New India Assurance Co. Ltd vs Deepa Bisht & Others

Lok Pal Singh, J

This appeal is directed against the judgment and award dated 26.03.2014 passed by Motor Accident Claims Tribunal/Additional District Judge Khatima, District Udham Singh Nagar in M.A.C.P. No.08 of 2013, whereby the Tribunal has partly allowed the claim petition of the claimants for a sum of Rs.55,57,950/-against the appellant The New India Assurance Company Ltd. along with interest @ 7.5 % per annum from the date of filing of the claim petition till the date of its realization. Out of the amount of compensation, Rs.5,00,000/- each has been awarded in favour of respondent nos. 2 and 3; Rs.10,00,000/- each has been awarded in favour of respondent nos.4 and 5 and the remaining amount of Rs.25,57,950/- has been awarded in favour of respondent no.1 Smt. Deepa Bisht.

Briefly stated, facts of the case are that on 20.11.2012 deceased Bhagwati Prasad Bisht, Senior Sub Inspector was going to Village Chakarpur in search of wanted accused of crime no.252/12 by his Maruti Alto Car No.UA-03/4866 with Constable Ranjeet Prasad. When they reached near Village Kutari (Cane Centre) at about 9.35 pm, a truck bearing registration no.UP-03/3395 coming from the opposite side and being driven by its driver rashly and negligently, dashed to the car of the deceased in wrong side. The deceased received fatal injuries. He was immediately taken to Raturi Hospital Khatima but due to complicacy he was referred to higher centre for his treatment. However, the deceased succumbed to the injuries. The F.I.R. of the accident was lodged by Constable Ranjeet Prasad at P.S. Khatima on 22.11.2012 against the driver of offending truck. The deceased was Senior Sub Inspector of Police at Khatima Kotwali, District Udham Singh Nagar and his monthly salary was Rs.33,480/- per month. With these averments, claim petition was filed before the Tribunal on behalf of the claimants/respondents viz. wife, parents and children of the deceased.

Respondent no.5 i.e. the owner of offending truck filed his written statement and contended that the claim petition has been filed on wrong facts. He further contended that the accident had not occurred due to rash and negligent driving; the truck was being plied by its driver Lalit Kumar cautiously and at a moderate speed; all the papers of the vehicle viz. registration certificate, fitness certificate, permit, etc. were valid; the vehicle was duly insured with the New India Assurance Company Ltd; and the driving license of the driver was also valid and effective on the date of accident. He also contended that if the Tribunal comes to the conclusion that the claimants are entitled to get any compensation, the Insurance Company would be liable to pay the same.

Respondent no.6 Lalit Kumar, driver of offending truck, also filed his written statement and reiterated the averments of the written statement filed by the owner.

Appellant The New India Assurance Company Limited filed its written statement and denied most of the averments of the claim petition due to lack of personal knowledge. The appellant alleged that it is a burden upon the truck owner to prove as to whether he was possessing valid papers of the vehicle and in this regard the owner has to file certified copies of registration certificate, route permit, fitness, driving license and other documents before the tribunal. It was also pleaded that it is a case of contributory negligence of both the vehicles.

On the basis of pleadings of parties, the Tribunal framed following issues in the matter:-

i) Whether on 20.11.2012 at about 9.35 pm when the deceased Bhagwati Prasad Bisht, Senior Sub Inspector was going to Village Chakarpur in search of wanted accused of crime no.252/12 by his Maruti Alto Car No.UA-03/4866 with Constable Ranjeet Prasad, the truck bearing registration no.UP-03/3395 coming from the opposite side and being driven by its driver rashly and negligently, dashed to the car of the deceased in wrong side, as a result of which the deceased sustained grievous injuries and succumbed to the injuries?

ii) Whether on the date of incident all the documents of the offending truck were valid and the driver was having valid and effective driving license? If so, its effect?

iii) Whether the accident was the result of contributory negligence of truck driver and car driver? If so, its effect?

iv) To what extent the Claimants are entitled to get the compensation and from which party?

Thereafter, the parties led their oral and documentary evidence. On behalf of the claimants, PW1 Smt. Deepa Bisht, PW2 Manohar Pandey and PW3 S.I. Prahlad Singh were examined. In documentary evidence, they filed copy of F.I.R, Post-mortem report, insurance policy, driving license, fitness certificate, registration certificate, copy of family register, inquest report, site-plan, charge-sheet, pay-slip, etc. On behalf of the opposite parties, neither any oral nor any documentary evidence was adduced.

