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United India Insurance Co. Ltd. Vs. Saroj Devi and ors. (Smt.) - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Misc. Appeal No. 690 of 2003
Judge
Reported inIII(2004)ACC366; 2006ACJ1316; RLW2004(4)Raj2305; 2004(3)WLC555
ActsMotor Vehicles Act, 1988 - Sections 170
AppellantUnited India Insurance Co. Ltd.
RespondentSaroj Devi and ors. (Smt.)
Appellant Advocate Jagdish Vyas, Adv.
Respondent Advocate Rajesh Panwar, Adv. for Respondent Nos. 1 to 4 in S.B. Civil Misc. Appeal No. 691/2003
DispositionAppeal dismissed
Cases ReferredUnited India Insurance Co. Ltd. v. Hamu Ram and Ors.
Excerpt:
.....reveals that it was a case of total negligence of the driver of the three wheeler and, therefore, only driver and owner of the three wheeler and consequentially insurer of the three wheeler is liable to pay or reimburse the claim amount which was awarded by the tribunal in its impugned award. in this fir itself, it is clearly mentioned that the driver of the truck driving truck rashly and negligent, hit the three wheeler. 11 and when appellant- company failed to prove from record that over loading of the three wheeler had any direct nexus with the cause of accident, the tribunal had not committed any illegality in deciding the issue favoring the claimants. 150/99 deceased suffered certain injuries which are simple as well as grievous......and no other eye-witness has been produced by the claimants to prove the negligence of the truck driver. it is also submitted that the tribunal missed important material facts and that is the fact, as twelve passengers were travelling in the one auto-rickshaw which had capacity to take three passengers only. according to the learned counsel for the appellant due to over-loading of the auto-rickshaw, the driver of the auto-rickshaw lost his control and the collided the auto-rickshaw with the truck which was going on the left side of the road. lastly, the learned counsel for the appellant submitted that the compensation awarded to the claimants is highly excessive.7. i considered the submissions of learned counsel for the appellant and perused the record. thee is no dispute with.....
Judgment:

Prakash Tatia, J.

1. Heard learned counsel for the appellant and perused the record.

2. These appeal are against the award dated 17.4,2003 of the Motor Accidents Claims Tribunal, Bikaner passed in Claim Cases filed under Section 166 of the Motor Vehicles act, 1988.

3. Brief facts of the case are that the claimants alleged that on 8.7.1988 at about 10 p.m. victims were travelling in the three wheeler taxi RJ. 07.P.0626, Tola Ram was driving the three wheeler taxi and when taxi reached near the Chungi check post just before the Municipal boundary of the Bikaner, near Shiv Shakti Gas Godown, a truck No. RSF 3949 came and hit the taxi and dragged the taxi far away from the road and the truck ran over the three wheeler. The taxi went under the fuel tank of the truck. In this accident, six persons died and the driver of the taxi suffered injuries. All the seven set of the claimants including the driver of the three wheeler taxi submitted claim petitions before the Motor Accidents Claims Tribunal, Bikaner. The claimants except in the claim case No. 159/98 impleaded parties to the driver and owner of the truck No. RSF 3949 as well as the United India Insurance Company Ltd. who insured the said truck, the claimants also impleaded owner of the three wheeler and the Oriental Insurance Company Limited as parties. In the Claim Case No. 159/98 the claimants impleaded driver, owner of the truck and the Insurance Company of the truck as parties. All the claim petitions were consolidated and consolidated issue were framed. The claimants produced witnesses in total ten witnesses. No evidence was produced by any of the non-claimants including the appellant-Insurance Company. The learned tribunal allowed all the claim petition of the claimants and awarded compensation to the claimants as mentioned below:-

-----------------------------------------------------------------------S.No. Claim Case No. Amount-----------------------------------------------------------------------(i) 159/98 Rs. 3,95,500/(ii) 187/98 Rs. 7,69,000/(iii) 88A/98 Rs. 3,08,000/(iv) 9/99 Rs. 4,58,000/(v) 29/99 Rs. 2,80,100/(vi) 39/99 Rs. 3,92,000/ (vii) 150/00 Rs. 81,500/------------------------------------------------------------------------

