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Om Prakash and anr. Vs. Smt. Rukmini Devi and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles;Civil
CourtAllahabad High Court
Decided On
Case NumberF.A.F.O. Nos. 519, 520, 521, 540, 541, 542, 577, 578 and 579 and Writ Petn. Nos. 4866 and 4885 of 19
Judge
Reported inAIR1982All389
ActsMotor Vehicles Act, 1939 - Sections 95(2), 96, 110B and 110D; Code of Civil Procedure (CPC) , 1908 - Sections 104 - Order 9, Rule 13 - Order 43
AppellantOm Prakash and anr.
RespondentSmt. Rukmini Devi and ors.
Appellant AdvocateR.A. Sharma, Adv.
Respondent AdvocateS.K. Sharma, ;B.C. Dey and ;A.K. Yog, Advs.
Cases ReferredMotor Owners Insurance Co. Ltd. v. Jadavji Keshavji Modi
Excerpt:
.....filed three separate claim petitions claiming compensation from the owners of the vehicles and the assurance company. the owners of both the vehicles as well as assurance company filed their written statement contesting the claim petitions. the tribunal proceeded ex parte against the assurance company as well as against the owner of the vehicle dlp no. 3692. the evidence of the claimants as well as of the u. dlp 3692 as well asthe owner of that vehicle filed application purporting to be under order 9, rule 13 of the civil p. the tribunal by its order dated 18-9-1976 rejected the applications and refused to set aside ex parte award on the finding that the insurance company as well as the owner failed to make out sufficient cause for their absence before the tribunal on 13th july, 1976..........business under the name and style of messrs chotty lal virendra kumar at kotdwara. virendra kumar deceased had 1/2 share in the business and he was paying income-tax. a perusal of the assessment orders filed by the claimants show that the income of virendra kumar deceased from the partnership firm was between rs. 5000/- to rs. 6000 per annum while in some other years the income was more than rs. 6000/-, narendra kumar agarwal p. w. 6 conceded that even after the death of virendra kumar the partnership business was continued by the family members, having avinash kumar son of the deceased as partner of the firm. thus, there is good evidence to show that the partnership business is being carried on and the claimants are deriving benefit from that busniness and they have not been put.....
Judgment:

K.N. Singh, J.

1. These nine FAFOs and two writ petitions arise out of an accident which took place on 14-6-70 in District Muzafarnagar. Since the subject matter involved in these cases is common, we consider it proper to dispose of all these cases by a common order.

2. On 14-6-1970 a marriage party left Muzafarnagar for Rishikesh in a stage carriage but No. USL 7134 which belonged to the U. P. State Road Tran-sort Corporation When the vehicle reached near Purqazi outpost, another bus having registration DLP No. 3692 was coming from opposite, direction, it collided head on with the Corporation's bus as a result of which several persons received injuries. Virendra Kumar and Sewak Ram who were members of the marriage party succumbed to their injuries while Raghunath Das received injury and he was confined to Hospital. The dependents of the two deceased persons as well as Raghunath Das the injured person filed three separate claim petitions claiming compensation from the owners of the vehicles and the Assurance Company. The owners of both the vehicles as well as Assurance Company filed their written statement contesting the claim petitions. On 12th July, 1970 the Motor Accidents Claims Tribunal fixed 30th July, 1970 for evidence. On that date the claimants were present along with their counsel but none appeared on behalf of the Assurance Company and the counsel appearing for the owner of the vehicle DLP No. 3692 withdrew from the proceedings saying that he had no instructions from his clients. The Tribunal proceeded ex parte against the Assurance Company as well as against the owner of the vehicle DLP No. 3692. The evidence of the claimants as well as of the U. P. State Road Transport Corporation were recorded and arguments were heard. The Tribunal by its award dated 5-8-1976 held that Smt. Rukmini Devi and others were entitled to receive a sum of Rs. 1,25,000/- as compensation for the death of Virendra Kumar, and Parvin Kumar claimant was entitled to a sum of Rs. 36,000/- for the death of Sewak Ram. The Tribunal further held that Raghunath Das was entitled to a sum of Rs. 30,000/- as compensation for the injuries received by him in the accident. The Tribunal further awarded interest to the claimants at the rate of 6 per cent per annum from the date of filing of the claim petition. No compensation was awarded against the U. P. State Road Transport Corporation on the finding that the driver of the Corporation's vehicle was not at fault, instead the accident occurred on account of the rash and negligence of the driver of vehicle No. DLP 3692 and as such the owner and the insurer of that vehicle were liable to pay compensation to the claimants.

