United India Insurance Company Limited v. Bimla & Ors.

claimants with a rider that the first charge to pay should always remain with the Insurance Company, being insurer of the offending vehicle. FAO No. 2902 of 2006 -2- According to the claimants, on 22.6.2003 deceased Rohtash while driving his car bearing No. DL-2CA-0536 was returning to his village Fatehpuria from Sirsa. When he had covered a distance of one kilometer from Sirsa city and reached near Hanuman Mandir, Banwari Lal while driving a Canter, bearing registration No. RJ-31-G-0236 rashly and negligently struck the car belonging to Rohtash as a result of which Rohtash received serious and grievous injuries and died at the spot. In the meantime, Mahabir, brother of the deceased, reached the spot. The police party while patrolling the area also reached the spot. The dead body of Rohtash was shifted to Civil Hospital, Sirsa where it was subjected to post mortem examination. On the statement made by Mahabir, FIR No. 230 dated 23.6.2003 under Sections 279, 304-A and 427 IPC was registered at Police Station, Sadar Sirsa against Banwari Lal as the accident had taken place due to his rash and negligent driving of the offending Canter. According to the claimants, deceased Rohtash was a businessman, who was 35 years old. He was hale and hearty. He had been dealing in the sale of pesticides, fertilizers and seeds in New Mandi, Sirsa. He also owned eight acres of land situated in village Fatehpuria. He was having a monthly income of Rs.35,000/- to Rs.40,000/-. All the claimants were dependent upon him, being his widow, children and parents. He used to contribute his entire earnings to the claimants. Therefore, the claimants prayed that they be granted an amount of Rs.30,00,000/- as compensation. FAO No. 2902 of 2006 -3- Upon notice, the driver and the owner of the offending Canter filed joint written statement wherein they admitted that Banwari Lal was driving the offending truck on his extreme left at a moderate speed with due care and caution whereas it was the deceased, who was driving his car rashly and negligently and, therefore, he was responsible for the accident. A false case had been got registered against the driver of the offending Canter and, therefore, both the driver and the owner were not liable to pay any compensation. In the alternative, they prayed that if it was held that they were liable to pay any compensation, the insurer of the Canter in question was liable to indemnify them. In its written statement, the Insurance Company asserted that the claim petition had been filed by the claimants in collusion with the driver and the owner of the offending Canter and, therefore, it was not liable to indemnify the insured. After hearing learned counsel for the parties and going through the evidence available on record, learned Tribunal held that the accident in question had taken place due to rash and negligent driving of the offending Canter by Banwari Lal. The income of the deceased, who was 35 years of age, was assessed at Rs.5,000/- per month, i.e. Rs.60,000/- per annum. One third of his income was deducted for personal expenditure and pleasure of the deceased and, accordingly, the dependency of the claimants was assessed at Rs.40,000/- per annum. Multiplier of '10' was applied so as to grant an amount of Rs.4,00,000/- FAO No. 2902 of 2006 -4- to the claimants as compensation. Besides, an amount of Rs.25,000/- was granted on account of expenses on last rites, transportation of dead body, etc., Rs.25,000/- on account of loss of consortium to Bimla Devi- claimant; and Rs.50,000/- on account of loss of estate, so as to, finally, award a total amount of Rs.5,00,000/- as compensation. The driver, the owner and the insurer of the offending Canter were held jointly and severally liable to pay the compensation. As Banwari Lal was holding a valid and effective driving licence at the time of the accident, it was ordered that the first charge should always remain with the insurer. Learned counsel for the appellant-Insurance Company has submitted that the claimants failed to establish that the accident in question was caused by Banwari Lal by driving canter bearing No. RJ- 31-G-0236. In the FIR registered by the police at the instance of Mahabir, brother of deceased Rohtash, neither the name of the driver nor the registration number of the offending vehicle were mentioned. A perusal of the impugned judgment reveals that it was Santosh Kumar, who had witnessed the accident. Said Santosh Kumar appeared as PW6 and tendered in evidence affidavit Ex.PW6/A by way of his examination-in-chief wherein he stated that on the night intervening 22/23-6-2003 at about 2.15 a.m. he started from village Banwala for Sirsa on his motorcycle as he was to board a bus for Chandigarh from there. At about 2.45 a.m. when he reached near Hanuman Mandir on Dabwali Sirsa Road, the offending canter driven FAO No. 2902 of 2006 -5- rashly and negligently by Banwari Lal-respondent No.1 came from behind and after crossing his motorcycle dashed into the car belonging to deceased Rohtash. He saw the registration number of the canter in the light of his motorcycle. He became nervous on seeing the accident and after reaching Bus Stand, Sirsa, informed the police on telephone about the accident. However, he was told that the intimation about the accident had already been sent to the police and the police had reached the spot. Thereafter, he boarded the bus and left for Chandigarh. On the other hand, Mehar Chand, owner of the offending canter, while appearing as RW1 admitted that it was his driver Banwari Lal, who was driving the canter at the time of the accident but he was not at all fault for causing the accident. Therefore, it cannot be said that the claimants have not been able to establish that the accident was caused on account of the canter driven by Banwari Lal in a rash and negligent manner by dashing it against the car belonging to Rohtash deceased. Further submission made on behalf of the appellant is that the compensation awarded to the claimants was highly excessive. Before the learned Tribunal, the claimants had produced licence Ex.P1 issued in the name of deceased Rohtash authorizing him to sell pesticides, fertilizers, seeds etc. As per jamabandies Ex.PW4/B to PW4/D, he was shown to be owner of 8 acres of agriculture land. Under these circumstances, learned Tribunal was justified in assessing FAO No. 2902 of 2006 -6- the monthly income at Rs.5,000/- or Rs.60,000/- per year. After deducting 1/3rd of his earnings, which the deceased might be spending on himself, learned Tribunal assessed the dependency at Rs.40,000/- per annum. Admittedly, the deceased was 35 years of age at the time of his death. Therefore, suitable multiplier ought to be of '10', which had been applied by the learned Tribunal. Over and above the total dependency assessed by the learned Tribunal, Rs.25,000/- was awarded for the expenses incurred on performing of last rites, transportation of dead body, etc., Rs.25,000/- on account of loss of consortium to Smt.Bimla Devi claimant being the widow of Rohtash and Rs.50,000/- on account of loss of estate. By no stretch of imagination, can it be said that the Tribunal awarded exorbitant amount of compensation to the claimants. In view of the above, no case is made out for any interference in the impugned judgment passed by the Motor Accidents Claims Tribunal, Sirsa whereby the claimants were awarded an amount of Rs.5,00,000/- as compensation on account of death of Rohtash in a road accident. The appeal is, accordingly, dismissed. March 29, 2010 ( T.P.S. MANN ) JUDGE FAO No. 2902 of 2006 -7- ajay-1