Allowed

Smt. Reshma Khatoon and Another v. Noor Mohammad and Others

Allahabad HC23 Sept 2019FAFO/560/1995

Case brief

AI extract

What is this about?

The Court restored a motor accident claim petition dismissed by the Tribunal on technical grounds. It recalculated compensation due to long delay and salary changes, applying the Sarla Verma multiplier. The appeals were allowed, compensation was fixed at Rs. 3,21,664 with interest, and the matter remanded to the Tribunal.

What did the court decide?

The Insurance Company jointly and severally liable to deposit Rs. 3,21,664/- with 7.5% interest till judgment and 6% thereafter within 12 weeks.

Smt. Reshma Khatoon and Another Vs Noor Mohammad and Others — Insurance | Allahabad HC (2019)

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Court No. - 33

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Case :- FIRST APPEAL FROM ORDER No. 560 of 1995 Appellant :- Smt. Reshma Khatoon And Another Respondent :- Noor Mohammad And Others Counsel for Appellant :- P.K. Gupta Counsel for Respondent :- A.K. Srivastava,M.F. Ansari

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AND

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Case :- FIRST APPEAL FROM ORDER No. - 561 of 1995 Appellant :- Mohammad Yaqoob Rahmani And Others Respondent :- Noor Mohammad And Others Counsel for Appellant :- Sia Ram Sahu Counsel for Respondent :- A.K. Srivastava

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Hon'ble Dr. Kaushal Jayendra Thaker,J.

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The appeal no.561 of 1995 was dismissed for default. The matter is restored to file and is taken for hearing represented by Sri P.K. Gupta in both the matters and Sri M.F. Ansari for the owner.

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The factual data goes to show that the Tribunal has decided the issue of negligence also and that was decided in favour of the claimant. On over hyper technical stand, The Tribunal dismissed the claim petitions.

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The facts in brief is that the claim petitions were preferred by widow and children and separate claim petition was preferred by the parents of the deceased. The deceased was 25 years of age had gone for marriage of his friend at Mahoba and at about 6.00 a.m. in the morning was sitting at the corner at the road. At that time, a truck bearing no. UST 8289 was driven rashly and negligently and dashed with him due to which Mohd. Kaiyum died on the spot. The accident was witnessed by several persons. He was in government job and was earning Rs.1304/- per month. The claimants claimed Rs. 6,50,000/- and Rs. 45,000/- for funeral charges and Rs. 5,000/- for other expenses. The driver of the vehicle filed his reply and contended that he could not have driven the vehicle rashly and negligently. He has a valid driving licence and it was further averred that the deceased died due to his own

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negligence and not due to negligence of the driver. He has nowhere contended that the accident did not take place with his vehicle. The Insurance company filed its reply in both the claim petition taking all technical stand so as to avoid its liability. The Tribunal framed 4 issues and very strangely despite the fact that the driver of the truck did not drive the vehicle in a rash and negligent manner. It is an admitted position of fact that the driver after filing his reply, never appeared before the Tribunal nor laid any evidence. The Tribunal came to the conclusion that it was not proved that the vehicle was being driven rashly and negligently. The evidence of Noor Mohammed-DW1 is seen. He has come out with a totally different story namely that accident did not occur with his vehicle whereas in his written statement, accident has been accepted. The Tribunal has accepted his oral testimony vis-a-vis but he accepts that he has been bailed out and his truck has been detained. This shows that the driver with a view to save his skin does not testified correctly as against this evidence of Nanchand and Mohd. Yaqub if read goes to show that the accident occurred due to involvement of the truck in question. The F.I.R. was lodged he has been chargesheeted which goes to prove with the aid of the postmortem, the deceased died due to injuries sustained in the vehicular accident. The deceased infact was sitting maintaining a safe distance from the road where the truck dashed with his chair. This testimony is not believe and for which no reasons are assigned by the learned Tribunal rather the judgment itself is not discussing the oral testimony of the other witnesses who has witnessed the accident in dispute. While rejecting the claim petition, the Tribunal has decided the matter on surmises and conjectures. The Punchnama also shows that the chair was broken. The truck was

