Allahabad High Court
United India Insurance Co. Ltd. Thru ... vs Smt. Shalini Pandey And 5 Others on 14 August, 2024
Author: Vipin Chandra Dixit
Bench: Vipin Chandra Dixit
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:131909 RESERVED Court No. - 35 Case :- FIRST APPEAL FROM ORDER No. - 2473 of 2015 Appellant :- United India Insurance Co. Ltd. Thru Manager Respondent :- Smt. Shalini Pandey And 5 Others Counsel for Appellant :- Rahul Sahai Counsel for Respondent :- R.K. Porwal AND Case :- FIRST APPEAL FROM ORDER No. - 2474 of 2015 Appellant :- Smt. Shalini Pandey And 3 Others Respondent :- Indra Kumar Singh And 2 Others Counsel for Appellant :- Rakesh Kumar Porwal,Mukund Tripathi Counsel for Respondent :- Rahul Sahai Hon'ble Vipin Chandra Dixit,J.
1. The First Appeal From Order No.2473 of 2015 has been filed on behalf of United India Insurance Company Limited against the judgment and award dated 23.5.2013 passed by Additional District Judge, Court No.3/Motor Accident Claims Tribunal, Etawah in M.A.C.P. No.63 of 2010 (Smt. Shalini Pandey and others Vs. Indra Kumar Singh and others), by which compensation of Rs.31,63,084/- along with 6% interest has been awarded in favour of claimants-respondents on account of death of Avinash Pandey aged about 30 years.
2. The First Appeal From Order No.2474 of 2015 has been filed on behalf of claimants-appellants for enhancement of compensation against the same impugned judgment and award dated 23.5.2013 passed by Additional District Judge, Court No.3/Motor Accident Claims Tribunal, Etawah in M.A.C.P. No.63 of 2010 (Smt. Shalini Pandey and others Vs. Indra Kumar Singh and others).
3. Since both the appeals were filed against the same impugned judgment and award dated 23.5.2013, the same are being heard together and are being decided by a common judgment.
4. Brief facts of the case are that the claimants have filed claim petition under Section 166 of Motor Vehicles Act, claiming compensation of Rs.98,45,000/- along with 10% interest on account of death of Avinash Pandey, who died in a road accident occurred on 17.8.2009. It was the case of claimants before the Claims Tribunal that the deceased Avinash Pandey was going on his motorcycle bearing no.UP-75/H-0812 along with Sukhdev Singh Gill and at about 3:30 P.M. when they reached near Manju Cinema Bridge, Dholewal Chowk, Police Station Sector Division-6, District Ludhiana (Punjab), the offending Mahindra Jeep bearing number MP-30/T-0118, which was driven by its driver very rashly and negligently, hit the motorcycle from behind. The deceased and Sukhdev Singh Gill both were received injuries in the accident and Avinash Pandey died on account of injuries received by him. The F.I.R. was lodged by Sukhdev Singh Gill, who was pillion rider on motorcycle in P.S. Division No.6 Industrial Area, Ludhiana on same day of accident i.e. 17.8.2009 against Mahindra Jeep. The age of deceased was 30 years and he was working as Manager in India Martcom Company, Ludhiana and was getting salary of Rs.40,000/- per month.
5. The owner and insurer of Jeep were appeared before the Claims Tribunal and they denied the involvement of Jeep in the accident. It was specifically pleaded by the Insurance Company that the vehicle was plied in violation of terms and conditions of insurance policy as the driving licence of Jeep driver was not valid and effective. The insurance of Jeep was also denied by the Insurance Company.
6. The Claims Tribunal has framed four issues for determination regarding rash and negligent driving of Jeep driver, validity of driving licence of driver of offending vehicle, insurance of offending vehicle as well as quantum of compensation.
7. The claimant no.1 Smt. Shalini Pandey appeared as P.W.-1 and had also produced eye witness Niranjan Gupta as P.W.-2 and Rajendra Singh as P.W.-3. The claimants had also produced several documents in support of their claim. No oral evidence has been adduced either by owner of offending Jeep or by the insurer of Jeep. Owner of Jeep had filed photocopy of registration certificate and insurance policy of Jeep and has also filed photocopy of driving licence of Jeep driver. The Insurance Company has filed report of Investigator and had also filed report on Form 54 in respect of ownership and fitness of Marshal Jeep.
