Allowed

United India Insurance Co.Ltd. v. Smt.Khiriya Devi And Ors.

Jharkhand HC6 Sept 2012MA/116/2008

Case brief

AI extract

What is this about?

The court dismissed the appellant insurance company's plea of non-liability despite the driver lacking a heavy vehicle licence. It held the company must pay Rs. 2 lakh to the family of the deceased child within three months and may later recover from the owner, given the owner's absence and the claimants' hardship.

What did the court decide?

The Insurance company directed to pay Rs. 2,00,000/- to respondents within three months and is at liberty to recover the amount from the vehicle owner.

United India Insurance Co.Ltd. Vs Smt.Khiriya Devi… — Motor Accident Claims | Jharkhand HC (2012)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI Miscellaneous Appeal No. 116 of 2008

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United India Insurance Company Ltd.

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... … Appellant

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Versus

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Smt. Khiriya Devi

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Shri Bhakti Mahato

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Mannu Singh

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Dilip Kumar Singh ... ... Respondents

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CORAM : HON'BLE MRS. JUSTICE JAYA ROY

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For the Appellant : Mr. D.C. Ghosh, Advocate For Respondent nos. 1 & 2 : M/s R.C.P. Sah, C.A. Bardhan, Advocates

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ORDER

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Order No.10 Dated, 6th September, 2012

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Heard counsel appearing for the appellant and counsel appearing for the respondents.

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From the records, I find the appeal notice has been served validly on the respondent no.4 namely Dilip Kumar Singh. But in spite of that, he has not appeared in this appeal before this Court.

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As both the parties have given consent to dispose of this appeal finally at this stage, the case is being heard for final disposal.

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This appeal has been filed against the judgment dated 7^th January, 2008 passed by Additional District Judge, F.T.C.-Icum-Motor Vehicle Accident Claim Tribunal, Bokaro in Title (Motor Vehicle) Suit No. 32 of 2001.

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Facts of the case in short is that on 27.04.2001, Pintu Kumar (deceased) son of the claimant was coming by bicycle and when he reached near Durga Mandir on the road at about 11.00 a.m., a truck bearing No. BPR 6221 driving rashly and negligently by its driver which dashed the boy and ran over him and consequently he died on the spot due to vital head injury. The deceased was only son of the claimant studying in Class-IV and

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2 Miscellaneous Appeal No. 116 of 2008 accordingly, police case was registered under Sections 279/304A of the Indian Penal Code.

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Counsel appearing for the appellant has submitted that defendant no.1 (respondent no.3) is driver and defendant no.2 (respondent no.4) is owner of the truck have denied the fact of the accident and stated that the deceased himself fell down from the bicycle and died due to injury sustained on fall and at that time the alleged truck was passing on the road slowly. He has further submitted that the driving licence of the driver was only for Light Motor Vehicle and was not for Heavy Motor Vehicle even certificate produced i.e. Exhibit-A shows that the driver Abhimanu Singh was holding Driving Licence No. 19784/85 to drive Light Motor Vehicle, therefore, the owner of the vehicle has not complied the condition of the insurance policy. Therefore, the insurance company is not liable to pay any compensation. According to him the claimants are not entitled to get any compensation in this case.

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Counsel appearing for the respondents has submitted that number of witnesses were examined by the trial Court i.e. P.W.1, 2, 3 & 4 and amongst them P.W. 2 & 3 are the eye witnesses of the accident. P.W.2 is the owner of the shop on that road where accident was taken place. P.W.2 is an independent person who has stated that he was about ten yards from the place of occurrence, therefore, he saw the truck coming at high speed and the said truck due to disbalance, ran over the boy who was coming from school and died immediately on the spot due to severe head injury. P.W.3 has also given similar description of the accident, therefore, it cannot be said that the truck was not in high speed and accident had taken place due to rash and negligent driving of the truck. Counsel for the respondent (claimant) has further submitted that owner of the truck has stated in his statement that the driver (Defendant No.2) was holding valid driving licence and he was driving the vehicle for last 17 years,

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3 Miscellaneous Appeal No. 116 of 2008

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therefore, it cannot be said that he is not fit person to drive the said vehicle. He is absolutely competent to drive the heavy vehicle. 8. Considering the evidence of P.W. 2 & 3 in my opinion, accident taken place due to rash and negligence driving of the vehicle, therefore, the claimant is entitled for compensation. But now the question is who will pay the compensation whether owner of the vehicle or the insurance company and what will be the quantum of the compensation?

