deceased in the accident. Thus, the contention of the insurance company on this count is also rejected being devoid of merit.
So far as the contention of the learned counsel for the appellant, on quantification of compensation is concerned, the said submission of the learned counsel for the appellant has substance, but the fact remains that the Court are duty bound to award just and fair compensation to the claimants. The compensation awarded by the Tribunal towards conventional heads is not adequate and had the Tribunal awarded correct amount of compensation towards conventional heads as per the principles laid down in the judgment of the Apex Court in the case of National Insurance Company Limited Vs. Pranay Sethi and Others 2017 (16) SCC 680, the amount of compensation would have been same. Thus, this court is not inclined to interfere with the quantification of compensation.
For the reasons given above, the appeal lacks merit and is, accordingly, dismissed. There shall be no order as to costs.
Order Date :- 27.2.2019 Ishan