Allahabad High Court
Baij Nath Choudhary vs Sardar Avtar Singh And Others on 11 December, 2019
Author: Kaushal Jayendra Thaker
Bench: Kaushal Jayendra Thaker
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 33 Case :- FIRST APPEAL FROM ORDER No. - 838 of 1995 Appellant :- Baij Nath Choudhary Respondent :- Sardar Avtar Singh And Others Counsel for Appellant :- C.K.Parekh,Deepak Singh Counsel for Respondent :- Awanish Mishra,V.C. Dixit Hon'ble Dr. Kaushal Jayendra Thaker,J.
1. This appeal, at the behest of Baij Nath Choudhary, challenges the judgment and award dated 31.5.1995 passed by Motor Accident Claims Tribunal/XIII Additional District Judge, Varanasi (hereinafter referred to as 'Tribunal') in Claim Petition No.157 of 1993 awarding a sum of Rs.87,000/- with 12% rate of interest.
2. Brief facts as they emerges go to show that the deceased who was a video operator 22 years of age when he went to Mugalsarai for purchasing goods and on his return a gas tanker bearing No.NLM-5655 dashed him from behind and he died on the spot. The Owner of the gas tanker did not appear in the Court. The Tribunal held that the insurance company would not be liable. though the insurance policy was vogued and there was a valid driving licence. The x-erox copy of the licence and the policy was produced. The photocopy of the insurance policy was also filed by the claimant. The driving licence was also produced but it was objected to by the insurance company.
3. This appeal at the behest of claimant requires to be allowed as the vehicle was insured in the year of accident. In view of the judgment of Apex Court in National Insurance Company Ltd. Vs. Jugal Kishore, AIR 1988 SC 719 it was the duty of the insurance company to rebut and or lead evidence so as to prove that the vehicle was not insured with it and that the driver's licnece was a fake driving licence and licence proved that the driver was authorized to drive the vehicle from 17.3.1985 to 9.12.1994 which covers the period of accident namely 21.7.1993.
3. It appears that the owner did not admit before the Tribunal and that was one of the reason that why the Tribunal exonerated the Insurance Company. The Insurance Company was obliged to produce the policy as per the judgment of Apex Court reported in National Insurance Company Ltd. Vs. Jugal Kishore as it is the primary duty of the person in whose custody the document is. Reliance is placed on paragraph 14 of judgment of this High Court in First Appeal From Order No.406 of 1998 ( The Oriental Insurance Company Limited Versus Man Bhawati Devi and others) passed on 15.3.2019 which reads as under : -
"14. The learned counsel for the appellant has submitted that the licence was not proved and that photo copy of the said vehicle has been produced and has submitted that photocopy is not admissible in evidence. This submission cannot be countenanced as it is prima facie proved that the vehicle was driven by a person capable of driving the vehicle and it is not proved that the accident was caused by the driver of minibus, who has been held negligent because of non-holding of valid licence. It has not been proved though orally submitted that there was breach of policy conditions. Issue no.3 has been decided against the insurance company by holding that on 27.10.1995, the driver had driving licence whose photocopy is produced and, therefore, it cannot be said that there was no driving licence. It is held by this Court in catena of decisions that strict rules of evidence under the Civil Procedure Code, 1908, cannot be made applicable for defeating the claim of a third party. The Insurance company has not proved anything to the contrary and, therefore, on the touchstone of the provisions of the Section 147 read with 149 of Act, 1988, referred to herein above, the finding cannot be disturbed and the said challenge also fails. "
4. Sri Mishra has vehemently submitted that X-erox copies are not admissible in evidence. Unfortunately the judgment of Oriental Insurance Company Limited Vs. Poonam Kesarwani and others, 2008 LawSuit (All) 1557 will apply to the facts of this case as the driving licence was not proved to be fake or not genuine one which was duty of the Insurance Company as it was granted right to contest on all the question and issues raised and it cannot be said that there was infarction of the policy condition. As far as policy is concerned, this appeal is allowed qua the finding whereby the insurance company is exonerated. It is submitted by Sri Mishra that the vehicle was a transport vehicle and there was no endorsement and the licence normally for transport vehicle is three years whereas in this case it was for a longer period these facts were before the Tribunal and therefore the Insurance Company was exonerated. The Insurance Company did not prove that there was any infraction the policy condition. The driving licence was not proved to be either fake or for not the vehicle which was being driven could not be proved before Tribunal hence, the said submission is rejected.
