Oriental Insurance Co. Ltd vs Munni Devi And Others

Pradeep Kumar Srivastava, J

Heard Shri Kuldip Shanker Amist, learned counsel for the appellant and Shri Sudhir Kumar Singh Parmar, learned counsel for the respondents.

This appeal has been filed by the Oriental Insurance Co. Ltd. against the award dated 20.12.2014 passed by Additional District Judge, Court No. 10/Motor Accident Claims Tribunal, Kanpur Nagar in MACP No. 819 of 2011 allowing total amount of compensation as Rs. 21,91,664/- along with interest at the rate of 6% per annum from the date of filing of the claim petition.

The said award has been challenged by the appellant on the ground that the claimant did not implead the driver who was necessary party in the case and a finding was given that the driver was driving the offending vehicle in rash and negligent way and because of that the accident occurred. The amount of compensation is very high and the Tribunal has committed error in calculating and not applying the principle of law while determining the quantum of compensation. The Tribunal has applied high multiplier of 11 while calculating the amount of award, which is not correct. The deceased was 53 years at the time of accident and his service remains only about 7 years and thereafter he was to retire, and therefore, a multiplier of 11 is not applied and a proportional deduction could have been made. Therefore, the amount awarded is illegal and arbitrary and is not sustainable under law and no compensation could be awarded to the claimant.

The factual matrix of the case is that an accident took place on 12.12.2010 on 07:30 p.m. by a bus U.P.14-B.T. 7092 which was coming from the side of Dadri and it was alleged that the driver of the bus was driving the bus rashly and negligently and coming from behind, he dashed constable Suresh Singh Yadav, who sustained injuries and died out of accident. The F.I.R. was lodged and the matter was investigated by police and thereafter a charge-sheet was submitted against the driver of the offending vehicle.

The appellant being Insurance Company contested the petition on all grounds such as on rash and negligent driving, the driver was not having a valid driving license at the time of incident nor there was valid registration certificate, permit and fitness of the offending vehicle. Moreover it was alleged that there was violation of the condition of insurance policy.

Following issues were framed by the Tribunal.

1- क्या याचि का के कथनानुसारर्घ टनाुद दिदनांक12.12.2010 को समय 7:30 बजे शाम स्थान सेक्टर37 के पास स्थिस्थत पेट्रोलपम्प अन्तर्ग त थाना नोयडा सेक्टर39, जिजला र्गौतम बुद्ध नर्गर में उस समय र्घदिटत हुई जबदिक मृतक कां0 सुरेन्द्र सिंसह यादव सरकारी काय  से जा रहा था तभी बस सं0 यपीू 14 बीटी-7092 के  ालक ने अपने वाहन को तेजी, लापरवाही एवं दिबना हान  ब ाए र्गलत साइड में लाकर सुरेन्द्र सिंसह को पीछे से टक्कर मार दी जिजससे इलाज हेतु ले जाते समय रास्ते में उसकीुहोमृत्यर्गयी?

2- क्या दर्घ टनाु में आलिलप्त वाहन बस0 संयपीू 14 बीटी- 7092 दिवपक्षी सं0 2 दिद ओरिरयन्टल इन्श्योरेंस 0कंलिल0 से बीदिमत था, यदिद हाँ तो प्रभाव?

3- क्या दर्घ टनाु के दिदनांक को उक्त बस के  ालक के पास वैध व प्रभावी ड्राइविंवर्ग लाइसेन्स था तथा वाहन के अन्य प्रपत्र वैध व प्रभावी थे?

4- क्या याचि नी कोई प्रचितकर राशिश प्राप्त करने की अचिधकारी है यदिद हाँ तो दिकतनी और दिकस दिवपक्षी से?

Documentary evidence was given from the side of claimant and PW-1 Smt. Munni Devi (claimant), PW-2 Satish Kumar, (eye witness), PW-3 Mohd. Abid (eye witness) and PW-4 Virendra Kumar Sharma were examined, the defendant did not examined any witnesses.

After perusing the evidence on record the learned tribunal passed the impugned judgment which is under challenge.

So far as issue nos. 2 and 3 are concerned, they relates to the insurance of the offending vehicle and with regard to driver having a valid license or not and on the basis of the documentary evidence on record these two issued have been concluded in favour of claimant and against the defendant. From the perusal of the finding of the learned tribunal, it appears that the offending vehicle was ensured with the appellant and the driver who was driving the said offending vehicle was having a valid driving license and the driving license was filed by the appellant himself.

So far as the issue with regard to rash and negligent driving is concerned, the learned counsel for the appellant has admitted that four witnesses have been examined from the side of the claimant and they all have supported the version of claim petition and have stated that because of the rash and negligent driving by the driver of the offending vehicle, the accident took place and in the accident, the husband of the petitioner-claimant suffered serious injuries and died. The statement of the witnesses is further supported by the police papers such as FIR, charge-sheet, site-map and postmortem report.