4. The appellant is aggrieved against the said award of the tribunal dated 17.4.2003, hence preferred these appeals.

5. According to the learned counsel for the appellant, the appellant-Company was permitted to contest the claim petitions on merit under Section 170 of the Act of 1988 because the driver and the owner of the truck did not submit reply to the claim petitions. Therefore, according to the learned counsel for the appellant, the appellant is challenging the award of the tribunal on all counts on merits. According to the learned counsel for the appellant it was a clear case of, if not total negligence of the driver of the three wheeler, then at least it was a case of contributory negligence on the part of the driver of the three wheeler also, therefore, driver and owner of the truck alone can be held liable to pay the compensation amount to the claimants and consequently, the appellant-Company cannot be held liable to pay or reimburse the claim amount. Learned counsel for the appellant submitted that the tribunal did not apply its mind to the documentary evidence produced by the claimants themselves which clearly reveals that it was a case of total negligence of the driver of the three wheeler and, therefore, only driver and owner of the three wheeler and consequentially insurer of the three wheeler is liable to pay or reimburse the claim amount which was awarded by the tribunal in its impugned award. In the alternative, the appellant-Company is liable to only pay and reimburse the claim amount to the extent of their liability according to the contribution of the driver of the truck in causing accident. Learned counsel for the appellant heavily relied upon Ex.3 and Ex.4, site map and site report which were produced by the claimants to show that truck was on left side of the road and it is further clear from the facts that the driver of the three wheeler permitted as many as 12 persons to travel in the three wheeler which was beyond the prescribed sitting capacity of the three wheeler. Learned counsel for the appellant submitted the though no witness was produced by the any of the non-claimants including the appellant-Company before the tribunal but this cannot be a ground to pass the award against the documentary evidence.

6. The learned counsel for the appellant relied upon the judgment of this Court delivered in the case of Rajasthan State Road Transport Corporation v. Nand Kishore and Ors., 2002 ACJ 1564, wherein it has been held that tribunal has to follow summary procedure and, therefore, strict compliance of provision of Evidence Act need not to be insisted upon and certified copy of the F.I.R. site inspection map and memo, Panchanama, injury report of Post- mortem report and other relevant documents prepared by the police or the doctor while discharging official duties are admissible in evidence without any formal proof. Another judgment relied upon by the learned counsel for the appellant was delivered in the cases of United India Insurance Co. Ltd. v. Hamu Ram and Ors., S.B.C. Misc. Appeal No. 342/95, and decided along with other two connected appeals by this High Court vide judgment dated 21.03.2003 wherein also the view taken in the Nand Kishore's case (supra) was followed. In the light of above decisions, learned counsel for the appellant advances arguments and submitted that the oral evidence of witnesses particularly evidence of AW-9 Madan Lal cannot be accepted as being contrary to the documentary evidence and no other eye-witness has been produced by the claimants to prove the negligence of the truck driver. It is also submitted that the tribunal missed important material facts and that is the fact, as twelve passengers were travelling in the one auto-rickshaw which had capacity to take three passengers only. According to the learned counsel for the appellant due to over-loading of the auto-rickshaw, the driver of the auto-rickshaw lost his control and the collided the auto-rickshaw with the truck which was going on the left side of the road. Lastly, the learned counsel for the appellant submitted that the compensation awarded to the claimants is highly excessive.