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Regarding amount of compensation the evidence has come on the record that the deceased was only son of his parents and the remaining children are their daughters. The deceased was student of Class-IV and the Headmaster of the school has proved the date of birth of the deceased was 25^th January, 1990, therefore, the deceased on the date of occurrence was aged about twelve years. From the impugned judgment, I find that the Court below has used multiplier number as 17 and thereafter calculated total amount as Rs. 2,00,000/- only as compensation under Section 166 of the Motor Vehicle Act.

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Regarding amount of compensation the Hon'ble Apex Court in the case of Oriental Insurance Company Limited Vs. Syed Ibrahim and others reported in (2007) 11 S.C.C. 512 has held:

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“ In case of young children of tender age, in view of uncertainties abound, neither their income at the time of death nor the prospects of the future increase in their income nor chances of advancement of their career are capable of proper determination in estimated basis. The reason is that at such an early age, the uncertainties in regard to their academic pursuits, achievements in career and thereafter advancement in life are so many that nothing can be assumed with reasonable certainty. Therefore, neither is the income of the deceased child capable of assessment on estimated basis nor is the financial loss suffered by the parents capable of mathematical computation”.

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4 Miscellaneous Appeal No. 116 of 2008

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Therefore, I do not find the amount awarded which is only Rs. Two lakhs (Rs. 2,00,000/-) is at all unreasonable or excessive.

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Now the only question is who will pay the said compensation to the claimant-respondent.

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The counsel for the appellant has submitted that the Hon'ble Apex Court has held in the aforesaid case (Oriental Insurance Company Ltd. Vs. Syed Ibrahim & Others) that as the driver, driving the vehicle i.e. lorry, was no authority to drive the lorry because he was only holding the licence of driving the Light Motor Vehicle. Therefore, the Insurance Company is not liable to indemnify the award.

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In the present case admittedly the driver was not holding the driving licence for Heavy Motor Vehicles, therefore, the Insurance Company is not at all liable to pay any compensation to the Complainants.

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Considering all these aspect, in my view the Insurance Company the appellant is not at all liable to pay as admittedly the driver of the vehicle was not holding the licence for driving the Truck (the heavy Vehicle) at the time of the accident and I set aside the impugned judgment holding the owner of the vehicle is liable to pay the compensation to the claimants.

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I find from the records that in this case the owner has not appeared inspite of the proper service of the notice. The victim was the only son (aged about 12 years) of the claimants and the claimants are from a poor background. In my view, it will not be proper to push them again into another round of the litigation particularly when it may difficult for them to secure the presence of the owner of the vehicle and the date of accident was of the year 2001 i.e. more than a decade has passed and claimants have already suffered a great mental agony and hardship for such a long time. Therefore, in the facts and circumstances of the present case, I direct the Insurance company to pay the aforesaid amount of compensation i.e. a sum of Rs. 2,00,000/- to the respondents

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5 Miscellaneous Appeal No. 116 of 2008

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claimants within three months from today and the Insurance Company is at liberty to recover the amount from the owner in the same manner as was directed by the Hon'ble Apex Court in the number of cases.

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As discussed above, the impugned judgment is set aside to the extent that instead of Insurance company, the owner of the vehicle is liable to pay the amount of compensation i.e. a sum of Rs. 2,00,000/- to the claimants.

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With the aforesaid directions to the appellants Insurance company, the appeal is allowed.

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Statutory amount which is deposited by the appellantInsurance Company before this Court at the time of filing of this appeal, be transferred to the Court below to pay the said amount to the claimant after proper verification. However, it is made clear that the Insurance company will pay the amount after deducting the amount which has already paid to the claimants.

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( Jaya Roy, J .)

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Anit

United India Insurance Co.Ltd. v. Smt.Khiriya Devi And Ors.

Case brief

What is this about?

What did the court decide?

United India Insurance Co.Ltd. v. Smt.Khiriya Devi And Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

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Cases cited

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