Oriental Insurance Co. Ltd. vs Dayawanti

Rakesh Garg, J.—Claimant/respondents No. 1 and 2 filed claim petition seeking compensation on account of death of one Mahabir Parshad caused in a motor vehicular accident on 9.11.2011 due to rash and negligent driving of respondent No. 3, who was the driver as well as owner of the offending vehicle which was duly insured with the appellant-Insurance Company.

The claim petition was contested by respondent No. 3 as well as the appellant by filing separate written statements.

Respondent No. 3 denied the accident and averred that a false and frivolous FIR was got lodged against him in collusion with the police.

The appellant-Insurance Company also pleaded that the claim petition was filed by the claimants in collusion with respondent No. 3. It was also pleaded that respondent No. 3 was not holding a valid and effective driving licence at the time of accident.

On the pleadings of the parties, the following issues were framed:

Whether the accident occurred at about 4.15 p.m. on 9.11.2011, in the area of village Kitlana, resulting death of Mahabir Parshad, due to rash and negligent driving of respondent No. 1, while driving offending vehicle i.e. Mahindra-Max Bearing registration No. HR-19E-0960? OPP

If issue No. 1 is proved, whether the petitioners are entitled to compensation, if so, to what amount and from whom? OPP

Whether the present petition is not maintainable in the present form? OPR.

Whether the petition is bad for non joinder of necessary parties? OPR-2.

Whether the respondent No. 1 was not having a valid and effective driving licence at the time of alleged accident and has violated the terms and conditions of insurance policy? OPR-2.

Relief.

While deciding issue No. 1, the Tribunal observed that there was sufficient evidence to hold that accident in question resulting into death of Mahabir Parshad had taken place due to rash and negligent driving of offending vehicle by respondent No. 3.

As per the facts established on record, Mahabir Parshad deceased was serving as a Peon at the time of his death in the office of Executive Engineer, Irrigation Department, Baund Water Services Division, Bhiwani and his gross salary was Rs. 18,883/- per month. The total salary of the deceased-Mahabir Parshad after deducting other allowances was taken at Rs. 16,922/- per month and applying a cut of 1/3rd amount towards his personal expenses, monthly dependency was determined at Rs. 11,282/-. Keeping in view the fact that deceased Mahabir Parsad was about 52 years of age at the time of accident which occurred on 9.11.2011 and the fact that he was entitled to full salary till the date of his superannuation total compensation on account of his death was assessed at Rs. 11,70,764/-. The relevant paragraphs of the impugned award are as under:-

From the above evidence, it is established on record that deceased Mahabir Parsad was serving as Peon at the time of his death in the office of Executive Engineer, Baund Water Services Division, Bhiwani. As per salary statement Ex. P1, the gross salary of deceased Mahabir Parsad was Rs. 18,833/- per month. Out of this gross salary of Rs. 18,833/-, the income of deceased for the purpose of compensation is to be taken in form of basic pay of Rs. 8810/-, grade pay of Rs. 1900/- and dearness allowance of Rs. 6212/-. The other allowances mentioned in salary statement Ex. Pl were attached to the service of deceased Mahabir Parsad and after his death, the petitioners are not entitled to those allowances. Hence, after deducting other allowances, the total salary of deceased Mahabir Parsad comes to Rs. 16,922/- per month. After deduction 1/3rd amount towards personal expenses of the deceased, the monthly dependency comes to Rs. 11,282/- (16,922-5640). The deceased Mahabir Parsad was to retire at the age of 58 years. Hence, the claimants are entitle to full salary upto the date of retirement of deceased Mahabir Parsad i.e. 1.11.2017 (as stated by PWI Dilbag Singh, Clerk) and thereafter, they were entitled for pension, which generally comes out 50% of the salary. The deceased Mahabir Parsad had died on 9.11.2011. In this way, he was about 52 years old at the time of accident. Hence, the compensation is to be calculated on full salary for six years. The dependency of petitioners upto date of retirement i.e. 1.11.2017 comes to Rs. 8,12,304/- (11,282 x12 x6).