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stopped at the Petrol-pump and the driver was arrested from there. All these facts go to show that the driver of the truck drove his truck rashly and negligently and, therefore, rejecting the claim petition was bad in the eye of law. Learned Advocate Sri Gupta has taken me through the record and Sri P.K. Gupta, learned counsel, has heavily relied on the judgment of the Apex Court in Sunita and others Vs. Rajasthan State Road Transport Corporation and another, 2019 LawSuit (SC) 190, Mangla Ram Vs. Oriental Insurance Company Limited and Others, 2018 (5) SCC 656 and also a reliance is placed before this Court by the latest decision in the case of Vimla Devi and others Vs. National Insurance Company Limited and another, (2019) 2 SCC 186 , which would be applicable in the facts of this case. Hence, the appeal requires to be allowed. Even on the fact that F.I.R. Chargesheet was there, the rejection on the basis of the place where Vakalatnama of the Advocate is bad in eye of law. The testimony of Manoj Kumar Trivedi had to be taken in account.

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The Tribunal decided all other issues in favour of the claimant namely that there was proper insurance, the deceased was earning Rs. 1,304/- and was giving Rs.1200/- per moth to the family and granted Rs.4,77,400/- but deducted 1/3^rd from the same. After elaborately discussing the issue of quantum, he dismissed the claim petition.

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The appeals have remained pending for 23 years. Meanwhile, the parents of the deceased have passed away. The record is before this Court and, therefore, it would be prudent for this Court to only revaluate the compensation.

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This takes this Court to the compensation awarded in the year 1995 to the widow in FAFO No.560 of 1995, who was 22 years of age and 3 year old son. The Tribunal even calculated the amount as per issue no.4 but at the end rejected the same. It calculated the amount as Rs. 1,57,500/- but divided it by 2. The law as it now stands will have to be governed by the principles enunciated in the

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case of Sarla Verma Vs. Delhi Transport Corporation, (2009) 6 SCC 121 .

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The deceased was a government servant. His salary was Rs. 1,304/- per month namely Rs.15,648/- per year, to which as the deceased was 25 years of age, 50% of the income i.e. Rs. 7,824/- requires to be added as future income of the deceased in view of the decision in Pranay Sethi (Supra) which would bring the annul figure to Rs.15,648 + 7,824 = 23,472/-. As he has one widow and a minor child, 1/3^rd will have to be deducted towards personal expenses of the deceased, thus, the annual datum figure available to the family would be Rs.15,648/-. As the deceased was 25 years of age, the applicable multiplier would be 18 in view of the decision of the Apex Court in Sarla Verma Vs. Delhi Transport Corporation, (2009) 6 SCC 121 . In addition to that, Rs.40,000/- is granted under the head of non-pecuniary damages in view of the decision in Pranay Sethi (Supra). Hence, the claimants are entitled to a total compensation of Rs.15,648 x 18 + 40,000 = Rs. 3,21,664/-.

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As far as issue of rate of interest is concerned, the interest should be 7.5% in view of the latest decision of the Apex Court in National Insurance Co. Ltd. Vs. Mannat Johal and Others, 2019 (2) T.A.C. 705 (S.C.) , wherein the Apex Court has held as under :

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" 13. The aforesaid features equally apply to the contentions urged on behalf of the claimants as regards the rate of interest. The Tribunal had awarded interest at the rate of 12% p.a. but the same had been too high a rate in comparison to what is ordinarily envisaged in these matters. The High Court, after making a substantial enhancement in the award amount, modified the interest component at a reasonable rate of 7.5% p.a. and we find no reason to allow the interest in this matter at any rate higher than that allowed by High Court. "

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No other grounds are urged orally when the matter

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was heard.

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FAFO NO.561 OF 1995

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Both the appellants have passed away. The appellants of FAFO No.560 of 1995 are the class I heirs and as father and mother of the deceased have passed away and, therefore, the entire amount recalculated will go to the wife and the son who has now become major.

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As the Insurance company has not been able to prove any infraction before the Tribunal, here also in oral cross-objection, nothing has been proved to disown their liability. The dismissal of claim petition is quashed and set aside. The respondents jointly and severely shall deposit the amount 3,21,664/- with 7.5% from the date of claim petition till judgment and 6% thereafter till the amount is deposited within a period of 12 weeks from today.

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In view of the above, the appeals are allowed.

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Record and proceedings be sent back to the Tribunal.

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Order Date :- 23.9.2019 Irshad

Smt. Reshma Khatoon and Another v. Noor Mohammad and Others

Case brief

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Smt. Reshma Khatoon and Another v. Noor Mohammad and Others

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