Allahabad High Court
Divisional Manager The New India ... vs Smt. Satyabhama Tripathi And Others on 27 November, 2019
Author: Virendra Kumar Srivastava
Bench: Virendra Kumar Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD
Reserved on 14.10.2019
Delivered on 27.11.2019
Court No.68
Case :- FIRST APPEAL FROM ORDER No. - 1126 of 2012
Appellant :- Divisional Manager The New India Assurance Co. Ltd.
Respondent :- Smt. Satyabhama Tripathi And Others
Counsel for Appellant :- Saral Srivastava,N/A,Sarvesh Kumar Pandey,Vinay Kumar Khare
Counsel for Respondent :- Ashok Kumar Upadhyay,Shailesh Kumar Pathak,Vipin Kumar Tiwari
Hon'ble Virendra Kumar Srivastava,J.
1. This instant appeal has been filed by appellant against the award and order dated 2.12.2011 passed by Motor Accident Claims Tribunal/ Additional District Judge, Court No.8, Allahabad (in short Tribunal) in Claim Petition No. 91/2011 (Satyabhama Tripathi Vs. Badri Prasad Pandey and another), whereby the claim petition filed by respondent-claimants No.1 to 3 (in short claimants) has been allowed for Rs. 9,60,164/- along with 6% annual interest from the date of filing of claim petition and the appellant-Insurance company (in short Insurance Company) has been directed to pay the same.
2. The brief facts, arising out of this appeal, are that the deceased Rakesh Mani Tripathi, husband of claimant Smt. Satyabhama Tripathi, was riding on motor cycle bearing registration No.MP-17-MD-3839 by Allahabad to Rewa Road from his home to Allahabad on 24.11.2010 at 4.30 p.m and as he reached near the village Sachetana, driver of Truck bearing No.UP-72-F9225, owned by respondent no. 4 (in short 'owner') while driving the said truck rash and negligently from opposite side (Allahabad to Riwa), dashed the aforesaid motor cycle of deceased, whereby he received severe injuries and died on the spot. The claim petition for compensation of Rs.50,00,000/- was filed by the claimants (wife and children of the deceased) with the allegation that the deceased was retired defence personnal, getting Rs.16,000/- per month i.e. Rs. 9,000/- per month as pension and Rs. 7,000/- per month salary as security guard in Om Security Service, Tularam Bag, Allahabad.
3. The learned Tribunal after considering the evidence produced by the parties, allowed the claim petition and awarded the compensation as above.
4. Aggrieved by the said award and order, the appellant has preferred this appeal.
5. Heard Ms Arushi Khare, Advocate, holding brief of Sri Sarvesh Kumar Pandey, learned counsel for appellant and Sri Ashok Kumar Upadhayay, learned counsel for claimants. No one is present for owner despite notice.
6. Learned counsel for the appellant submitted that at the time of accident, the deceased was coming from opposite side, riding his motor cycle rash and negligently and dashed the Truck No. UP-72-F 9225. It is a case of head on collusion, wherein the deceased was also liable for contributory negligence but the Tribunal has not held him liable for any negligence and has held that the accident was happened only due to sole negligence of the offending truck driver. Learned counsel further submitted that the claimant-respondent No.1, Smt. Satyabhama Tripathi, wife of deceased, was getting Rs.5057/- as family pension but the Tribunal has not deducted the said amount from Rs.9141/-, monthly income/pension of the decease, in determining the monthly income of deceased for calculation of the compensation. Learned counsel further submitted that the impugned award and order passed by the Tribunal is against the evidence available on record and which is illegal, improper and liable to be set aside. Learned counsel has placed reliance on law laid down by Supreme Court in Bhakra Beas Management Board vs. Kanta Aggarwal, 2008 Law Suits (S.C) 1582.
7. Per-contra, learned counsel for the claimant- respondents submitted that there is no infirmity or illegality in the impugned award and order passed by the Tribunal. Learned counsel further submitted that at the time of accident the deceased was riding his motorcycle very safely and with moderate speed on his left side whereas the driver of the alleged truck while driving the alleged truck rash and negligently came suddenly on wrong side and dashed the motorcycle of the deceased. Learned counsel further submitted that neither any evidence for contributory negligence was produced nor any plea was raised before the Tribunal by either the appellant or owner/driver of alleged Truck. Learned counsel further submitted that the amount received as family pension by the claimant (wife of the deceased) cannot be deducted from monthly income of the deceased. The appeal is without merit and liable to be dismissed. Learned counsel placed reliance on law laid down by the Supreme Court in 1999 (1) S.C.C. 90, Helen C. Rebellow (Mrs) and others Vs. Maharashtra State Road Transport Corporation and other and (2013) 7 S.C.C, 476,Vimal Kanwar and others Vs. Kishore Dan and others.
