High Court · 2025

Appellant :- National Insurance Comp. Ltd. Throu. Div. Manager Lko. Respondent :- Smt. Fauziya And Ors. Counsel for Appellant :- Waquar Hashim Counsel for Respondent :- M.N. Iqbal,P K Rai Hon'ble Jaspreet Singh,J. Heard learned counsel for the appellant. None has put in appearance on behalf of the respondents at the time of call of case. The appeal is of the year, 2012. The record indicates that the service on the respondent is sufficient. The record of the claims tribunal is also present, hence, the appeal is ripe for hearing. The Court has proceeded to hear learned counsel for the Insurance Company in absence of the respondent. The instant appeal has been preferred under Section 173 of the Motor Vehicles Act, 1988 assailing the award dated 30.09.2011 passed in Claim Petition no.462 of 2010 whereby in death case a sum of Rs.7,77,500/- along with 6% interest has been awarded in favour of the claimant respondent nos.1 and 2. Learned counsel for the appellant while assailing the aforesaid award has raised a three pronged submission. (i) That the driver of the offending vehicle did not possess a valid and a subsisting driving licence. It is also urged that the insurance company attempted to get said licence verified from the licensing authority and as per the report of the surveyor of the insurance company the said licence was not found in the records of the R.T.O Nagaland i.e. the issuing authority. On the strength of the aforesaid report, it is urged that the driver of the said vehicle did not possess a valid driving licence and this being so the award could not be saddled on the insurance company. (ii) It is further urged that the amount of compensation which has been awarded is on the higher side in as much as the age as well as the income of the deceased was not verified. A wrong multiplier has been adopted, accordingly, the award needs to be set aside. (iii) It is also urged that the manner in which the accident occurred, it clearly indicates a case of contributory negligence of the deceased himself who was driving the motor cycle with three persons coupled with the fact that he did not even possess a driving licence and this in itself is a factor which clearly tilts the balance relating to contributory negligence against the motorcycle driver i.e the deceased and this aspect of the matter has also not been considered by the tribunal which has resulted in the award which deserves to be set aside. Since none has put in appearance, accordingly, considering the aforesaid submissions made by the learned counsel for the appellant, this Court has perused the material on record and finds that in so far as the first issue raised by the counsel for the appellant regarding the driving licence is concerned is apparently misconceived for more than one reasons. The record indicates that the driver of the offending vehicle had filed his original driving licence which was on record. This fact has also been taken note of by the tribunal in its judgment. That being so, it was the bounden duty of the insurance company to have brought some material on record to indicate that the said original licence was not valid, however, there is no such evidence. Submission and thrust made by the learned counsel for the appellant that the surveyor of the insurance company had visited R.T.O Nagaland who indicated that there was no record of the driving licence as filed, hence, it is doubtful as to whether the said driving licence was valid or not. Even this submission of learned counsel for the appellant is grossly misconceived for the reason that the report of the surveyor is on record as paper no.Ga 44 dated 17.06.2011. It is relevant to mention that the original driving licence of the driver Santosh Singh is bearing no.41495/TV/Z/09 whereas the report as filed by the Insurance Company is relating to licence no.11706/TV/D/09 which indicates that the Insurance Company had filed an incorrect report and the submission advanced by the learned counsel for the appellant Sri Waquar Hashim has either made submissions without verifying the record or to mislead the Court, either way it is not appreciated. Thus the submission is based on an incorrect premise. Once the insurance company got an incorrect licence verified, apparently, they could not have got the correct report therefore first submission of learned counsel for the appellant is turned down and deprecated. Considering the second submission regarding the amount as awarded, if seen, it would indicate that the tribunal has noticed that the income of the deceased could not be proved on the basis of contradictory statements given by the claimant witnesses but one fact which was not disputed was that the deceased was working at Sainik Filling Centre Kotwa road, Barabanki. It is in this context that the tribunal has taken the notional income of Rs.200/- per day and has taken monthly income to be Rs.6,000/-. As far as the age is concerned, it has been taken 35 years and though it is disputed by the learned counsel for the appellant but the fact remains that there is no contrary evidence which was led by the Insurance Company to cast a doubt on the information as well as the deposition of the witnesses who had appeared before the tribunal. The multiplier of 16 was taken by the tribunal to award of Rs.7,77,500/-. This is alleged to be on the higher side but this Court finds that there is nothing wrong with the amount which has been granted for more than one reason. The tribunal has erred in granting consortium of Rs.5000/- to the wife ignoring the fact that the deceased was survived by his daughter who also should have been granted the consortium for the loss of her father. The