National Insurance Company Ltd. vs Harish Kumar and Another

Prakash Shrivastava, J.

Smt. S. Sharma, learned Counsel for the Appellant.

Shri K. K. Kaushal learned Counsel for the Respondent No. 1.

Appeal is heard finally with the consent of learned Counsel appearing for the parties.

This appeal u/s 173 of the Motor Vehicles Act, 1988 (for short hereinafter referred to as "the Act") has been filed by the Insurance Company against the award dated 27-4-2004, passed by 10th Member, Motor Accident Claims Tribunal, Indore (M. P.) in Claim Case No. 1/2003.

The Respondent No. 1 had filed the claim petition stating that on 14-9-2002 Dwarka Prasad was going from Nagpur to Hyderabad as a driver of Truck No. M. P. 09 v. 2003 to transport the goods; when the unknown assailants had fired on him and he had died in the accident. Consequently the Respondent No. 1, who is the brother of the deceased, had filed claim petition before the Tribunal. The Tribunal found that the claim of the Respondent No. 1 was covered u/s 163-A of the Motor Vehicles Act, 1988 and the Tribunal, therefore, awarded as sum of Rs. 2,72,000/- along with the interest at the rate of 6% from the date of application till realization.

Learned Counsel appearing for the Appellant/Insurance Company submits that the death was caused due to the bullet injuries, therefore, it is not a case of motor accident and the claim has wrongly been entertained by the Tribunal. She further submits that the Respondent No. 1 is the brother of the deceased and at his instance the claim petition was not maintainable.

Learned Counsel appearing for the Respondent No. 1 submitted that no error has been committed by the Tribunal in entertaining the claim petition and in passing the award in favour of the Respondent No. 1. Pressing the cross-objection, he submitted that the amount which has been awarded by the Tribunal is on the lower side and the same deserves to be enhanced.

I have heard learned Counsel for the parties and perused the record.

The record indicates that at the time of accident the deceased was driving the Truck No. M.P.09 v. 2003 and the accident had taken place since some unknown person had fired bullets on him. The evidence on record establishes that the Dwarika Prasad had died while driving the truck. The FIR (Ex.P/6) indicates that Dwarika Prasad was found dead on the driver seat of truck after the accident. The truck had dashed with a tree. He had also received bullet injuries. Thus, considering the evidence on record the Tribunal has rightly found that it is a case of road motor accident, which is covered by Section 163-A of the Act. The view taken by the Tribunal is duly supported by the judgment of Supreme Court in the matter of Smt. Rita Devi and Others Vs. New India Assurance Co. Ltd. and Another,

So far as the issue of maintainability of the claim at the instance of the Respondent No. 1 is concerned, the deceased was bachelor at the time of the accident and Respondent No. 1 is brother of the deceased. The Respondent No. 1 Harish Kumar has stated before the Tribunal that his family was also dependent upon the income of the deceased and that the deceased was living jointly with the Respondent No. 1. A.W.2 Ashish, who is the nephew of the deceased, has stated that the deceased and the family of Respondent No. 1 were living jointly and the deceased was contributing in the family of the Respondent No. 1. Thus, the . evidence on record clearly establishes that the Respondent No. 1 was dependent on the deceased. The claim at the instance of the brother of the deceased has been held to be maintainable by the Division Bench judgment of this Court in the matter of Mahant Shyamdas Guru Mohandas Vs. Lalaram M. Kori and Others, and also by the Gujarat High Court in the matter of New India Assurance Co. Ltd. Vs. Ashwin Vrajlal Rajgor, Newphew of Late Kantilal D. Rajgor, and the Supreme Court in the matter of Gujarat State Road Transport Corporation, Ahmedabad Vs. Ramanbhai Prabhatbhai and Another, Thus, no error has been committed by the Tribunal in holding that the Respondent No. 1 is the dependent of the deceased and in entertaining the application u/s 163-A of the Act at the instance of the Respondent No. 1.

Learned Counsel appearing for the Appellant has placed reliance on Division Bench judgment of this Court in the matter of Champabai and Others Vs. Bajpai Road Lines and Others, but the said judgment will not be applicable in the instant case, since in that case the major sons were not dependent on the deceased, therefore they were not held entitled but in the present case evidence establishes that the Respondent No. 1 was dependent of the deceased.

So far as the cross-objection of the Respondent No. 1 is concerned, the learned Counsel appearing for the Respondent No. 1 has submitted that 1/2 of the income of the deceased deduction towards the self expenses is improper and the Tribunal ought to have deducted l/3rd towards the self expenses. Such a submission of learned Counsel for the Respondent No. 1 cannot be accepted since the deceased was bachelor at the time of accident and in view of the Supreme Court judgment in the matter of Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, , in the case of bachelor 1/2 is required to be deducted towards self expenses. Learned Counsel for Respondent No. 1 has further submitted that the multiplier of 15 applied by the Tribunal is incorrect since the age of the deceased was 35 years but this submission cannot be accepted because the Tribunal has applied the multiplier keeping in view the age of the deceased and the age of the Respondent No. 1. Thus, I do not find any error in the amount which has been awarded by the Tribunal.

In view of the aforesaid analysis, the appeal of the Insurance Company as well as the cross objection of the Respondent No. 1 claimant is rejected.