The learned counsel for the appellant has restricted his argument to two points, firstly, that the multiplier applied in this case was not correct as the age of the deceased at the time of incident was 53 years and he was likely to retire on attaining the age of 60 years this is within 7 years and therefore, the multiplier of 11 was not permissible. Secondly, he has submitted that the driver of the offending bus was a necessary party who was not impleaded by the claimant and therefore, the driver could not be examined who could explain how the accident took place.

So for as the impleadment of driver is concerned, no such plea was taken by the Insurance Company nor any issue appears to have been pressed before the learned Tribunal. In Oriental Insurance Co. Ltd. v. Meena Variyal AIR 2007 SC 1609, the Supreme Court expressed the view that when a car belonging to an owner is insured with the insurance company and it is being driven by a driver employed by the insured, when it meets with an accident, the primary liability under law for payment of compensation is that of the driver. Once the driver is liable, the owner of the vehicle becomes vicariously liable for payment of compensation. It is this vicarious liability of the owner that is indemnified by the insurance company. A third party for whose benefit the insurance is taken, is therefore entitled to show, when he moves under Section 166 of the Motor Vehicles Act, that the driver was negligent in driving the vehicle resulting in the accident; that the owner was vicariously liable and that the insurance company was bound to indemnify the owner and consequently, satisfy the award made. Therefore, under general principles, one would expect the driver to be impleaded before an adjudication is claimed under Section 166 of the Act as to whether a claimant before the Tribunal is entitled to compensation for an accident that has occurred due to alleged negligence of the driver.

In Machindranath Kernath Kasar v. D. S. Mylarappa AIR 2008 SC 2545, the Supreme Court, however, took the view that the driver of vehicle should be impleaded as party in proceeding though he may not be necessary party. The driver, therefore, may be a proper but not a necessary party though in case of several tortfeasors, all the tortfeasors are not to be impleaded and impleadment of one set of tortfeasors is sufficient. In motor accident cases, the concept of joint tortfeasors applies only in case of composite negligence of drivers of two vehicles colliding with each other on any side, and according to the settled principles under law of torts it is sufficient if only one set of such tortfeasors is impleaded and proceeded against. Amended Rule 204 of U.P. Motor Vehicle Rules, 2011, however at present, provides that in the application for compensation filed u/s 166 driver is a necessary party. It is pertinent to mention that the amended Rules, 2011 has been published in official gazette on 26.9.2019, whereas, the claim petition has been filed on 5.8.2011, much before when the amended Rules came into force. As such, this argument has got no force as no such objection or issue was raised before the Tribunal and moreover, it has not caused any prejudice to the appellant.

The next argument is with regards to application of multiplier. From the perusal of the finding on this aspect, it is clear that the learned tribunal has concluded that at the time of incident the deceased was just above 52 years and the multiplier in this age which has been provided in the Schedule of the Motor Vehicle Act. Moreover, in Sarla Verma Vs. Delhi Transport Corporation Ltd., AIR 2009 SC 3104 is from the age of 50 to 55 is 11 years. The Supreme Court has laid down as below:

"We therefore hold that the multiplier to be used should be as mentioned in column (4) of the Table above (prepared by applying Susamma Thomas, Trilok Chandra and Charlie), which starts with an operative multiplier of 18 (for the age groups of 15 to 20 and 21 to 25 years), reduced by one unit for every five years, that is M-17 for 26 to 30 years, M-16 for 31 to 35 years, M-15 for 36 to 40 years, M-14 for 41 to 45 years, and M-13 for 46 to 50 years, then reduced by two units for every five years, that is, M-11 for 51 to 55 years, M-9 for 56 to 60 years, M-7 for 61 to 65 years and M-5 for 66 to 70 years."

Therefore, in view of the multiplier system affirmed by the Supreme Court, it cannot be said that there is any illegality in applying the multiplier of 11 years. It is pertinent to mention that multiplier system has been provided under law law to maintain uniformity in determining quantum of compensation in order to avoid variation. It is also pertinent to mention that the admitted fact is that the deceased was employed in police department as constable and it appears from the impugned judgment that on the basis of his salary, the compensation has been calculated. The learned tribunal has also correctly reduced the compensation by 1/3 as permissible under Rules against the personal expenses of the deceased.

In Sarla Verma (supra), it has been held by the Supreme Court that a proceeding before the Tribunal is in the nature of inquiry in which a very few thing is required to be established. The Court observed:

"Basically only three facts need to be established by the claimants for assessing compensation in the case of death: (a) age of the deceased; (b) income of the deceased; and the (c) the number of dependents. The issues to be determined by the Tribunal to arrive at the loss of dependency are (i) additions/deductions to be made for arriving at the income; (ii) the deduction to be made towards the personal living expenses of the deceased; and (iii) the multiplier to be applied with reference of the age of the deceased."

From the perusal of the impugned judgment, it is clear that the learned Tribunal has considered all the aspects as laid down by Sarla Verma (supra) and has given finding based on the evidence on record. I do not find any perversity or any illegality in the impugned judgment.

In view of the above discussions, I find no force in this appeal and the appeal is liable to be dismissed.

The appeal is dismissed.

The office is directed to send a copy of this judgment to the Court concerned for information and necessary compliance.