8. I have considered the rival submissions advanced made by the learned counsel for both parties and perused the record.
9. So far as the submission of learned counsel for the appellant that the deceased was also negligent in the said accident as it was caused in head on collusion, is concerned, record shows that P.W-1 Smt. Satya Bhama, in claim petition has specifically mentioned that at the time of accident, deceased was coming by his motor cycle bearing No.MP-17-MD-3839 from his native village to Allahabad city and the said accident was happened due to rash and negligent driving of the driver of alleged Truck No. UP-72-F9225.
10. Respondent No.4, Badri Prasad Pandey, owner of the truck, in his written statement, in paragraph 23, admitting the factum of accident caused on 24.11.2010 at 4.30 p.m, has not stated anything about head on collusion between the alleged truck and motorcycle. It is averred in written statement by him that at the time of accident, the driver of his truck was driving the alleged truck in slow and moderate speed whereas the deceased motorcyclist, by over taking the truck was going in wrong side. Thus, according to owner of the truck, at the time of accident the deceased was over taking the alleged truck, it means that the motorcycle of the deceased was coming back side of the alleged truck. Neither the owner of the truck nor driver of the alleged truck filed any evidence or produced any witness in support of version made by the owner of offending truck or to controvert the factum of accident as alleged by the claimants. Insurance company too has not filed any evidence in this regard.
11. From perusal of site plan, prepared by the Investigating officer, it transpires that at the time of accident, the deceased was travelling by extreme left side of the road whereas the driver of the alleged truck was also coming by his left side but as he reached near the place of occurrence, suddenly turned the alleged truck extreme to his right side and dashed the deceased's motorcycle . In the First Information Report, (in short F.I.R), it has been specifically mentioned that the dead body of the deceased and the alleged truck were present at the place of occurrence whereas the driver of the truck fled away from the spot. Thus the position of truck, at the time of accident that it was on its extreme right side i.e. wrong side, is proved from site plan as well as from F.I.R. also. The F.I.R. was lodged against the truck driver of the alleged vehicle under sections 279 and 304-A I.P.C and after due investigation, charge sheet was also filed against the Truck driver Anil Kumar Tiwari, under sections 279,304-A and 427 I.P.C for rash and negligent driving of the vehicle.
12. P.W-2 Suresh Kumar who is an eye witness of the alleged accident, has specifically stated that on 24.11.2010 at about 4.30 p.m. the driver of the truck bearing No. UP-72-F9225, driving the said truck rash and negligently as well as in wrong side, dashed the motorcyclist coming from Rewa side toward Allahabad city. This witness has specifically stated that in the accident, motorcyclist fell down, received serious injuries and died on the spot and truck was also caught. He further stated that so many people were gathered at the place of occurrence and information was given to the family of the deceased on contact number available in the mobile phone of the deceased. This witness again stated that the alleged accident was happened only due to sole negligence and fault of the truck driver. Record further shows that an opportunity was given by the Tribunal to the counsel for respondent-truck owner but he did not cross examine this witness whereas in cross examination by the learned counsel for Insurance Company, this witness again stated that the truck driver, by going his right side, dashed the motorcycle at the time of accident whereby motorcyclist died. In cross examination nothing has come out to show any fault or negligence of the deceased's motorcyclist.
13. It is also pertinent to note at this juncture that neither any plea regarding contributory negligence of deceased motorcyclist was taken by the appellant-Insurance Company before the Tribunal nor any issue was framed in this regard. It is also pertinent to note that neither appellant nor owner of truck has produced any evidence before the Tribunal whereby it can be said that the motorcyclist was negligent at the time of accident.
14. In Jiju Kurvila and others Vs. Kunjujamma Mohan and others, AIR 2013, S.C 2293, where the Tribunal held the contributory negligence of the deceased 25% but the High Court in appeal has held as 50: 50% negligence of the deceased and the driver of the offending truck only on the ground that at the time of accident, the deceased had taken liquor, Hon'ble Supreme Court while allowing the appeal filed by the claimant has held as under:-
26.''The aforesaid evidence, Ext.-A5 clearly suggests that the deceased had taken liquor but on the basis of the same, no definite finding can be given that the deceased was driving the car rashly and negligently at the time of accident. The mere suspicion based on Ext.-B2, ''Scene Mahazar' and the Ext.-A5, post mortem report cannot take the place of evidence, particularly, when the direct evidence like PW.3, independent eye-witness,Ext.-A1(FIR), Ext.-A4(charge-sheet) and Ext.-B1( F.I. statement) are on record.
