Allowed

Regional Manager Oriental Insu v. Aisha Khatun and Ors.

Patna HC19 Sept 2013MA/244/2012

Case brief

AI extract

What is this about?

The Patna High Court modified a Motor Accident Claim Tribunal award against an insurance company. While upholding quantum adjustments (50% deduction, multiplier 14), the court allowed the pending appeal, remitting the reduced compensation amount to the tribunal for disbursement while retaining the insurance company's right of recovery against the owner upon proof of a fake license.

What did the court decide?

Allow appeal; modify the impugned judgment and award to reflect a total compensation of Rs. 2,56,500/- (remitting Rs. 50,000 interim) payable by the appellant.

Regional Manager Oriental Insu Vs Aisha Khatun and Ors. — Execution and Attachment | Patna HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT PATNA Miscellaneous Appeal No.244 of 2012

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====================================================== Regional Manager, Oriental Insurance Co. Ltd., Pirmuhani, P.S. - Kadam Kuan, Patna-3. ....Opposite Party No.1 .... Appellant/s Versus 1. Aisha Khatun, W/O Md. Amanullah (Mother of the deceased)Claimant No.1 in the claim case. 2. Md. Amanullah, S/O Abdul Aziz (Father of the deceased)- Claimant No.2 in the claim case.

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Both are R/O Kachahari Mohalla, P.S. - Phulwarisharif, District-Patna.

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Ram Babu Sah, S/O Late Ram Ashishi Sah (pwner of Truck No. BR1G-4157), R/O Saray Purani Bazar, P.S.- Saray, District- VaishaliOpposite Party no.2 in the claim case.

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Gautam Singh, S/O Late Jaynandan Singh (driver of Truck No. BR-1G4157), R/O Village- Parbodhi Nagar, P.S.- Saray, District- VaishaliOpposite party no.3 in the claim case.

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.... .... Respondent/s ====================================================== Appearance : For the Appellant/s : Mr. Arun Kumar Shrivastava For the Respondent/s : Mr. Suraj Narain Yadav

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Mr. Onkar Nath

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====================================================== CORAM: HONOURABLE MR. JUSTICE JYOTI SARAN ORAL ORDER

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10 19-09-2013 This appeal under section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as ‘the Act’) is directed against the judgment and award dated 13.12.2011/3.11.2012 passed by the Motor Vehicles Accident Claim Tribunal-cum-Additional District Judge-IX, Patna in Motor Vehicle Claim Case No.159 of 2010, whereby the claim has been allowed with interest. The tribunal while allowing claim case has reserved liberty on the insurance company to realise the compensation amount on establishing their contentions about the driving licence being

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Patna High Court MA No.244 of 2012 (10) dt.19-09-2013

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fake.

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I have heard Mr. Arun Kumar Shrivastava, learned counsel appearing on behalf of the appellant-insurance company, Mr. Onkar Nath, learned counsel appearing for respondent nos.1 and 2 and Mr. Suraj Narain Yadav, learned counsel appearing on behalf of the owner of the offending vehicle (respondent no.3).

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The facts of the case in brief as per the claim petition is that the deceased Md. Arif who happened to be the son of the claimants was going home on his motorcycle when at the crossing of Imarat Sharia Institute, Phulwarisharif he was dashed against by a truck bearing registration no.BR-1G-4157 being driven rashly and negligently at about 12.45 PM on 27.9.2008 and as a consequence the son of the claimants died on the spot. The FIR was registered giving rise to Phulwarisharif P.S. Case No.407 of 2008 against the driver of the offending vehicle. Pursuant to the notice though the appellant insurance company appeared and filed their written statement but neither the owner nor the driver of the offending vehicle contested the matter. The tribunal taking note of the rival submissions of the parties in the backdrop of the evidence computed the compensation amount of Rs.3,64,500/- and after reducing the interim compensation of Rs.50,000/- paid to the claimants under section 140 of the Act,

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Patna High Court MA No.244 of 2012 (10) dt.19-09-2013

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the insurance company was directed to make the balance payment of Rs.3,14,500/- together with interest quantified @ 7% from the date of filing of the claim case till its realization. The insurance company being aggrieved is in appeal before this Court.

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Mr. Shrivastava, learned counsel for the appellantinsurance company has questioned the award primarily on grounds of doubtful character of the driving licence as also the order requiring the insurance company to make payment and recover the same from the owner if ultimately it is found that the driving licence is fake, on grounds that it is beyond the jurisdiction of the tribunal to pass such order. Learned counsel in support of his submission has relied upon a judgment of the Supreme Court reported in 2009(8) SCC 785 (National Insurance Company Limited vs. Parvathneni). The insurance company has also questioned the award on its quantum as according to the appellant, there is no foundation for accepting the income of the deceased at Rs.100/- per day. It is further with reference to the judgment reported in (2009)6 SCC 121 (Sarla Verma Vs. Delhi Transport Corporation) submitted that the deceased being bachelor the deduction of one-third is contrary to the judicial pronouncement which holds the deduction of 50% in

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Patna High Court MA No.244 of 2012 (10) dt.19-09-2013

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a case of bachelor if there are no extraordinary circumstances for lowering such deductions. Again with reference to the judgment in Sarla Verma (supra) it is stated that the compensation has to be awarded with respect to the age of the mother which in the present case is 41 and applying the principles laid down in the judgment the multiplier of 14 would be applicable in the present case and not 15 as applied by the tribunal. On the aforementioned grounds Mr. Shrivastava sought to contest the judgment and award.

