High Court
Case Details
Reserved On : 14.3.2023 Delivered On :13.4.2023 Court No. - 44 Case :- FIRST APPEAL FROM ORDER No. - 649 of 2004 Appellant :- The Oriental Insurance Co. Ltd. Respondent :- Vinod Kumar Mishra And Others Counsel for Appellant :- Bhartendu Pathak, Counsel for Respondent :- Kapil Dev Singh Rathore,Kapil Dev Singh Rathore,Shivraj Singh Rathore Hon'ble Dr. Kaushal Jayendra Thaker,J. 1. Heard Sri Bhartendu Pathak, learned counsel for the appellant and Sri Kapil Dev Singh Rathore, learned counsel for the claimant. 2. This appeal, at the behest of the appellant-The Oriental Insurance Company Limited, challenges the judgment and award dated 3.1.2004 passed by learned Additional District Judge, Court No.3/Motor Accident Claims Tribunal, Kanpur (hereinafter referred to as 'Tribunal') in M.A.C.No.614 of 1999 awarding a sum of Rs.1,92,000/- with interest at the rate of 7% as compensation. 3.
Legal Reasoning
The brief facts of the present case are that deceased- Pushpa Devi Misra was going towards her house situated at Iit Gate. Deceased was proceeding from Kalyanpur Bazar towards IIT Gate with her son and was sitting on his cycle then on 22.8.1999 at 2:00 p.m. vehicle No. UP-78 B/3343 which was being driven in a rash and negligent manner, hit the
Legal Reasoning
cycle, as a result of which deceased- Smt. Pushpa Devi Mishra's son Sunil was seriously injured and Smt. Pushpa Devi died on the spot. The deceased was employed as a supervisor in Shramik Bhari and was drawing a salary of Rs.2500/- per month. In addition to this she was earning Rs.1000/- from tuition and was contributing to the upkeep of her family. 4. It is submitted by learned counsel for the appellant that finding -1- recorded by the Tribunal in respect to the negligence of truck driver is clearly erroneous. It is further submitted that material available on record also raises doubt about the vehicle insured being involved in the accident. It is proved that the said vehicle was driven by a unlicensed driver. It is further submitted that the appellant- insurance company / insurer of the vehicle cannot be held liable to pay any compensation to the claimants. Learned counsel for the appellant has further submitted that the police after due investigation had submitted the charge–sheet against Vinod Kumar who was the driver- respondent no.3. The certified copy of the charge – sheet and bail application was filed before the Claims Tribunal by the appellant- insurance company to prove the fact that at the time of accident the vehicle was driven by Vinod Kumar but the Tribunal erred in holding that the vehicle was driven by Prem Kumar Awasthi ( deceased). Learned counsel for appellant- insurance company has further submitted that the Tribunal had erred in deciding the issue no.2 in holding that the vehicle was driven by Prem Kumar Awasthi, who had a valid and effective driving license at the time of accident. It is submitted that this finding is against the documentary evidence, namely, certified copy of charge sheet and bail application of driver Vinod Kumar which was available on record and as such the view taken by the Claims Tribunal is against the record. Learned counsel has further submitted that according to the Second Schedule of Motor Vehicle Act, 1988, if the claimant had no income prior to the accident then Rs.15000/- per annum has to be accepted as notional income for the purposes to calculate just compensation payable to the legal heirs but the Claims Tribunal had erred in calculating the compensation accepting the income of Rs.2,500/- per month of the deceased. 5. As against this learned counsel for the claimants has submitted that even if there is breach of policy condition the claimant being third party. It is between the insured and the insurance company and if it is found that -2- the driver was different then the one against whom the decree is passed, the same if is against the weight of evidence, recovery rights even if granted the right of the claimants cannot be prejudice. 6. It is further submitted that the claimants have not been granted what is known as just compensation as no amount under the head of future loss of income has been granted. The question regarding negligence will have to be appreciated in the facts of this case on record available and the finding by the Tribunal. 7. The principles to decide negligence in the case arising out of motor accidents case are based on Law of Torts. The issue of negligence will have to be evaluated on the following brought principles enunciated by the Court from time to time. 8. The finding of facts by the Tribunal as regards negligence is that PW-1 and PW-2 stated that PW-2 was proceedings from Kalyanpur to IIT Gate. She was on the cycle with him. The vehicle No.U.P.