After hearing the parties and upon perusal of entire evidence, the Tribunal passed the impugned judgment and award, as above.

I have heard learned counsel for the parties and perused the entire record.

Learned counsel for the appellant would argue that the Tribunal has failed to consider that it was a case of contributory negligence since it was a head on collusion between the car of deceased and another vehicle involved in the accident. He would also argue that the compensation awarded to the claimants is exorbitant.

As far as factum of incident is concerned, the claimants by adducing evidence before the Tribunal has established the aspect of accident and the Tribunal on the basis of evidence available on record came to the conclusion that the accident occurred due to rash and negligent driving by the driver of offending truck which resulted into the death of deceased Bhagwati Prasad Bisht. Findings on this issue have been recorded by the Tribunal after proper appraisal of evidence and are therefore not interferable. On issue no.2, the Tribunal recorded finding that the driving license of the deceased as well as of the truck driver was filed before the Tribunal whereas the appellant Insurance Company has not led any evidence in rebuttal. Accordingly, the Tribunal has decided issue no.2 against the appellant Insurance Company.

The only controversy which this Court has to examine is regarding the issue of contributory negligence and quantum of compensation. In regard to contributory negligence, the Tribunal framed issue no.3 and again placed reliance on the statement of PW2 Manohar Pandey who has categorically stated that the truck driver, while driving the truck in a very rash and negligent manner, hit the car of the deceased in wrong side. The Tribunal also perused the site-plan of the accident and held that the truck driver dashed the car of the deceased in wrong direction. The Tribunal further recorded finding that the appellant Insurance Company has not adduced any evidence so as to substantiate its plea of contributory negligence. Findings recorded by the Tribunal on the issue of contributory negligence are based on proper appraisal of evidence and require no interference. Learned counsel for the appellant also could not point out any perversity in the findings so recorded by the Tribunal on this issue. Thus, the finding recorded by learned Tribunal on issue nos.3 is hereby affirmed.

Insofar as the quantum of compensation is concerned, the tribunal after perusal of oral and documentary evidence available on record, has established the monthly income of the deceased as Rs.28,151/- On this, the Tribunal has rightly made an addition of 50% towards future prospects in view of the fact that the deceased was in government service and was aged about 36 years on the date of accident. As such, the annual income has been calculated as Rs.5,06,712/- per year. On this, the Tribunal has deducted income tax of Rs.32,672/-, whereafter the annual income has been assessed as Rs.4,74,040/-. Considering the number of dependants, one-fourth has been deducted towards personal expenses. As the deceased was aged about 36 years, thus, in view of the Sarla Varma & Others vs. Delhi Transport Corporation & Another (2009) 6 SCC 121, multiplier of 15 has rightly been applied for age-group 36-40. In this way, the Tribunal has calculated the total loss of dependency as Rs.53,32,950/-. Besides this, the Tribunal has granted Rs.1,00,000/- towards loss of consortium, Rs.1,00,000/-towards loss of care and guidance of minor children and Rs.25,000/- towards funeral expenses, in view of Apex Court's decision in Rajesh & others vs. Rajbir Singh & others reported in (2013) 9 SCC 54. Hon'ble Apex Court in National Insurance Company Ltd. v. Pranay Sethi AIR 2017 SC 5157 has held that the decision in Rajesh & others vs. Rajbir Singh & others reported in (2013) 9 SCC 54 is not a binding precedent, and has accordingly held that the reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs.15,000/- Rs.40,000/- and Rs.15,000/- respectively, and the aforesaid amounts should be enhanced at the rate of 10% in every three years.

In the light of aforesaid discussion, the compensation awarded to the claimants is being re-assessed as follows:-

Consequently, the appeal is partly allowed. Impugned judgment and award dated 26.03.2014 stands modified to the extent that the appellant shall now pay the compensation to the tune of Rs. 54,02,950/-(Fifty Four Lakhs Two Thousand Nine Hundred and Fifty Only) to the claimants alongwith 7.5% interest per annum from the date of filing the claim petition till the date actual payment is made. Out of the amount of compensation, respondent nos.2 and 3 shall be entitled to get Rs.5,00,000/- each, which amount shall be kept in a F.D.R. interest earning scheme till their attaining the age of majority, as has been directed by the Tribunal; respondent nos.4 and 5 shall be entitled to get Rs.9,50,000/- each and the remaining amount of Rs.25,02,950/- shall be paid to respondent no.1 Smt. Deepa Bisht.

Let the statutory amount along with interest accrued on it, if any, be remitted to the Tribunal concerned. Lower court record be also sent back.

No order as to costs.