8. The Claims Tribunal after considering the evidence adduced by the parties, has recorded the finding while deciding the issue no.1 that the driver of Jeep was rash and negligent and was responsible for the accident and there was no negligence on the part of the deceased, who was driving the motorcycle. The Claims Tribunal while deciding the issue no.2 has recorded the finding after considering the driving licence of Mahendra Pratap Singh which was filed by owner of the vehicle, that it is valid from 15.5.1998 till 12.12.2010 whereas the accident was occurred on 17.8.2009. The Claims Tribunal has also decided the issue no.3 holding that the insurance policy of the vehicle was valid on the date of accident, as it was not disputed by the Insurance Company. The Claims Tribunal while considering the issue no.4 regarding quantum of compensation has assessed the income of deceased as Rs.23,207/- per month and after deducting 1/3 towards personal expenses and by applying multiplier of 17 has awarded compensation of Rs.31,63,084/- vide judgment and award dated 23.5.2013. The Insurance Company as well as claimants both have challenged the judgment and award of Claims Tribunal dated 23.5.2013.
9. Heard Sri Rahul Sahai, learned counsel for Insurance Company, Sri R.K. Porwal, learned counsel for claimants-respondents and perused the record. Despite service of notice no one appeared on behalf of respondent nos.5 and 6, who are owners of Mahindra Jeep.
10. It is submitted by learned counsel for the Insurance Company that involvement of insured Mahindra Jeep in the accident is seriously doubtful. The claimants had failed to prove the involvement of insured Mahindra Jeep as well as rash and negligent driving of driver of Mahindra Jeep by producing cogent evidence. The F.I.R. was lodged by Sukhdev Singh Gill, who was pillion rider of motorcycle which was driven by the deceased at the time of accident, against unknown Jeep. The number of Mahindra Jeep was not disclosed in the F.I.R. which creates doubt regarding involvement of insured Jeep in the accident. It is further submitted that fitness of Jeep was not valid and the Claims Tribunal while deciding issue no.3 has recorded the finding after considering the verification report of Insurance Company that the fitness of vehicle was valid only till 15.1.2009, whereas the accident was occurred on 17.8.2009 and as such on the date of accident the fitness of Mahindra Jeep was not valid and effective. Lastly, it is submitted that the compensation awarded by the Claims Tribunal is on higher side. The age of the deceased was 31 years at the time of accident and the Claims Tribunal has erred in applying the multiplier of 17 whereas the Hon'ble Apex Court in the case of Smt. Sarla Verma Vs. Delhi Road Transport Corporation reported in 2009(2) TAC 677, has provided the multiplier of 16 for the age group of 31-35 years.
11. On the other hand, learned counsel appearing on behalf of claimants submits that claimants have fully proved the involvement of insured Mahindra Jeep in the accident as well as rash and negligent driving of driver of Mahindra Jeep. The F.I.R. was lodged just after the accident by pillion rider of the motorcycle against Mahindra Jeep without disclosing the number of Jeep. The matter was investigated by the Police and the Investigating Officer after due investigation has submitted the charge-sheet against the Jeep driver which itself proved the involvement of insured Jeep in the accident. The claimants has also produced Niranjan Gupta, who was an eye witness of the accident as P.W.-2, who had fully proved the involvement of Mahindra Jeep as well as rash and negligent driving of Jeep driver before the Claims Tribunal. No evidence was adduced by the Insurance Company in rebuttal and the Claims Tribunal after considering the evidence and material which are available on record has decided the issue no.1 in favour of claimants. So far as validity of fitness is concerned, this ground is not available to the Insurance Company as it is not provided as defence under Section 149 of Motor Vehicles Act, 1988. Lastly, it is submitted that the compensation awarded by the Claims Tribunal is too meagre. The deceased was B.Tech. in Mechanical Engineering and was working as Manager in India Martcom Company getting salary of Rs.40,000/- per month. The Claims Tribunal has erred in accepting only Rs.23,207/- as monthly income of the deceased. It is further submitted that nothing has been awarded towards future prospects and only Rs.7,000/- has been awarded for non-pecuniary damages whereas the claimants are entitled for 40% future prospects and Rs.70,000/- for non-pecuniary damages in view of law laid down by Hon'ble Apex Court in the case of National Insurance Company Ltd. Vs. Pranay Sethi reported in 2017(4) T.A.C. 673. It is further submitted that there are four dependents on the income of the deceased and the Claims Tribunal has erred in deducting 1/3 towards personal expenses of the deceased whereas the deduction would be 1/4 in view of law laid down by Hon'ble Apex Court in the case of Sarla Verma (supra).