7. I considered the submissions of learned counsel for the appellant and perused the record. Thee is no dispute with respect to the proposition of law laid down in the judgments of this Court delivered in the cases of Nand Kishore and Hamu Ram (supra). In these claim cases, ten witnesses were produced by the claimants. The most important witness is the witness AW 9 Madan Lal who was the person remained alive in the accident wherein six others died. He stated on oath that the truck No. RSF 3949 came rattling with high speed and hit the three wheeler and three wheeler went down the truck. In the accident he suffered serious injuries. He produced his injury report, X-ray report, hospital discharge card, treatment prescription, his own driving licence, his medial report and medical bills (Ex.29 to 55). In cross- examination, he denied the suggestion of learned advocate of appellant-Company that truck was going on left side of the road he also denied the suggestion that driver of the auto-rickshaw lost his control after seeing the truck and this was the cause of accident. The claimants placed on record certified copies obtained from the criminal proceedings initiated due to this accident. It appears that FIR was lodged on the basis of the 'parcha' drawn on the statement of the one Manoj. In this FIR itself, it is clearly mentioned that the driver of the truck driving truck rashly and negligent, hit the three wheeler. The statements of various witnesses were recorded by the police under Section 161 Cr.P.C. and site was inspected. The copy of the site map is Ex.3 and site was inspected. The copy of the site map is Ex.3 and site report is Ex.4. A bare perusal of site report reveals that the three wheeler was dragged far away from the road and the three wheeler was found under the fuel tank of the truck. The front body of the truck was found lifted from the road and hanging because of three wheeler went down the truck, The oral evidence of the witness Madan lal finds full support from the site inspection map Ex.3 and site inspection report Ex.4. It is worthwhile to mention here that permission was granted to the appellant-Company to contest the claim on merits but the eye- witness was not confronted with the Ex.3 and Ex.4 nor any suggestion was given from the side of the appellant-Company that the site inspection report and the site map are not in consonance with the statement of the said witness Madan lal. The site inspection map only shows that truck was coming from the west side and was going to the east side, it also shows that truck is lying over the three wheeler. The distance between the road form where the truck went to the 'kutcha' side of the road itself is sufficient proof of the speed with which the truck was moving. The road where accident occurred is a National Highway No. 15. Assuming for the sake of argument that the three wheeler was on the wrong side but it is nobody's case that three wheeler was not in the control of the driver or it was running fact as there is no evidence even for name sake is available on entire record. Not only this but even no question in the from of suggestion was put to the eye-witness Madan Lal by the side of the appellant Company that the auto-rickshaw was running fact and was not in the control of the driver of the auto-rickshaw. The appellant Insurance Company was granted permission to contest the claim on merit, still the appellant Company did not produce any evidence and, therefore, the appellant-Company has no right to say that it was the fault of the driver of the three wheeler in the accident. The contention of the learned counsel for the appellant that the oral evidence of witness Madan Lal is contrary to the admissible and admitted documentary evidence is absolutely wrong. It will be further worthwhile to mention here that the Ex.3 and Ex.4 disclose only the facts which were found after the accident and they are not the documents relating to the actual even of accident. The document Ex.3 map is not the map made to scale. In the map only direction from which the truck was coming, has been recorded. The appellant had full opportunity to produce the witness to these documents, Dau Lal and Madan Singh and the Police Officer who investigated the criminal case but the appellant-Company did not produce those witnesses. Not only this but there is no survey conducted by the appellant-Company to submit that they found any fault of the driver of the three wheeler. In view on the above reasons, 1 do not find any illegality in the reasons given by the tribunal for holding the driver of the truck responsible for such a serious accident. 1 do not find any iota of evidence on record on the basis of which it can be held that there was any contribution of the driver of the three wheeler to the accident.

8. Next submission of the learned counsel for the appellant is that there were about 12 persons in the three wheeler and because of over loading of the vehicle, the driver of the three wheeler lost his control and it caused the accident. First of all this was the defence taken by the Oriental Insurance Co. Ltd. Insurer of the three wheeler but no evidence was produced by the either Oriental Insurance Co. Ltd. or by the appellant Insurance Company to prove this issue. Secondly, it is found proved that the accident was caused by the driver of the truck by driving the truck rashly and negligently and there is no evidence to prove that three wheeler was not in the control of the three wheeler driver. Further more, there is no evidence on record that the over loading of the passengers in the three wheeler contributed to the accident. Mere excess passengers in a vehicle which was hit by other vehicle cannot be a ground to exonerate the Insurance Company from paying its liability under the insurance policy. The Insurance Company can put forward his defence only in accordance with law and as permissible by the law. The Hon'ble Apex Court in recent judgment delivered in the case of Sharawan Kumar, categorically held that every breach of the condition of the policy may not be a ground to exonerate the Insurance Company from its liability to pay the claim amount of the claimants. And further it is not the case of claim of claimants against the driver and owner of the three wheeler in which more passengers were travelling. In view of the above reasons, when there is no evidence produced in support of issue No. 11 and when appellant- Company failed to prove from record that over loading of the three wheeler had any direct nexus with the cause of accident, the tribunal had not committed any illegality in deciding the issue favoring the claimants.

