Allahabad High Court
Bajaj Allianz General Isnurance Co. ... vs Smt. Mamta Devi And 6 Others on 3 April, 2015
Author: Krishna Murari
Bench: Krishna Murari, Pratyush Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 3 Case :- FIRST APPEAL FROM ORDER No. - 683 of 2015 Appellant :- Bajaj Allianz General Isnurance Co. Ltd. Respondent :- Smt. Mamta Devi And 6 Others Counsel for Appellant :- S.K. Mehrotra Hon'ble Krishna Murari,J.
Hon'ble Pratyush Kumar,J.
This First Appeal From Order filed by the Insurance company is directed against the judgment and award dated 10-09-2014 passed by the Motor Accident Claims Tribunal/District Judge, Sant Kabir Nagar in M.A.C.P. No. 38 of 2011 awarding a sum of Rs.8,71,000/- along with interest @ 7% per annum from the date of making the claim.
Facts are that petition claiming compensation to the tune of Rs.33,87,500/- along with interest was preferred by the claimant-respondents on the allegation that on 17-06-2011 when deceased Deepak, the husband of the claimant no. 1 was returning from Khalilabad on his motorcycle and had reached near Bagahiya Chauraha, Telibagh at about 11.15 am then a roadways bus having registration No. UP-51T-4640 coming from Basti hit the motorcycle from behind which resulted into grievous injuries on account of which he died during treatment. It was further pleaded that the bus was under contract with the U.P. State Road Transport Corporation and hence, it was liable to pay compensation. A first information report was lodged at P.S. Khalilabad. After causing the accident, the driver escaped towards Gorakhpur. Later on the driver was arrested and the bus was confiscated, which was subsequently released from the court.
The claim was contested by the appellant Insurance Company by filing a written statement denying the accident. It was pleaded that on the date of accident, the driver was not having a valid driving license and the bus was not being driven in accordance with the terms of the insurance policy. It was pleaded that the accident was caused due to negligence of the deceased Deepak and since the bus was under contract with the U.P. State Road Transport Corporation, the Insurance Company is not liable to pay any compensation. Respondents no. 5 & 6, the owner and driver of the bus also filed written statement denying the allegation. Though it was accepted in the written statement that they were owner and driver of the offending vehicle, which was insured with the Insurance Company and the driver was having a valid driving license. It was also pleaded that the minor accident took place while trying to save a cow. U.P. State Road Transport Corporation, the respondent no. 7 also filed filed a written statement stating that the offending vehicle was under a contract with them and in accordance with clause (10) of the contract, if any accident took place, then the liability for paying compensation is either of the owner or of the insurer. It was also pleaded that the said bus was under a contract to run from Basti to Gorakhpur and on 17-6-2011 when it was standing near Khalilabad By-pass for alighting of the passenger, the motorcycle hit from behind and the accident was caused due to rash and negligent driving of the driver of the motorcycle himself.
Learned counsel for the appellant contended that the finding of the Tribunal that the accident was caused due to negligence of the driver of the offending bus is not based on the evidence on record. It is also submitted that the driver was having two driving license, which is not legally permissible, hence, the finding of the Tribunal that the driver has a valid driving license is illegal. It is next submitted that the Tribunal wrongly and illegally applied 18 while computing the amount of compensation and multiplier of 17 ought to have been applied.
We have considered the submission advanced on behalf of the learned counsel for the appellant and perused the record.
On the basis of the pleadings of the parties, the Tribunal framed the following issues :
1) Whether on 17-06-2011 at about 11 am when the husband of the claimant-respondent no. 1 was coming from Khalilabad to his residence he was hit from behind by a bus bearing registration no. UP-51T-4640, which was being driven rashly and negligently ?
2) Whether the driver of the offending vehicle bearing registration no. UP-51T-4640 was having a valid driving license ?
3) Whether on the date of accident, the offending vehicle was insured by Bajaj Allianz General Isnurance Co. Ltd ?
4) Whether there was any contributory negligence of the driver of the motorcycle ?
5) Whether the claimants are entitled for compensation ? If Yes, they how much and from whom.
The claimant-respondent no. 1 appeared in the witness box as P.W.1. Hira Lal and Onkar Nath Chaurasia also appeared in the witness box as P.W. 2 & 3. The claimants in support of their claim also filed the copy of the sale deed, postmortem report, chargesheet, driving license and the insurance policy.
The Tribunal while considering the issue no. (1) analyzed the oral as well as document evidence on record and after considering the same, has returned a finding that the accident was caused due to rash and negligent driving of the driver of the offending bus, which hit the motorcycle from behind. The Tribunal has relied upon the admission of P.W. 2 Hira Lal who was an eyewitness and stated in his testimony that the deceased was driving the motorcycle on the left side when the bus no. UP-51T-4640, which was being driven at a very high speed hit the motorcycle from behind which resulted into serious injuries. He also stated that he was present on the spot at the time of accident and took the injured Deepak to Khalilabad with the help of one Amit Kumar and Dharmendra where he died during treatment. In cross-examination, he stated that he is a fruit vendor and has a shop on Khalilabad - Mukhlispur Road and on the date of the accident, he was coming from Khalilabad to his home on motorcycle. Deceased was coming from west to east and the bus was also coming to east from west. The accident took place near the house of one Mahesh Chand. He also stated that after the accident, the driver of the bus absconded and and his statement was recorded by the police. He is a witness of 'Panchnama'. The Tribunal found that in the chargesheet Hiralal is recorded as a witness and his statement is duly verified by the first information report and the site plan. Thus we doe not find any error in the finding returned by the Tribunal on this issue.