12. Considered the submissions of learned counsel for the parties and perused the record.
13. Record shows that the F.I.R. was lodged by Sukhdev Singh Gill, who was pillion rider of motorcycle which was driven by the deceased at the time of accident, against unknown vehicle. The Investigating Officer after due investigation has submitted the charge-sheet against the driver of Mahindra Jeep which was insured with United India Insurance Company Limited. The claimants had produced one Niranjan Gupta, who was an eye witness of the accident as P.W.-2, who had fully proved the involvement of Mahindra Jeep as well as rash and negligent driving of its driver. No evidence has been adduced by the opposite parties in rebuttal and even driver of Mahindra Jeep was not produced either by owner of the vehicle or by the Insurance Company disputing the involvement as well as rash and negligent driving.
14. A Division Bench of this Court in the case of Smt. Sumitra Kaur and another vs. New India Assurance Company Ltd. through Divisional Manager and another reported in 2012 (4) T.A.C. 799 (All.) has held that registration of first information report is not necessary to decide the claim petition filed under the Motor Vehicles Act, if the claimants have proved the involvement of vehicle as well as rash and negligent driving of offending vehicle by producing cogent evidence. The claims tribunal may decide the claim petition on merits and non-registration of first information report will not defeat the case of the claimants. Relevant paragraphs 7 and 8 are reproduced hereinbelow:
"7. Power conferred to Tribunal under Section 168 of the Motor Vehicles Act is an independent power whereby the Tribunal has been required to hold an inquiry with regard to accidet and award of compensation. This should be done after providing opportunity of hearing to both parties. Even where no first information report is lodged the Tribunal has ample power to hold an inquiry and admit or reject the claim petition keeping in view the evidence on record.
8. Under U.P. Motor Vehilce Rules, 1998 it has been provided that how the Tribunal shall record evidence and deal with the case. Lodging the first information report or inquest report is not necessary. What is required for the Tribunal is that it must ascertain the involvement of the victim in the accident and genuineness of claim. In case the Tribunal is satisfied from the evidence on record that accident occurred and the victim suffered injuries then even if no first information report has been lodged and postmortem is made available it may award the compensation."
15. Similarly in the case of Sunita and Ors. Versus Rajasthan State Road Transport Corporation and Anr. reported in AIR 2019 Supreme Court 994, it has been held by Hon'ble Apex Court that strict principles of evidence and standards of proof like in a criminal trial are inapplicable in motor accident claims cases. The relevant paragraph no.28 is reproduced herein below:
"28. Clearly, the evidence given by Bhagchand withstood the respondents' scrutiny and the respondents were unable to shake his evidence. In turn, the High Court has failed to take note of the absence of cross examination of this witness by the respondents, leave alone the Tribunal's finding on the same, and instead, deliberated on the reliability of Bhagchand's (A.D.2) evidence from the viewpoint of him not being named in the list of eye witnesses in the criminal proceedings, without even mentioning as to why such absence from the list is fatal to the case of the appellants. This approach of the High Court is mystifying, especially in light of this Court's observation [as set out in Parmeshwari (supra) and reiterated in Mangla Ram (supra)] that the strict principles of proof in a criminal case will not be applicable in a claim for compensation under the Act and further, that the standard to be followed in such claims is one of preponderance of probability rather than one of proof beyond reasonable doubt. There is nothing in the Act to preclude citing of a witness in motor accident claim who has not been named in the list of witnesses in the criminal case. What is essential is that the opposite party should get a fair opportunity to cross examine the concerned witness. Once that is done, it will not be open to them to complain about any prejudice caused to them. If there was any doubt to be cast on the veracity of the witness, the same should have come out in cross examination, for which opportunity was granted to the respondents by the Tribunal."
16. The law has been settled by Hon'ble Apex Court that even registration of First Information Report is not necessary to decide the claim petition under Motor Vehicles Act.
17. In view of above discussion, the finding recorded by the Claims Tribunal while deciding the issue no.1 is based on evidence adduced by the parties and there is no illegality in any manner regarding rash and negligent driving of Jeep driver.
18. So far as breach of terms and conditions of insurance policy is concerned, it was argued by learned counsel for the Insurance Company that fitness of the Jeep was not valid as it was valid only till 15.1.2009 whereas the accident was occurred on 17.8.2009 and as such the fitness of vehicle was not valid and there was breach of terms and conditions of insurance policy and Insurance Company is not liable to pay compensation.