3. The new India Assurance Co. the successor of the Insurance Co. which was the insurer of the vehicle having registration No. DLP 3692 as well asthe owner of that vehicle filed application purporting to be under Order 9, Rule 13 of the Civil P. C. before the Tribunal for setting aside the ex parte award dated 5-8-1976. The claimants contested, the applications. The Tribunal by its order dated 18-9-1976 rejected the applications and refused to set aside ex parte award on the finding that the insurance Company as well as the owner failed to make out sufficient cause for their absence before the Tribunal on 13th July, 1976 fixed for hearing of the claim petitions. The Assurance Company thereupon filed three FAFOs Nos. 577, 578 and 579 of 1976 against the order of the Tribunal dated 18-9-1976 refusing to set aside the ex parte award. The Assurance Co. further filed three FAFOs Nos. 540, 541 and 542 of 1976 against the award dated 5-8-1976 under Section 110-D of the M. V. Act 1939. The owners of the vehicle DLP 3692 also filed three FAFOs Nos. 519, 520 and 521 of 1976 under Section 110-D of the M. V. Act, hereinafter referred to as the Act against the award dated 5-8-1976. The New India Assurance Company further filed three writ petitions in this court under Articles 226/227 of the Constitution which were registered as writ petitions Nos. 4866, 4867 and 4885 of 1976 challenging the validity of the order of the Tribunal dated 18-9-1976 refusing to aside ex parte award and dismissing the application of the Assurance Company under Order 9, Rule 13 of the Civil P. C. The Writ petition No. 4867 was dismissed by this court on 7-5-1978 and the remaining two writ petitions have been listed for hearing along with the appeals. Since nine appeals and two writ petitions arise out of the same subject matter and involve the same point, we have considered it proper and desirable to dispose of the same by a common order.

4. The three appeals filed by the New India Assurance Company against the order of the Tribunal dated 18-9-1976, rejecting the applications of the Assurance Company made under Order 9, Rule 13 setting aside ex parte award have been filed under Order 43, Rule 1 of the Civil P. C. In our opinion, these appeals are not maintainable as Order 43, Rule 1 is not applicable to the proceedings before the Motor Accidents Claims Tribunal taken under Section 110 of the Act. The entire provisions of the Civil R.C. do not apply to proceedings before the Tribunal instead onlythose provisions as mentioned in Rule 21 of the U. P. Motor Accidents Claims Tribunal Rules 1967 are applicable, Though Order 9 has been made applicable to the proceedings but neither Section 104 nor Order 43 has been made applicable with the result no appeal as contemplated by Order 43 of the Civil P. C. is maintainable before this court against an order of the Motor Accidents Claims Tribunal. The counsel for the appellants have failed to point out any other provision conferring right of appeal against the order of the Tribunal dated 18-9-1976, proceedings before the Tribunal are regulated by the Motor Vehicles Act and the rules framed thereunder which provide appeal under Section 110-D of the Act against an award made by the Tribunal, it does not provide for any appeal against any interlocutory orders. The Tribunal is not court instead it is a creation of the special statute, it does not enjoy the status of a civil court, its orders are therefore, not amenable to appeal under Order 43, of the Civil P. C. In the circumstances we hold that appeals Nos. 577, 578 and 579 of 1976 filed by the New India Assurance Company are not maintainable and the same are accordingly dismissed with costs.