After retirement, the pension of deceased Mahabir Parsad would have been near about 50% of the basic pay, DA and Grade pay and that comes to Rs. 8461/-. However, 1/3rd deduction is to be made towards personal expenses of the deceased and after this deduction, the monthly dependency comes to Rs. 5641/- (8461-2820). Since, deceased Mahabir Parsad was above 52 years old at the time of his death, therefore, multiplier of 11 was to be applied for calculation of compensation. Since, the multiplier of six has already been applied for calculation of compensation for full salary, therefore, now a multiplier of remaining five is applied here to assess compensation on account of pension and applying the multiplier of five, the compensation comes to Rs. 3,38,460/- (5641 x 12 x 5). The funeral expenses, loss of consortium and loss of estate are assessed Rs. 20,000/-. Hence, total compensation on account of death of deceased Mahabir Parsad is assessed Rs. 8,12,304/- + Rs. 3,38,460/- + Rs. 20,000/- = Rs. 11,70,764/-.

The Tribunal further found that the vehicle was insured with the appellant and respondent No. 3 was the driver and owner of the offending vehicle. It was held that both the appellant as well as respondent No. 3 were liable jointly and severally to pay the compensation. The onus to prove issues No. 3 and 4 was upon the appellant as well as respondent No. 3 but no evidence was produced and thus, the same were decided against them. The onus to prove issue No. 5 was upon the appellant, however, the appellant did not lead any evidence to prove the said issue and thus, it was held that respondent No. 3-owner/driver of the vehicle was holding a valid and effective driving licence. Resultantly, the impugned award was passed in the following terms:

An award of Rs. 11,70,764/- (Rupees eleven lacs seventy thousand seven hundred sixty four only) is passed in favour of the claimants and against the respondents. The claimants are also entitled to recover this awarded amount along with interest @ 6% per annum from the institution of this claim petition till is realization from both the respondents jointly and severally. Out of the total compensation amount, Rs. 3,00,000/- be given to claimant No. 2 Joginder major son of the deceased and the remaining compensation amount shall be given to claimant No. 1 Dayawanti being widow of the deceased. Counsel''s fee is assessed Rs. 2200/-. Memo of costs be prepared accordingly. File be consigned to the records.

Learned counsel representing the appellant-Insurance Company has vehemently argued that the findings of the Tribunal on issue No. 1 are absolutely incorrect and liable to be set aside. According to the appellant, the vehicle in question was not involved in the accident and some unknown vehicle had caused the accident. Counsel for the appellant has relied upon the cross-examination of PW-3 Jogender, according to whom he had not witnessed the accident and he reached the spot thereafter. According to the counsel for the appellant, he disclosed before the police that some unknown vehicle had caused the accident. It is the further case of the appellant that even PW-4 Pritam admitted in the cross-examination that his statement was recorded in the hospital. On the basis of the aforesaid submissions, it has been submitted that findings on issue No. 1 are liable to be set aside resulting into dismissal of the claim petition.

The argument raised is misconceived and liable to be rejected outrightly.

It is relevant to refer to the following paragraphs of the impugned award:

PW3 Jogender filed his sworn affidavit Ex. PW3/A deposing therein that on 9.11.2011, his father Mahabir Parsad was returning from Bhiwani to Charkhi Dadri on motor cycle No. HR-19C/3959. At about 4.15 p.m., when his father reached near Taj Hotel, Kitlana, in the meantime offending vehicle Mahindra Max bearing registration No. HR-19E/0960 being driven by respondent No. 1 in a rash and negligent manner came and struck against the motor cycle of his father, due to which he fell down and sustained serious injuries on his person and died at the spot. He further deposed that one Pritam son of Jagdish Kumar, resident of Charkhi Dadri, who was coming from Bhiwani to Dadri reached at the place of accident and he noted the registration number of Mahindra Max While Colour bearing No. HR-19E/0960. He further deposed that said Pritam telephoned him and narrated about the accident and the offending vehicle. Thereafter, he reached at the spot and found his father lying dead. He further deposed that he took his father to General Hospital, Bhiwani, where Police had also reached but they did not record his statement properly as he was under shock due to death of his father and police recorded FIR No. 486 dated 9.11.2011, under Sections 279 and 304A IPC in police station, Sadar Bhiwani. He further deposed that later on, they came to know that police had registered the criminal case against unknown vehicle and driver. He met with the police time and again for taking legal action against respondent No. 1 and vehicle Mahindra Max HR-19E/0960. Thereafter, on 1.12.2011, police recorded his statement properly and arrested respondent No. 1. He further deposed that accident took place due to sole rash and negligent driving of respondent No. 1.