19. This Court in the case of F.A.F.O. No.310 of 2013 (United India Insurance Co. Ltd. Vs. Smt. Uma Tripathi and others) connected with F.A.F.O. No.4322 of 2012 (Smt. Uma Tripathi and others Vs. Ishampal and another) has held that non-availability of fitness cannot be said to any violation of terms and conditions of insurance policy as this defence is not available to the Insurance Company under Section 149 of Motor Vehicle Act, 1988. Relevant paragraphs 27 and 28 of the said judgment are reproduced hereinbelow:-
"27. In the instant case, it is not in dispute that fitness certificate of the truck was valid upto 16.07.2010. The fitness certificate expired about a week before the date of accident i.e. 24.07.2010. It is also not disputed by the insurance company that the truck was having a valid permit on the date of accident. There is no order passed by the competent authority on record cancelling the permit of the truck after given an opportunity of hearing to the owner of the truck on the ground that condition of permit has been violated by the owner as the truck was plied without valid fitness certificate. Thus, in such situation, it cannot be said that the truck was not having a valid permit. It is further useful to notice that Section 149(2) (a) (i) (c) talks about the breach of condition of policy where vehicle is used for the purpose not allowed by the permit.
28. In the case in hand, it is not the case of the insurance company that there was no permit of the truck or truck was being used for the purpose not allowed by the permit, therefore, the contention of learned counsel for the insurance company that since fitness certificate has expired on 16.07.2010 before the date of accident, therefore, insurance company is not liable to pay compensation is devoid of merit and is rejected."
20. In view of above settled principle of law, there was no breach of any terms and conditions of insurance policy on the ground that fitness was not valid on the date of accident.
21. So far as quantum of compensation is concerned, the age of the deceased was 31 years at the time of accident and the Claims Tribunal has erred in applying the multiplier of 17 whereas the multiplier of 16 would be applicable as provided by Hon'ble Apex Court in the case of Sarla Verma (supra) for the age group of 31-35 years.
22. So far as the deduction towards personal expenses is concerned, the Claims Tribunal has deducted 1/3 towards personal expenses of the deceased. The submission of learned counsel for the claimants is that there were four dependents and deduction would be 1/4, which was not appreciated by the Claims Tribunal as the claimant-respondent no.4 Amreesh Pandey is the father of deceased and there was no evidence that he was dependent on the income of the deceased. The Claims Tribunal has rightly deducted 1/3 towards personal expenses accepting 3 dependents. So far as future prospects is concerned, the Claims Tribunal has not awarded any amount towards future prospects and only Rs.7,000/- was awarded for non-pecuniary damages whereas the claimants are entitled for 40% future prospects and Rs.70,000/- for non-pecuniary damages in view of law laid down by Hon'ble Apex Court in the case of Pranay Sethi (supra). The monthly income of the deceased was rightly accepted by the Claims Tribunal as Rs.23,207/- per month after certain deductions and there is no illegality in any manner.
23. In view of above discussions, both the appeals are partly allowed. The compensation awarded by the Claims Tribunal is re-assessed as under:-
1. Monthly Income : = Rs.23,207/-
2. Annual Income : = Rs.23,207/- x 12 = Rs.2,78,484/-
3. Future prospects : (40%) = Rs.1,11,393/-
4. Total annual income : = Rs.2,78,484/- + Rs.1,11,393/- = Rs.3,89,877/-
5. Deduction towards personal expenses (1/3):= Rs.3,89,877/- - Rs.1,29,959/- = Rs.2,59,918/-
6. Multiplier applicable (16) : = Rs.2,59,918/- x 16 = Rs. 41,58,688/-
7. Non-pecuniary damages: =Rs.70,000/-
Total : Rs. 41,58,688/- + Rs.70,000/- = Rs. 42,28,688/-
24. The award of the Claims Tribunal is modified and compensation awarded by the Claims Tribunal is enhanced from Rs.31,63,084/- to Rs. 42,28,688/-. The United India Insurance Company Limited is directed to pay enhanced amount of Rs.10,65,604/- along with 6% interest from the date of judgment of Claims Tribunal i.e. 23.5.2013 to the claimants, within two months from today.
25. The appellant Insurance Company was directed vide order dated 2.9.2015 to deposit 50% of the awarded amount within two months, which was directed to be invested in fixed deposit scheme. The appellant is directed to deposit remaining 50% within two months, if not deposited till date. The claimants are also entitled to receive the entire deposited amount without furnishing any surety.
26. No order as to costs.
Order Date :-14.08.2024 Kpy