United India Insurance Co. Ltd. vs Ravindra Kumar and others

Devi Prasad Singh and Dr. Satish Chandra, JJ.—Present appeal u/s 173 of the Motor Vehicles Act has been preferred against the impugned award dated 13.11.2009, passed by Motor Accident Claims Tribunal/Additional District Judge, Court No. 4 Faizabad in Motor Accident Claim Petition No. 171 of 2008.

In brief, on 16.7.2006 at about 10.00 p.m., the brother of claimant No. 1 Rajendra Kumar was returning to his home by bicycle and when he reached to the east of village Kotsarai and near culvert on Lucknow-Faizabad Highway, a maruti car bearing registration No. B.L.F. 447 driven by its driver rashly and negligently, coming from reverse direction, caused a head-on-collision with the bicyclist Rajendra Kumar, in consequence thereof, he succumbed to injuries at the spot. Peoples present at the scene of occurrence noted the number of maruti car which came at halt at the same place and later on fled away. The information was communicated to the local police on 17.7.2006 and F.I.R. was also lodged at Case Crime No. 1119 of 2006 under Sections 279 and 304A, I.P.C. at P.S. Cantt. An application on 5.8.2006 was moved at Police Station Cantt. that the accident was caused by maruti car No. B.L.F.-447. Since Police had not taken any action, another application was moved on 25.11.2006 to Senior Superintendent of Police Faizabad to take action against the owner of maruti car.

The deceased was a painter having alleged to get wages @ 150 per day. His average monthly income comes to Rs. 5,000 per month. After the death, daughter of the deceased Km. Kiran, who is minor, had preferred a claim petition under the guardianship of claimant No. 1 Sri Ravindra Kumar, who happens to be brother of deceased and uncle of Km. Kiran. The Tribunal had framed the following issues :

Whether on 16.7.2006 at 10 p.m. to the east of Kotsarai and to the west of the culvert the driver of maruti car No. B.L.F.-0447 driving it rashly and negligently collided the car against Rajendra Kumar, brother of claimant No. 1 and the father of claimant No. 2 causing serious injuries to him and he died on spot due to the injuries caused in the accident ?

Whether the driver of maruti car No. B.L.F.-0447 had valid driving licence effective on 16.7.2006 ?

Whether maruti car No. B.L.F.-0447 was insured with opposite party No. 1 United India Insurance Co. Ltd. on 16.7.2006. If yes, its effect ?

To what amount of compensation and from which of the party the claimants are entitled to get?

On behalf of the claimant No. 1, Ravindra Kumar himself appeared as C.P.W.1 and one Prem Nath Chaurasiya, who is an eye-witness of the accident, appeared as C.P.W. 2.

Before the Tribunal, carbon copy of the chik F.I.R. 5C1/2 was filed alongwith the photocopy of the post-mortem report of the deceased. The carbon copy of the application submitted at the Police Station on 5.8.2006 and 25.11.2006 are filed as Exhibit 23C1/2 and 23C1/3.

On behalf of the respondents, attested copy of the registration certificate of the vehicle of maruti car being registration No. B.L.F. 0447 was filed on 20.1.2006, which indicates with regard to payment of one time tax. The attested copy of the valid insurance policy effective from 25.1.2006 to 24.1.2007 was also filed. The copy of the driving licence effective from 7.10.1997 to 6.10.2017 was also filed by the respondents before the Tribunal.

While deciding the question with regard to factum of accident, the Tribunal has relied upon the statement of the C.P.W. 2, who seems to be an independent eye-witness and recorded a finding that the accident was caused by the vehicle in question. The vehicle was driven rashly and negligently. Sri Prem Nath Chaurasiya, C.P.W. 2 stated on oath and supported the factum of accident, which took place on 16.7.2006. It was stated by Sri Prem Nath Chaurasiya, C.P.W. 2 that he was going to Faizabad from his shop at Rouza Gaon on his motorcycle and when he reached to the east of Kotsarai on the highway, he has seen that maruti car was overtaking and going to extreme direction, resulting into head-on-collision with the bicycle, coming from Faizabad side. After collision, the vehicle stopped for a moment and thereafter fled away speedily to the eastern direction. He noted the number of the vehicle as B.L.F.-0447.

Relying upon the evidence led by the claimant, the Tribunal has decided the issue No. 1 in favour of the claimant and against the appellant-respondent.

Issues No. 2 and 3 were also decided with the finding that the driver of the maruti car was having valid driving licence effective from 16.7.2006 and the vehicle was insured by the appellant-United India Insurance Company.

Admittedly, the age of the deceased was 30 years, supported by post-mortem report. The income of the deceased as claimed by the respondent-claimant was Rs. 5,000 per month, but claimant-respondent has failed to establish about the place where he was working. Accordingly, the Tribunal assessed the income @ Rs. 3,000 per month, which does not seem to be excessive more so, in view of law settled by Hon''ble Supreme Court in the case in Laxmi Devi and others v. Mohammad Tabbar and another 2008 (2) TAC 394 : 2008 (3) AWC 2346 (SC).

Considering the facts and circumstances of the case, the Tribunal deducted l/3rd from the total income of Rs. 3,000 per month in terms of second schedule of Motor Vehicles Act and recorded a finding that the dependency of claimant No. 2 comes to Rs. 2,000 per month and annual dependency comes to Rs. 24,000. The Tribunal keeping in view the age of the deceased between 30 to 35 years, applied the multiplier of 17 and awarded the compensation of Rs. 4,08.000. In addition to it, Rs. 2,000 has also been awarded as funeral expenses. Thus, total compensation comes to Rs. 4,10,000.

