Dismissed

Oriental Insurance Company Ltd. v. Nazir Ahmad and Ors.

Patna HC9 Jul 2013MA/129/2009

Case brief

AI extract

What is this about?

The Patna High Court dismissed an insurance company's appeal against a Motor Vehicles Tribunal award. The Court upheld the compensation quantum, rejecting arguments regarding the multiplier, absent personal expenses, alleged fake license, and lack of evidence for contributory negligence.

What did the court decide?

Appeal dismissed; statutory amount remitted to Tribunal for disbursement.

Oriental Insurance Company Ltd. Vs Nazir Ahmad and Ors. — Insurance | Patna HC (2013)

¶1

IN THE HIGH COURT OF JUDICATURE AT PATNA Miscellaneous Appeal No.129 of 2009

¶2

====================================================== Oriental Insurance Company Ltd. through the Regional Manager at Regional office, Pirmohani, P.S. Kadamkuan, Patna (For the Divisional Manager, Oriental Insurance Company Ltd. Motijheel, Muzaffarpur) .... .... Appellant/s Versus 1. Nazir Ahmad, S/o Md. Daud 2. Aisha Khatoon, W/o Md. Daud Both of resident of village-Awapur, P.S. Janakpur, District-Sitamarhi at present Mohalla-Belwaganj, P.S. Laherisarai, District-Darbhanga 3. Smt. Rajeshwari Devi, W/o Baldeo Choudhary, At & P.O. Pickhi and Hari Sabha Ramna, District-Muzaffafpur (Owner of the vehicle) 4. Ram Babu Choudhary, S/o Harinandan Choudhary, District-Sitamarhi .... .... Respondent/s ====================================================== CORAM: HONOURABLE MR. JUSTICE JYOTI SARAN ORAL ORDER

¶3

13. 09-07-2013 I.A. No. 1285 of 2009. Heard Mr. Mukteshwar Prasad Singh, learned counsel appearing on behalf of the appellant.

¶4

This interlocutory application under Section 5 of the Limitation Act, has been filed for condonation of delay of 100 days in filing the Appeal. It is submitted that the delay has occasioned in obtaining the departmental approval for filing the appeal, in the light of legal advice tendered.

¶5

Having heard learned counsel and for the reasons stated, the prayer is allowed. Delay is condoned.

¶6

I.A. 1285 of 2009 is allowed.

¶7

M.A. No. 129 of 2009

¶8

This appeal under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as the ‘Act’), is directed against the

¶9

Patna High Court MA No.129 of 2009 (13) dt.09-07-2013

¶10

¶11

judgment and award dated 26.4.2008 passed by learned Additional District and Sessions Judge-F.T.C.-IV-cum-Motor Vehicles Accident Claim Tribunal, Darbhanga in Claim Case No. 5 of 2001, whereby the Tribunal while allowing the claim case has directed the appellant insurance company to make payment of the compensation amount together with interest @ 9 per cent.

¶12

Facts of the case in brief is that the deceased along with his two friends were going from Darbhanga to Muzaffarpur in Maruti Van bearing registration no. DDA 8806. As the Maruti Van reached near village Pirauda, P.S. Benibad, District-Muzaffarpur, a bus bearing registration no. BPK 9153 which was coming from Muzaffarpur and going towards Darbhanga hit the Maruti Van and as a result the Maruti Van fell into a ditch. The villagers present saw that one person died on the spot while others were referred to Darbhanga Medical College and Hospital who also died during the course of treatment. An FIR was registered giving rise to Gaighat P.S. Case No. 205 of 2000 under Sections 279, 337, 338 and 304A of the Indian Penal Code. A charge sheet was submitted against the driver of the bus. The claim in question was filed by the parents of the deceased Tanvir Ahmad praying for compensation of Rs. two lakh. Pursuant to the notice issued the owner of the bus appeared and filed his written statement submitting that the driver

¶13

Patna High Court MA No.129 of 2009 (13) dt.09-07-2013

¶14

¶15

had a valid driving license and that the bus was duly insured with the Oriental Insurance Company and was under insurance coverage. The driver did not choose to appear. The Oriental Insurance Company who was opposite party no. 3 appeared and filed a written statement contesting the claim on grounds of validity of the driving license, insurance papers etc. It was also contested to be a case of contributory negligence. The claimants led four exhibits of which the FIR was led as Ext. 1, the fardbeyan of the Chaukidar was led as Ext. 2, the postmortem report was led as Ext. 3. The policy was led as Ext. 4. On the basis of the rival contentions and the evidence on record the tribunal while confirming the death of the son of the claimants in accident and considering that the offending bus was duly insured and following the principles of notional income in terms of Clause-6 of the second Schedule to the Act, determined the compensation amount by applying the multiplier of 15 relying upon the Supreme Court judgment rendered in the case of Manju Devi reported in 2003(2) PLJR 120 (SC). The insurance company was directed to make payment of the compensation amount together with interest after reducing the amount of interim award paid by them under Section 140 of the Act. Being aggrieved the insurance company is in appeal.

