Dismissed

The Oriental Insurance Comp.Ltd. v. Mahaveer Prasad and Others

Chhattisgarh HC9 Apr 2014MAC/205/2006

Case brief

AI extract

What is this about?

The single judge dismissed the insurance company's appeal against a Motor Accident Claims Tribunal award of Rs.14.79 lakhs. The court upheld the award, rejecting the contributory negligence plea due to lack of evidence and validating the income assessment. The court directed the Tribunal to finalize disbursement after a long stay. It did not enhance the award due to lack of appeal by claimants.

What did the court decide?

The appeal is dismissed; the Tribunal is directed to finally calculate the entire compensation and pass an appropriate order for disbursement.

The Oriental Insurance Comp.Ltd. Vs Mahaveer… — Motor Accident Claims | Chhattisgarh HC (2014)

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IN THE HI6H COURT JU&ICATURE AT BILASPUR

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Misc. Aooeal No. ^o^" OF 2006 C c^

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APPELLANT

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C&iairer)

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The Oriental Insurance Company Limited, Madeena Building, Raipur (C.6.).

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RESPONDENTS: (Claimants)

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Mahaveer Prasad, won of Mangalchond, aged 75 resident of Main years, Road, Saraipali. ,2. Kamla Devi, wife of Mahaveer Prasad, aged about 63 years, resident of Main Road, Saraipali.

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Smt. Anita'Devi, wife of Suresh Agarwai, aged about 28 years, resident of Main Road, Saraipali.

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Abhishek, son of Suresh Agarwal, aged about 06 resident of Main

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years, Road, Saraipati.

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Kanha Agarwal, son of Suresh Agarwal, aged about 09 years, resident of Main Road, Saraipali.

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Shivani Agarwal,~daughter of Suresh Agarwal, aged about 1-i- years, resident of Main Road, Saraipali. Respondent Nos.4 to6 are

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minors through their natural guardian mother, respondent . No.3-Smt. Anita bevi.

Driyer of vehicle

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Owner of Vehicle

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Hanuman yadav, son of Mohan Yadav, aged about 25 resident of years, Transport Nigadi Sainath •/';.. Naga^J Puna (Mah'.acashtra) (

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Kailashnath 5hukla, son of ftambali Shukla, aged about 35 years, resident of Sunder Nagar, Raipur.

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APPEAL V/S 173 OF THE MOTOR VEHICLES ACJ --' A6AINST TWE /kW^RD/ORDER &ATED 07.04.2006 PASSED s-^- _ ^ ^^.-..< . _^ • ^' IN CLAIM ^ASE N0.119/2005 BY THE 2"d ADDITIONAL MOTOR ACCI-DENT CLAIMS TRIBUNAL. MAHASAMUN& fBENCH PRESIDED BY SHRI A.K. PATHAK). '. V-"" . ADoeal valued at Rs.14.79.033/& Court Fee offixed Rs.lSA

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€<^ ^

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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SB: Hon'ble Shri Justice Pritinker Diwaker

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M.A.(C) No. 205 of 2006

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Appellants The Oriental Insurance Company

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Limited.

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VERSUS

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Respondents Mahaveer Prasad and others

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Present:

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Shri Abhishek Sinha, counsel for the appellant. Shri Goutam Khetrapal, counsel for respondent Nos. 1 to 6. None for respondent Nos.7 & 8.

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ORDER (9th April, 2014)

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This appeal arises out of the award dated 7.4.2006 passed by the II Additional Motor Accident Claims Tribunal, Mahasamund (hereinafter referred to as "the Tribunal") in claim case No. 119/05 whereby in a death case compensation of Rs.14,79,033/- has been awarded in favour ofthe claimants.

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Facts of the case, in brief, are that on 9.4.2005 when the deceased was driving his private jeep, the said jeep was dashed by a truck bearing registration No. C.G. 04/ZC-7120 (hereinafter referred to as "offending vehicle") which at the relevant time was being driven by respondent No.7, owned by respondent No.8 and duly insured with the appellant/insurance company. As a result therepf, the d.gceased sustained grievous injuries and ultimately succumbed to the same. 03. A claim case was filed by claimants, who are mother, father, widow and three minor children. of the deceased, claiming compensation of Rs.67.50 lacs, /nteraffa, pleading that the deceased was a businessman, doing the business of paddy and forest produce and this apart, he was owner ofthe truck and jeep, earning Rs.27,500/per month, he was aged about SOyears, he died in the accident caused due to rashand negligent driving of the offending vehicle and

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Si-iy •^ • ^.~-...--sf

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therefore, they are entitled for compensation as claimed. 04. The daimants filed various documents in relation to income of the deceased, including Ex.P/11 - Saral Form for the Financial Year 2004-05, showing annual income ofthe deceased as Rs.1,45,080/-for the said financial year.