9. So far as quantum is concerned, facts of each claim are as under:-

(i) In claim case no 159/98, income of deceased Tola Ram was assessed as Rs. 2000/- per month and 25% of this amount was added and annual income of deceased was assessed Rs. 30,000/- but claimants were given benefit by calculating loss by taking in to account Rs. 21,500/- per annum. The deceased was of the age of 35 years, multiplier of 17 was applied and claim of Rs. 3,65,000/- was allowed on this account after including other loses, the tribunal awarded total compensation of Rs. 3,95,300/-.

(ii) In claim case no 187/98, Mangi Lal was of the age of 25 died, Mangi Lal was working in the Forest Department, therefore, he was a government employee, he was getting basic pay of Rs. 811/- as he died before implementation of the recommendation of 5th Pay Commission. The tribunal on the basis of the evidence of the witness appearing on behalf of the Forest Department and after considering the last pay certificate, held that the deceased would have got monthly salary of Rs. 3119/- and looking to the further prospects of earning added 50% of the last drawn salary to the income of the deceased and held that the deceased would have earned Rs. 57,960/-per annum. The tribunal deducted Rs. 14,490/- and held that the claimants are entitled compensation on the basis of the their annual loss of Rs. 43,470/- per year. The tribunal applied multiplier of 17 and awarded compensation of Rs. 3,39,000/- on this account and in total Rs. 7,69,000/-.

(iii) In claim case No. 188A/98, one Chhotu Lal at the age of 21 years died. His income was assessed Rs. 1800/- per month which is assessed as of an unskilled labour. The 25% was added on account of future prospects of earning and 1/3rd amount was deducted and the tribunal applied multiplier of 16 only. In this case the tribunal awarded total compensation of Rs. 2,58,000/-.

(iv) In claim case No. 8/99, one Jetha Das died at the age of 28 years only. His income was assessed as Rs. 2000/- per month because he was earning from the taxi driving. By applying the same mode which was applied in the other cases, the tribunal applied multiplier of 18 and determined the compensation on this account of Rs. 4,23,000/-and ultimately awarded total compensation of Rs. 4,58,000/- to the claimants.

(v) In claim case No. 29/99, one Dhanne Singh died who was of the age of 22 years as per the age mentioned in the post- mortem report. The tribunal assessed his income on the basis of the minimum wages paid by the State Government to skill labour, i.e. Rs. 68/- per day. Added 25% in it on account of future prospects of earning and held income of the deceased as Rs. 2550/-. Looking to the age of the deceased, multiplier of 17 was applied. The tribunal awarded compensation of Rs. 2,60,100/- only to the claimants on this account and in total 2,80,100/-.

(vi) In the claim case No. 39/99, the deceased was of the age of 22 years. The monthly income was assessed by applying the same mode as Rs. 2250/- and multiplier of 17 was applied and the tribunal awarded compensation of Rs. 3,57,000/- to the claimants on this account and in total Rs. 3,92,000/-.

(vii) in claim case No. 150/99 deceased suffered certain injuries which are simple as well as grievous. There were fractures and skin grafting. He claimed that he was earning from the three wheeler driving but after accident he cannot drive the auto-rickshaw, he produced documents relating to this statement. The tribunal assessed the loss on account of loss of earning as Rs. 11.700/- and awarded compensation of ruppees only Rs. 1800/- on medical expenses and ultimately after taking into account the grievous injuries of the claimant and permanent disablement, awarded compensation of Rs. 81.500/-.

10. The above facts were considered by this Court to examine to contention of learned counsel for the appellant that the compensation awarded to the claimants is excessive and to find out whether the tribunal applied wrong multiplier while calculating the compensation amount for the claimants. It is strange that in a case where young persons of the age of 20 to 35 years died in the accident, maximum claim awarded by the tribunal is Rs. 7,69,000/- and which was in a case where the deceased was in the government service of the Forest Department and in other cases the rest of the compensation awarded is less than five lakhs rupees are claimed to be excessive by the appellant Insurance Company. The tribunal in the cases where the victim was found unskilled labour, assessed the compensation on the basis of minimum wages of the unskilled labour and in the case where victim was found skilled labour on the basis of the minimum wages available for a skilled labour, determined the compensation. The tribunal when found that the victim was self employed, assessed the monthly income on the lowest possible side and applied the multiplier after taking into account victim's age. In the opinion of this Court, the tribunal carefully considered each and every claim and has not committed any illegality in assessing compensation to the claimants.

11. In view of the above reasons, all these appeals have no merit, hence all the appeals are hereby dismissed.


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