Disposed

Tola and Another v. Smt Kirshani Devi and Another

Uttarakhand HC12 Jul 2017AO/194/2017

Case brief

AI extract

What is this about?

High Court disposed of six appeals by an insurer challenging compensation awards and by deceased/injured dependants seeking enhanced awards following an accident involving severe overloading. The court held that the insurer is liable to pay the sum total of six highest awards distributed per petition among all claimants.

What did the court decide?

Delay condoned; appeals admitted and disposed. INSurer liable for sum of six highest awards distributed per pending petition principles

Tola and Another Vs Smt Kirshani Devi and Another — Insurance | Uttarakhand HC (2017)

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IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

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CLMA 4032/2017 (Stay Application)

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CLMA 4033/2017 (Delay Condonation Application)

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Appeal from Order No. 221/2017

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United India Insurance Co. Ltd. …. Appellant

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Versus

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Master Rajesh & Another .… Respondents

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Mr. Naresh Pant, Advocate, for the appellant/insurance company. None for the respondents.

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With

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CLMA 3486/2017 (Stay Application) CLMA 3487/2017 (Delay Condonation Application)

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Appeal from Order No. 184/2017

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United India Insurance Co. Ltd. …. Appellant

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Versus

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Smt. Medki Devi & Others .… Respondents

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Mr. Naresh Pant, Advocate, for the appellant/insurance company. None for the respondents.

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CLMA 3489/2017 (Stay Application) CLMA 3488/2017 (Delay Condonation Application)

¶19

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Appeal from Order No. 187/2017

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United India Insurance Co. Ltd. …. Appellant

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Versus

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Mohar Singh & Others .… Respondents

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Mr. Naresh Pant, Advocate, for the appellant/insurance company. None for the respondents.

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CLMA 3491/2017 (Stay Application) CLMA 3490/2017 (Delay Condonation Application) In

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Appeal from Order No. 186/2017

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United India Insurance Co. Ltd. …. Appellant

Versus

Patiram & Others

.… Respondents

Mr. Naresh Pant, Advocate, for the appellant/insurance company. None for the respondents.

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CLMA 3493/2017 (Stay Application) CLMA 3492/2017 (Delay Condonation Application) In

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Appeal from Order No. 188/2017

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United India Insurance Co. Ltd. …. Appellant

Versus

Sri Tola & Others

.… Respondents

Mr. Naresh Pant, Advocate, for the appellant/insurance company. None for the respondents.

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CLMA 3603/2017 (Delay Condonation Application) In

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Appeal from Order No. 194/2017

Tola & Another

…. Appellants

Versus

Smt. Kirshani Devi & Another .… Respondents

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Mr. P.S. Bisht, Advocate, for the appellants/claimants.

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Mr. Naresh Pant, Advocate, for the respondent insurance company.

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CLMA 3604/2017 (Delay Condonation Application) In

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Appeal from Order No. 192/2017

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Mohar Singh & Another …. Appellants

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Versus

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Smt. Kirshani Devi & Another .… Respondents

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Mr. P.S. Bisht, Advocate, for the appellants/claimants. Mr. Naresh Pant, Advocate, for the respondent insurance company.

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CLMA 3605/2017 (Delay Condonation Application)

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Appeal from Order No. 193/2017

¶57

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Smt. Medhaki Devi & Others …. Appellants

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Versus

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Smt. Kirshani Devi & Another .… Respondents

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Mr. P.S. Bisht, Advocate, for the appellants/claimants. Mr. Naresh Pant, Advocate, for the respondent insurance company.

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CLMA 3606/2017 (Delay Condonation Application) In

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Appeal from Order No. 195/2017

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Pati Ram & Another …. Appellants

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Versus

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Smt. Kirshani Devi & Another .… Respondents

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Mr. P.S. Bisht, Advocate, for the appellants/claimants. Mr. Naresh Pant, Advocate, for the respondent insurance company.

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July 1 2 th , 2017

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Hon’ble Servesh Kumar Gupta, J.

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All these appeals are emerging out from the same accident occurred on 22.4.2015 at 4 PM in the hilly roads of Tehsil Kalsi, District Dehradun. Hence, these are being taken up together for adjudication.

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It is pertinent to mention that AO No. 221/2017, 184/2017, 187/2017, 186/2017 and 188/2017 have been preferred by the insurer challenging the impugned judgments and orders of the learned Trial Judge granting the compensation in different quantum as per the merits of the respective claim petitions, while AO No. 194/2017, 192/2017, 193/2017 and 195/2017 have been preferred by the dependants/injured persons for enhancement of the award. All these appeals have been filed along with the delay condonation applications because there is delay in each appeal with little variation in the period.

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Having heard the learned Counsel of either party, all the delay condonation applications are allowed. Delay in each of the appeal is hereby condoned.

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All the appeals are admitted. Counsels for the appellants have been heard on the merits of the appeals.

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Prima facie contention of the learned Counsel for the appellant insurance company is that the utility vehicle no. UK07-CA-2978 skidded off from the road and fell in the ditch causing this accident. It has not been disputed that such utility vehicle, as per its registration certificate and permit nay the insurance cover could carry five passengers in addition to one driver. This way, in all six persons could travel in such vehicle. But at the time of accident, as many as 37 persons were travelling accommodating their sitting or standing somehow inside or partially outside or even on the roof of such vehicle. Therefore, the insurance company cannot be held liable to satisfy the award as made out by the Tribunal in all the claim petitions filed either by the dependants of the deceased persons or the injured in such accident.

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I think the law has elaborately been discussed by the learned Judge of the Tribunal in the impugned judgments by relaying on the case law laid down by the Hon’ble Apex Court in National Insurance Company v. Anjana Shyam and Others, IV (2007) ACC 355. Such law of the Hon’ble Apex Court was further relied by this Court while deciding the AO No. 267/2011, Oriental Insurance Company v. Smt. Sohan Devi & Others. The ratio laid down by the Hon’ble Apex Court was that the insurance company shall be liable to pay the compensation amounting to sum total of six highest awards only (as the total capacity of travelling persons including the driver of the offending vehicle was six) in the descending order and that amount

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shall be distributed among all the claimants under the guidelines of Hon’ble Apex Court laid down in Anajana Shyam case (supra).

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It has further been brought to the notice of the Court that certain claim petitions are still pending before the Tribunal. It is hereby made clear that the cumulative amount so calculated for the highest six awards shall be distributed among all the claimants only after final adjudication of the petitions pending before the learned Tribunal. Determination of the share to be paid shall not be per capita wise, but it shall be per petition wise.

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As regards the quantum of compensation, which has been granted by the Tribunal in either of these matters, I think there is no scope of interference because such quantum in each matter seems to be quite just and appropriate.

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All these appeals are hereby disposed of with the observations as above.

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(Servesh Kumar Gupta, J.)

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Prabodh

Tola and Another v. Smt Kirshani Devi and Another

Case brief

What is this about?

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Tola and Another v. Smt Kirshani Devi and Another

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