amount as granted in terms of loss of estate and funeral expenses is also on the much lower side. It is also to be noticed that grant of compensation is not mathematical or empirical formula upon which it is to be calculated rather it needs to be seen in the context of the facts and circumstances including evidence available on record. It is in this view where the amount of compensation has been granted on the lower side relating to certain heads and in case, if as per the counsel for the appellant, the multiplier is also to be reduced nevertheless it would still reach almost the same amount which has been granted. Thus, to that extent submission of learned counsel for the appellant does not find favour with this Court. The third issue raised by the counsel for the appellant regarding contributory negligence is also misconceived for more than one reasons. It is now too well settled to be disputed that the issue of contributory negligence is to be seen in context with the facts and circumstances. It has to be proved that the negligence of the driver was responsible for causing an accident and it is only, thereafter, can be ascertained as to what was the proportion to which he had contributed. In the instant case, the record would indicate that there is a clear averment of the claimant witness indicating that he was driving his motorcycle on the road whereas the offending truck had overtaken him on a road which was one way road on account of the fact that there was work of road widening going on and some part of the road had been closed. In such circumstances, the offending vehicle's driver ought to have been more cautious in over taking the vehicle on a single road. It is in this context that the deceased who was coming from the other side was dashed by the said vehicle. There is no contrary evidence to dispute this fact neither there was any evidence led by the owner/driver or the Insurance company to buttress the aforesaid submissions. Accordingly, this aspect of the matter also does not find favour with this Court and this Court is fortified in its view in light of the decision of the Apex Court in Jiju Kuruvila v. Kunjujamma Mohan, (2013) 9 SCC 166 andn Mohd. Siddique v National Insurance; (2020) 3 SCC 57. For the aforesaid reasons, this Court finds that there is no palpable error for this Court to interfere in the appeal. The appeal is misconceived and is accordingly dismissed. The amount if any deposited before this Court shall be remitted to the tribunal to be released in favour of the claimants. Any short fall shall also be made good by the Insurance Company with up to date interest to the claimants within 60 days from today. Costs are made easy and the record of the tribunal be remitted to the tribunal forthwith. Order Date :- 10.7.2025 Harshita HARSHITA High Court of Judicature at Allahabad, Lucknow Bench

Appellant :- National Insurance Comp. Ltd. Throu. Div. Manager Lko. Respondent :- Smt. Fauziya And Ors. Counsel for Appellant :- Waquar Hashim Counsel for Respondent :- M.N. Iqbal,P K Rai Hon'ble Jaspreet Singh,J. Heard learned counsel for the appellant. None has put in appearance on behalf of the respondents at the time of call of case. The appeal is of the year, 2012. The record indicates that the service on the respondent is sufficient. The record of the claims tribunal is also present, hence, the appeal is ripe for hearing. The Court has proceeded to hear learned counsel for the Insurance Company in absence of the respondent. The instant appeal has been preferred under Section 173 of the Motor Vehicles Act, 1988 assailing the award dated 30.09.2011 passed in Claim Petition no.462 of 2010 whereby in death case a sum of Rs.7,77,500/- along with 6% interest has been awarded in favour of the claimant respondent nos.1 and 2. Learned counsel for the appellant while assailing the aforesaid award has raised a three pronged submission. (i) That the driver of the offending vehicle did not possess a valid and a subsisting driving licence. It is also urged that the insurance company attempted to get said licence verified from the licensing authority and as per the report of the surveyor of the insurance company the said licence was not found in the records of the R.T.O Nagaland i.e. the issuing authority. On the strength of the aforesaid report, it is urged that the driver of the said vehicle did not possess a valid driving licence and this being so the award could not be saddled on the insurance company. (ii) It is further urged that the amount of compensation which has been awarded is on the higher side in as much as the age as well as the income of the deceased was not verified. A wrong multiplier has been adopted, accordingly, the award needs to be set aside. (iii) It is also urged that the manner in which the accident occurred, it clearly indicates a case of contributory negligence of the deceased himself who was driving the motor cycle with three persons coupled with the fact that he did not even possess a driving licence and this in itself is a factor which clearly tilts the balance relating to contributory negligence against the motorcycle driver i.e the deceased and this aspect of the matter has also not been considered by the tribunal which has resulted in the award which deserves to be set aside. Since none has put in appearance, accordingly, considering the aforesaid submissions made by the learned counsel for the appellant, this Court has perused the material on record and finds that in so far as the first issue raised by the counsel for the appellant regarding the driving licence is concerned is apparently misconceived for more than one reasons. The record indicates that the driver of the