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New India Assurance Co. Ltd. Vs. Saira and ors. - Court Judgment

LegalCrystal Citation
SubjectInsurance;Motor Vehicles
CourtAllahabad High Court
Decided On
Judge
Reported in2(1985)ACC429
AppellantNew India Assurance Co. Ltd.
RespondentSaira and ors.
Cases ReferredBritish India General Insurance Co. Ltd. v. Capt. Ithar Singh
Excerpt:
- - 6. it is also well settled that it is not open to the insurer to raise dispute in regard to the rashness or negligence involved or on any other basis except upon the pleas set out under section 96 of the motor vehicles act, vide:.....who also received injuries. smt. saira acted as the guardian for the minor. the total amount awarded as compensation therein is rs. 90,200/- as mentioned above. in december 20, 1977 this court made an interim order in first appeal from order no. 564 of 1977 whereby the appellant was required to make deposit of a sum of rs. 12,000/- pending the decision in the appeal. the deposit was made the question arose of apportionment of the same between the claimants. one nanhey raised objection to the effect that smt. saira had remarried and therefore, she be not allowed to withdraw any amount for or on behalf of the son. the tribunal did not find that smt. saira had remarried but it has directed that of the aforementioned deposit, she shall be entitled to withdraw rs. 1,500/- only 1/8th of.....
Judgment:

B.D. Agarwal, J.

1. These appeals arise against the award of the Motor Accidents claims Tribunal (II Additional District Judge), Bijnor dated September 17, 1977.

2. Facts relevant for purpose of these appeals lie within a narrow compass. The accident occurred on June 21, 1972. Bus No. UPN 3345 belonging to Irshad Ali and driven by his driver Mohd. Ibrahim dashed against Tempo No. USH 5645 of which Hazi Abdul Wadood was the proprietor. This took place near near village Dewanpura, district Bijnor. The Bus was insured with with M/s. New India Assurance Company Private Ltd. (hereinafter referred to as the appellant). Further details relevant to these appeals are as under:

(i) First Appeal From Order No. 564 of 1977: Abdul Wasey and Jamil-ud-Din received injuries. The former succumbed to the same; the latter had a fracture in the hand. The compensation awarded to both of them by the Tribunal is Rs. 90,000/-.

(ii) First Appeal From Order No. 565 of 1977: Death occurred of Zulferqar Ahmed, another passenger on the Tempo due to the injuries caused as a result of the accident. The amount of compensation awarded the claimants therein is Rs. 42,000/-.

(iii) First Appeal From Order No. 566 of 1967: Mubarak died due to the injury caused by the accident. The claimsants have been awarded Rs. 30,000/- in this case by the Tribunal. (iv) First Appeal From Order No. 569 of 1977 Aqil Ahmad the driver of the Tempo died due to the injury caused and the claimsants have been given Rs. 12,000/- as compensation.

(v) First Appeal From Order No. 570 of 1967: Mubarak Husain and his wife Smt. Sakina also passenger in the Tempo sustained injuries in the claimsants by the Tribunal is Rs. 12,000/-.

3. Upon consideration of the evidence, the Tribunal came to the finding that the driver of the Bus was rash and negligent. The Tempo was being taken on its left. The Bus came over to the wrong side and dashed against the Tempo without there being contributory negligence on the part of the Tempo driver.

4. Aggrieved, the appellant has preferred the appeals aforementioned, except the First Appeal From Order No. 586 of 1978 which shall be dealt with separately hereinafter.

5. The law is settled that even where there is one transaction resulting in injuries to many but more than one person is injured, this gives rise to more than one claims or cause of action. It is not of consequence that injuries were caused in the course of one single transaction. If more than one person is injured during the course of the same transaction, each one of the persons has met with an accident, vide: Motor Owners Assurance Company Ltd. case : [1982]1SCR860 In relation, therefore, each of the persons affected there shall be deemed to be an accident taking place. There is, therefore, the liability for compensation in respect of each of them due to the accident despite the fact that the injuries resulted in the same transaction. This is relevant for purposes of assessing the liability of the appellant Under Section 96(2)(b)(ii) of the Motor Vehicles Act as it was then in force. on respect of passengers there was during the relevant period, the limit of Rs. 50,000/- in all. The compensation awarded in the cases giving rise to these appeals being within this limit, the appellant cannot have a grievance under the law on this account. learned Counsel for the appellant was, therefore, not in position to assail the award as this does not exceed the prescribed statutory limit of liability.

