Allahabad High Court
Shyamu And Others vs Rashid Ahmad And Others on 9 May, 2022
Author: Salil Kumar Rai
Bench: Salil Kumar Rai
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. RESERVED ON 7.1.2022 DELIVERED ON 9.5.2022 Court No. - 4 Case :- FIRST APPEAL FROM ORDER No. - 2427 of 2010 Appellant :- Shyamu And Others Respondent :- Rashid Ahmad And Others Counsel for Appellant :- Sanjay Singh,Amrendra Nath Rai Counsel for Respondent :- Ajai Singh Hon'ble Salil Kumar Rai,J.
1. This is a claimants' appeal filed under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as, 'Act, 1988') against the judgment and order dated 6.3.2010 passed by the Motor Accident Claims Tribunal, Court No. 1, Shahjahanpur (hereinafter referred to as, 'Tribunal') in Motor Accident Claim Petition No. 9 of 2005 (Shyamu & Others Vs. Rashid Ahamad & Others).
2. In view of the office report dated 2.1.2019 service of notice on the defendants-respondents is deemed sufficient. Nobody has appeared for opposite party Nos. 1 and 2. Shri Ajai Singh, Advocate, appeared for opposite party No. 3 and was heard in opposition to the present appeal.
3. The appellants instituted Motor Accident Claim Petition No. 9 of 2005 claiming compensation of Rs. 8,48,000/- from the defendants-opposite parties for death of Smt. Rama Devi. The claim petition was filed in December, 2004. Appellant No. 1 is the husband of Smt. Rama Devi and appellant Nos. 2 to 7 are the sons and daughters of Smt. Rama Devi. Appellant Nos. 2 to 7 were minor at the time of death of Smt. Rama Devi. It is alleged in the claim petition that on 11.10.2004, Smt. Rama Devi was going with Radhey Shyam (brother of appellant No. 1) to purchase medicine for her son- appellant No. 7. Smt. Rama Devi was sitting on the back-carrier of the bicycle of Radhey Shyam. It is alleged that a truck bearing Registration No. U.P. 31 E 0242 (hereinafter referred to as, 'offending vehicle') hit the bicycle, as a result of which Smt. Rama Devi fell down and suffered injuries causing her death. It is alleged that the accident occurred due to rash and negligent driving of the offending vehicle by its driver. In the claim petition the age of the deceased is stated to be 32 years. It is stated in the claim petition that the deceased was working as a household helper and earned Rs. 6,000/- per month. It is stated that the vehicle was insured with the National Insurance Company Limited, Divisional Office Sadar Bazar, Shahjahanpur, i.e., opposite party No. 3. Opposite party Nos. 1 and 2 are the owner and the driver of the offending vehicle.
4. The opposite party Nos. 1 and 2 did not appear in the Tribunal and did not file their written statement, therefore, proceedings were held ex-parte against them. Opposite party No. 3 filed its written statement denying the accident as well as the negligence of the driver of the vehicle in causing the accident and also contested the amount of compensation sought by the claimants-appellants. It appears from the records, that the Insurance Company also filed an application under Section 170 of the Act, 1988 praying for permission to contest the claim on grounds available against the owner and driver of the vehicle.
5. It is relevant to note that a First Information Report registering Case Crime No. 1240 of 2004, under Sections 279, 338 and 304A I.P.C. was registered against opposite party No. 2, the driver of the vehicle, at the instance of Ramu, brother of appellant No. 1. In the aforesaid Case Crime No. 1240 of 2004, charge-sheet was filed against opposite party No. 2. Radhey Shyam, referred above, has been named as a prosecution witness in the charge-sheet.
6. The Tribunal framed four issues. Issue No. 1 was as to whether the accident which took place on 10.11.2004 killing Smt. Rama Devi was because of the rash and negligent driving of the offending vehicle by its driver. Issue No. 2 was as to whether the offending vehicle was insured with opposite party No. 3. Issue No. 3 was as to whether at the time of accident, the driver of the vehicle had a valid driving license. Issue No. 4 was as to whether the claimants were entitled to any compensation and the defendant liable to pay compensation.
