Partly allowed

Smt.Kusum Agnihotri and Another v. Konald Bality and 2 Others

Allahabad HC5 Jan 2021FAFO/3310/2014

Case brief

AI extract

What is this about?

The High Court allowed the appeal by the deceased's heirs, enhancing the compensation award by adjusting the dependency deduction to 1/3rd, applying a multiplier of 9, and adding future prospects, resulting in a total of Rs. 4,26,400. The insurance company's appeal regarding lack of vehicle fitness was dismissed as they were estopped from raising the issue after insuring the vehicle without verify

What did the court decide?

Compensation enhanced to Rs. 4,26,400; claimant no. 1 to retain Rs. 3,00,000; claimant no. 2 to receive Rs. 1,26,400 after apportionment; amounts to be invested in recurring deposit.

Smt.Kusum Agnihotri and Another Vs Konald Bality and… — Motor Accident Claims | Allahabad HC (2021)

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Court No. - 1

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Case :- FIRST APPEAL FROM ORDER No. - 3310 of 2014

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Appellant :- Smt.Kusum Agnihotri And Another Respondent :- Konald Bality And 2 Others Counsel for Appellant :- Mohd.Naushad Siddiqui,Vidya Kant Shukla Counsel for Respondent :- Alok Ranjan Tripathi,Mohammad Asif

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along with

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Case :- FIRST APPEAL FROM ORDER No. - 2986 of 2014

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Appellant :- National Insurance Co. Ltd. Respondent :- Smt. Kusum Agnihotri And 3 Others Counsel for Appellant :- Amit Manohar Counsel for Respondent :- M.N. Siddiqui,Alok Ranjan Tripathi,Mohammad Asif,Vidya Kant Shukla

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Hon'ble Vivek Agarwal,J.

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Heard Sri Vidya Kant Shukla, learned counsel for the appellants and Sri Amit Manohar, learned counsel for the respondents.

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This appeal has been filed by the claimants being aggrieved of the award dated 28.07.2014 passed in Claim Case No. 555 of 2010 by the Court of learned Motor Accident Claims Tribunal/Additional District Judge, Kanpur Nagar. Claimants have filed this appeal on three grounds namely, learned claims tribunal has erred in making 1/2 deduction from the notional income of the deceased, whereas deceased is survived by wife and a son, therefore, deduction should have been 1/3rd in place of 1/2. It is also submitted that instead of multiplier of 8, multiplier of 9 will be applicable as per the law laid down in case of Smt. Sarla Verma and others vs. Delhi Transport Corporation and another as reported in (2009) 6 SCC 121. It is further submitted that appellants are also entitled to future prospects @ 10%.

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In another appeal filed on behalf of the insurance company only issue which has been raised is in regard to fitness of the offending vehicle and it is suggested that since fitness was not

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available for the offending vehicle on the date of the accident, therefore, in terms of the law laid down by the Constitution Bench of the Kerala High Court in case of Pareed Pillai vs. Oriental Insurance Co. Ltd. as reported in 2019 A.C.J. 16, right to pay and recover should be extended in favour of the appellant-insurance company.

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After hearing, learned counsel for the parties and going through the record, it is apparent that accident took place on 01.04.2010, when deceased Shiv Narayan Agnihotri @ Raja Agnihotri was moving on a cycle from Nawabganj Kanpur to Chowk Kanpur and was hit by Maruti Van No. UP 78 AU 3216, insured with the respondent insurance company coming from the side of Rev Three on Parvati Bagla Road opposite Raina Market.

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Case of the claimants/appellants is that deceased is survived by two dependents namely, PW1-Smt Kusum Agnihotri and her son appellant no. 2-Prashant Agnihotri, therefore, the decision of the tribunal to deduct 1/2nd portion of the income accepted by it @ Rs. 150/- per day appears to be arbitrary and illegal. It is against the ratio of law laid down in case of Smt. Sarla Verma (supra) .