5. In writ petitions Nos. 4366 and 4885 of 1976 the Assurance Company has challenged the validity of the order of the Tribunal dated 18-9-1976 rejecting the applications under Order 9, Rule 13 of the Civil P. C. The Tribunal held that the counsel appearing for the Assurance Company did not appear before it on the date fixed for hearing and further the Company had not taken any steps for summoning any witnesses. The Assurance Company and its counsel both failed to make out any good cause for their absence. Having heard learned counsel for the parties, we are satisfied that the order passed by the Tribunal does not suffer from any error of law or jurisdiction warranting interference by this court under Article 226 of the Constitution. Since the Assurance Company and its counsel failed to make out any good cause for their absence, the Tribunal was justified in rejecting its application for setting aside ex parte award. We are of the opinion that there is no merit in the petition and both are liable to be dismissed. We accordingly dismiss both the petitions with costs,

6. Now coming to the merits of the case as raised by the Assurance Company and the owner in the remaining six appeals, it is urged on behalf of the Assurance Company and the owner that the driver of the Vehicle DLP No. 3692 was not guilty of rash and negligent driving. Having heard learned counsel for the parties and having gone through the evidence on record, we find no merit in the contention. The claimants produced Shiv Charan Agarwal PW 2, Anand Swarup PW 4, Raghunath Das PW 5 and Narendra Kumar PW 6 as eye-witnesses of the accident. They all deposed on oath that the Corporation's vehicle which was carrying the marriage party, was driven by its driver in a slow and cautious manner and on seeing the vehicle coming from the opposite direction, the driver had taken the vehicle to the left patri of the road but the vehicle DLP 3692 which was being driven in fast speed came into its extreme right and dashed against the Corporation's vehicle as a result of which the passengers received injuries. Exhibits 7 and 8 are the photographs indicating the place of accident and the situation and place of the vehicles after the accident. These photographs corroborate the testimony of the eye-witnesses. The appellants failed to cross-examine the witnesses and their testimony remained unchallenged. We find no good reason to discard their testimony. The evidence is clinching to the effect that the driver of the vehicle DLP 3692 was at fault and the accident occurred on account of his rash and negligent driving. As noted earlier, the owner of the vehicle and the Assurance Company both failed to produce any evidence in support of their case. There is thus ample evidence on record to support the findings of the Tribunal that the driver of vehicle No. DLP 3692 was guilty of rash and negligent driving as a result of which the accident took place.

7. Learned counsel then urged that the compensation awarded to the claimants is excessive and arbitrary. We consider it necessary to discuss the case of the three claimants separately. The Tribunal has awarded a sum of Rs. 1,25,000/- to Smt. Rukmini Devi and others for the death of Virendra Kumar. The Tribunal has placed reliance on the testimony of widow Smt. Rukmini Devi, PW 7, and Narendra Kumar Agarwal, PW 6, brother of the deceased as wellas on the income-lax returns in holding that the monthly income of the deceased was about Rs. 700/- to Rs. 800/- per mensem, out of which the deceased would have been spending Rs. 500/- towards the maintenance of his family members. On account of the death of Virendra Kumar, the family was put to a loss of Rs. 500/- per month. Fixing the longevity of the deceased at 60 years, the Tribunal held that the family was deprived of the said income for a period of 27 years and thus, in all the family was put to a loss of Rs. 1,25,000/-. On these findings the Tribunal decreed the aforesaid amount in favour of the claimants,