7. Before the Tribunal, the claimants filed a copy of the first information report, the postmortem report of Smt. Rama Devi, copy of the charge-sheet, inquest report, the policy cover note of the offending vehicle and a copy of the driving license of opposite party No. 2.
8. In the Tribunal, the appellant No. 1 appeared as A.P.W.1., Ramu who is the brother of the appellant No. 1 and lodged the first information report appeared as A.P.W. 2 and Radhey Shyam, who was with the deceased at the time of accident appeared as A.P.W. 3 to prove the case of the claimants. The defendants, which included the Insurance Company, did not produce any documentary or oral evidence in the case.
9. The Tribunal after considering the testimony of A.P.W. 3, who is an eye-witness of the accident, and also after taking note that in Case Crime No. 1240 of 2004 a charge-sheet had been filed against opposite party No. 2, i.e., the driver of the vehicle decided issue No. 1 in favour of the claimants and held that Smt. Rama Devi died on 10.11.2004 in the accident caused due to rash and negligent driving of the offending vehicle. While deciding Issue No. 1 in favour of the claimants, the Tribunal also considered the postmortem report of the deceased which indicated that death was due to antimortem injuries caused in the accident. Issue Nos. 2 and 3 were decided in favour of the owner of the offending vehicle and it was held that the offending vehicle was insured with opposite party No. 3 and at the time of accident, the driver of the offending vehicle had a valid driving license. However, on issue No. 4, the Tribunal held that the claim petition was not maintainable before the Tribunal, i.e., Motor Accident Claims Tribunal, Shahjahanpur, as the accident took place in District-Lakhimpur Kheri and the claimants as well as the owner and driver of the offending vehicle were also residents of District-Lakhimpur Kheri.
10. In the Claims Tribunal the claimants had filed, a residence certificate dated 29.7.2009 issued by the Senior Block Pramukh, Bhawalkheda, District-Shahjahanpur, marked as Paper No. 65Ga, certifying that the claimants were residing in District-Shahjahanpur for the last almost four and half years. The Claims Tribunal held that the aforesaid residence certificate only proved that the claimants were residents of District-Shahjahanpur from January 2005 and were not residents of District-Shahjahanpur in December, 2004 when the claim petition was filed. On the aforesaid ground, the Claims Tribunal rejected the claim petition. Hence, the present appeal.
11. It was argued by the counsel for the appellant that under Section 166(2) of the Act, 1988, the claim petition was maintainable before the Motor Accident Claims Tribunal, Shahjahanpur because the Office of the Insurance Company was situated in District-Shahjahanpur. It was argued that, even otherwise, the residence certificate produced by the claimants-appellants indicated that the claimant-appellants were residents of District-Shahjahanpur and the Tribunal has misread Paper No. 65Ga, i.e., the residence certificate issued by the Senior Block Pramukh, Bhawalkheda, District-Shahjahanpur. It was argued that in light of the aforesaid, the claim petition was maintainable before the Tribunal at Shahjahanpur and in light of the findings recorded by the Tribunal on other issues, the claimants were entitled to compensation. It was argued that for the aforesaid reasons, the appeal is to be allowed, the order dated 6.3.2010 passed by the Motor Accident Claims Tribunal, Court No. 1, Shahjahanpur is liable to be set aside and the claimants-appellants may be awarded compensation. In support of his contention, the counsel for the appellant has relied on the following judgements of the Supreme Court :-
(a) Mantoo Sarkar Vs. Oriental Insurance Co. Ltd., 2009 (2) SCC 244
(b) Malati Sardar Vs. National Insurance Company Limited & Others, 2016 (3) SCC 43
12. Rebutting the argument of the counsel for the appellants, Shri Ajai Singh, Advocate, representing opposite party No. 3 has supported the award of the Tribunal and the reasons given in the same. The counsel for the opposite party No. 3 has argued that because the owner and the driver of the offending vehicle as well as the claimants were residents of District-Lakhimpur Kheri and the accident also occurred in District-Lakhimpur Kheri, therefore, the claim petition was not maintainable before the Motor Accident Claims Tribunal, Shahjahanpur and the Motor Accident Claims Tribunal rightly dismissed the aforesaid claim petition. It was argued that for the aforesaid reasons, the appeal is liable to be dismissed.
