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2019 Supreme(All) 514
HIGH COURT OF JUDICATURE AT ALLAHABAD
SARAL SRIVASTAVA, J.
ORIENTAL INSURANCE CO LTD - Appellant
Versus
RAJENDRA PRASAD SINGH AND ANOTHER - Respondent
First Appeal From Order No. 808 of 2006
Decided on : 24-04-2019
Advocate Appeared:
V.C. Dixit, Adv., Narendra Kumar, Adv., A.P. Paul, Adv., B.B. Paul, Adv.
Headnote:
Constitution of India, 1950 – Article 226 – Claim Petition – Claiming for Compensation – Present appeal is directed against judgment and award passed by Motor Accident Claims Tribunal has awarded compensation along-with 6% interest to claimant-respondent – Held, Settled position of law, Tribunal has committed manifest illegality in holding that as claim petition has been filed after commencement of Act 1988, therefore, Section 147 (i) (b) of Act of 1988 would govern liability of insurance company which is unlimited under said Section – Liability of insurance company is only up to Rs.50,000/- and not beyond it, consequently, finding of Tribunal in respect of liability of insurance company being unlimited is not sustainable and accordingly set-aside – Hence, claimant respondent is entitled to Rs.1,17,900/- and 7% interest from date of institution of claim petition –Appeal allowed. (Para 26, 27 and 30)
Facts of the Case:
Present appeal is directed against the judgment and award passed by Motor Accident Claims Tribunal/Additional District Judge, whereby the Tribunal has awarded Rs.3,44,500/- along-with 6% interest to the claimant-respondent.
Findings of the Case:
Settled position of law, Tribunal has committed manifest illegality in holding that as claim petition has been filed after commencement of Act 1988, therefore, Section 147 (i) (b) of Act of 1988 would govern liability of insurance company which is unlimited under said Section – Liability of insurance company is only up to Rs.50,000/- and not beyond it, consequently, finding of Tribunal in respect of liability of insurance company being unlimited is not sustainable and accordingly set-aside – Hence, claimant respondent is entitled to Rs.1,17,900/- and 7% interest from date of institution of claim petition
Result: Appeal allowed
SARAL SRIVASTAVA, J.
1. Heard Sri V.C. Dixit, learned counsel for the appellant and Sri A.P. Paul, learned counsel for the respondent.
2. The present appeal is directed against the judgment and award dated 24.12.2005 passed by Motor Accident Claims Tribunal/Additional District Judge, Court No. 7, Azamgarh, whereby the Tribunal has awarded Rs.3,44,500/- along-with 6% interest to the claimant-respondent.
3. The brief facts of the case are that on 29.8.1986 at about 12:00 noon, one Anil Kumar Singh was pillion rider on a motorcycle, which met with an accident with Jeep No. U.H. X- 178 (hereinafter referred as "offending jeep") near Rani Ki Sarai, district Azamgarh. As a result of the said accident, Anil Kumar Singh suffered injuries which resulted in his death. The deceased was aged about 21 years on the date of the accident and was earning about Rs. 2,500/- per month by running a General Merchant Shop. In the aforesaid backdrop, the claimant-respondent instituted a claim petition praying for a compensation of Rs.16,10,000/-.
4. The claim petition was contested by the appellant-insurance company by filing written statement contending therein that no accident had taken place by the offending jeep. It was pleaded that the liability of the insurance company is subject to the terms and conditions of the insurance policy. By amendment in the written statement, the insurance company also pleaded that since the motorcycle was hit by offending jeep which was coming from opposite direction, therefore, driver of the motorcycle was also negligent in the accident. On the basis of the aforesaid pleadings, the insurance company denied its liability to pay compensation.
5. The owner of the offending jeep also filed written statement denying the averments of the claim petition. He further pleaded that the offending jeep was insured with Oriental Insurance Company Limited and was plied with all valid papers, therefore, the liability to pay compensation, if any, is of the insurance company.
6. On the basis of the pleadings, the Tribunal framed as many as 6 issues.
7. In the instant appeal, learned counsel for the appellant has assailed the finding on issue no. 5 in respect of contributory negligence of driver of motorcycle in the accident; issue no. 8 as to whether, the liability of the insurance company is Rs.50,000/- or beyond it and issue no. 4 relating to the quantification of compensation.
8. The Tribunal in deciding the issue no. 5 with respect to the negligence of the motorcycle in the accident on the basis of the testimony of eye witness namely PW-2 Rajendra Singh and other documentary evidence namely site-plan of the accident, F.I.R. etc. held that there was no negligence of the driver of motorcycle in the accident.
9. On the issue of quantification of compensation, the Tribunal assessed the income of the deceased to be Rs.2,500/- per month on the basis of evidence on record and, thereafter, deducted 1/3rd from the said income and by applying the multiplier of 17 awarded Rs.3,40,000/- toward loss of income. Besides the above, the Tribunal further awarded Rs.2,000/- towards funeral expenses and Rs.2,500/- towards loss of estate. Thus, in total the Tribunal awarded Rs.3,44,500/- along with 6% interest as compensation to the claimant-respondent.
10. The Tribunal on the issue of liability of the insurance company held that since the claim petition has been instituted after the Motor Vehicles Act, 1988 (hereinafter referred as "Act, 1988") have come into effect and the liability of the insurance company is unlimited under Section 147(2) (a) of the Act, 1988, therefore, the insurance company is liable to pay entire awarded amount.
11. The learned counsel for the appellant has challenged the award on the following grounds:
(i). There was undue delay of 11 years in filing the claim petition, as the accident had taken place on 29.8.1986, where