offending vehicle had filed his original driving licence which was on record. This fact has also been taken note of by the tribunal in its judgment. That being so, it was the bounden duty of the insurance company to have brought some material on record to indicate that the said original licence was not valid, however, there is no such evidence. Submission and thrust made by the learned counsel for the appellant that the surveyor of the insurance company had visited R.T.O Nagaland who indicated that there was no record of the driving licence as filed, hence, it is doubtful as to whether the said driving licence was valid or not. Even this submission of learned counsel for the appellant is grossly misconceived for the reason that the report of the surveyor is on record as paper no.Ga 44 dated 17.06.2011. It is relevant to mention that the original driving licence of the driver Santosh Singh is bearing no.41495/TV/Z/09 whereas the report as filed by the Insurance Company is relating to licence no.11706/TV/D/09 which indicates that the Insurance Company had filed an incorrect report and the submission advanced by the learned counsel for the appellant Sri Waquar Hashim has either made submissions without verifying the record or to mislead the Court, either way it is not appreciated. Thus the submission is based on an incorrect premise. Once the insurance company got an incorrect licence verified, apparently, they could not have got the correct report therefore first submission of learned counsel for the appellant is turned down and deprecated. Considering the second submission regarding the amount as awarded, if seen, it would indicate that the tribunal has noticed that the income of the deceased could not be proved on the basis of contradictory statements given by the claimant witnesses but one fact which was not disputed was that the deceased was working at Sainik Filling Centre Kotwa road, Barabanki. It is in this context that the tribunal has taken the notional income of Rs.200/- per day and has taken monthly income to be Rs.6,000/-. As far as the age is concerned, it has been taken 35 years and though it is disputed by the learned counsel for the appellant but the fact remains that there is no contrary evidence which was led by the Insurance Company to cast a doubt on the information as well as the deposition of the witnesses who had appeared before the tribunal. The multiplier of 16 was taken by the tribunal to award of Rs.7,77,500/-. This is alleged to be on the higher side but this Court finds that there is nothing wrong with the amount which has been granted for more than one reason. The tribunal has erred in granting consortium of Rs.5000/- to the wife ignoring the fact that the deceased was survived by his daughter who also should have been granted the consortium for the loss of her father. The amount as granted in terms of loss of estate and funeral expenses is also on the much lower side. It is also to be noticed that grant of compensation is not mathematical or empirical formula upon which it is to be calculated rather it needs to be seen in the context of the facts and circumstances including evidence available on record. It is in this view where the amount of compensation has been granted on the lower side relating to certain heads and in case, if as per the counsel for the appellant, the multiplier is also to be reduced nevertheless it would still reach almost the same amount which has been granted. Thus, to that extent submission of learned counsel for the appellant does not find favour with this Court. The third issue raised by the counsel for the appellant regarding contributory negligence is also misconceived for more than one reasons. It is now too well settled to be disputed that the issue of contributory negligence is to be seen in context with the facts and circumstances. It has to be proved that the negligence of the driver was responsible for causing an accident and it is only, thereafter, can be ascertained as to what was the proportion to which he had contributed. In the instant case, the record would indicate that there is a clear averment of the claimant witness indicating that he was driving his motorcycle on the road whereas the offending truck had overtaken him on a road which was one way road on account of the fact that there was work of road widening going on and some part of the road had been closed. In such circumstances, the offending vehicle's driver ought to have been more cautious in over taking the vehicle on a single road. It is in this context that the deceased who was coming from the other side was dashed by the said vehicle. There is no contrary evidence to dispute this fact neither there was any evidence led by the owner/driver or the Insurance company to buttress the aforesaid submissions. Accordingly, this aspect of the matter also does not find favour with this Court and this Court is fortified in its view in light of the decision of the Apex Court in Jiju Kuruvila v. Kunjujamma Mohan, (2013) 9 SCC 166 andn Mohd. Siddique v National Insurance; (2020) 3 SCC 57. For the aforesaid reasons, this Court finds that there is no palpable error for this Court to interfere in the appeal. The appeal is misconceived and is accordingly dismissed. The amount if any deposited before this Court shall be remitted to the tribunal to be released in favour of the claimants. Any short fall shall also be made good by the Insurance Company with up to date interest to the claimants within 60 days from today. Costs are made easy and the record of the tribunal be remitted to the tribunal forthwith. Order Date :- 10.7.2025 Harshita HARSHITA High Court of Judicature at Allahabad, Lucknow Bench