In cross-examination, PW3 Jogender admitted that he did not witness the accident. He further deposed in cross-examination that Pritam was present there at that time. He further admitted in cross examination that in his statement to the police, he had disclosed that some unknown vehicle had caused the accident resulting into death of his father. He further deposed that he did not know whether Pritam ever met the police or not. He further stated in cross-examination that he never stated to the police that Pritam was present at the time of accident.

PW4 Pritam filed his sworn affidavit Ex. PW4/A deposing that on 9.11.2011, he was going from Bhiwani to Charkhi Dadri after finishing his work. When he reached near Taj Hotel, Kitlana, then he saw that a vehicle Mahindra Max bearing registration No. HR-19E/0960 hit with one motor cycle No. HR-19C/3959. He further deposed that thereafter, he reached near that person, who was found Mahabir Parsad, resident of Charkhi Dadri. At the time of accident, many persons had reached at the spot. Thereafter, he telephonically informed Joginder son of Mahabir Parsad and narrated all these happenings to him and Joginder had reached at the spot. Police had recorded his statement. He further deposed that he and said Joginder identified the dead body on 10.11.2011. He further deposed that accident in question had taken place due to sole rash and negligent driving of respondent No. 1 while driving Mahindra Max bearing registration No. HR-19E 0960. In cross-examination, this witness stated that he did not give his statement to the police there. He made his statement to the police in the hospital.

If the statements of PW2 ASI Rajbir Singh, PW3 Joginder, lodger of the FIR and PW4 Pritam, eye-witness, are read in corroboration with documentary evidence i.e. Ex. P2 copy of FIR, EX. P3 copy of report u/s 173 Cr.P.C., Ex. P4 copy of rough site plan, Ex. P5 copy of supplementary statement of Joginder u/s 161 Cr.P.C., Ex. P6 copy of charge sheet and Ex. P7 copy of post mortem report of deceased Mahabir Parsad, it is conclusively established that the accident causing death of Mahabir Parsad took place on 9.11.2011 due to rash and negligent driving of vehicle Mahendra Max bearing registration No. HR-19E-0960 driven by the respondent No. 1. This entire oral as well as documentary evidence led by the claimants on this point remained unrebutted, as no iota of evidence has been produced on record by the respondents as even the respondent No. 1-driver has not come in the witness box to refute the factum of the accident. Further, as per police report u/s 173 Cr.P.C. Ex. P3, the respondent No. 1 was challaned for rash and negligent driving of the vehicle in question and causing death of Mahabir Parshad. As per charge-sheet Ex. P6, the respondent No. 1 is facing criminal trial in the Criminal Court for rash and negligent driving of the vehicle in question and causing death of Mahabir Parshad.

In this case, the FIR was lodged promptly, as the accident in question took place on 9.11.2011 at 4.15 p.m., whereas FIR was registered on the same day at 7.00 p.m. No doubt, the FIR was registered against an unknown driver and unknown vehicle, but it has specifically stated by PW3 Jogender that Pritam had noted the registration number of the offending vehicle and he had telephoned him and narrated about the accident and the offending vehicle. He further deposed that police did not record his statement properly as he was under shock due to death of his father and when they came to know that police had registered the criminal case against unknown vehicle and drive, he met with the police and on 1.12.2011 his statement (Ex. P5) was again recorded. As per perusal of his supplementary statement Ex. P5 of PW3 Joginder, he had stated that the accident in question took place due to rash and negligent driving of offending vehicle by respondent No. 1. Similarly, PW4 Pritam, eyewitness has also stated that on 9.11.2011, he was going from Bhiwani to Charkhi Dadri and when he reached near Taj Hotel, Kitlana, he saw that a vehicle Mahindra Max bearing registration No. HR-19E/0960 hit with one motor cycle No. HR-19C/3959. He found that person as Mahabir Parsad and then he telephonically informed Joginder son of Mahabir Parsad about the accident. This witness was cross examined at length by learned counsel for the respondents, but with no result.

Keeping in view the above facts and circumstances, as noticed by the Tribunal, there is no reason to interfere in the findings recorded on issue No. 1.

Faced with the aforesaid situation, counsel for the appellant has tried to make an effort to challenge the grant of compensation on the ground that the same is on the higher side. However, nothing could be shown by the appellant as to how the aforesaid findings could be interfered by this Court. Not only this, the appellant has not shown as to how the Insurance Company was entitled to challenge the impugned award on the ground of quantum without being given permission by the Tribunal u/s 170 of the Motor Vehicles Act. In fact no such permission in favour of the appellant has been pleaded before this Court.

No other point was raised.

Dismissed.