Court No. - 27
Case :- FIRST APPEAL FROM ORDER No. - 3154 of 2015
Appellant :- Oreintal Insurance Co. Ltd. Respondent :- Smt. Veenu Singh And 4 Others Counsel for Appellant :- Sushil Kumar Mehrotra Counsel for Respondent :- Shiv Kumar Pal
Hon'ble Saral Srivastava,J.
Heard Sri Sushil Kumar Mehrotra, learned counsel for the appellant and Sri Shiv Kumar Pal, learned counsel for the respondents.
By means of the present appeal, appellant-insurance company has challenged the judgement and order dated 27.08.2015 passed by the Motor Accident Claims Tribunal/Additional District Judge, Court No.19, Allahabad in M.A.C.P. No.752 of 2013 whereby, the Tribunal has awarded Rs.48,22,055/- as compensation to the claimants/respondent nos.1 to 3.
Claimants/respondent nos.1 to 3 instituted the claim petition praying for compensation of Rs.83,63,000/- for the death of one Dhirendra Singh in an accident on 11.11.2012 with Maruti Car No.U.P.-78-CE-0027.
In the present appeal, learned counsel for the appellant has assailed the finding of the Tribunal only on the issue no.2 with respect to contributory negligence of the driver of motorcycle and the finding regarding quantification of compensation.
It was pleaded in the claim petition that Dhirendra Singh was going on Motorcycle No.U.P.-70-Y-2964 with one Yogendra Kumar and at about 3.30 PM when motorcycle reached village Pathariyapur highway, it was hit by Maruti Car No.U.P.-78-CE- 0027 (hereinafter referred to as 'offending vehicle') from behind as a result of which, Dhirendra Singh sustained injuries and later on succumbed to his injuries. It was further pleaded in the claim petition that the driver of the offending vehicle was driving the vehicle rashly and negligently. Deceased Dhirendra Singh was stated to be an Advocate and earning Rs.15,000/- per month.
The claim petition was contested by the owner of the offending vehicle by filing written statement denying the averments made in the claim petition. He further denied the negligence of driver of offending vehicle in the accident. It was further pleaded that the offending vehicle was duly insured with the Oriental Insurance Company Ltd. and the liability to pay compensation, if any, is upon the oriental insurance company.
Appellant/insurance company also filed written statement contending therein that there was no negligence of driver of offending vehicle in the accident. It further denied the fact that any expense was incurred by the claimants/respondents for the treatment of deceased. It has also pleaded that liability of the insurance company is subject to the terms and conditions of the insurance policy.
Tribunal framed as many as five issues. On the issue of occurrence of accident, Tribunal after appreciating the evidence on record held that the accident was caused by the offending vehicle. The Tribunal on the issue of contributory negligence of driver of motorcycle recorded a finding that burden to prove that there was contributory negligence of driver of motorcycle was upon insurance company and the insurance company did not lead any evidence to prove the negligence of driver of motorcycle in the accident. Consequently, the Tribunal returned finding of contributory negligence against the insurance company.
On the issue of quantification of compensation, Tribunal held the income of the deceased to be Rs.5,000/- per month and Tribunal after adding 50% towards future prospect on the income of the deceased. The Tribunal thereafter, deduct 1/4th from the income of the deceased and applied the multiplier of 17 and awarded Rs.11,47,500/- towards loss of income. Further, Tribunal on the basis of evidence on record, awarded Rs.36,54,555/- towards medical expenses and Rs.5,000/- towards funeral expenses, Rs.5,000/- towards loss of estate, Rs.5,000/- towards love and affection and Rs.5,000/- towards loss of consortium. Thus, in total, Tribunal awarded Rs.48,22,055/- along with 7% interest as compensation to the claimants/respondents.
Challenging the finding of the Tribunal, learned counsel for the appellant has contended that there was enough evidence on record which established that there was negligence of driver of the motorcycle in the accident. He submits that the finding of the Tribunal holding that insurance company has failed to discharge its burden to prove that there was negligence of driver of motorcycle in the accident is illegal and not sustainable in law. He further contends that the age of the deceased was 34 years and, therefore, Tribunal should have applied the multiplier of 16 instead of 17 in computing compensation. He further submits that there are only three dependents upon the deceased and, therefore, Tribunal should have deducted 1/3rd towards personal expenses of the deceased instead of 1/4th.