27. In view of the aforesaid, we, therefore, hold that the Tribunal and the High Court erred in concluding that the said accident occurred due to the negligence on the part of the deceased as well, as the said conclusion was not based on evidence but based on mere presumption and surmises.'' (Emphasis Supplied for)
15. In Minu Rout vs. Satya Pradyumna Mohapatra (2013) 10 SCC 695 where car driver died in head on collision between truck and car; F.I.R. was lodged against both drivers of the truck and car; charge-sheet was also filed against both drivers for offence of negligent driving of the vehicle but criminal case against the deceased driver of the car was abated due to his death; eyewitness stated before the Tribunal that accident took place only due to sole negligence of truck driver; truck owner and driver did not contested the case and Insurance Company also did not produced any evidence to controvert the evidence produced by the claimant but the tribunal held the deceased for contributory negligence only on the ground that claimant failed to produce the F.I.R. of the accident. In appeal for enhancement of compensation High Court refused to interfere in award passed by the Tribunal. Supreme Court while allowing the appeal filed by the claimant held as under:-
17. The Tribunal, on appreciation of the oral and documentary evidence, has recorded the erroneous finding by placing strong reliance upon the charge- sheet, Ext.1 without considering the fact that the criminal case was abated against the deceased and further has made observation in the judgment that the appellants had not produced the FIR. Therefore, it has held that there was 50% contributory negligence on the part of the deceased driver in causing accident. The Tribunal ought to have seen that non production of FIR has no consequence for the reason that charge sheet was filed against the truck driver for the offences punishable under Sections 279 read with Section 302 of IPC read with the provisions of the M.V. Act. The Insurance Company, though claimed permission under Section 170(b) of the Motor Vehicles Act, 1988 from the Tribunal to contest the proceedings by availing the defence of the owner of the offending vehicle, it did not choose to examine either the driver of the truck or any other independent eye witness to prove the allegation of contributory negligence on the part of the deceased Susil Rout on account of which the accident took place as he was driving the car in a rash and negligent manner. In the absence of rebuttal evidence adduced on record by the Tribunal, the Tribunal should not have placed reliance on the charge-sheet-Exh.1 in which the deceased driver was mentioned as an accused and on his death; his name was deleted from the charge sheet. The Tribunal has referred to certain stray answers elicited from the evidence of P.W.2 and P.W.3 in their cross-examination and placed reliance on them to record the finding on issue no.1.
18. For the aforesaid reasons, the findings and reasons recorded by the Tribunal on the contentious issue No.1 holding that there is contributory negligence on the part of the deceased driver in the absence of legal evidence adduced by the Insurance Company to prove the plea taken by it that accident did not take place on account of rash and negligent driving of the truck driver is erroneous in law. The Tribunal has accepted the part of oral evidence of the eye witnesses regarding the scene of accident and it has erroneously placed reliance upon the charge-sheet-Exh.1, which was filed against the driver of the offending truck and deceased to hold there was contributory negligence on his part by ignoring the fact that the criminal case against the deceased was abated. Therefore, we have to hold that the finding of fact recorded on issue No.1 by the Tribunal and affirmed by the High Court in the impugned judgment, is erroneous for want of proper consideration of pleadings and legal evidence by both of them. Accordingly, we have answered point No.1 in favour of the appellants in so far as the finding recorded by the Tribunal on the question of contributory negligence of 50% on the part of the deceased is concerned.
16. In this case P.W-2 Suresh Kumar has clearly stated that the alleged accident was taken place due to sole negligence and rash driving by the driver of the offending truck and the alleged truck was caught on spot. In site plan it has specifically been shown that at the time of accident deceased was in extreme left side whereas alleged Truck coming from opposite suddenly came wrongly in its right side and dashed the motorcyclist. F.I.R, site plan and charge sheet clearly demonstrate the sole negligence of driver of the truck and no evidence has been filed by either the owner of the truck or the appellant to controvert the evidence produced by the claimants. In such situation, I am of the view that only on the ground of head on collusion, it cannot be inferred that the deceased was negligent at the time of accident. Hence the conclusion of Tribunal regarding sole negligence of alleged Truck driver requires no interference and the submission made by the learned counsel for the appellant has no force.
17. So far as the submission of learned counsel for the appellant that the wife of deceased is getting Rs.5057/- as family pension but the Tribunal has not deducted the said amount from monthly income Rs.9141/- determined for the calculation of the compensation, is concerned, record shows that P.W-1 Satya Bhama, wife of deceased, specifically stated before the Tribunal that the deceased was retired from defence service and was getting pension of Rs.9141/- at the time of accident. She also stated that at the time of accident the deceased was employed as security guard in Om Security Services and getting Rs.7,000/- per month. Record further shows that the Tribunal has disbelieved the earning of Rs.7000/- per month of the deceased as security guard. The Tribunal has only determined the monthly income of deceased only as Rs.9141/- for calculation of the compensation. In cross examination, this witness has admitted that she is getting Rs.2500/- per month as family pension.
