| SooperKanoon Citation | sooperkanoon.com/137030 |
| Subject | ;Motor Vehicles |
| Court | Patna High Court |
| Decided On | Sep-14-1999 |
| Case Number | Misc. Appeal No. 164 of 1994 (R) |
| Judge | P.K. Deb, J. |
| Appellant | New India Assurance Company Limited |
| Respondent | Savitri Devi and ors. |
| Disposition | Appeal Dismissed |
P.K. Deb, J.
1. The judgment award dated 11.5.1994 passed by the Motor Accident Claims Tribunal-cum-3rd Addl. District Judge, Chaibasa in Compensation Case No. 54 of 1990 is the subject matter of this appeal.
2. One Arvind Kumar while returning from Rajendra Vidyalaya at Sakchi to his residence at Adityapur on 16.3.1990 at about 9.45 a.m. on Rajdoot Motor Cycle No. BEP-678 met with an accident due to dash by a truck No. BHX-7324 belonging to the respondent No. 3 being driven by the respondent No. 4. Arvind Kumar was driving the motor cycle while two others namely, Sumeet Kumar and Amit Kumari were pillion riders. All of them fell down from the motor cycle and sustained serious injuries. All the three injured were removed to Tata Main Hospital, but Arvind Kumar succumbed to his injuries within 10-15 minutes of his reaching to hospital and some how Amit Kumari and Sumeet survived The driver of the truck No. BHX-7324 fled away with the truck. A police case was registered against the driver and owner of the truck and it was found that the truck was insured with the appellant, namely, M/s. New India Assurance Company Ltd. Jamshedpur under Policy No. 31520101106396. At the time of occurrence, deceased Arvind Kumar was serving in TAYO Company Jamshedpur as a Technical trainee and he was getting Rs. 750/- per month in the first year of his training. It is further alleged that in the second year of training he would have received Rs. 1000/- per month and after completion of the training he would have been absorbed in the TAYO Company with a lucrative career and he would have starting his service at a salary of Rs. 2500/- per month with all other facilities. It is also stated that out of the allowance of Rs. 750/- per month, the deceased was contributing Rs. 500/- per month to the claimants, who were none but the father and mother of the deceased, who was unmarried at the time of accident.
3. Owner of the truck and the Insurance Company filed written statement separately contending, inter alia, that the truck in question was not an offending one and no accident took place due to negligence of the truck driver rather due to disbalance of the motor cycle, it dashed against a poll of bridge and as such the accident took place. It is also stated that the deceased Arvind Kumar was not having driving licence and he was driving the motor cycle with two pillion riders violating the Motor Accident Rules and as such the whole accident occurred due to the negligence and violation of the Motor Vehicle Rules by the deceased and as such the claimants are not entitled to any compensation for the death of deceased Arvind Kumar.
4. At the time of trial, owner of the vehicle did not contest and it was solely contested by the Insurance Company, the appellant. From the side of the claimants, several witnesses have been examined including the father of the deceased and Summet Kumar, one of the eye witness of the occurrence, who was a pillion rider in the motor cycle at the time of occurrence. None of the Opposite parties adduced evidence to support their case that the accident occurred due to negligence of the driving of the motor cycle.
5. After scrutinising the evidence on record, learned court below found that the accident occurred due to the negligence of the truck driver and held that the claimants were entitled to compensation of a sum of Rs. 85.000/- together with interest at the rate of 12 per cent per annum from the date of filing of the application, till the date of final payment and also award was passed towards Advocate fee of Rs. 200/- and advocate clerk of Rs.. 10/-. The interim compensation allowed earlier for sum of Rs. 25,000/- was deducted from the final compensation assessed.
6. Mr. M.Y. Eqbal, appearing for and on behalf of the appellant-Insurance Company, attacked the impugned judgment and award on the following points:
(A) The claim case was bad for non joinder of the parties namely, the Insurance Company of the Motor Cycle which was involved in the accident;
(B) There was no finding regarding contributory negligence of both the vehicles involved in the accident ;
(C) The Motor cycle which was being driven by the deceased was in violation of the Motor Vehicle Rules and the terms and conditions of the Insurance Policy and as such no compensation is payable to the claimants in the present case ;
(D) The compensation assessed in highly excessive and devoid of the principles as laid down by the Supreme Court as reported in General Manager, Kerala State Road Transport Corporation Trivendrum v. Mrs. Susamma Thomas and Ors. : AIR1994SC1631 .