13. I have considered the submissions of the counsel for the parties and have also perused the lower court records.
14. So far as the issue regarding jurisdiction of the Tribunal at Shahjahanpur is concerned, Section 166(2) of the Act, 1988 provides as follows :-
"[(2) Every application under sub-section (1) shall be made, at the option of the claimant, either to the Claims Tribunal having jurisdiction over the area in which the accident occurred or to the Claims Tribunal within the local limits of whose jurisdiction the claimant resides or carries on business or within the local limits of whose jurisdiction the defendant resides, and shall be in such form and contain such particulars as may be prescribed:
Provided that where no claim for compensation under section 140 is made in such application, the application shall contain a separate statement to that effect immediately before the signature of the applicant.]"
(Emphasis added)
15. In Malati Sardar (Supra), the accident took place at Hoogly and the claimant also resided at Hoogly, but the claim petition was filed at Kolkata. The Principal Office of the Insurance Company, which was held liable to pay compensation, was situated at Kolkata. The Tribunal at Kolkata awarded compensation, but in appeal the said award was set aside on jurisdictional ground. It was argued before the Supreme Court that the residence of a juristic person included its Principal Office and, therefore the claim petition was maintainable before the Tribunal in Kolkata. The Supreme Court held that under the Act, 1988 there was no bar to a claim petition being filed under Section 166 of the Act, 1988 at a place where the insurance company, which is the main contesting parties in such cases, has its business. The observations of the Supreme Court in paragraph Nos. 12 and 14 of its judgement are reproduced below :-
"12. We are thus of the view that in the face of judgment of this Court in Mantoo Sarkar (supra), the High Court was not justified in setting aside the award of the Tribunal in absence of any failure of justice even if there was merit in the plea of lack of territorial jurisdiction. Moreover, the fact remained that the insurance company which was the main contesting respondent had its business at Kolkata.
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14. The provision in question, in the present case, is a benevolent provision for the victims of accidents of negligent driving. The provision for territorial jurisdiction has to be interpreted consistent with the object of facilitating remedies for the victims of accidents. Hyper technical approach in such matters can hardly be appreciated. There is no bar to a claim petition being filed at a place where the insurance company, which is the main contesting parties in such cases, has its business. In such cases, there is no prejudice to any party. There is no failure of justice. Moreover, in view of categorical decision of this Court in Mantoo Sarkar (supra), contrary view taken by the High Court cannot be sustained. The High Court failed to notice the provision of Section 21 CPC.
(Emphasis added)
16. In the present case, it is not disputed that the office of the Insurance Company-opposite party No. 3, is situated at District-Shahjahanpur and the Company has its business at Shahjahanpur. Thus, in light of the observations of the Supreme Court in Malati Sardar (Supra), the Tribunal at Shahjahanpur had the jurisdiction to entertain the claim petition. The Tribunal has clearly erred in holding that the claim petition was not maintainable in Shahjahanpur. The findings of the Tribunal on Issue No. 4 are contrary to law and are hereby set aside and it is held that the claim petition was maintainable before the Motor Accident Claims Tribunal, District-Shahjahanpur.
17. The claim petition was contested by the Insurance Company-opposite party No. 3 and the claimants had led their evidence before the Tribunal. The Tribunal has recorded its findings on the other issues framed by it. The records are before this Court and, therefore, it would serve no purpose to remand back the matter to the Tribunal to only quantify the compensation payable to the claimants. In view of the aforesaid, this Court has perused the lower court records to examine the findings of the Tribunal on other issues, i.e., Issue Nos. 1, 2 and 3.