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The insurance company while contesting the claim of the claimants has denied the allegations as leveled and has further submitted that it is not liable to pay any compensation and that the deceased himself was contributory negligent in causing the accident.

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The Tribunal after assessing annual income of the deceased as Rs.1,45,080/- and deducting Rs.19,607/- towards income tax, arrived at the conclusion that the deceased was earning Rs.1,25.473/- p.a. After deducting 1/3rd towards personal and living expenses of the deceased, the annual loss of dependency was worked out to be Rs.83,6497- and after applying multiplier of 17, the total loss of dependency was assessed at Rs.14,22,033/-. By further awarding Rs.57,000/- under the conventional heads, vide impugned award a total sum of Rs.14,79,033/- has been granted by the Tribunal as compensation in favour ofthe claimants.

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Contention of learned counsel for the appellant is as under:

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(i) that the annual income of the deceased has wrongly been assessed by the Tribunal as Rs.1,45,080/-;

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(ii) that the accident occurred on account of contributory negligence of the deceased and thus, it should have been held by the Tribunal that the deceased was contributory negligent aRd-50% of the total amount of compensation should have been deducted on this ground.

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On the other hand, learned cdunsel for the claimants submits that award impugned passed by the Tribynal can not be faulted with in anymanner. He submits that in fact, the Tribunal has not considered the future prospects ofthe deceased a'nd had it been considered, the amount of compensation would have been much more.

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Heard learned counsel for the parties and perused the material

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available on record.

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So far as the point of contributory negligence on the part of the deceased is concerned, it is a settled principle of law that the onus of proof regarding contributory negligence is on the party who alleges the same. The insurance company taking a plea of contributory negligence on the part of the victim/deceased must lead evidence with regard thereto and in absence thereof, such plea can not be accepted. The insurer of the offending vehicle must state specifically that there was some casual connection of the deceased with the damage suffered by him to hold that the conduct of the deceased amounted to contributory negligence. Similarly, there had to be some evidence showing absence of reasonable care on the pari: of the deceased for his own safety which contributed to the damage. However, no evidence has been led by the insurance company to prove the factum of contributory negligence on the part of the deceased. Thus the finding recorded by the Tribunal in this regard cannot be faulted with, the same is based on proper appreciation of evidence and is, therefore, hereby maintained. 11. I find no substance in the arguments of learned counsel for the appellant/insurance company that for the Financial Year 2004-05, income ofthe deceased as Rs.1,45,080/- has wrongly been assessed by the Tribunal. From Ex.P/11, which is a Saral Form, it is apparent that this Form was filled on 8.4.2005 by the deceased himself, which bears seal and signature of the department, showing his annual income as Rs.1,45,080/- for the Financial Year 2004-05 and for the Assessment Year 2005-06. Considering the fact that this document has been duly proved by the claimants, there is no reason for this Court to disbelieve this document. Accordingly, it is held that finding of the Tribunal assessing the annual income of the deceased as Rs.1,45,080/- is correct and based on evidence adduced-by the claimants. 12. True it is that the Tribunal has wrongly applied the multiplier of 17 whereas as per law laid down in Sar/a Verma (Smt.) and others Vs Delhi Transport Corporation and another, (2009) 6 5CC 121, it should have been 16, but the Tribunal has also erred in law in

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deducting 1/3rd towards personal and living expenses ofthe deceased, whereas considering the number of claimants, in view of guidelines of the Apex Court in Sar/a Verma (supra) it should have been 1/4th. Further, the Tribunal has also not awarded any amount towards future prospects of the deceased. Unfori:unately, there is no appeal or crossappeal by the claimants and therefore, this Court cannot enhance the amount of compensation.

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Thus, in the totality of facts and circumstances of the case and the evidence adduced by the parties, 1 am of the opinion that the appeal preferred by the insurance company hasno substance, the same deserves to be and is, accordingly, dismissed.

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From the order sheet dated 20.9.2006 it appears that disbursement of the compensation was stayed by this Court. The accident is of the year 2005 and this appeal is pending since last 8 years. Considering this aspect of the case, the Tribunal is directed to finally calculate the entire amount of compensation and to pass appropriate order for disbursement of the amount. ,/

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Sd/Pritinker Diwaker Judge

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lil • ii!''i

The Oriental Insurance Comp.Ltd. v. Mahaveer Prasad and Others

Case brief

What is this about?

What did the court decide?

The Oriental Insurance Comp.Ltd. v. Mahaveer Prasad and Others

Case brief

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