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IN THE HIGH COURT OF ALLAHABAD
J.J. MUNIR, J.
New India Assurance Co. Ltd. – Appellant
Versus
Mohd. Iqbal And Others - Respondents
First Appeal From Order No. 3455 Of 2004
Decided On : 02-11-2023
INSURANCE - MOTOR VEHICLES ACT, 1988 - SECTION 147 - INSURANCE POLICY - LIABILITY OF INSURERS - GOODS VEHICLE - PASSENGERS - COMPENSATION - OWNER'S LIABILITY.
Fact of the Case:
The deceased, Kamarul Nisha, was travelling on board a Mahindra Utility vehicle, along with her husband, Mohd. Iqbal, and children, from Kanpur to Etawah. The Jeep had on wheel Pramod Kumar, who was driving the Jeep at a high speed and negligently. Near Village Mehtauli, the driver ran into a stationary truck, bearing Registration No. UP-65H-7459, parked on the left-hand side of the road. Kamarul Nisha and another man Rajesh Kumar @ Pandit Ji died on the spot in consequence of the collision. Kamarul Nisha's husband Mohd. Iqbal, their children and others on board sustained injuries. The driver abandoned post and fled. The accident happened solely on account of the Jeep driver's negligence, the truck being stationary and parked on the southern side of the road, that was a kachcha pavement. A first information about the accident was lodged with Police Station P.S. Amarahat, where it was registered as Case Crime No.27 of 2000, under Sections 279, 337, 304-A IPC on 14.07.2000 at 4:30 a.m. Blaming, as already said, the Jeep driver exclusively for the negligence, the claimant-respondents say that given the location of the stationary truck, there was no reason for the Jeep driver to have rammed into it. The road at the site of the accident was sufficiently wide and at the time when it happened, there was no other vehicular movement. Kamarul Nisha's body was conveyed to the Hallet Hospital, Kanpur, where autopsy was done.
Finding of the Court:
The Tribunal decided on 17.08.2004 and by that time, the decision in Asha Rani was already there overruling the earlier view in New India Assurance Company v. Satpal Singh and others, (2000) 1 SCC 237. Therefore, this is not a case where the law was uncertain when the Tribunal decided. It had already been settled by a three Judge Bench of their Lordships of the Supreme Court in Asha Rani and followed in Bommithi Subbhayamma. In fact, the decision of the Supreme Court in Baljit Kaur (supra) making the law in Asha Rani prospective in its application would have been well-known by time the Tribunal decided. When the Tribunal rendered judgment, there was no basis, therefore, to direct the Insurers to pay the compensation adjudged, going by the principle in Satpal Singh (supra), that was already overruled by the three Judge Bench in Asha Rani.
Issues: Whether the Insurers are liable to make good the compensation awarded, which has to be recovered from the owner.
Ratio Decidendi: The decision in Asha Rani and followed in Bommithi Subbhayamma. In fact, the decision of the Supreme Court in Baljit Kaur (supra) making the law in Asha Rani prospective in its application would have been well-known by time the Tribunal decided. When the Tribunal rendered judgment, there was no basis, therefore, to direct the Insurers to pay the compensation adjudged, going by the principle in Satpal Singh (supra), that was already overruled by the three Judge Bench in Asha Rani.
Final Decision: The appeal is allowed in part and the impugned award is modified in the terms that the compensation payable to the claimants shall be payable by the owner and not the Insurers. It is further ordered that the compensation awarded by the Tribunal shall stand enhanced to Rs.8,06,000/-, which shall carry simple interest @ 7% per annum from the date of institution of the claim petition until realization. The compensation shall be payable equally to all the claimants.
JUDGMENT :
(J.J. Munir, J.)
1. This is an appeal by the Insurance Company, questioning the judgment and award of Mr. V.K. Tyagi, the Motor Accident Claims Tribunal/the Special Judge (Essential Commodities Act), Etawah dated 17.08.2004, allowing MAC No.319 of 2002.
2. Heard Mr. Anubhav Sinha, Advocate holding brief of Mr. Amaresh Sinha, learned Counsel for the appellant/Insurance Company and Mr. Ram Ashish Pandey, learned Counsel appearing on behalf of respondent Nos.1 to 5. No one appears on behalf of the owner-respondent No.6.
3. On the 14th of July, 2000 at about half past two in the night, Kamarul Nisha along with her husband, Mohd. Iqbal and children was travelling on board Jeep No. UP-75B-9599, a Mahindra Utility vehicle, from Kanpur to Etawah. The Jeep had on wheel Pramod Kumar. Pramod Kumar was driving the Jeep at a high speed and negligently. Near Village Mehtauli, the driver ran into a stationary truck, bearing Registration No. UP-65H-7459, parked on the left hand side of the road. Kamarul Nisha and another man Rajesh Kumar @ Pandit Ji died on the spot in consequence of the collision. Kamarul Nisha's husband Mohd. Iqbal, their children and others on board sustained injuries. The driver abandoned post and fled. The accident happened solely on account of the Jeep driver's negligence, the truck being stationary and parked on the southern side of the road, that was a kachcha pavement. A first information about the accident was lodged with Police Station P.S. Amarahat, where it was registered as Case Crime No.27 of 2000, under Sections 279, 337, 304-A IPC on 14.07.2000 at 4:30 a.m. Blaming, as already said, the Jeep driver exclusively for the negligence, the claimant-respondents say that given the location of the stationary truck, there was no reason for the Jeep driver to have rammed into it. The road at the site of the accident was sufficiently wide and at the time when it happened, there was no other vehicular movement. Kamarul Nisha's body was conveyed to the Hallet Hospital, Kanpur, where autopsy was done.
4. At the time of her demise, Kamarul Nisha was aged about 35 years. She would undertake embroidery and knitting jobs at home, earning approximately Rs.5000/-per mensem. She would contribute to household work, besides raising and grooming the couple's children. The accident and Kamarul Nisha's untimely demise deprived the claimants of her financial contribution, besides depriving her husband of conjugal bliss. The minor claimants, the deceased's children have been deprived of the mother's affection. The claimants have sustained heavy financial loss and mental pain, which is difficult to compensate. The claimants had earlier petitioned the Tribunal at Kanpur Dehat vide MAC No.326 of 2000, but since the claimants have moved to Etawah, they found it difficult to pursue the litigation at Kanpur. Accordingly, the last mentioned claim petition was withdrawn on 24.04.2002 and the present claim petition instituted before the Tribunal at Etawah.
5. The claimants are five in number. As already said, Mohd. Iqbal is the deceased's husband, whereas Mohd. Zafar, Mohd. Akbar and Mohd. Imran are minor sons of the deceased. Km. Shannu is the deceased's minor daughter. The claim petition has been instituted by Mohd. Iqbal, described in the cause title as Mohd. Iqbal Mistri on his own behalf and as the next friend for claimant Nos.2, 3, 4 and 5, his minor children. The claimants, who are the respondents in this appeal, shall hereinafter be referred to as 'the claimants', unless the context requires a different or individual reference.
6. Raj Kumar son of Naresh Chand is the owner of Jeep No. UP-75B-9599. He was arrayed as opposite party No.1 to the claim petition. He is respondent No.6 to this appeal and shall hereinafter be referred to as 'the owner'. New India Assurance Company Limited, Branch Manager, Station Road, Etawah are the insu
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