18. Law regarding the calculation of compensation as well as permissible of deduction from income of deceased has now been well settled. Hon'ble the Supreme Court in the case of Helen C. Rebellow (Mrs) and others Vs. Maharashtra State Road Transport Corporation and other, (1999)1 Supreme Court Cases, 90 has held as under:-
35.''Broadly, we may examine the receipt of the provident fund which is a deferred payment out of the contribution made by an employee during the tenure of his service. Such employee or his heirs are entitled to receive this amount irrespective of the accidental death. This amount is secured, is certain to be received, while the amount under the Motor Vehicles Act is uncertain and is receivable only on the happening of the event viz., accident which may not take place at all. Similarly., family pension is also earned by an employee for the benefit of his family in the form of his contribution in the service in terms of the service conditions receivable by the heirs after his death. The heirs receive family pension even otherwise than the accidental death. No co-relation between the two. Similarly, life insurance policy is received either by the insured or the heirs of the insured on account of the contract with the insurer, for which insured contributes in the form of premium. It is receivable even by the insured, if he lives till maturity after paying all the premiums, in the case of death insurer indemnifies to pay the sum to the heirs, again in terms of the contracts for the premium paid. Again, this amount is receivable by the claimant not on account of any accidental death but otherwise on insured's death. Death is only a step or contingency in terms of the contract, to receive the amount. Similarly any case, bank balance, shares, fixed deposits, etc. though are all a pecuniary advantage receivable by the heirs on account of one's death but all these have no co-relation with the amount receivable under a statute occasioned only on account of accidental death. How could such an amount come within the periphery of the Motor Vehicles Act to be termed as 'pecuniary advantage' liable for deduction. When we seek the principle of loss and gain, it has to be on similar and same plane having nexus inter so between them and not to which, there is no semblance of any co-relation. The insured (deceased) contributes his own money for which he receives the amount has no co-relation to the compensation computed as against torfeasor for his negligence on account of accident. As aforesaid, the amount receivable as compensation under the Act is on account of the injury of death without making any contribution towards it then how can fruits of an amount received through contributions of the insured be deducted out of the amount receivable under the Motor Vehicles Act. The amount under this Act, he receives without any contribution. As we have said the compensation payable under the Motor Vehicles Act is statutory while the amount received under the life insurance policy is contractual.''
19. In Vimal Kanwar and others Vs. Kishore Dan and others (2013) 7 S.C. C, 476 again Hon'ble the Supreme Court following law laid down in Helen C. Rebellow (supra) on the point of deduction of pecuniary advantage received by the claimant on account of death of deceased has held as under :-
18." The first issue is "whether Provident Fund, Pension and Insurance receivable by claimants come within the periphery of the Motor Vehicles Act to be termed as 'Pecuniary Advantage' liable for deduction."
19. The aforesaid issue fell for consideration before this Court in Helen C. Rebello vs. Maharashtra SRTC. In the said case, this Court held that provident fund, pension, insurance and similarly any cash, bank balance, shares, fixed deposits, etc. are all a "pecuniary advantage" receivable by the heirs on account of one's death but all these have no correlation with the amount receivable under a statute occasioned only on account of accidental death. Such an amount will not come within the periphery of the Motor Vehicles Act to be termed as "pecuniary advantage" liable for deduction.
20. Hon'ble Supreme Court in Bhakra Beas Management Board Vs. Kanta Aggarwal, 2008 Law Suit (SC) 1582, relied by the learned counsel for the appellant, while placing reliance on law laid down in Helen C. Rebellow (supra) held in para 12 as under:-
12. " But we find that the High Court lost sight of the fact that the benefits which the claimant receives on account of the death or injury have to be duly considered while fixing the compensation. It is pointed out that respondent No.1 was getting R.4,700 per month and a residence has been provided to her and actually the compassionate appointment was given immediately after the accident."
21. Thus, in view of the law laid down by Hon'ble the Supreme Court as above, it is established that the amount receivable by the wife of the deceased as family pension is not deductible from the income of deceased determined for calculation of compensation. It is also pertinent to note at this juncture that the Tribunal has already determined the income of deceased of lower side by disbelieving the salary of the deceased as security guard.
22. Thus, the tribunal has not committed any illegality in determining the income of deceased for calculation of compensation and submission made by learned counsel for appellant, in this regard has no force.
23. In view of the above discussion, I am of the view that there is no illegality in the impugned judgment and order dated 2.12.2011 passed by the Tribunal.
24. The appeal lacks merit and is dismissed.
25. Interim order, if any, stands vacated.
26. Registry is directed to remit the statutory amount deposited by the appellant, if not remitted, to the Tribunal.
27. Office is directed to send back the Lower Court Record to the Tribunal, along with the copy of judgment forthwith for information and compliance Date: 27.11.2019.
G.S./Saurabh