Divisional Manager, The New India Insurance Co. Ltd vs Kuldeep Kaur

The present is an appeal by the insurance company under Section 173 of the Motor Vehicles Act assailing the award passed by the First Additional Motor Accident Claims Tribunal, Raipur, in Claim Case No.49/2004 decided on 19.12.2014.

The facts which led to the filing of the instant appeal by the insurance company is that the deceased Bhupendra Singh, the Husband of respondent No.1 and the father of the respondents No.2 to 4 while driving his motorcycle bearing registration No.CG-04-CD-4903 on 22.04.2004 on Bilaspur-Raipur road was hit by a Truck coming from the opposite direction driven by the respondent No.5, owned by the respondent No.6 and insured with the appellant-insurance Company in the present appeal bearing registration No.AP-16-TT-2547. As a result of the accident, the deceased Bhupendra Singh died on the spot. The claimants i.e. respondents No.1 to 4 filed a claim application before the Tribunal which was registered as Claim Case No.49/2004.

Initially the Tribunal considered and passed an award on 24.01.2006 whereby the Tribunal has awarded an amount of Rs.2,28,750/-. The liability of payment of compensation was fastened upon the appellant-insurance company i.e. the insurer of the offending Truck AP-16-TT-2547. The claimants subsequently preferred a Misc. Appeal before the High Court which was registered as MA No.860/2006. The said appeal came up for hearing before the High Court on 14.04.2014 and the High Court disposed of the said appeal by remanding the matter back to the Tribunal making the following observations:

“8. From the evidence on record, it is apparent that the deceased was a retired Major of Indian Army and was running a security agency after retirement. Though some documents were filed by the claimants before the Tribunal showing income of the deceased but the document (Annexure D/1) filed along with application under Order 41 Rule 27 of CPC could not be filed before the Tribunal as according to claimants they could obtain the said documents after passing of the impugned award.

Considering the facts and circumstances of the case, the submission made on behalf of the claimants appears to be reasonable. Therefore, in the larger interest of justice, the application filed by the claimants under Order 41 Rule 27 CPC deserves to be allowed. It is accordingly allowed. The award impugned is hereby set aside and the matter is remitted back to the Tribunal for reassessing the compensation in accordance with law after providing due opportunity to the parties to adduce additional evidence, in particular the document Annexure D/1, in relation to income of the deceased.

As the matter is being remitted permitting the claimant to adduce additional evidence in relation to document Annexure D/1, the parties shall be allowed to adduce additional evidence or file additional document on the point of income of the deceased. The Tribunal shall thereafter assess the income of the deceased on the basis of evidence so adduced and then pass a fresh award in accordance with law as expeditiously as possible preferably within a period of six months from the date of appearance of the parties.”

Thus, from the aforesaid observation it is evident that the matter stood remanded back to the Tribunal so far as assessing the income of the deceased and to re-assess the total compensation payable to the claimants.

It is pertinent to mention at this juncture that so far as the liability of payment of compensation awarded against the appellant insurance company was not questioned by the insurance company at that point of time when the first award was passed on 24.01.2006. They also did not challenge the award inspite of fact that the claimants had challenged the award. The appeal of the claimants was decided in the year 2014 where the order of remand was passed. Subsequent to the remand, the Tribunal taking into consideration the payment released to the family members of the deceased in respect of the contract that was executed by the deceased during his lifetime, quantified the monthly income of the deceased at Rs.30,847/-. After assessing the said amount as the monthly income, the Tribunal proceeded to quantify the compensation payable to the claimants at Rs.22,23,000/- with interest @ 6 percent per annum. It is this award now passed by the Tribunal on 19.12.2014, Annexure A-1 which is under challenge in the present appeal by the insurance company.

The appeal has been preferred by the insurance company both on the question of liability and also on the question of the quantum of compensation being disproportionate. The appellant submits that considering the fact that there was a head on collusion between the two vehicles, there is an element of contributory negligence which has not been appreciated by the Tribunal. The Tribunal has solely held the offending vehicle i.e. the vehicle driven by the respondent No.5 and owned by the respondent No.6 to be responsible for the accident. The counsel for the appellant tried to canvass that applying the contributory negligence theory the amount of compensation payable by the appellant insurance company should had been reduced accordingly. It is the further contention of the counsel for the insurance company that the Tribunal has also committed an error while quantifying the monthly income of the deceased. It was contended that from the evidence available on record as also the material produced during the course of proceeding before the Tribunal there is no fixed income which could be assessed or which was brought on record to reach to the conclusion that the deceased had a fixed regular monthly income. Therefore, in the absence of any substantial material so far as the fixed monthly income of the deceased, the Tribunal could have only applied the notional income while quantifying the monthly income as also the compensation payable to the claimants. In support of his contention, the counsel for the appellant has relied upon judgment of Supreme Court in case of New India Assurance Co. Ltd. Vs. Smt. Kalpana & Others, 2007 AIR SCW 1316.

It was also the contention of the insurance company that there was no proof led by the claimants before the Tribunal to establish that at the time of accident there was a rash and negligent act on the part of the respondent No.5 while driving the offending vehicle. There ought to had been a clear categorical statement of an eyewitness in this regard to establish rash and negligent driving. The appellant relied upon a judgment of Supreme Court in case of Surender Kumar Arora and Another Vs. Manoj Bisla (Dr.) and Others, 2012(3) TAC-SC-353.