7. Mr. P.C. Roy, appearing for and on behalf of the claimants-respondents has supported the impugned judgment averting all the submissions made by Mr. Eqbal.
8. Let me discuss the points raised by the appellant's counsel point by point on the materials on record. On the first point raised by Mr. Eqbal, it could be found that although the Insurance Company and the owner of the offending truck took the plea that the accident occurred due to the negligence of the motor cycle which was driven by the deceased and they had given a specific case as to how the accident occurred due to the negligence of the deceased himself but no evidence have been adduced from the side of the defence to substantiate their case. From the evidence adduced from the side of the claimants, it could be found that the occurrence took place due to the rash and negligence driving of the offending truck. In that case, the question does not arise for non joinder of the Insurance Company of the motor cycle when no fault could be found in the driving of the motor cycle then the Insurance Company with whom the motor cycle was insured, is not a necessary party and the question of non joinder does not arise.
9. Similarly is the finding regarding contributory negligence. Nowhere it was pressed from the side of the defence before the Claims Tribunal that the accident occurred due to the contributory negligence of the motor cycle and the truck, rather it was a specific case in the written statement of the owner and that of the Insurance Company that the accident occurred due to the sole negligence of the motor cycle. From the evidence also, it could be found that there was any contribution from the side of the motor cycle in occurring of the accident rather evidence adduced from the side of the claimants, as is discussed in the impugned judgment clearly shows that the accident occurred due to the rash and negligent driving of the truck and following the principles of Res Ispa Loquitor, the truck driver was found to be negligent due to rash driving of the truck which resulted in accident. So, there is no force in the submission of Mr. Eqbal on this point.
10. On the third point, it has been argued by Mr. Eqbal that at the time of accident, Arvind Kumar was driving the vehicle with two pillion riders which is against the Motor Vehicle Rules and as such there cannot be any question of compensation in favour of the claimants as deceased himself was responsible for the accident because of the violation of Motor Vehicle Rules.
11. Mr. P.C. Roy, appearing for and on behalf of the claimants-respondents by referring to a Single Bench judgment of this Court as reported in 1990 B.L.T. page-125 (Oriental Fire and General Insurance Co, Ltd. Ranchi v. Sudha Devi and Ors..) has contended that the violation of the provisions of Motor Vehicles Act have nothing to do with the contributory negligence unless the vehicle is driven in violation of Traffic Regulation, the indemnifier of the Insurance Company can be barred only under the specific provisions as laid down in Section 149(2) of the Motor Vehicles Act (Old Section 96(2)). None of those conditions as mentioned therein include overloading in a motor cycle. Moreover, the Insurers liability against the third party risk has been discussed with all its pros and cons in my recently passed order dated 12.2.1996 in Misc. Appeal No. 280 of 1994(R) with Misc. Appeal No. 278 of 1994(R), and the present case is totally covered with that decision.
12. Regarding the quantum of compensation, it has been argued by Mr. Eqbal that when Rs. 500/- has been determined to be the monthly dependency of the claimants then by the principles laid down by the Hon'ble Supreme Court, the amount of compensation can at best at awarded to Rs.50.000/-, which would fetch the same amount of dependency per month, if deposited in fixed term with Nationalised Banks.
13. In the present case, the monthly dependency was determined at Rs. 500/- per month on the date of accident but the deceased was only 22 years of old at the time of accident and his whole career was left out and he has a bright career as depicted in the claim application and also in the evidence adduced from the side of the claimants. His future prospects in the service and more contribution to the family in future has not at all been considered by the learned court below, in the light of the observations made by their Lordships in the judgment as reported in AIR 1994 S.C. page-1631. Considering the future prospectus, the minimum monthly dependency can be determined at Rs.850/-per month and by the same principle the appropriate multiplier to the minimum of 9, the amount of compensation comes up to more than Rs. 90,000/, but it is found that only Rs. 85,000/- has been awarded in favour of the claimants. I do not find the same to be excessive or exorbitant in any manner whatsoever, considering the age and the future prospects of the deceased. I do not find any reason to interfere with the quantum of compensation awarded. The interest has also been awarded properly.
14. In the result, the appeal is dismissed, having no force in it with cost of Rs. 500/- against the appellant.