5. This takes this Court to the quantum, the deceased was 22 years of age. He was going on his bicycle when the tanker dashed with him in a rash and negligent manner and he died on the spot. The Tribunal held that the claim petition was preferred by the father , his mother, brother and a minor sister. Mother was also joined as claimant. The finding of facts that unmarried sister is not dependent on the brother and father. The said issue is against the mandate of Section 166 of Act, 1988 which reads as follows :-
"166. Application for compensation.-- (1) An application for compensation arising out of an accident of the nature specified in sub-section (1) of section 165 may be made--
(a) by the person who has sustained the injury; or
(b) by the owner of the property; or
(c) where death has resulted from the accident, by all or any of the legal representatives of the deceased; or
(d) by any agent duly authorised by the person injured or all or any of the legal representatives of the deceased, as the case may be:
Provided that where all the legal representatives of the deceased have not joined in any such application for compensation, the application shall be made on behalf of or for the benefit of all the legal representatives of the deceased and the legal representatives who have not so joined, shall be impleaded as respondents to the application.
(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. (3) [ * * * ] (4) The Claims Tribunal shall treat any report of accidents forwarded to it under sub-section (6) of section 158 as an application for compensation under this Act."
6. It does not speak about the dependency it speaks about legal representative, like mother , brother and sisters who can maintain claim petition under the Act for the death of the brother who was a bachelor when he died.
7. It is submitted by Sri C.K Parikh , Senior Advocate assisted by Sri Deepak has submitted that the Tribunal has erred in holding the income to be Rs.900/- per month and granted dependency of only Rs.600/- and granting multiplier of 10 which requires to be disturbed. It is further submitted that the amount for filial consortium is also on the lower side. It is submitted that the rate of interest should be 18% as the accident occurred in 1993.
8. It is submitted by Sri Mishra learned counsel for insurance company that the amount granted is on the higher side and needs no disturbance rather it is submitted that as per the judgment of Sarla Verma Vs. Delhi Transport Corporation, (2009) 6 SCC 121 and National Insurance Company Limited Vs. Pranay Sethi and Others, 2017 0 Supreme (SC) 1050 the later judgment the Tribunal was under a duty to deduct ½ half of the amount for personal expenses as the deceased was a bachelor. It is submitted that the multiplier granted in the year of accident is just and proper. The interest is on higher side. It is further submitted that Rs.15,000/- as non peculiar damages to the sisters need not be disbursed. It is further submitted by Sri Mishra that the rate of interest at 12% in the year 1993 was exorbitant could not have been granted as against this Sri C.K. Parikh, Senior Advocate has submitted that no amount under the heads of future loss of income has been granted.
9. The income as held by the Tribunal would be Rs.900/- per month as he was a video operator though the same could not be proved. However in the year 1993, the minimum wages would be Rs.900/-. Hence 40% be added to the said amount which means Rs.360/- roughly the amount would be Rs.1260/- and ½ half has to be deducted which would be make it Rs.600/-. It is now settled principle of law that the multiplier of the deceased has to be applied which would be 18. Hence, the heirs would be entitled to Rs.1,29,600/-. The parents during this period have passed away be now sister must have married, no addition to the other amount requires to be made over and above the one granted by the Tribunal namely Rs.15000/- to the sister.
10. The rate of interest as per oral submission of Sri Mishra, learned counsel for Insurance Company requires to be slashed down to 9% from the date of filing of the claim petition till award and 6% thereafter till the amount is deposited.
11. The appeal is partly allowed. The Owner, driver and Insurance Company would be jointly and severally liable. The Insurance Company shall deposit the amount within 12 weeks. The amount already deposited be deducted from the amount to be deposited.
12. Record be sent back to the Tribunal forthwith.
13. This Court is thankful to both the counsels to see that this very old matter is disposed of.
Order Date :- 11.12.2019 Mukesh