18. Radhey Shyam, A.P.W. 3 was an eye-witness of the accident and has proved the accident. In his testimony, A.P.W. 3 has stated that the deceased, Smt. Rama Devi was with him on his bicycle when the offending vehicle, which was being driven at a high speed, hit the bicycle from behind as a result of which Rama Devi fell down and was crushed by the offending vehicle. In his testimony A.P.W. 3 has stated that the bicycle was on the left side of the road when the offending vehicle hit it. The witness has withstood the cross-examination of opposite party No. 3. There is nothing to discredit the testimony of the witness. The witness proves the claimants' case that the accident took place due to rash and negligent driving of the offending vehicle and Smt. Rama Devi suffered injuries in the accident causing her death. The records of the court below also show that Case Crime No. 1240 of 2004 was registered at the instance of Ramu, the brother of appellant No. 2, who was also examined as A.P.W. 2 before the Claims Tribunal. In Case Crime No. 1240 of 2004 a charge-sheet has been submitted against the opposite party No. 2, i.e., the driver of the vehicle. The inquest report and the postmortem report of the deceased also show that death occurred due to antimortem injuries. In view of the aforesaid, the findings of the Tribunal on Issue No. 1, i.e., Smt. Rama Devi died because of the injuries suffered in the accident which took place due to rash and negligent driving of the offending vehicle, is affirmed.
19. So far as the findings of the Tribunal on issue Nos. 2 and 3 are concerned the same were not seriously contested by the Insurance Company. The policy cover note and copy of the driving license filed in the Tribunal have not been denied by the Insurance Company. Thus the findings of the Tribunal on issue Nos. 2 and 3 are also confirmed and it is held that the Insurance Company, i.e., the opposite party No. 3, is liable to indemnify the opposite party No. 1, the owner of the vehicle, for the compensation payable to the appellant.
20. So far as compensation to the claimants for the death of Smt. Rama Devi is concerned, it may be noted that in the claim petition, the age of the deceased is stated to be 32 years. The postmortem report records the age of the deceased as 29 years. However, as the claimants-appellants have themselves stated in the claim petition the age of the deceased to be 32 years, the age of the deceased for determining compensation is held to be 32 years.
21. It was stated in the claim petition and in the testimony of A.P.W. 1 that the deceased was earning Rs. 6,000/- per month. A perusal of the testimony of A.P.W. 2 shows that A.P.W. 2 himsef earned only Rs. 1,500/- per month at the time his testimony was being recorded by the Tribunal. In his testimony A.P.W. 3 has stated that the deceased used to earn Rs. 5,000/- per month. There is no documentary evidence proving the income of the deceased and there are inconsistencies in the testimony of different witnesses produced by the claimants to prove the income of the deceased. However, all the witnesses have testified that the deceased was working as household help.
22. The Supreme Court in Jitendra Khimshankar Trivedi Vs. Kasam Daud Kumbhar & Others, 2015 (4) SCC 237 decided compensation for the death of a housewife on the notional ncome of Rs. 3000/- per month. In the circumstances, it would be just and proper to determine compensation in the present case on the notional income of the deceased which would be the minimum wages payable to a daily wager in 2004, i.e., at the rate of Rs. 100/- per day or Rs. 3,000/- per month.
23. The appellant No. 1 is the husband of the deceased and his testimony shows that he was not dependent on the deceased and was himself an earning member. Thus, the appellant No. 1 is not be considered as a dependent of the deceased while deciding the deductions to be made for personal expenses of the deceased. Appellant Nos. 2 to 7 are the sons and daughters of the deceased. In light of the judgement of the Supreme Court in Sarla Verma (Smt) & Others Vs. Delhi Transport Corporation & Another, 2009 (6) SCC 121, 1/4 is to be deducted towards the personal and living expenses of the deceased.
24. It has already been held that the deceased was 32 years old. The deceased was self-employed. The accident took place in 2004, therefore in light of the judgement of the Supreme Court in National Insurance Company Ltd. Vs. Pranay Sethi & Others, (2017) 16 SCC 680, 40% shall be added as future prospects to the income of the deceased while determining the multiplicand and in light of the judgement of the Supreme Court in Sarla Verma (Supra), a multiplier of 16 is to be applied while quantifying the total pecuniary damages payable to the claimants.
