I.C.I.C.I. Lombard General Insurance Co. Ltd. vs Sheetal

Rakesh Tiwari, J.—Heard Sri Rahul Sahai, learned Counsel for the appellant and perused the impugned award as also the papers filed alongwith memo of appeal. An accident took place by motorcycle No. UP 75P 2013 on 2.5.2011 at about 12.10 P.M. near Chambal Bridge on Etawah Bhind road, Police Station Barpura, district Etawah. One Harbansh Lal, who was standing on the footpath as his car had developed some fault was hit by the aforesaid motorcycle, resulting in his death on account of the injuries sustained in the accident.

M.A.C.P. No. 74 of 2011 filed by the dependants of Harbansh Lal, was contested by the owner/driver of the motorcycle as well as the insurance company, the appellant in this appeal by filing their written statements. The appellant insurance company denied, the accident with the aforesaid motorcycle which was insured by it. In the alternative, the claim was contested by the appellant on the ground that accident had taken place due to own fault of deceased Harbansh Lal as he was negligent while crossing the road and that there was no fault of the motorcycle rider. It was also stated that age, occupation and income of the deceased, have wrongly been stated in the claim petition only for the purpose of claiming higher compensation.

On the basis of pleading of the parties, the Tribunal framed four issues, i.e., (i) whether on 2.5.11 at about 12.10 p.m. the accident had occurred by the aforesaid motorcycle being driven by its rider in a rash and negligent manner, in which Harbansh Lal suffered grievous injuries resulting into his death? (ii) Whether the motorcycle aforesaid was insured with the appellant company, if not, its effect? (iii) Whether rider of the motorcycle was having a valid driving licence? And (iv) What compensation the claimants are entitled to and from whom?

After appraisal of the record, documents and evidence led by the parties, the Tribunal held that deceased Harbansh Lal died in the accident caused by the aforesaid motorcycle being driven in a rash and negligent manner; that motorcycle was insured by the appellant insurance company and that rider of the motorcycle was having a valid and effective driving licence at the time of accident. Regarding payment of compensation, the Tribunal decided issue No. 4 holding that according to the postmortem report, age of the deceased was about 50 years and as there is no other evidence in that regard, as such the age as given in the post-mortem report can be taken as a reliable evidence. The Tribunal further held that it could not be proved by the claimants that deceased Harbansh Lal was either employed in any factory manufacturing electrical parts or that he himself was the owner of any such factory as claimed by them. The Tribunal noted that in the Income Tax Returns, income of the deceased during the period 2009-2010 and 2010-2011 was Rs. 2,76,015/- and Rs. 2,78,060/- respectively, but neither source of income had been shown therein nor there was any evidence on record in that regard. In the circumstances, the Tribunal has taken notional income of the deceased as Rs. 3000/- per month and after deducting 1/3rd towards his personal expenses and considering the fact that he was aged about 50 years at the time of his death, applied multiplier of 13 and awarded a sum of Rs. 3,19,000/- as compensation including Rs. 2000/- towards funeral expenses and Rs. 5000/- for loss of consortium, by the impugned award dated 31.11.2012.

Counsel for the appellant has challenged the award on the ground that it is highly arbitrary and suffers from manifest error apparent on the face of record. He has reiterated that claimants have failed to establish before the Tribunal that the accident in question had been caused by the aforesaid motorcycle and that no F.I.R. was got registered by the claimants, hence the fact of the accident was in dispute. It is also stated that P.W. 1 was not an eye-witness of the accident whereas P.W. 2 though an eye witness, was interested witness, therefore, the Tribunal has erred in blindly relying upon their statements without any evidence and even presuming that the accident had been caused by the motorcycle aforesaid, it was exclusive negligence on the part of the deceased himself and in any case the accident was due to contributory negligence of the deceased which was fully established before the Tribunal. It is lastly urged that as there is no material on record to prove income of the deceased, the Tribunal has erred in taking notional income as given in the Schedule of the Motor Vehicles Act and the multiplier applied was on higher side.

After hearing the submissions and on perusal of the record, we find that P.W. 2 is an eye-witness of the accident and his statement is corroborated by the evidence of P.W. 1. It further appears from record that deceased Harbansh Lal was standing on footpath (Patri) and the accident did not occur due to contributory negligence or fault of the deceased as argued. Moreover, the fact that accident had occurred by the aforesaid motorcycle insured by the appellant has been admitted by the owner of the offending vehicle. The appellant insurance company had neither filed or proved any contra evidence in this regard. The injured had been examined as witness. It further appears from record that since the police did not lodge F.I.R. on the information being given, an application u/s 156(3), Cr.P.C. was moved and Superintendent of Police had also been informed about the fact that police has not lodged F.I.R., therefore, delay in lodging the F.I.R. is of no consequence.

For all the reasons stated above, in our opinion, the appellant insurance company has failed to justify its stand before the Court. There is overwhelming evidence that the accident in question had occurred because of rash and negligent driving by the rider of motorcycle insured by the appellant. In such circumstances, the Tribunal has rightly fastened the liability upon the appellant insurance company to indemnify the award. In view of what has been stated above, the present appeal sans merit and is accordingly dismissed.

Registry is directed to remit statutory amount of money deposited by the appellant in this Court, to the Tribunal concerned within two weeks, for adjustment.