While assailing the impugned award, Sri U. P. S. Kushwaha, raised twofold of arguments. Firstly, Ravindra Kumar could not file the claim petition since the second wife is alive and another argument is that the case is based on no evidence, hence no compensation could have been awarded.

In response to argument advanced by Sri U. P. S. Kushwaha, it has been submitted by Sri Shakeel Ahmad Ansari, learned counsel for the respondents that though mother is the natural guardian, but Smt. Krishna, who happens to be second wife of deceased, immediately after the accident, married to one other person namely Indradev of village Gokula, as stated in the affidavit filed in this Court. He further submits that before the Tribunal, while filing the written statement, the appellant nowhere pleaded to challenge the right of claimant No. 1 to file the claim petition. Further, submission of the learned counsel for the respondents is that the Tribunal has awarded entire compensation to Km. Kiran, who happens to be minor daughter of deceased. Accordingly, it has been stated by the counsel for the respondents that being minor and claimant No. 1 being real brother of the deceased, the claim petition could have been filed by the claimant No. 1 as next friend before the Tribunal. Further, submission of the respondents counsel is that ordinarily, the CPC and Evidence Act are not applicable in the Motor Accident Claim Cases and petition could have been filed by Sri Ravindra Kumar.

Keeping in view the facts and circumstances of the case, more so, when the wife immediately after the accident had married to other person, a minor child cannot be deprived from the compensation as provided in the statutory provision only because the mother remarried to some other person. It is also submitted that Smt. Krishna was the second wife of deceased having no child and immediately after the accident married to some other person.

Original record of the lower court is before us. Sri U. P. S. Kushwaha, learned counsel for the appellant-insurance company could not invite attention of the Court to any pleading on record, which may indicate that specific plea was taken against Sri Ravindra Kumar, claimant No. 1 with regard to his competence to prefer the claim petition. It is also nowhere stated in the written statement by the appellant that the mother survives and she is the natural guardian and being the natural guardian, claim petition could not have been filed by Sri Ravindra Kumar as next friend of minor Km. Kiran.

Now it is very well-settled law that Court cannot travel beyond the pleadings on record and issue should be decided by the Tribunal or this Court on the basis of pleading on record. Neither in the written statement nor while filing the present appeal before this Court, specific plea has been taken that Smt. Krishna had not married immediately after the accident and she remained as natural mother and guardian of Km. Kiran.

Mere mentioning in paragraph No. 10 of the present appeal, that it has been stated by the appellant that claim petition was not maintainable since Smt. Krishna was not impleaded as a party shall not suffice. The question that once a lady immediately after the accident, (which has been not refuted by the counsel for the respondents while filing the affidavit stating that) she had married to some other person Indradev. We are of the view, case should be decided on the basis of pleading on record, means the application moved by the claimant before the Tribunal and written statement filed by the appellant or replication thereto. In case, the appellant wanted to raise new plea before this Court, then that could have been done only on amending the written statement filed before the Tribunal in the appeal, which seems to have not been done by the appellant.

Coming to next limb of argument advanced by Sri U. P. S. Kushwaha to the effect that case is based on no evidence, argument advanced seems to be misconceived. Statement given by C.P.W. 2 amply clears that the accident was occurred by the vehicle in question and consequence thereof, the deceased succumbed to injuries.

One of the argument advanced by the learned counsel for the appellant is the statement given by C.P.W. 1, who stated that first wife of Rajendra Kumar has died and her daughter Km. Kiran is alive. Smt. Krishna, second wife of deceased is alive but she has been remarried. The statement relied upon by the learned counsel for the appellant does not seem to extend any help, more so, when it has been stated that the second wife had remarried to other person.

In the event of marriage of step mother to other person immediately after the accident, we are of the view that Ravindra Kumar could have assisted to his own niece as next friend to prefer the claim petition before the Tribunal.

No other ground has been raised or argued by the appellant''s counsel. Therefore, we are of the view that the impugned award does not seem to suffer from any impropriety or illegality. Ravindra Kumar could have filed the claim petition alongwith Km. Kiran as next friend to assist his own niece on account of marriage of second wife to other person. It is not a case of no evidence.

So far as one other reason which may call for no interference by this Court is that the application moved by the appellant-insurance company u/s 170 of the Motor Vehicles Act was rejected by the Tribunal and accordingly, in view of law settled by Hon''ble Supreme Court in the case of National Insurance Company Limited v. Nicolletta Rohtagi and others 2003 (3) TAC 293 : 2003 (1) AWC 23 (SC), appeal seems to be not maintainable. However, we have entered into the merit of the controversy and for the ends of justice decide the case on merit. The present appeal seems to be abuse of process of law by the appellant. Hence, it is a fit case for imposition of cost.

In view of above, we dismiss the appeal with a cost of Rs. 10,000 (Rupees ten thousand only), which shall be deposited in this Court within a period of two months and shall be remitted to the Mediation and Conciliation Centre, Lucknow. In failure, District Magistrate concern shall recover as arrear of land revenue. Registry to take follow up action.

Let the amount deposited in this Court be remitted to the Tribunal forthwith and in case any amount due, that shall also be deposited before the Tribunal within a period of two months and the Tribunal shall proceed to release the entire amount in favour of the claimants respondent No. 2 within a month in terms of the award.