8. We are of the opinion that the Tribunal committed error in this respect, Narendra Kumar Agarwal PW 6, who is the real brother of the deceased Virendra Kumar, admitted in his testimony before the Tribunal that Virendra Kumar was carrying on partnership business under the name and style of Messrs Chotty Lal Virendra Kumar at Kotdwara. Virendra Kumar deceased had 1/2 share in the business and he was paying income-tax. A perusal of the assessment orders filed by the claimants show that the income of Virendra Kumar deceased from the partnership firm was between Rs. 5000/- to Rs. 6000 per annum while in some other years the income was more than Rs. 6000/-, Narendra Kumar Agarwal P. W. 6 conceded that even after the death of Virendra Kumar the partnership business was continued by the family members, having Avinash Kumar son of the deceased as partner of the firm. Thus, there is good evidence to show that the partnership business is being carried on and the claimants are deriving benefit from that busniness and they have not been put to any pecuniary loss. The claimants failed to prove that on account of the death of Virendra Kumar, the partnership business was adversely affected or they have not been earning profits. Since the claimants have inherited running business of the partnership firm, no compensation could be awarded to the claimants on that account. But we cannot ignore the fact that Smt. Rukmini Devi PW 7 stated in her testimony that she used to receive Rs. 1000/- to Rs. 1500/- from her husband to maintain the family. She stated that her two children were getting education. She further deposed that the monthly income of the deceased was Rs. 700/- per month. Thus on the evidence on record, there are three different figures before us regarding the monthly income of the deceased. According to Rukmini Devi the income of the deceased was from Rs. 1000/- to Rs. 1500/- per month and Rs. 700/-, while according to the income-tax assessment orders the income of the deceased comes to almost Rs. 600/- per mensem. The deceased was leading a decent living, his three minor children, one son and two daughters were receiving education. Having regard to these facts and circumstance we are of the opinion that it would be reasonable to determine the income of the deceased at Rs. 800/- per mensum, out of which the income of Rs. 600/- was from the partnership firm and the remaining amount was earned and contributed towards family from other sources. Since the income from the partnership business has been inherited by the family, the claimants were put to a loss of Rs. 200/- per month only.

9. The Tribunal has rightly fixed the longevity of Virendra Kumar Agarwal to 60 years. Virendra Kumar would have thus lived for another period of 27 years. The family was deprived of the income which the deceased was contributing towards the family's welfare at the rate of Rs. 200/- per mensem. According to this the total loss of the family comes to Rs. 64,800/-. The claimants are entitled to this amount as compensation. Since the amount is being paid in lump sum, some deductions have to be made. In our opinion, a deduction @ 25 per cent would be reasonable. After deducting the amount of Rs. 16000/- which represents 1/4th of the total amount, we come to the amount of Rs. 48,600/- which in our opinion, represents the correct amount of compensation payable to the claimants in respect of the death of Virendra Kumar. We accordingly hold that Smt. Rukmini Devi and others are entitled to Rs. 48,600/- as compensation for the death of Virendra Kumar. The award of the Tribunal is modified to that extent.

10. Now coming to the claim of Parvin Kumar and others for the death of Sewak Ram, the Tribunal has awarded a sum of Rs. 36,000/- to parvin Kumaras compensation. Sewak Ram died in the accident and his age at the time of death was 62 years. The Tribunal having regard to the longevity in the family determined the longevity of the deceased Sewak Ram at 72 years, thus Sewak Ram would have lived for a period of 10 years more. Sewak Ram was a respectable citizen of Rishikesh and he had been Honorary Magistrate of Municipal Board of Rishikesh for a number of years. He was carrying on Arhat business from which he was earning Rs. 1000/- per mensem. This is established from the testimony of parvin Kumar P. W. 6. Besides Arhat business, Sewak Ram was having income from his other properties. Sewak Ram left behind three sons and a daughter who made claim for compensation. Since two sons and a daughter are married and well settled in life, they were not dependent on the deceased, they are not entitled to any compensation. Parvin Kumar another son of the deceased was aged only 19 years at the time of the death of Sewak Ram. He was receiving education. Had Sewak Ram been alive, he would have spent Rs. 500/- per mensem on education and maintenance of Parvin Kumar for another period of six years and within that time Parvin Kumar would have been settled in life on his own parvin Kumar claimant was put to pecuniary loss at the rate of Rs. 500/- per mensem for a period of six years which comes to Rs. 36,000/-. Had the deceased been alive the amount of Rs. 36,000/- would have been spent by him towards the education of parvin Kumar and on account of his death Parvin Kumar has been deprived of this pecuniary benefit. The amount of Rs. 36,000/- would have, however, been available to Parvin Kumar in driblets and a lump sum payment is being made to him, as there should be deduction from the said amount at the rate of 20 per cent Thus in all Parvin Kumar is entitled to a sum of Rs. 28,800/- as compensation, while other claimants of Sewak Ram are not entitled to any compensation Parvin Kumar is further entitled to interest @ 6 per cent from the date of filing of the claim petition till the date of payment of the amount.