As regards the negligence part is concerned, the allegation of no proof of negligence on the part of the respondent No. 5 is concerned, this court is of the opinion that a plain reading of the evidence of the claimants, the widow of the deceased itself would evidently clear that she had in very categorical terms, based upon the records of the criminal case that was registered against the driver of the offending vehicle i.e. respondent No.5, had stated that the accident occurred because of the rash and negligent driving of the respondent No.5. Registration of an FIR, Ex. P/2 is not in dispute. The registration of Criminal case against the respondent No.5 is also not in dispute. The respondent No.5 being prosecuted for rash and negligent driving is also not in dispute. Under the circumstances, the contention of the insurance company that there is no evidence to establish rash and negligent driving on the part of the respondent No.5 is not made out and the said contention stands rejected.

As regards the contributory negligence part is concerned, what is necessary to be appreciated at this juncture is that there was no evidence whatsoever led by the insurance company before the Tribunal. Neither did the insurance company take care to call upon the respondent No.5 to record his statement stating that he was not at fault in the occurrence of the accident and that it was the motorcyclist who was at fault. Neither has the insurance company brought anything strong and substantial from the cross examination of the claimants to establish the aspect of contributory negligence. Only because the two vehicles had a head on collusion would not by itself be sufficient to draw an inference that there was a contributory negligence in respect of the driver of the motorcycle at the time of accident. Even if the offending vehicle crosses the side of the road and hits the vehicle coming from the opposite direction, it would be a head on collusion and that possibility of the instant accident having occurred in such a manner cannot be ruled out particularly when the respondent No.5, the driver of the offending vehicle having been prosecuted for the offence of rash and negligent driving apart from the other sections of the IPC. The said ground of the insurance company also therefore is answered in the negative.

As regards the income part is concerned, after the matter was remitted back to the Tribunal by virtue of the order passed by the High Court in MA No.860 of 2006, decided on 14.04.2014, Ex. P/21 was brought on record which was a sanction order by the Central Warehousing Corporation releasing of an amount of Rs.2,56,995/- which was the payment due to the deceased while he was alive from the contract that was executed by his security agency providing security services at the various depots of the Central Warehouse Corporation situated both in the State of Madhya Pradesh as also in the State of Chhattisgarh. Relying upon the said document, the Tribunal has reached to the conclusion that in addition to the pension that he was receiving, he had also the income from the business that was being operated by the deceased and the commission that the deceased had received for the contract itself shows that his rough income divided by 12 months brought the monthly income of the deceased at Rs.30,847/-. The said finding of fact given by the Tribunal cannot under any stretch of imagination be held to be contrary to the evidence or unreasonable in any manner. Only because the widow of the deceased was receiving the family pension even after the death of the deceased would not by itself be sufficient enough for denying of the compensation to the claimants on the death of the bread earner in the family. There was sufficient evidence to show that firstly he was an ex-serviceman retired from the Army, secondly, after his retirement he has got himself registered as a Security Agency and thirdly he had an existing operational contract with the Central Warehousing Corporation providing security services both in the State of Madhya Pradesh as also in the State of Chhattisgarh in the depots of the Central Warehouse Corporation. For all these factual details also the award passed by the Tribunal cannot be found fault with, nor can it be said to be unreasonable in any manner.

The judgment cited by the counsel for the appellant in case of National Insurance Co. Ltd. Vs. Kalpana (Supra) is on facts distinguishable in itself. There the Supreme Court had in a very categorical terms held that the compensation quantified by the Tribunal should always be just and reasonable taking into consideration the factual materials brought on record during the course of the evidence.

In the instant case the Tribunal’s finding revolves around the documentary proof in respect of the payment that was made to the legal heirs of the deceased i.e. the claimants. The payment so made was of a period of contract that was executed during the lifetime of the deceased himself. Therefore, the findings arrived at by the Tribunal is a finding of fact based on material documents produced before the Tribunal in the course of the evidence. For all the aforesaid reasons, this court does not find any merits in the appeal filed by the insurance company.

As regards the Cross Objection/Cross Appeal filed by the claimants are concerned, from the admitted factual matrix of the case, the age of the deceased was said to be 58 years. That, in terms of the Judgment of the Supreme Court in case of Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, 2009(2)TAC 677 the multiplier to be applied in case of a deceased aged around 58 years ought to have 9 whereas, the Tribunal has applied the multiplier of 8. Thus, after applying the multiplier of 9, the loss of income therefore would come to Rs.22,21,200/- instead of Rs.19,74,400/- as assessed by the Tribunal.

Likewise, even in the light of the judgment of Supreme Court in case of National Insurance Co. Ltd. Vs. Pranay Sethi and Others, 2017(ACJ) 2700 the Tribunal has not awarded future prospects to the claimants. Considering the age of the deceased to be 58 years, the future prospects applicable would be 10 percent which would come to Rs.2,22,120/-. Thus, the compensation payable to the claimants would get enhanced by an additional amount of Rs.4,68,920/-. Thus, the total compensation payable to the claimants becomes 24,43,320/- instead of Rs. 22,23,000/- as awarded by the Tribunal. The remaining part of the award as quantified by the Tribunal would remain intact including the rate of interest awarded. The enhanced differential amount shall be paid by the insurance company within a period of four weeks from today. The Cross Appeal of the claimants stands allowed.