¶16

Patna High Court MA No.129 of 2009 (13) dt.09-07-2013

¶17

¶18

Mr. Mukteshwar Prasad Singh, learned counsel has appeared for the appellant and has contested the award primarily on the following grounds:

¶19

(a) The multiplier applied is not correct and is neither in accordance with the second Schedule nor in the light of the judicial pronouncement of Sarla Verma reported in (2009) 6 SCC 121;

¶20

(b) No deductions have been made towards personal expenses;

¶21

(c ) The license was found to be fake;

¶22

(d) It was a case of contributory negligent and thus 50 per cent of the compensation should have been awarded against the insurance company covering the Maruti Van. In support of his submission, learned counsel has relied upon the judgment of the Supreme Court reported in 2004 ACJ 53 (Municipal Corporation vs. Lakshman Ayyer) and 2006(2) PLJR 287 (SC) (Bijoy Kumar Dugar vs. Bidyadhar Dutta).

¶23

I have heard learned counsel for the appellant and I have perused the lower court records which has been summoned under the orders of this Court. Insofar as the issue of multiplier is concerned, in view of the conclusion drawn by the tribunal in the

¶24

Patna High Court MA No.129 of 2009 (13) dt.09-07-2013

¶25

¶26

light of the pronouncement of the Supreme Court rendered in the case of Manju Devi (supra), no infirmity can be found. Insofar as the non deduction towards personal expenses is concerned, considering that the calculation has been made on the basis of notional income fixation, this Court is of the opinion that no legal infirmity has been caused by the Tribunal in not making any deduction towards personal expenses. Even otherwise an award under Section 166 of the act does not conceive of any such deductions which is only relatable to a computation under Section 163A of the Act. The judgment rendered in the case of Sarla Verma (supra) relied upon by Mr. Singh to canvass this position also is an answer to the issue.

¶27

Insofar as the issue of fake license is concerned, the said issue is no more res integra in view of the judicial pronouncement rendered in the case of Swaran Singh reported in (2004) 3 SCC 297 which position has been reiterated in the subsequent judgments of the Supreme Court rendered in the case of Meena Variyal reported in (2007) 5 SCC 428 wherein the Supreme Court in paragraph 16 of the judgment has opined that a mere absence or production of a fake license, in itself is not sufficient to rebut a claim until such time that the insurance company is able to prove that the insured is a party to the same.

¶28

Patna High Court MA No.129 of 2009 (13) dt.09-07-2013

¶29

¶30

Thus in absence of any evidence supporting this issue, no infirmity can be found in the award impugned. That brings this Court to the last issue regarding contributory negligence. The judgments relied upon by Mr. Singh to canvass this point manifestly shows that the opinion drawn by the Supreme Court was in the light of the evidence on record. Admittedly, no evidence was led by the insurance company supporting their plea of contributory negligence and in absence whereof no other conclusion could have been drawn by the tribunal.

¶31

For the reasons aforesaid, this Court is not persuaded in interfering with the judgment and award impugned. This appeal is dismissed.

¶32

Let the statutory amount be remitted to the Tribunal for its disbursement in accordance with law. Let the lower court records be transmitted to the Tribunal forthwith.

¶33

(Jyoti Saran, J)

¶34

S.Sb/-

Oriental Insurance Company Ltd. v. Nazir Ahmad and Ors.

Case brief

What is this about?

What did the court decide?

Oriental Insurance Company Ltd. v. Nazir Ahmad and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

The Divisional Manager, Divisi Vs Ram Narayan Keshri and Ors.

Hafijullah Ansari and Ors. Vs Ishrayl Miya and Ors.

The Divisional Manager Vs Nago Yadav and Ors.

Mala Rani Das Vs Praveer Kumar Singh and Ors.

Branch Manager,National Insura Vs Upendra Pathak and Ors.

Poonam Singh Vs Abhisek Kumar Singh and Ors.