11. Raghunath Das who received injury in the accident claimed compensation for a sum of Rs. 30,000/-. At thetime of accident he was 57 years of age. He suffered multiple injuries including a brain injury and for that he was operated upon at All India Institute of Medical Sciences, Delhi. He has stated on oath that he remained under treatment for a period of about four years. In all he spent Rs. 10,000/- to Rs. 15,000 in his treatment during the period he remained under treatment, he could not attend to his ordinary avocation in life, as a result he suffered loss of income in addition to pain, torture and mental agony. Raghunath Das was paying income-tax and according to the assessment order he was being assessed at Rs. 13,000/- per annum. On account of injuries received Raghunath Das could not attend to his business for four years as a result of which he was put to a loss of Rs. 52,000/- but since Raghunath Das claimed only Rs. 30,000/-the Tribunal rightly awarded that sum to him. We find no reason to take a different view. We accordingly hold that Raghunath Das is entitled to Rs. 30,000/- as compensation.

12. In the appeals filed by the Assurance Company, three grounds have been convassed before us. Firstly, it was urged that the driver of the vehicle DLP 3692 was not guilty of rash and negligent driving and as such the claimants in the three claim petitions are not entitled to any compensation. We have discussed this question in detail while dealing with this appeal filed by the owner of the vehicle. The evidence produced by the claimants on this question was one-sided which remained unchallenged. Neither the Assurance Company nor the owner of the vehicle produced any evidence to prove their contention that the driver of the vehicle in question was not guilty of rash and negligent driving. The Tribunal has rightly recorded the finding that the driver of the vehicle DLP 3692 was guilty of rash and negligent driving. The second contention raised on behalf of the Assurance Company is that the Tribunal committed error in awarding compensation for an excessive amount. In our opinion, it is not open to the Assurance Company to challenge the award of the Tribunal on the question of quantum of compensation. Once the liability of the Insurance company is established, it is bound to indemnify the owner to the extent provided by the policy and Section 95 (2) of the M. V. ActThe Insurance Company is not entitled to challenge the quantum of compensation, as that defence is not available to the insurer, See (AIR 1959 SC 1331) British India General Insurance Co. Ltd. v. Captain Itbar Singh.

13. Lastly it was urged on behalf of the Assurance Company that according to the terms contained in the policy as well as Section 95 (2), liability of the Insurance Company is restricted to pay Rupees fifty thousand in all. He urged that if several persons are dead or injured in one accident, the insurer will be liable to pay fifty thousand rupees only and it is not open to the Claims Tribunal to award compensation in excess of the said amount. Section 95 (2) lays down that a policy of insurance shall cover any liability incurred in respect of any one accident up to the limit of fifty thousand ruppes where the vehicle is registered to carry not more than thirty passengers and a limit of seventy-five thousand rupees in all where the vehicle is to carry not more than sixty passengers. In the instant case the policy in respect of DLP 3692 is not on record and the Assurance Company has failed to produce any evidence as to whether the vehicle was registered to carry thirty passengers or sixty passengers and as such the outer limit of the liability of the Insurance company cannot be determined. Moreover, in a recent decision in Motor Owners Insurance Co. Ltd. v. Jadavji Keshavji Modi ((1981) 7 All LR 620) : (AIR 1981 SC 2059) the Supreme Court has while interpreting Section 95 (2) held that limit of fifty thousand rupees or seventyfive thousand rupees as provided in Section 95 (2) (b) of the Act means fifty thousand rupees or seventyfive thousand rupees on the death of each person. In view of this decision, we find no merit in the contention raised on behalf of the Assurance Company. Since all the sumissions made on behalf of the Assurance Company have failed, the appeals filed by it also fail and they are accordingly dismissed.

14. In view of the above discussion, we partly allow the appeal No. 520 of 1976 filed by the owner and dismiss all the other appeals, namely, appeals Nos. 519, 521, 540, 542, 577 of 1976 with costs. We also dismiss writ petitions Nos. 4866 and 4885 of 1976 with costs.


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