Shriram General Insurance Co.Ltd. vs Dalveer Singh & Ors.

This is an appeal by the Insurance Company against the award dated 16.4.2015 passed by the Third Motor Accident Claims Tribunal, Shivpuri, in Claim Case No.166/2011, whereby the Claims Tribunal has awarded a sum of Rs.6,15,000/- on account of death of the claimant.

The main ground for challenging the award is that the number of the offending vehicle was not mentioned in the FIR and was introduced subsequently. The second ground is that learned Claims Tribunal erred in adding 50% of the income of the deceased towards loss of future income while computing the award amount, whereas according to the appellant this should not have been done by the Claims Tribunal.

Learned counsel for the appellant has placed reliance on three decisions of this Court namely one in the case of National Insurance Company Ltd. Vs. Smt. Setubai and Ors. as reported in I.L.R. (2008) M.P. 2367 wherein it has been held that in case police filed charge-sheet that involvement of the truck was not found and bus had caused the accident, then it was the

responsibility of the claimants to examine the IO to prove that on what particular evidence he recorded a finding that truck was not involved in the accident and in fact the bus has caused the accident. It has been held that non-examination of the IO and first informant would give a dent to the claim. Similarly, reliance has been placed on the judgment of this Court in the case of Oriental Insurance Co.Ltd. Vs. Mahila Kalawati and others as reported in 2014(1) ACCD 34(MP) wherein it has been held that when Insurance Company filed an appeal disputing its liability to pay compensation on the ground of non-involvement of the vehicle in motor accidents claims case, then the burden shifts on the claimant to prove the alleged accident to have been caused by the alleged offending vehicle and in absence of such evidence on record the award of the Tribunal is liable to be set aside. Learned counsel for the appellant has also placed reliance on the judgment of this Court in the case of Reena (Smt.) vs. Gajendra Singh & Ors . as reported in MACD 2008(2) (M.P.) 827 where the ratio of the judgment is that if FIR and MLC report did not disclose involvement of the vehicle in accident, it cannot be said that the said vehicle as implicated in the accident was involved and further in absence of reliable evidence on record the involvement of the vehicle in question being doubtful, claim is not payable by the Insurance Company.

In this backdrop and also the submissions of learned counsel for the appellant that future prospect of the deceased has wrongly been taken into consideration overlooking the fact that he was not in a stable job, therefore, the ratio in the case of Sarla Verma Vs. Delhi Transport Corporation and others as reported in (2009) 6 SCC 121 will not be applicable, the facts and evidence is to be seen to decide whether the offending vehicle as implicated in the accident was involved in the accident and secondly if it was involved then whether the Claims Tribunal erred in adding 50% income of the deceased towards future income and making computation of the compensation.

As per the claimants on 15.1.2011 deceased Major Singh and Prashant Chaubey were travelling on Hero Honda motorcycle from Shivpuri to Kolaras when at about 9.30 p.m. on AB road near Kolaras Public School a truck No.MP09 KD 4320 coming from the side of Kolaras and being rashly and negligently driven, hit the motorcycle causing serious head injuries to Major Singh and dent to the motorcycle, as a result Major Singh died on the spot and pillion rider Prashant Chaubey sustained certain injuries. It is also not in dispute that FIR was lodged by Prashant Chaubey at police Station, Kolaras registering Crime No.14/11 under the provisions of Sections 297, 337, 304-A of IPC and deceased Major Singh was subjected to postmortem where it has come on record that the deceased died because of accidental injuries. FIR (Ex.P/2) is on record in which it is mentioned that the accident had taken place by a long Container. It is further mentioned that Container was of white colour and the pillion rider could not take glimpse of the number of the said white Container which had hit the motorcycle causing unfortunate death of driver Major Singh. Police had filed final report in which it has mentioned the number of Container as MP09 HD 4320 of white colour. The source of this information about the number of the offending vehicle is Satnam Singh (PW-3) who has categorically deposed that on 15.1.2011 he was coming from Ashoknagar to Khonkar when close to KPS School near Dhaba of Dharmendra Ojha he had seen a motorcycle being hit by a Trolla-truck, and therefore, he had followed that truck and seen its number as has been mentioned in the final report. He though admitted that he had not reported the matter to the police, but denied the suggestion that accident had not taken by the offending vehicle MP09 KD 4320. In cross- examination, Satnam Singh (PW-3) has categorically denied that deceased Major Singh was his relative. He also denied the suggestion that he had not given the number of the offending vehicle to the police. He also informed that he had confided about the accident in Dalveer Singh and Dalveer Singh had informed

the police about him (Satnam Singh), as a result when police had called him, he has given the number of the offending vehicle to the police. He has denied the suggestion that he had never informed the number of the truck to either Dalveer Singh or the police.

As far as income of the deceased is concerned, Himanshu Bhargava (PW-5), Manager of Bhargava Trading Company, was examined and he had categorically deposed that Major Singh was paid wages to the tune of Rs.8,250/- per month from the Company where he was working as a trained mechanic who had received training from Yamaha Company. This evidence has remain unrebutted in regard to the income of the deceased. It is also apparent that appellant/Insurance Company had not examined any witness from its side. It had neither examined the investigator, nor owner of Dhaba or any person having establishment in the proximate locality of place of accident to rebut the factum of accident, non-involvement of the offending vehicle etc., on the contrary, Investigating Officer had submitted final report which matches the description of the vehicle as is mentioned in the FIR so also seizure memo vide which offending vehicle was seized. It was admittedly handed over to its owner on Supurdginama. Ex.P./15 is the communication from Dalveer Singh to the SHO, Kolaras and there are statements under Section 161 of Cr.P.C. of Dharmendra Ojha. He also corroborated the colour of the vehicle. Statement of Satnam Singh was taken by the police and he also corroborated the claimants contention that accident had taken place from the insured vehicle. Insured vehicle was subjected to mechanical testing. Insurance Company did not call the driver and the owner of the offending vehicle for testifying the fact as to whether accident had taken place from their vehicle or not.

In view of such evidence on record, it cannot be said that the factum of accident from the offending vehicle can be denied merely on the basis of delay in intimating the number of the offending vehicle. This aspect has been dealt by the Claims Tribunal and Claims Tribunal has found the involvement of the offending vehicle in the accident, and therefore, fastened the liability on the Insurance Company. As far as addition of income for future prospects is concerned, rightly 50% of the income has been added looking to the future prospects inasmuch as the deceased was a trained mechanic and his training card from Yamaha company is already on record as Ex.P/9, therefore, a trained mechanic coming in the category of a skilled labourer cannot be said to be in seasonal employment, and therefore, the ratio of the case of Sarla Verma (supra) for computing the compensation has been rightly applied and the claim amount has been rightly computed by the Claims Tribunal which does not call for any interference in this appeal. Thus, the appeal fails and is dismissed.