Noor Jahan Khatoon Vs. Kailash Prasad Agarwal and anr. - Court Judgment

Excerpt:
motor vehicles act, 1939 - sections 110a and 95(2)(a)--death of scooterist in accident caused by truck of carriage of goods--award of rs. 48,000/- granted by tribunal--enhanced after considering income certificate of deceased to rs. 75,000/--out of this amount insurance company is liable to pay rs. 50,000/- in view of terms and conditions of insurance policy--rest of rs. 25,000/- be paid by owner of truck--tribunal's award thus, modified accordingly. - - 500/-.i am of the opinion that there was no strong reason for disbelieving ext. loknath prasad, j.1. this appeal is directed against the judgment dated 7th march, 1990 passed by 7th addl. distt. judge-cum-motor vehicles claims tribunal, dhanbad, in title (m.v.) suit no. 20/86 thereby and thereunder the appellant-claimant was granted compensation to the tune of rs. 48,000/- to be realised from the new india insurance co., the insurer of the vehicle.2. the fact, in short, for the purpose of this appeal is that the appellant-claimant's husband asgar ali aged about 35 years and was working as a turner in a private company known as shakti cast pvt. ltd. was going on scooter on 7.10.85 at about 2.30 p.m. at dhanbad govindpur road, when truck no. bho 9767 came with great speed and dashed against the scooter, due to that asgar ali sustained serious injuries and he died in.....

Judgment:

Loknath Prasad, J.

1. This appeal is directed against the judgment dated 7th March, 1990 passed by 7th Addl. Distt. Judge-cum-Motor Vehicles Claims Tribunal, Dhanbad, in Title (M.V.) Suit No. 20/86 thereby and thereunder the appellant-claimant was granted compensation to the tune of Rs. 48,000/- to be realised from the New India Insurance Co., the insurer of the vehicle.

2. The fact, in short, for the purpose of this appeal is that the appellant-claimant's husband Asgar Ali aged about 35 years and was working as a turner in a private company known as Shakti Cast Pvt. Ltd. was going on scooter on 7.10.85 at about 2.30 p.m. at Dhanbad Govindpur Road, when truck No. BHO 9767 came with great speed and dashed against the scooter, due to that Asgar Ali sustained serious injuries and he died in the Patliputra Nursing Home on the next day. For this accident, a criminal case was also instituted against the driver of the truck and subsequently this claim case was preferred claiming compensation to the tune of Rs. 4,17,600/- from the defendants. The respondent Kailash Prasad Agarwal who was defendant No. 1 in the suit contested the suit by filing a written statement through which it was submitted that the claim or compensation is highly exaggerated and further there was negligence on the part of the scooter driver also and in any view or the matter, the truck bearing No. BHO 9767 belonging to this respondent was duly insured with the other respondent Insurance company and so the Insurance company is liable to compensate and pay the compensation amount.

3. The Insurance company also contested the suit by filing a written statement and mainly a plea was taken that the liability of the Insurance company is limited to the extent or terms and conditions stipulated in the Insurance Policy.

4. The trial Court after scrutinising the evidence adduced on behalf of the claimant-plaintiff came to the conclusion that monthly income of the deceased was only Rs. 500/- from that 50% of the Income was deducted by way of incidental expenses and the annual income was multiplied by 16 times and thus the trial Court recorded a finding that the claimant is entitled to realise Rs. 48,000/- as compensation for the death of her husband in this accident from the Insurance Company, that is respondent No. 2.

5. The appellant-claimant preferred this appeal mainly for the reason that the amount of compensation as awarded by the trial Court is extremely low and not on the basis of the evidence on record. In this appeal only respondent No. 2 contested but not filed any counter affidavit and respondent No. 1 Kailash Pd. Agarwal, the owner of the truck had neither entered appearance nor contested the appeal inspite of proper service of notice by publication in newspaper.

6. Admittedly an accident took place on 17.10.85 at Dhanbad-Gobindpur road and a truck No. BHO 9767 was involved in the accident and due to negligence on the part of the driver, this accident took place; as a result of the same, the husband of the appellant Asgar Ali died on the next day of the accident. In that view of the matter, the claimant being the wife of Asgar Ali is entitled for the compensation.

7. Now the only question for consideration is what will be the quantum of compensation?

8. It is the case of the appellant in the Court below that her husband was working in a private company, that is, Shakti Cast Ltd. as a turner and he was getting monthly salary of Rs. 900/- or so. In support of this contention only a certificate of the company was proved which indicates that the deceased was getting salary of Rs. 888/- per month including house rent allowance. Ext. 1 is the certificate of the employer. The trial court disbelieved the certificate and came to the conclusion that the monthly income of the deceased was only Rs. 500/-. I am of the opinion that there was no strong reason for disbelieving Ext. 1. However, Ext. 1 is accepted to be true only indicate that the salary of the deceased was Rs. 573/- and he was getting D.A. @ Rs. 290A So, it can be said that the salary of the deceased was about 750/- per month. Thus the annual salary will be to the tune of Rs. 9000/- and out of this amount 1/3rd is to be deducted towards incidental and other expenses. So total dependancy of the family of the deceased comes to Rs. 6000/- per annum. The deceased was aged about 35 years or so. Thus this amount is to be multiplied by 14 which comes to Rs. 84000/- and keeping in view that the wife is the only claimant and a lump sum payment is to be made. So it can be said that Rs. 75000/- may be the amount of compensation which the claimant-wire is entitled to receive.

9. Now the question for consideration is to what extent the Insurance Company, that is respondent No. 2 is liable to pay the compensation amount and to indemnify the owner. It was contended on behalf of respondent No. 2 that in this case a truck meant for carriage of goods was involved in the accident and admittedly the truck was insured and the Insurance paper was also produced, that is, Ext. A. So in view of the terms and condition of the Insurance and also in view or provision or Section 95(2)(a) of the Act, the liability of the Insurance Company in such situation is limited only up to Rs. 50,000/- and beyond that amount, the appellant claimant is entitled to received from the owner of the truck, that is respondent No. 1. In support or this contention learned lawyer for the appellant has relied upon a Division Bench case or our own High Court Reported in 1983 ACJ 327 (Shobha Jain and Anr. v. Bihar State Tribal Co-operative Development Corporation Ltd.) Thus from the principle laid down in Shobha Jain and in view of the terms and condition of the Insurance, that is Ext. A the Insurance company, that is respondent No. 2 is liable to pay compensation in the instant case only up to Rs. 50,000/- under the circumstance, it is hereby ordered that the appellant claimant is entitled to realize compensation in all Rs. 75,000/- out or that the claimant is entitled to realizes Rs. 50,000/-(fifty thousands less the amount already paid by the Insurance Company. From the Insurance Company, that is respondent No. 2 and the balance amount of Rs. 25,000/- is to be realized from owner of the vehicle, that is, respondent No. 1. It is further ordered that the claimant will be entitled to realize interest from the Insurance company and the truck-owner in respect of the amount to be paid by them 12% per annum from the date of application.

10. In the result, this appeal is allowed in part in the manner indicated above, but without any costs.