Oriental Insurance Company Limited v. Smt.Sheela & Ors.

Mr. M.S.Randhawa, Advocate for respondent Nos.1 to 3. None for respondent No.6. CORAM : HON'BLE MR.JUSTICE K.C.PURI. K.C.PURI. J. The appellant-Oriental Insurance Company has directed this appeal against the award dated 2.3.2009 passed by Shri Rajesh Malhotra, learned Motor Accident Claims Tribunal, Narnaul for setting aside award. Factual matrix comprising the claim petition shorn of details is that that on 16.7.2007 at about 8.30 a.m. Daya Ram since deceased, was going on motor cycle of Dharambir son of Bishambher Dayal, bearing registration No. HR 35D/1925 to Narnaul from his village Bhushan Kalan to attend his duties. When they reached near water booster of village Bhushan Kalan, a Truck bearing registration No. RJ-02/9341 being driven by respondent No.1 in a rash and FAO No. 3357 of 2009 2 negligent manner came from Kadipuri side and hit the motor cycle without giving any horn. Respondent No.1 was known by Dharambir previously. As a result of which motor cycle lost balance and Daya Ram and Dharamvir fell down. The respondent No. 1 fled away from the spot alongwith Truck. This accident was caused due to rash and negligent driving of above said truck by respondent No.1. Daya Ram and Dharamvir sustained grievous injuries in this accident. Daya Ram was shifted to General Hospital Narnaul by a private vehicle. Statement of Daya Ram was recorded by HC Jaswant Singh, on the basis of which FIR was registered. Daya Ram died on 16.7.2007 at about 11.30/12.00 due to injuries sustained in this accident. Post mortem of Daya Ram was conducted at General Hospital Narnaul. FIR No. 167 dated 16.7.2007 under Sections 279, 337 IPC was lodged at PS Sadar Narnaul. Claimants demanded Rs.15 lacs a compensation. Respondent No.1 driver and respondent No.2 owner of truck No. RJ-02/9341 filed joint written statement and denied the most of the submissions made in the petition and submitted that the petitioners had concocted a false story to get the claim. Respondent No.3 also filed its written statement and denied the claim of the petitioners on the ground that no such accident had happened, and even if, the same is proved as happened, even then the company is not liable to pay due to violations of terms and conditions of insurance policy. On the date of accident, the driver was not having any valid driving licence. Following issues were framed :- FAO No. 3357 of 2009 3

1. Whether Daya Ram died in motor vehicular accident which took place on 16.7.2007 at about 8.30 a.m. in the area of village Bhushan Kalan, Narnaul road near water supply due to rash and negligent driving of truck No. RJ-02/9341 by respondent No.1 owned by respondent No.2 and insured with respondent No.3 as alleged? OPP.

2.Whether the petitioners are entitled to compensation? If yes, amount of compensation, the petitioners are entitled to and from whom? OPP.

3. Relief. To prove their case, the petitioners examined Dr. Dinesh Podar as PW-1, Babu Lal ASI as PW-2, Hoshiyar Singh Accountant as PW-3, Sheela as PW-4, Ghisa Ram as PW-5, Balbir Singh as PW-6, Pappu @ Subhash as PW-7. Thereafter evidence of petitioners was closed after tendering document PMR Ex.P-1. Respondent No.3 examined Hoshiyar Singh Assistant as RW-1 and respondent No. 1 and 2 examined Jaswant as RW-2, Jai Chand as RW-3, Om Parkash as RW-4 and Chhote Lal as RW-5. Counsel for respondent No.5 closed his evidence without examining any witness. Respondent No.4 Dharamvir examined himself as RW-6. No witness in rebuttal evidence was examined by petitioners. The Tribunal, after appraisal of the evidence and after hearing learned counsel for the parties, awarded Rs.11,80,000/- as compensation to the claimants along with interest @ 8% per annum from the date of petition till its realization. The awarded amount was ordered to be divided amongst claimants No.1 wife, petitioner Nos.2 and 3 in the ratio of 70%, 15% and 15% respectively. The respondent No.3- Insurance Company was held liable to make the payment of the awarded amount. FAO No. 3357 of 2009 4 Dissatisfied with the Award dated 2.3.2009 passed by Motor Accident Claims Tribunal, Narnaul appellant-Oriental Insurance Company Limited has preferred the instant appeal. I have heard the learned counsel for the parties and have gone thorough the records of the case. Learned counsel for the appellant has submitted that claimants have failed to prove that accident has taken place due to rash and negligent driving of Jai Chand driver of truck No.RJ-02-9341. The name of driver and the number of vehicle are not mentioned in the FIR. The Tribunal has taken the statement of deceased made to the police as a dying declaration. PW-2 ASI Babu Ram, who in his cross- examination has stated that name of the driver and registration number of the vehicle are not mentioned in the FIR. The FIR was cancelled after investigation and no challan was presented. So, in these circumstances, the finding of Tribunal on issue No.1 are erroneous. I have carefully considered the said submission but do not find any force in that submission. The deceased in the FIR has mentioned that accident has taken place due to rash and negligent driving of the truck. Respondent Jai Chand had admitted the fact that he was plying the truck in question on the concerned route. There was no reason for the complainant to falsely implicate the respondent and to allow the real culprit to go scot free. Ghisa Ram (PW-5) and Balbir Singh (PW-6) have stated that the accident has taken place due to rash and negligent driving of truck No.RJ-2G-9341 by respondent No.1. So, in these FAO No. 3357 of 2009 5 circumstances, finding of trial Court on issue No.1 does not call for any interference. The learned counsel for the appellant has further submitted that amount of compensation assessed by the Tribunal is on higher side. As per salary slip, deceased Daya Ram was drawing the salary of Rs.8661/-. According to claimants, the recommendations made by 6th Pay Commission have been implemented and the salary of the deceased was to be increased by 35%, which is made applicable from 1.1.2006. The accident in the present case has taken place on 16.7.2007 i.e. much after 1.1.2006. The Tribunal has only added 25% more in respect of implementation of recommendations of the Pay Commission and his income has been taken as Rs.10,000/-per month. 1/3rd amount has been deducted on account of personal expenses and multiplier of 13 has been applied, as age of the deceased was between 48 to 50 years. Another sum of Rs.5000/- has been allowed on account of funeral expenses. Rs.1800/- has been granted on account of medical expenses. The Tribunal has granted Rs.30,000/- on account of loss of consortium and Rs.20,000/- on account of love and affection. However, amount granted on account of loss of consortium, in view of Smt. Sarla Verma and others vs. Delhi Transport Corporation and Anr 2009(3) R.C.R.(Civil) 77 can be granted to the extent of Rs.10,000/- only and no amount in respect of loss of love and affection can be allowed in view of the said authority. So, the appeal to the extent of grant of Rs.40,000/- i.e. Rs.20,000/- regarding loss of consortium and Rs.20,000/- regarding loss FAO No. 3357 of 2009 6 of love and affection stands accepted. The claimants are held entitled to claims Rs.11,40,000/- in stead of Rs.11,80,000/- as ordered by the Tribunal. The appeal stands disposed of accordingly. A copy of this judgment be sent to the trial Court for strict compliance. May 06 , 2010 ( K.C.PURI ) JUDGE