In respect of issue no. (2), the Tribunal found that in the order of the Chief Judicial Magistrate dated 20-06-2011 passed in case no. 674 of 2011 (State v. Parshuram Yadav) it is recorded that the driver Purshottam Yadav has a license which is effective from 20-09-2010 to 19-09-2013. The Tribunal further recorded a finding that in view of the judgment, the objection of the Insurance Company that other driving licnese filed on record issued from the R.T.O., Moradabad since was found forged and fabricated on verification has no substance. The Tribunal also held that it was open to the Insurance Company to have verified the genuineness of the driving license issued from the licensing authority, which was never done and thus they cannot say that the said driving license is forged and fabricated. We again doe not find any infirmity or illegality in the findings returned by the Tribunal.
With respect to issue no. (3), the Tribunal on the basis of factual evidence held that on the date of accident, the offending bus was duly insured by the appellant Insurance Company.
While considering the issue no. (4), the Tribunal relying upon the oral testimony of Hiralal who was an eyewitness of the accident and also the site plan came to the finding that there was no contributory negligence on the part of the driver of the motorcycle and the accident was caused only on account of the rash and negligent driving of the offending bus.
Now coming to issue no. (5) with regard to quantum of compensation, the age of the deceased was stated to be 26 years and his income was Rs.15,000/-. Omkrnath Chaurasia in his oral testmony stated that the deceased Deepak was an expert technician of fridge and air conditioner. The Tribunal treating him to be a skilled labour returned a finding that his income at least would be 6000/- per month. After deducting 1/3 personal expenses his annual income was determined to be 48,000/- per annum. On the question of age of the deceased, the Tribunal held that in the postmortem the age was mentioned approximately 23 years. Whereas P.W. 1 Mamta Devi in her statement stated the age to be 26 years. The Tribunal accordingly determined the age of the deceased to be 26 years in accordance with the Schedule-II of the Motor Vehicles Act, 1988 finding him to be in between aged 25 - 30 years applied a multiplier of 18 and accordingly determined Rs.8,64,000/- as compensation. A sum of Rs.2000/- was awarded as funeral expenses and Rs.5000/- towards loss of companionship. In this manner, a sum of Rs.8,71,000/- was determined as total compensation.
It has been vehemently contended by learned counsel for the appellant that since the bus was under contract and was being driven under the control and command of the U.P. State Road Transport Corporation, as such, the liability, if any, should be fastened on the Corporation. It is also contended that since the bus was being driven without any necessary permit from the Road Transport Authority, as such, it was plied in violation of the insurance policy and thus the Insurance Company is not under a liability to make any compensation.
The aforesaid two issues are no longer res integra. The Hon'ble Apex Court in the case of U.P. State Road Transport Corporation v. Kulsum & others, (2011) 8 SCC 142 has held that where the vehicle is given on hire by the owner of the vehicle together with its existence and running insurance policy in view of the terms and conditions of the agreement, the Insurance Company cannot escape from its liability to pay compensation. Though for all practical purposes for the relevant period, the hirer becomes the owner of the vehicle for the specific period. But in case the vehicle is insured at the instance of the original owner, it will be deemed that the vehicle is transferred along with the insurance policy in existence to the hirer and thus the Insurance Company would not be escaped from its liability to pay amount of compensation. It has further been observed that the liability to pay compensation is based on statutory provision and the liability of the owner to have compulsory insurance is only in regard to the third party and not to the property. Once the vehicle is insured the owner as well as any person can use the vehicle with the consent of the owner. Section 146 of the Motor Vehicles Act does not provide that any person who use the vehicle independently a separate insurance policy should be taken.
With regard to the issue of necessary permit, the Hon'ble Apex Court in the case of U.P. State Road Transport Corporation vs. Regional Transport Authority, AIR 1998 SC 3110 has held that renewal of permits of Corporation is not necessary during the subsistence of scheme in respect of notified routes/areas. In paragraph 9 it has been held as under :
"A combined reading of Sections 68-B, 68-F(1-E) and Rule 10 (supra) shows that in so far as notified routes are concerned, for which the Corporation has an exclusive right to ply their vehicles under the scheme framed under the Act, the duration of the permit obtained by the Corporation for plying those vehicles is conterminous with the life of the scheme. Sub-clause (4)of Rule 10unmistakably says, "the permit issued as aforesaid shall remain valid till the scheme in force."
In the case in hand, the Corporation by producing documentary evidence established that Gorakhpur-Maghar-Khalilabad-Basti was a notified route and the scheme no. (2) was in force and thus it cannot be said that the operation was illegal for want of any valid permit.
Apart from above, learned counsel for the Insurance Company could not point out any other point which may give right to it to deny the payment of compensation and thus legally or otherwise, the liability has to be fastened on the Insurance Company.
In the light of the aforesaid facts and discussions, the appeal filed by the Insurance Company is devoid of merits and accordingly stands dismissed summarily.
Registry is directed to remit the statutory deposit made before this Court to the Tribunal.
Order Date :- 3.4.2015 nd Court No. - 3 Civil Misc.(Delay Condonation) Application No. 415154 of 2014 In Case :- FIRST APPEAL FROM ORDER No. - 683 of 2015 Appellant :- Bajaj Allianz General Isnurance Co. Ltd.
Respondent :- Smt. Mamta Devi And 6 Others Counsel for Appellant :- S.K. Mehrotra Hon'ble Krishna Murari,J.
Hon'ble Pratyush Kumar,J.
This is an application for condoning the delay of 2 days in filing the appeal.
From a perusal of the averments made in the affidavit filed in support of the application, we are of the view that delay of 2 days in filing the appeal has satisfactorily been explained and the delay has not been caused on account of willful or deliberate laches on the part of the applicant. Therefore, we condone the delay.
The application is accordingly allowed.
Order Date :- 3.4.2015 nd