Partly allowed

United India Insurance Co. Ltd. v. Smt. Nilam and 4 Others

Allahabad HC5 Mar 2020FAFO/2652/2017

Case brief

AI extract

What is this about?

The High Court allowed the Insurance Company's appeal partially. It held that fitness certificate absence does not bar claims and upheld the vehicle's presence in the accident. It reduced future prospects to 40% for an unskilled labourer and recalculated compensation to Rs. 13,52,412 with a split distribution between the wife and mother.

What did the court decide?

Compensation increased to Rs. 13,52,412; Rs. 9,52,412 to wife and Rs. 4,00,000 to mother, invested in Indian Post Office monthly income schemes.

United India Insurance Co. Ltd. Vs Smt. Nilam and 4… — Motor Accident Claims | Allahabad HC (2020)

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Court No. - 53

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Case :- FIRST APPEAL FROM ORDER No. - 2652 of 2017

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Appellant :- United India Insurance Co. Ltd. Respondent :- Smt. Nilam And 4 Others Counsel for Appellant :- Pradeep Kumar Sinha Counsel for Respondent :- Amit Kumar Sinha,Deepali Srivastava Sinha

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Hon'ble Vivek Agarwal,J.

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Heard Sri Pradeep Kumar Sinha, learned counsel for the appellant, Sri Amit Kumar Sinha, learned counsel for the claimants and Sri Anurag Shukla, learned counsel for the respondent nos. 4 and 5.

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This appeal has been filed by the Insurance Company being aggrieved of award dated 15.04.2017 passed by learned Motor Accident Claims Tribunal, Court No. 3, Allahabad in Claim Case No. 525 of 2015 on the ground that involvement of the vehicle i.e., Bolero Jeep insured with the appellant is doubtful as no number of the vehicle was mentioned in the FIR and later on during investigation Bolero vehicle bearing no. UP-70 BZ2262 has been shown which is not beyond reasonable doubt.

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It is also submitted that Bolero at the time of the accident was not having fitness and therefore, in terms of the decision of the High Court of Kerala at Ernakulam in case of Pareed Pillai vs. Oriental Insurance Company Limited as decided on 09.10.2018. It is submitted that absence of valid permit/fitness certificate will constitute a fundamental breach and principle of pay and recover will be applicable. It is also submitted that future prospects has been awarded at the rate of 50% instead of 40% as per the law laid down in the case of National Insurance Company Limited Vs. Pranay Sethi as reported in (2017) 16 SCC 680.

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On the other hand learned counsel for the claimant submits that he has filed cross objection and has raised preliminary objection that income of the deceased has been taken at Rs. 6,000/- per month where as deceased was working as a Raj Mistri on the date of the accident i.e., 18.05.2015 earing about Rs. 500/- per day and accordingly income should have been construed.

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After hearing contention raised by rival counsel, as far as first issue raised by learned counsel for Insurance Company is concerned, it is true that insurer had undertaken the insurance of the offending vehicle and it will be incumbent upon it to have

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check the fitness prior to issuance of the policy in favour of the insured. For its own failure issue of fitness cannot be raised has been dealt with by co-ordinate Bench of this Court in case of United India Insurance Company Limited vs. Smt. Uma Tripathi and another as reported in 2019 (8) ADJ 253 wherein in para 28 this aspect of fitness has been dealt with and has been rejected. Therefore, the judgment of co-ordinate Bench of this Court will be binding on this Court inasmuch as co-ordinate Bench has taken into consideration the law laid down by the Kerala High Court in the case of Pareed Pillai vs. Oriental Insurance Company Limited and has dealt with that issue and has distinguished it on the touch stone of the provisions contained in the proviso to Section 86 (1) of the Motor Vehicle Act who talks about a situation where, if there is a breach of any condition of permit specified in Section 84, the competent authority is required to give an opportunity to the holder or permit before canceling or suspending the permit. In view of such facts law laid down in the case of Pareed Pillai vs. Oriental Insurance Company Limited passed by the High Court of Kerala cannot apply blanketly to the facts and circumstance of the case.

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As far as issue of implication of vehicle is concerned, in the cross examination of the claimant witness Rakesh Pandey PW-2 who is an eye witness and he had seen the Bolero vehicle causing accident to the deceased close to Kusanda, Podhshala when he was going on his bicycle towards Manda from a distance of 5-6 meters, there is no effective cross examination on this witness so to doubt the presence of the offending vehicle at the place of the accident.

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However, there is substance in the argument put forthwith by learned counsel for the appellant that claims tribunal should not have awarded future prospects at the rate of 50% and instead of it should have been restricted to 40% as per the law laid down by Hon'ble Supreme Court in the case of National Insurance Company Limited Vs. Pranay Sethi as reported in (2017) 16 SCC 680 inasmuch as deceased was not in regular employment.

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Admittedly, accident took place o 18.05.2015. Even if the deceased is construed to be an unskilled labourer then also as per the minimum wages prescribed by the authorities, they were to the tune of Rs. 6,735/- per month or Rs. 80,820/- per annum. Therefore, computation of the compensation should have been made on the basis of this income. When claim is computed on the basis of such income then the total annual income will come out to Rs. 1,13,148/-.

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There will be 1/3 deduction from this, treating it to be the

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amount spent by the deceased on self taking dependency to Rs. 75,436 per annum.

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Tribunal has accepted the age of the deceased between 26-30 years therefore, multiplier of 17 will be applicable taking total pecuniary compensation to Rs. 12,82,412/- over and above which claimants will be entitled to a sum of Rs. 70,000/- under the head of non pecuniary compensation taking total compensation to Rs. 13,52,412/- in place of Rs. 12.59,000/awarded by learned claims tribunal.

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It is further directed that out of this amount a sum of Rs. 9,52,412/- will be payable to the claimants no. 1 Smt. Nilam wife of the deceased along with accrued interest at the rate of 7% from the date of filing of the claim petition. This amount will be invested in monthly income scheme of Indian Post Office for a period of 5 years again renewable for a term of 5 years so to fetch recurring monthly income to the wife of the deceased. Remaining amount of Rs. 4,00,000/- along with accrued interest will be payable in the name of Smt. Radha Devi mother of the deceased and that too shall be invested in the monthly income scheme of Indian Post Office.

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In above terms the appeal is disposed off.

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Order Date :- 5.3.2020 Ujjawal

United India Insurance Co. Ltd. v. Smt. Nilam and 4 Others

Case brief

What is this about?

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United India Insurance Co. Ltd. v. Smt. Nilam and 4 Others

Case brief

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