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The arguments of Mr. Shrivastava have been contested by the claimants to submit that the award has been passed by the tribunal upon appreciation of the oral and documentary evidence adduced by the parties and thus not suffering from any perversity, there is no reason to interfere with the same.

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I have heard learned counsel for the parties and have perused the judgment and award impugned in this appeal. I shall be dealing with each of the issues raised by Mr. Shrivastava individually. In so far as the issue of driving licence is concerned, there is no dispute that a driving licence indeed was produced before the tribunal though according to the appellant, it raised serious suspicion. On the issue of driving licence, the law now

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Patna High Court MA No.244 of 2012 (10) dt.19-09-2013

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stands well settled by the judgment reported in (2004)3 SCC 297 (National Insurance Co. Ltd. Vs. Swaran Singh) which has been also taken note in a subsequent judgment rendered in the case of Meena Variyal reported in (2007)5 SCC 428 and more recently in a judgment reported in (2013)7 SCC 62 (S. Iyyapan vs. United India Insurance Company Limited) . The judgment of the Supreme Court in no uncertain terms holds that mere allegation of a fake or a non-production of a licence would not be sufficient for the insurance company to avoid its liability until such time that it is able to prove by cogent evidence that the owner had full knowledge of this aspect and yet permitted the driver to ply the vehicle. In the present case admittedly a driving licence has been submitted and it is yet to be proved by evidence that the same is a fake. It is in this background that the tribunal while allowing the compensation has afforded liberty to the insurance company to make recovery, if they establish that the licence was fake.

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This would bring this Court to the issue of right of recovery which is questioned by Mr. Shrivastava in the light of the judgment passed in the case of Parvathneni (supra). The said judgment of the Supreme Court relied upon by Mr. Shrivastava came up for consideration in a subsequent judgment reported in

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Patna High Court MA No.244 of 2012 (10) dt.19-09-2013

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(2013)2 SCC 41 (Manager, National Insuran Company Limited vs. Saju P. Paul) and in which it has been held that mere reference to a larger Bench would not automatically stay the operation of a judicial pronouncement rendered on the subject of recovery.

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The third issue is the income assessed by the tribunal and a perusal of the judgment manifests that the claimants had set up a claim that the deceased was a salesman in a cloth shop and was earning Rs3,500/- and had also led the employer as applicant witness no.4 who deposed in favour of the claimants admitting that he was paying Rs.3,500/- per month to the deceased. However, the tribunal in absence of any documentary evidence on the issue proceeded to assess the income at the minimum wage applicable to an unskilled labour at the rate of Rs.100/- per day. The assessment being reasonable requires no interference.

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This would bring this Court to the issue of deductions towards personal living expenses. The submission of Mr. Shrivastava with reference to judgment in Sarla Verma (supra) has substance inasmuch as in paragraphs 30 to 32 of the said judgment the Supreme Court has held that in a case of bachelor unless extraordinary circumstances exist normally 50% is to be deducted towards the personal living expenses of the

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Patna High Court MA No.244 of 2012 (10) dt.19-09-2013

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deceased. Thus the contention of Mr. Shrivastava is upheld. Even on the aspect of multiplier the submission of Mr. Shrivastava find support from paragraph 42 of the judgment rendered in the case of Sarla Verma (Supra). The Supreme Court has held that for a claimant aged between 41 to 45 a multiplier of 14 would be applicable.

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Having expressed my opinion on the issues raised by learned counsel appearing on behalf of the appellant-insurance company whereas this Court is not in an agreement to the issues raised by the appellant with regard to the driving licence, the right to recovery and the quantum of compensation, this Court even while rejecting the contentions on the said issue upholds the submission of appellant on the issue of deduction towards personal living expenses @ 50% as also the multiplier applicable in the present case as 14.

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The decks having cleared, the question is what would be the compensation. On a daily income of Rs.100/- the deceased has been assessed to draw a monthly income of Rs.3,000/- and the annual income of Rs.36,000/-. Making a deduction of 50% from the said annual income towards the personal living expenses of the deceased, the amount at the disposal of the claimants would be Rs.18,000/- and applying the multiplier of 14 the

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Patna High Court MA No.244 of 2012 (10) dt.19-09-2013

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claimants are found entitled to compensation of Rs.2,52,000/-. In addition thereto the claimants are also found entitled to funeral expenses of Rs.2,000/- and loss of estate of Rs.2,500/-. Thus the total compensation would be Rs.2,52,000 + Rs.2,000+ Rs.2,500= Rs.2,56,500/-. Since a sum of Rs.50,000/- has already been paid to the claimants by way of interim compensation, the claimants would be entitled to the balance compensation amount of Rs.2,06,500/- which should be paid by the insurance company together with interest @ 7% as assessed by the tribunal to be calculated from the date of filing of the claim case until the date of its realization. Since the right of recovery has already been conferred on the insurance company upon establishing that the driving licence is fake document, no further order needs to be passed on this score.

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This appeal is allowed. The judgment and award impugned in the appeal stands modified to the aforementioned extent. Since there is a modification in the judgment and award, the statutory amount should be remitted to the tribunal concerned for its disbursement in accordance with law.

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SKPathak/-

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(Jyoti Saran, J)

Regional Manager Oriental Insu v. Aisha Khatun and Ors.

Case brief

What is this about?

What did the court decide?

Regional Manager Oriental Insu v. Aisha Khatun and Ors.

Case brief

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What did the court decide?

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