New India Assurance Co. Ltd. vs Rajendra Prasad Srivastava and Others

Amitava Lala, J.—The appeal is arising out of an order dated 18.1.2008. passed by the Motor Accident Claims Tribunal, Fatehpur awarding a sum of Rs. 4,82.000 alongwith interest from the date of presentation of claim petition till its realisation to be paid to the claimants on account of death of the deceased. The insurance company was made liable to pay compensation, therefore, they have preferred this appeal. The insurance company has filed application u/s 170 of the Motor Vehicles Act, 1988 (hereinafter called "the Act") to permit it to contest the cause before the Tribunal, which was allowed.

The fact remains that when the deceased was going by motor cycle he was hit by a truck which was driven by the driver rashly and negligently. The deceased died on the spot. The deceased was serving in India Drug House, D-59/376, K-1, Indrapuri Colony, Sigra, district Varanasi and was getting Rs. 8,500 per month. He was aged about 25 years.

The owner of the truck has said that at the time of accident the truck driver had valid licence and the papers of the truck were valid. He has submitted that the driving licence of the driver and the other papers relating to the truck inclusive of insurance of the vehicle were found valid by the Tribunal. The Tribunal has held that the accident taken place due to rash and negligent driving of the truck on the various evidences. We do not find any reason to interfere with order impugned on that score.

So far as the income is concerned, the certificate of the shop owner has been produced before the Tribunal as documentary evidence, which shows that the salary of the deceased was Rs. 8,500 per month between the period from 1.4.2005 to 27.8.2005. The date of accident is 28.8.2005. The investigator of the insurance company filed his report, as relied upon '' by the insurance company, in confrontation with the salary certificate on the basis of his own assessment. According to us, the Court has to go by certain materials to ascertain the income. The statement of the interested witness, as against the certificate given by the employer of the deceased, cannot be held to be the proper evidence to shift the onus from the insurance company to the claimants by disproving the salary certificate. Income of Rs. 8,500 per month was accepted by the Tribunal and by adding the probable future increment of Rs. 500 it made Rs. 9,000 per month and deducted Rs. 6,000, being 2/3rd of the income, for personal expenses of the deceased considering the fact that the deceased being unmarried who would have spent more than l/3rd of the income for the family and thereafter arrived at a figure of Rs. 3,000 per month and after considering the age of the parents applied the multiplier of 13 ultimately arrived at a figure of Rs. 4,82,000, which according to us, cannot be held to be faulty.

The other part of the dispute is with regard to permit of the vehicle which has been raised by the insurance company. There also we find that the investigator of the insurance company wrote a letter about verification and on the basis of that he wanted to establish before the Tribunal that as per the computer record, permit against the vehicle has not been issued by the Regional Transport Authority, Kanpur. But they are not able to issue the report on Form 54 of such type of permit and relying upon their own letter fought very much before this Court to establish that the truck was not having any permit.

We are of the view that so far as deceased-motorcyclist is concerned, he is totally a third party to the truck. Therefore, if there is any dispute at all with regard to permit, that is a matter between the owner, driver and insurance company of the truck. So far as the claimants are concerned, they cannot be deprived of payment of compensation under any circumstance.

Therefore, in view of the aforesaid circumstance, alone we are of the view that the appeal can be treated to be disposed of at the stage of admission and is, accordingly, disposed of without imposing any cost with a liberty to the appellant to make any application before the concerned Tribunal in the selfsame proceeding for recovery of the amount from the owner/driver and in such case the same will be heard and disposed of preferably within a period of three months from the date of filing of the application upon giving notice and opportunity of hearing to the concerned parties. However, under no circumstances, the payment of compensation to the claimants will be stalled. Therefore, the amount of compensation, if already deposited by the insurance company will be released immediately and if the same has not been deposited, the same will be deposited by it within a period of six weeks from the date of communication of the order and the same will be released in favour of the claimants immediately thereafter.

Incidentally, the appellant-insurance company prayed that the statutory deposit of Rs. 25,000 made before this Court for preferring this appeal be remitted back to the concerned Motor Accidents Claims Tribunal as expeditiously as possible in order to adjust the same with the amount of compensation to be paid to the claimants, however, such prayer is allowed.