6. It is also well settled that it is not open to the insurer to raise dispute in regard to the rashness or negligence involved or on any other basis except upon the pleas set out Under Section 96 of the Motor Vehicles Act, vide: British India General Insurance Co. Ltd. v. Capt. Ithar Singh (1953)65 ACJ 1 and United India Fire and General Insurance Co. Ltd, v. Gulab Chandra Gupta AIR 1965 Allahabad) (decision Bench). This proposition is also not disputed before me. Indeed, the appellant's learned Counsel fairly conceded in face of the settled proposition that the appellant in the present case cannot so legitimately to maintain these appeals. The appellant has not raised grounds sustainable Under Section 96 of the Motor Vehicles Act.

7. In so far as the First Appeal From Order No. 586 of 1978 is concerned, this is an off shoot of the Motor Accident Case No. 115 of 1972 giving rise to the First Appeal From Order No. 564 of 1977 dealt with above. The claims therein was filed by Smt. Saira (widow of Abdul Wasey) and their minor son Jamil-ud-Din who also received injuries. Smt. Saira acted as the guardian for the minor. The total amount awarded as compensation therein is Rs. 90,200/- as mentioned above. In December 20, 1977 this Court made an interim order in First Appeal From Order No. 564 of 1977 whereby the appellant was required to make deposit of a sum of Rs. 12,000/- pending the decision in the appeal. The deposit was made The question arose of apportionment of the same between the claimants. One Nanhey raised objection to the effect that Smt. Saira had remarried and therefore, she be not allowed to withdraw any amount for or on behalf of the son. The Tribunal did not find that Smt. Saira had remarried but it has directed that of the aforementioned deposit, she shall be entitled to withdraw Rs. 1,500/- only 1/8th of the amount. This has been so directed on September 28, 1978 by the Tribunal on the basis that it represents the interest of the widow in the estate of her deceased husband. First Appeal From Order No. 586 of 1978 has been filed by Smt. Saira, therefore, against the order dated September 28, 1978 passed by the Tribunal.

8. Having heard learned Counsel for the parties it is clear in my opinion that an appeal as such against the order dated 28th September, 1978 cannot be claimsed to lie. The order impugned is in itself not an award within (he meaning of Section 110-D of the Motor Vehicles Act. The award was given earlier on September 17, 1977. There is no apportionment specifically made as between the two claimants in the award. The order dated 28th September, 1978 is for apportionment of the amount deposited with the Tribunal as an interim measure in pursuance of the order passed by this Court on December 20, 1977. Instead of coming to an appeal against the order dated 28th September, 1978 Smt. Saira could have sought a clarification from this Court in respect of the order dated 20th December, 1977, whereby it may have been made specific as to what is the proportionate amount to go to the credit of the respective claimsants out of the interim deposit made. The order dated 28th September, 1979 cannot in any case be claimsed to be final since this will necessarily be subject to the ultimate fate of the appeal arising against the award dated 17th September, 1977 and the order will merge into the same.

9. Even though an appeal against the order dated 28th September, 1978 cannot be said to lie, the award dated 17th September, 1977 may be clarified so as to specify that the share of Smt. Saira and or her son out of the compensation awarded shall be equal. This is in conformith the principle underlying the Fatal accident Act there is nothing to the contrary Lald in the Motor Vehicles Act. It was not right for the Tribunal to have allowed 1/8th only to Smt. Saira for the obvious reason that this is not a case of apportioning the estate of the deceased husband. The compensation awarded does not constitute the estate of the deceased; the personal law relating to inheritance could not be made applicable. Jarnil-Ud-Din described in the order dated 28th September, 19/8 to have bean 15 years old, has now attained majority and therefore, there can be no objection to his being entitled to one-half of the amount of the compensation including in the interim deposit made.

10. In view of the discussion made above, these appeals fall and are dismissed accordingly except that in First Appeal From Order No. 564 of 1977 the award stands clarified so as to provide that Smt. Saira and Jamil-ud-Din shall be entitled to share equally the amount awarded, including the deposit made in pursuance of the interim order of this Court dated 20th December, 1977. There shall be no order as to costs.


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