He further submits that deceased was self employed and, therefore, in view of the judgement of Apex Court in the case of National Insurance Company Limited Vs. Pranay Sethi and Others 2017 (16) SCC 680, Tribunal should have awarded 40% towards future prospect in place of 50%. He further contends that claimants/respondents have failed to prove the medical bills of Medanta Medicity, Gurgaon, Haryana to the tune of Rs.36,89,746.61/-, and the Tribunal has erred in awarding the said amount towards medical expenses.
Per contra, learned counsel for the claimants/respondents submits that in the present case, offending vehicle had hit the motorcycle from behind and negligence of driver of offending vehicle had been proved by claimants/respondents by producing PW-3 Kamta Prasad. He further contends that the plea of contributory negligence was set up by the insurance company and, therefore, burden to prove that there was contributory negligence of the driver of the motorcycle was upon the insurance company but insurance company has failed to discharge its burden and thus, Tribunal has rightly decided issue no.2 regarding the contributory negligence against the insurance company.
He further contends Tribunal has awarded inadequate amount towards conventional heads and if correct amount had been awarded by the Tribunal, the compensation almost would have been the same. Further, 50% towards future prospect has been awarded by the Tribunal in view of Rule 220A (3) (i) of the U.P. Motor Vehicles (Eleventh Amendment) Rules. In the facts of the present case, even if the contention of learned counsel for the appellant is accepted in respect of quantification of compensation, the compensation awarded by the Tribunal cannot be said to be excessive.
I have heard rival submissions of the parties and perused the record.
In the present case, Tribunal after appreciating the evidence on record has held that offending vehicle had dashed the motorcycle from behind. The finding of the Tribunal in respect of manner in which the accident had occurred has not been challenged. The only contention advanced by the learned counsel for the appellant is that there was also negligence of the driver of the motorcycle in the accident. The said contention of learned counsel for the appellant is misconceived for the reason that manner in which the accident had taken place speaks about the fact that there could not be any negligence of the driver of the motorcycle in the accident. Further, the Tribunal in recording finding that the burden was upon the insurance company to prove the negligence of driver of the motorcycle has relied upon the judgement of of this Court in the case Prabandhak, U.P. Rajya Sadak Parivahan Nigam Vs. Rabia Begum and Others, 2014(2) ALJ 753.
Learned counsel for the appellant could not demonstrate that insurance company led any evidence to show that there was negligence of driver of motorcycle in the accident. Hence, finding of the Tribunal on the issue no.2 with regard to contributory negligence of driver of motorcycle against the insurance company is affirmed.
So far as the submission of learned counsel for the appellant in respect of quantification of compensation is concerned, the Tribunal has awarded very meagre amount of Rs.20,000/- towards conventional heads. Further the fact that deceased was under treatment in Medanta Hospital, Gurgaon, Haryana for about three months, and Tribunal had not awarded any amount towards conveyance and travelling expenses and expenses incurred in keeping the attendant to look after the deceased during treatment. Thus, even if the submission of learned counsel for the appellant in respect of quantification of compensation that wrong application of multiplier and wrong deduction towards personal expenses and excessive amount towards future prospect has been awarded is accepted, the same would not affect the quantification of compensation inasmuch as, had the Tribunal awarded amount towards travelling expenses, conveyance charges and expenses incurred upon the attendant of the deceased during the treatment, the compensation would have been the same.
So far as the submission of learned counsel for the appellant that medical bills of Medanta Hospital were not proved, the said contention is misconceived inasmuch as, insurance company did not dispute the correctness and genuineness of those bills and further, DW-3 Dr. Rahul Vashney, produced by the insurance company, has stated in his testimony that deceased was under treatment in the Medanta Hospital since 11.11.2012 to 5.4.2013 and has also stated that deceased was under his treatment and thereafter under treatment of other doctors of Medanta Hospital. The Tribunal has also noticed the fact that claimants/respondents had deposited Rs.35,70,000/- in the Medanta Hospital in awarding the said amount. Besides the said amount, the Tribunal awarded Rs.84,555.21/- which has been spent in the treatment of the deceased in the Jeevan Jyoti Hospital. Thus, in view of the said fact, total amount of Rs.36,89,746.61/- towards medical expenses cannot be said to be excessive.
Thus, for the reasons given above, this Court is not inclined to interfere with the quantification of compensation.
Accordingly, the appeal lacks merit and is dismissed. The Insurance Company is directed to pay balance amount to the claimants/respondents within a period of two months from today. There shall be no order as to costs.
Order Date :- 27.2.2019 Sattyarth