-78 B/3343 dashed the said cyclist from behind. The deceased fell down on the road. Sunil Kumar Mishra also fell down and the speeding truck passed over his mother. This testimony is corroborated by the FIR and the postmortum report. 9. The driver of the truck who is the best witness rather the better witness has not stepped into witness box. The factors to be considered for negligence when the driver of truck who came and dashed from behind the cyclist, dashed the cycle from behind did not stop and ran away with the truck this itself is sufficient to come to the conclusion that the driver was negligent. 10. Section 147 of Motor Vehicle Act, 1988 invoked by the Insurance Company so as to contend that there was breach of policy condition as the vehicle was driven by the unlicensed driver and respondent no.3- Vinod Kumar who was arrested by the police and had applied for bail -3- itself shows that Vinod Kumar was the driver in question. The police had submitted charge sheet against him. It is submitted that just because the owner contended that Prem Kumar Awasthi was driver in question and not Vinod Kumar. The finding given by the Tribunal is not sustainable. 11. As far as this ground is concerned,, the owner has examined Sri Narayan Tripathi so as to prove that the vehicle was driven by one Prem Kumar Awasthi. As far as Prem Kumar is concerned during the pendency of litigation, he has passed away. The Tribunal has come to the conclusion that in the FIR, name of driver was not mentioned. The insurance company has shown that the application for release of vehicle has been made by Vinod Kumar. The Tribunal comes to the conclusion on oral testimony of D.W-2 that the vehicle was not driven by Prem Kumar whereas the charge sheet is led against Vinod Kumar. He was released on bail also and, therefore, to hold that the vehicle as being driven by one Prem Kumar Awasthi itself creates a doubt. 12. On this count as the grounds raised goes to show that Prem Kumar Awasthi was not requested to be impleaded a party before the Tribunal. In the written statement, it was mentioned that it was not Vinod Kumar rather there was but was Awasth who was driving the vehicle. Vinod Kumar was the owner of the vehicle whereas it was driven by Awasthi which is mentioned in the reply. There is a confusion created as there are two persons named. Vinod Kumar as the deceased was widow of one Vinod Kumar the owner is also one Vinod Kumar son of Sri Ram Pratap. It is nowhere shown in the reply filed by the respondent no. 1 on 18.8.2001 that the vehicle was driven by Awasthi. The Insurance Company has heavily relied on the papers filed in the criminal Court and proved before Tribunal. 13. Looking to the facts and circumstances, this Court is of the view that the insurance company has proved that the vehicle was being driven -4- by Vinod Kumar and only with a view to show that the vehicle was not being driven by unlicensed person, the name of Awasthi was shown and introduced to be the driver. Even before the police authority, the owner did not mention that it was not Vinod Kumar but was Sri Awasthi who was driving the vehicle. 14. In that view of the matter, this appeal will have to be allowed to that extent. 15. As far as compensation is concerned, this Court is of the opinion that the Tribunal having not considered any amount under the head of future loss of income. The amount awarded cannot be said to be exorbitant. Hence, the challenge to quantum of compensation awarded is turned down. 16. The Insurance Company having proved that the vehicle was driven by unlicensed persons, they would have right of recovery from the owner of the truck. The amount deposited be disbursed to the claimants as the owner has substituted the driver much after the criminal proceedings were over. The charge sheet was led against Vinod Kumar and not Prem Kumar who has passed away. 17.
Decision
In view of the above, the appeal is partly allowed. Judgment and decree passed by the Tribunal shall stand modified to the aforesaid extent. The amount if yet not deposited be deposited within a period of 12 weeks from today. Record and proceedings be sent back to the Tribunal forthwith. 18. The insurance company shall be entitled to recover the amount deposited from the owner of the vehicle. 19. This Court is thankful to both the counsels for getting this matter decided. Order Date :-13.4.2023/Mukesh -5- Digitally signed by :- MUKESH SRIVASTAVA High Court of Judicature at Allahabad