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2019 Supreme(All) 282
HIGH COURT OF JUDICATURE AT ALLAHABAD
KAUSHAL JAYENDRA THAKER, J.
National Insurance Co. Ltd. - Appellant
Vs.
Shailendra Kumar Gupta and Others - Respondent
First Appeal From Order No. 225, 339 & 226 of 2002
Decided on : 28-02-2019
Advocate Appeared:
Anand Kumar Sinha, Adv., R.K. Porwal, Adv., A.K. Parwal, Adv., Neerja Singh, Adv., R.O.V.S. Chauhan, Adv., Sharve Singh, Adv., M.N. Siddiqui, Adv., Ajit Singh, Adv., A.K. Sinha, Adv.
The main legal point established in the judgment is the entitlement of legal representatives to compensation, the principles of contributory negligence, and the calculation of compensation based on the deceased's income and dependency.
Headnote:
Contributory Negligence - Motor Accident Compensation - Sections 166, 168 of the Act, 1988 - Legal Representative - Dependency Benefit - Hindu Succession Act, 1956 - Negligence - Compensation Calculation - FAFO No.225 of 2002, FAFO No.226 of 2002, FAFO No.339 of 2002
Fact of the Case:
The case involved three appeals related to a motor accident compensation claim. The deceased's widow and minor child filed a claim petition, and the deceased's father and siblings also filed a separate claim petition. The National Insurance Company challenged the compensation awarded and the apportionment of the amount. The appeals raised issues regarding the legal representatives' entitlement to compensation, contributory negligence, and the quantum of compensation.
Finding of the Court:
The court analyzed the evidence and legal provisions related to the legal representatives' entitlement to compensation, contributory negligence, and the calculation of compensation. The court found that the deceased's father and siblings were entitled to a portion of the compensation, but the widow and minor child were entitled to the majority of the compensation. The court also found that the deceased was not contributorily negligent and that the compensation should be calculated based on the principles established in relevant judgments.
Issues: The issues raised in the appeals included the entitlement of legal representatives to compensation, contributory negligence, and the calculation of compensation based on the deceased's income and dependency.
Ratio Decidendi: The court applied the provisions of Sections 166 and 168 of the Act, 1988, and the Hindu Succession Act, 1956, to determine the entitlement of legal representatives to compensation. The court also considered the principles of contributory negligence and the calculation of compensation based on the deceased's income and dependency.
Final Decision: The court partly allowed FAFO No.225 of 2002, dismissed FAFO No.226 of 2002, and partly allowed FAFO No.339 of 2002. The court modified the compensation amounts and apportionment, and directed the National Insurance Company to deposit the difference in compensation with interest. The court also acknowledged the advocates for their efforts in resolving the matter.
KAUSHAL JAYENDRA THAKER, J.
1. Heard Sri Anand Kumar Sinha-Advocate appearing for the appellant Insurance Company and Sri Sharve Singh, learned counsel for the respondent nos. 7 and 8 ( in First Appeal From Orders No.225 of 2002 and 226 of 2002); namely, widow and child of the deceased, none else has appeared. Though this Court waited till the third round of revision of the Board. Heard Sri Sharve Singh, learned counsel for appellant in First Appeal From Order No. 339 of 2002 (his name has wrongly been shown for respondent) Sri A.K. Sinha-Advocate appears for respondent- Insurance Company and has opposed the enhancement of compensation filed by the widow and the minor child.
2. It is not known form the record whether the earlier Advocate Sri R.O.V.S. Chauhan who has absented himself had consented to part with the matter to Sri Sharve Singh as on the Vakalatnama/no objection is not on record in any of the three matters.
3. The three appeals raise peculiar facts and circumstances. On the death of Vivek Gupta a claim petition came to be filed by his widow and eight month old daughter being MACP No. 314 of 1999 and later on by his father Shailendra Kumar Gupta on his behalf and for four minor children being brother and sister of the deceased being MACP No.28 of 2000. MACP claim first in point was made by the widow and the eight months old daughter. The Tribunal decided both these claims petition by a common judgment rendered on 26.11.2001. The Tribunal awarded a sum of Rs.10,22,500/- with 9% rate of interest from the date of filing of claim petition till the amount was deposited. The Tribunal apportioned the amount by granting a sum of Rs.2,82,500/- in favour of the father of the deceased namely, Saket Gupta and brother of the deceased namely, Sharad Gupta.
4. The National Insurance Company has challenged the award by filing two different appeals being FAFO No. 225 of 2002 and FAFO No. 226 of 2002. The destitute widow and minor child who had attained the age of four years when the claim petition came to be decided by the Tribunal has also brought in challenge the compensation awarded as well as the disbursement to the father and the brothers by filing FAFO No.319 of 1999. It would be relevant for this Court first to decide the appeals preferred by National Insurance Company being FAFO No.225 of 2002.
5. This Court has passed the following order on 5.3.2003 which reads as under :-
“Sri R.K. Poorwar, who appears for respondents no. 1, 4 and 5 prays for and is granted three weeks’ time to file counter affidavit.
Issue notice to the respondents no. 2, 3, 6, 7 and 8.
The execution of the judgment and award dated 26.11.2001 in PAC No. 28 of 2000 given by Motor Accident Claims Tribunal, Etawah, shall remain stayed, provided the appellant deposits Rs.50,000/- with the Tribunal within two months. The amount of Rs.25,000/- deposited in this Court shall be transmitted to the Tribunal and shall also be taken into consideration. The claimant - respondent no. 1 will be entitled to withdraw the amount.”
6. A further order was passed on the Stay Application in FAFO No. 225 of 2002 as well as stay vacation application that order reads as follows :
“Heard.
The stay order dated 5.3.2003 is confirmed. Subject to the modifiication that execution of the award shall remain stayed provided the appellant further deposits a sum of Rs.50,000/- within period of two months from today, failing which stay order shall stand automatically vacated. The amount thus deposited, cab be withdrawn by the claimant respondent without furnishing any security.”
7. The facts as narrated in F.A.F.O. No.225 of 2002 are that the deceased Vivek Gupta was the son of claimant no. 1 and brother of claimant No. 2 to 5. It is not in dispute that the death occurred on 4.10.1998. The involvement of truck being Truck No. HR-26/6431 is not in dispute. It is not disputed that the deceased was driving maruti car bearing Car No. CH-01 S-1532. The deceased was 27 years of age on the date of ac
