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IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD
KAUSHAL JAYENDRA THAKER, J.
Oriental Insurance Co. Ltd. – Appellant
Versus
Shyam Babu Kesarwani And Another – Respondents
First Appeal From Order No. 2127 of 2021, 1741 of 2002
Decided on : 08-04-2022
Motor Accident Claim - Motor Vehicles Act, 1988 - Section 173
Fact of the Case:
The case involves a claim petition for compensation filed by the father of a deceased child who died in a motor accident. The claimant sought enhancement of compensation, while the insurance company challenged the award on various grounds.
Finding of the Court:
The court analyzed the issues of negligence, contributory negligence, and breach of policy. It discussed the principles of negligence and contributory negligence in motor accident claims and emphasized the duty of the driver of the offending vehicle to explain the accident. The court also examined the provisions of Sections 147, 148, and 149 of the Motor Vehicles Act, 1988, and their implications on the insurance company's liability.
Issues: The issues revolved around the negligence of the driver, contributory negligence of the deceased child, and breach of policy by the insurance company.
Ratio Decidendi: The court held that the driver of the offending vehicle was responsible for the accident and the death of the child, rejecting the claim of contributory negligence. It also found that the insurance company failed to prove a breach of policy conditions. The court applied the principles of negligence and contributory negligence to determine liability and compensation.
Final Decision: The appeal by the insurance company was dismissed, and the appeal by the claimant was partly allowed, with the insurance company directed to deposit additional compensation with interest at the rate of 7.5%.
JUDGMENT :
1. Heard Sri Ramesh Singh, learned counsel for the insurance company; Shri Anurag Shukla appearing for Shri Devi Shanker Shukla, learned counsel for the claimants; and perused the record and award.
2. Appeal No.2127 of 2021, at the behest of the claimant, challenges the judgment and award dated 15.7.2002 passed by Motor Accident Claims Tribunal/Special Judge, E.C. Act, Allahabad (hereinafter referred to as 'Tribunal') in Motor Accident Claim Petition No.160 of 2001 awarding a sum of Rs.65,000/-with interest at the rate of 8.5% as compensation. The appellant has questioned the compensation granted.
3. Appeal No.1741 of 2002 is by Insurance company challenging the award on several grounds; (i) driver of vehicle involved not joined as party; (ii) licence of driver of vehicle insured was fake as first licence was found fake but there were two licences the tribunal negatived this objection; and (iii) the case is of Contributory negligence and issue of negligence has been wrongly decided.
4. While issuing notice, this Court had called for the record of the tribunal. Section 173 in The Motor Vehicles Act, 1988 reads is as follows:
(1) Subject to the provisions of sub-section (2) any person aggrieved by an award of a Claims Tribunal may, within ninety days from the date of the award, prefer an appeal to the High Court: Provided that no appeal by the person who is required to pay any amount in terms of such award shall be entertained by the High Court unless he has deposited with it twenty-five thousand rupees or fifty per cent. of the amount so awarded, whichever is less, in the manner directed by the High Court: Provided further that the High Court may entertain the appeal after the expiry of the said period of ninety days, if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal in time.
(2) No appeal shall lie against any award of a Claims Tribunal if the amount in dispute in the appeal is less than ten thousand rupees.”
5. The brief facts of the case in a nutshell are that Km. Pooja daughter of Shyam Babu Kesarwani, died on account of rash and negligent driving by the truck driver of truck number MP 17 C 0034 on 16th February, 2001 at about 6 p.m.. The unfortunate death of Km. Pooja was the result of rash and negligent driving by the truck driver and the first information report was lodged as case crime no.15 of 2001. The claimant/respondent is the father of the deceased, and since at the time of death age of the deceased was 5 years of age. The claimant filed claim petition for claiming compensation of Rs.2,10,000/-before the Motor Accident Tribunal. The owner of the vehicle contested the case but admitted that he is the registered owner. The owner took plea that the vehicle was duly insured with the Oriental Insurance Company and the driver was driving the vehicle with a valid licence.
6. There is no dispute regarding involvement of vehicle. The injuries caused death is not disputed. Except the three issues which are posed for adjudicating the rest of the findings of the tribunal in the award have attained finality and therefore not discussed.
7. F.A.F.O No. -2127 of 2021 was filed in 2003 delay was condoned in the year 2021. This is a claimants' appeal claiming enhancement for the death of child who was 5 years of age at the time of death. Learned counsel for the appellant has relied on the decisions of this Court and Apex Court in Kishan Gopal and another v. Lala and others, 2013 (101) ALR 281 (SC) and Manju Devi's case, 2005 (1) TAC 609 (SC) interpreted and by this Court in its recent decision of this Court in United India Insurance Company Limited. Vs. Mumtaz Ahmad and Another, 2017 (2) AICC 1229 wherein this Court held as follows:
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