25. In addition to the aforesaid, in light of the judgement of the Supreme Court in Pranay Sethi (Supra) and Magma General Insurance Company Ltd. vs. Nanu Ram, (2018) SCC OnLine SC 1546, the claimants are also entitled to compensation for loss of estate and for funeral expenses as well as separate compensation for loss of consortium, i.e., the appellant No. 1 is entitled to loss of spousal consortium and appellant Nos. 2 to 7 are entitled to loss of parental consortium.
26. In light of the aforesaid principles, the compensation payable to the claimants is computed as below :-
(a) Notional Income of the deceased Rs. 3,000/- per month, i.e., Rs. 36,000/- per annum.
(b) Deductions towards personal expenses of the deceased (1/4 of her income) = Rs. 9,000/-.
(c) The income of the deceased for determining compensation= Rs. 27,000/-.
(Rs. 36,000 - Rs. 9,000 = Rs. 27,000/-)
(d) Addition of 40% future prospects to the income of the deceased :- Rs. 27,000÷100 x 40 = Rs. 10,800/-.
(e) Thus, the multiplicand= Rs. 27,000+10,800= Rs. 37,800/-.
(f) Applying a multiplier of 16, the total amount of pecuniary damages = Rs. 37,800 x 16 = Rs. 6,04,800/-.
(g) Loss of spousal consortium to appellant No. 1= Rs. 40,000/-.
(h) Loss of parental consortium to appellant Nos. 2 to 7= Rs. 40,000 x 6 = 2,40,000/- (Rs. 40,000/- each to appellant Nos. 2 to 7) (i) Funeral Expenses = Rs. 15,000/- (j) Loss of Estate = Rs. 15,000/- Thus, the total compensation payable to the appellant= Rs. 9,14,800/-.(f+g+h+i+j).
The aforesaid compensation shall bear interest at the rate of 7% per annum from the date of filing the claim petition till the date of actual payment by the Insurance Company.
27. Thus, it is held that the claimants are entitled to a compensation of Rs. 9,14,800/- with 7% simple interest per annum from the date of filing the petition till the date of actual payment by the Insurance Company.
28. The appellant No. 1 would be paid the compensation awarded for Funeral Expenses, Loss of Estate and Loss of Spousal Consortium with the interest accruing on the same. Appellant Nos. 2 to 7 would be paid compensation awarded to them for Loss of Parental Consortium with the interest accruing on the same. Pecuniary damages of Rs. 6,04,800/- quantified above alongwith the interest accruing on the same shall be divided equally between the appellant Nos. 2 to 7.
29. The opposite party No. 3, i.e., National Insurance Company Limited, Shahjahanpur shall deposit the awarded amount (including the interest) in the Motor Accident Claims Tribunal, Shahjahanpur within three months from today. The amount so deposited by the National Insurance Company Limited, Shahjahanpur shall be deposited by the Motor Accident Claims Tribunal, Shahjahanpur in the highest interest bearing fixed deposit schemes, either of the post office or of any nationalized bank. The receipts of the fixed deposit shall be given to the appellants who shall be entitled to withdraw the maturity amount when the fixed deposits mature. The maturity amount shall be credited by the bank/post office in any savings account of the appellants. The concerned bank or post office shall not permit any loan or advance against the fixed deposits made in favour of the appellants. The Tribunal, while depositing the amount in any fixed deposit scheme, shall communicate the directions issued by this Court to the concerned bank/post office. In case, the opposite party No. 3 fails to deposit the awarded amount within three months from today, the Tribunal shall recover the same in accordance with law.
30. With the aforesaid directions and observations, the appeal is allowed. Parties shall bear their own cost.
31. Office shall transmit the records of the case to the Tribunal, at the earliest.
Order Date :- 9.5.2022 Anurag/-