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As per the ratio of Smt. Sarla Verma (supra), 1/3rd deduction is to be made, therefore, notional dependency on the deceased will be treated to be Rs. 3,000/- (three thousand rupees) per month instead of Rs. 2,250/- (two thousand two hundred fifty rupees) per month or Rs. 36,000/- (thirty six thousand rupees) per annum. Admittedly, age of the deceased has been computed at 60 years and therefore, in the light of the law laid down in case of Smt. Sarla Verma (supra), multiplier of 9 will be applicable and not that of 8. Similarly, in the light of the law laid down by Hon'ble Supreme Court in case of National Insurance Company Limited Vs. Pranay Sethi and others as reported in (2017) 16 Supreme Court Cases 680, there will be addition of 10% towards future prospects. Thus claimants will be entitled to get a sum of Rs. 4,26,400/- (four lakhs twenty six thousand four hundred rupees) in place of 2,26,000/- (two lakhs twenty six thousand rupees) awarded by learned claims tribunal. Calculation for the above is as under:-

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After 1/3rd deduction notional income has been accepted at Rs. 36,000/- (thirty six thousand rupees) per annum and when

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multiplier of 9 is applied, then compensation will come out to Rs. 3,24,000/- (three lakhs twenty four thousand rupees). Over and above this 10% is to be added towards future prospects, which takes pecuniary compensation to Rs. 3,56,400/- (three lakhs fifty six thousand four hundred rupees). As per the law laid down in case of Pranay Sethi (supra), there has to be an addition of Rs. 70,000/- (seventy thousand rupees) under the non-pecuniary heads, taking total compensation to Rs. 4,26,400/- (four lakhs twenty six thousand four hundred rupees).

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To this extent, appeal of the claimants is allowed and it is directed that claimant no. 1 shall keep 3,00,000/- (three lakhs rupees) plus accrued interest thereon @ 7% as has been awarded by learned claims tribunal whereas remaining amount of Rs. 1,26,400/- (one lakh twenty six thousand four hundred rupees) will be apportioned in favour of claimant no. 2 along with accrued interest. It is further directed that these amounts shall be invested in recurring deposit account of Indian Post Office by the claimant-appellant for a period of 5 years and they will be entitled to use of accrued interest for their recurring expenses.

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In above terms, appeal filed by the claimants is disposed off.

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As far as appeal filed by the insurance company is concerned, only ground which has been raised is in regard to lack of fitness and therefore, placing reliance on the case of Pareed Pillai (supra), it is submitted that lack of fitness is a fundamental breach and therefore, appellant-insurance company should be bestowed with a right to pay and recover.

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This aspect of fitness has been already dealt with by a Coordinate Bench of this High Court and by this Court also respectively in case of United India Insurance Co. Ltd vs. Smt Uma Tripathi and Another (2019) 4 T.A.C. 267, so also in case of United India Insurance Co. Ltd vs. Smt Nilam and Another (2020) 4 T.A.C. 132 (All), wherein it has been held that provisions contained in the proviso 2 of Section 86 (1) of the Motor Vehicles Act deals with a situation where, if there is breach of any condition of permit specified in Section 84, then the competent authority is required to give an opportunity to the holder of permit before cancelling or suspending the permit. It is held that law laid down in case of Pareed Pillai (supra)

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cannot be applied blanketly to the facts and circumstance of the case.

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In the present case, when insurance company had undertaken the insurance of the offending vehicle, then it was incumbent upon it to have checked the fitness prior to issuance of the policy in favour of the insured. There is no evidence on record to show that fitness expired during the currency of the insurance. For its own failure to check fitness at the time of issuance of the policy, insurance company is estopped from raising this aspect at subsequent stage, therefore, this plea of lack of fitness is not entertainable under the facts and circumstances of the case, therefore, appeal filed by the insurance company fails and is dismissed.

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Order Date :- 5.1.2021 Vikram/-Ar

Smt.Kusum Agnihotri and Another v. Konald Bality and 2 Others

Case brief

What is this about?

What did the court decide?

Smt.Kusum Agnihotri and Another v. Konald Bality and 2 Others

Case brief

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