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2013 Supreme(All) 1024
ALLAHABAD HIGH COURT
BEFORE : RAKESH TIWARI AND ANIL KUMAR SHARMA, JJ.
NEW INDIA ASSURANCE CO. LTD. ETAWAH .....Appellant
Versus
Smt. SUNITA AND OTHERS .....Opposite Parties
(First Appeal From Order No. 919 of 2013, decided on 9th April, 2013)
Rakesh Bahadur for the Appellant.
Headnote:(A) Motor Vehicles Act, 1988—Section 166—Accidental death—Delay—F.I.R.—Effect—Soon after accident, eye-witness informed police on mobile phone—Police arrived on spot, took injured to hospital and started investigation—Injured died in hospital after 30 minutes—His brother lodged F.I.R. after five days—This delay will not affect claim, as information of accident was given to police immediately after accident on mobile and as it was medico-legal case, information of police was sufficient—In such cases F.I.R. may be lodged even after last rites of deceased. [Para 12]
(B) Accidental death—Contributory negligence—Plea of, raised by Insurance Company—Consideration of—Victim was riding on cycle and was extreem left side of patri of road—Offending vehicle came from opposite side and was being driven on its right side—It hit victim—This fact itself proves that it was not case of contributory negligence—Insurance Company could have summoned driver of offending vehicle in support of its place—But this was not done—Even from site plan, plea of Insurance Company is not getting any support—As such, deserves rejection. [Para 13]
(C) Motor Vehicles Act, 1988—Sections 166, 168 and 170—Claim for accidental death of Head Master of Primary School, aged 49 years—Contested only by Insurance Company as owner of offending vehicle did not contest it—Victim was hit by Maruti Van and died in hospital on account of injuries sustained—He was getting salary of Rs. 24,400 per month and left behind himself, his aged parents, wife and 3 children—In such a case, even if it is conceded that his parents were not dependants as they had agricultural land, even then for claim of four dependants deduction of 1/4th from annual income of deceased was permissible—Moreover, mere fact that his salary was not being paid for certain reasons, will not make him unemployed and consideration of his pay for purpose of determination of compensation is permissible—Tribunal committed no illegality also in applying multiplier of 10, instead of 17 for adjusting her pension of Rs. 500 and awarding Rs. 19,39,390 as compensation. [Paras 14 to 16]
Hon’ble Rakesh Tiwari, J.—This first appeal from order challenges the award dated 19.1.2013 passed by the Motor Accident Claims Tribunal/Special Judge (Economic Offences), Etawah in M.A.C.P. No. 769 of 2010. By the impugned award Tribunal has awarded a sum of Rs. 19,39,390/- to the claimants fixing liability of payment upon appellant, as the offending vehicle.
2. The facts culled out from the record are that Dhurvir Singh @ Dhruva Singh aged about 49 years was Head Master in the primary school when he died in the accident in question which occurred on 9.10.2010.
3. The claimant-opposite parties No. 1 to 6 preferred claim petition No. 769 of 2010 before the M.A.C.T. Etawah against the appellant company as well as O.P. No. 7 the owner of Maruti Van U.P. 75B/4373 the offending vehicle in the accident. The claimants sought a compensation of Rs. 35,60,000/- alongwith 10% interest per annum under Sections 166 and 140 Motor Vehicles Act, 1988 on account of death of husband of O.P. No. 1, and father of O.P. Nos. 2 to 4 as well as by O.P. Nos. 5 and 6 the parents of the deceased.
4. From record, it appears that on 9.10.2010 at about 5.15 p.m. when Dhurvir Singh @ Dhruva Singh was returning from Prathmic Vidyalaya, Naglava Tavaldar Gram Sabha Madanpur, Farrukhabad where he was Head Master, the offending Maturi Van UP 75B/4373 coming from opposite direction being driven in rash and negligent manner came on the wrong side and collided with bicycle, which Dhurvir Singh @ Dhruva Singh was riding on left side of the road. Due to the accident serious injuries were caused to Dhurvir Singh @ Dhruva Singh on his face and head. He was admitted to Ram Manohar Lohiya, Hospital, Farrukhabad where he died after about 30 minutes. First Information Report was lodged by the brother of deceased at police station Mohammadabad as case crime No. 943/2010, under Sections 279, 338 and 304-A IPC. Respondent No. 7 the owner of the offending vehicle did not appear in spite of the summon served upon him therefore, the Tribunal ordered to proceed ex parte against him. The claim petition was contested by the appellant New India Assurance Company Limited on various grounds by moving an application under Section 170 of Motor Vehicles Act as well.
5. The Tribunal by the impugned award partly allowed the claim for compensation of Rs. 19,39,390/- alongwith 7% interest from the date of application till the date of realization, which is under challenge before us in the FAFO.
6. The learned counsel for the appellant has argued that PW-2 was admittedly known to the deceased and had stated that police had reached on the spot immediately after the accident and that it is apparent from the record that FIR was lodged after five days of the accident by the brother of the deceased, therefore, if the police had reached on the spot immediately why FIR was delayed? According to him the answer to this is that witness is lying. It is stated that as regard CW-1 he was a chance witness claiming himself to be an eye-witness. These witnesses had neither taken the injured to the Hospital nor had lodged any FIR. Therefore, their statement are also not reliable as both the witnesses have given false statements before the Tribunal, which are against the record and as such it is proved that the vehicle in question was not involved and its implication in the accident is an afterthought.
7. Pertaining to contributory negligence, counsel for the appellant submits that no doubt accident had occurred on left hand side of the road but deceased Dhurvir Singh @ Dhruva Singh was riding on the bicycle he could have avoided the accident by going to further left side of the Patri, hence it cannot be said that there was no contributory negligence attributable to him in the accident.
8. The next contention of the learned counsel for the appellant is upon question of quantum of compensation it is submitted that deceased was Head Master in the primary school and his salary was stopped by the BSA conce
