Smt. Prabha Sharma V. The New India Assurance Co. Ltd.

FAFO/3602/2018

AI Insights

The case involves two interconnected appeals related to a motor accident that resulted in the death of Rajendra Prasad Sharma. The accident occurred on November 25, 2015, when a car, allegedly driven rashly, collided with Sharma and his wife as they were waiting to board a bus. Sharma later died from his injuries. The Motor Accident Claims Tribunal awarded compensation to Sharma's family, which the New India Assurance Company contested, claiming the vehicle was not involved in the accident. The appeals addressed the liability of the Insurance Company and the adequacy of the compensation awarded.

• Counselvise Citation: [2021] 140 COUNSELVISE.COM (IT) 798678 (HC-MISC)
• Appeal Type: Others
• Pronouncement Date: 24-09-2021
• Assessment Year: misc
• Other Referred Cases: Ravi Vs. Badrinarayan and others, Sumitra Kaur and another Vs. New India Assurance Company Limited through Divisional Manager, Sunita and others Vs. Rajasthan State Road Transport Corporation and another, Mangla Ram Vs. Oriental Insurance Company Limited, Jai Prakash Vs. National Insurance Company Ltd., Smt. Hansagori P. Ladhani Vs. The Oriental Insurance Company Ltd., Smt. Sudesna and others Vs. Hari Singh and another, Tej Kumari Sharma Vs. Chola Mandlam M.S. General Insurance Co. Ltd., A.V. Padma Vs. Venugopal
• Laws Referred To: Motor Vehicle Act, 1988, IPC
• Result in Favour of: Partly Allowed
• Court: HIGH COURT
• Department Lawyers: BRIJESH NAIK; ARCHANA SINGH
• Assessee Lawyers: AMIT SINHA; DEEPALI SINHA
• Keywords: Compensation; False Implication; Insurance Liability; Motor Accident; Negligence
• Section: 279; 338; 170; 304A

Judgement Text

"1 A.F.R. Reserved on 06.09.2021 Delivered on 24.09.2021 Court No. - 37 Case :- FIRST APPEAL FROM ORDER No. - 3602 of 2018 Appellant :- Smt. Prabha Sharma And Another Respondent :- The New India Assurance Co. Ltd. And 2 Ors Counsel for Appellant :- Amit Kumar Sinha,Deepali Srivastava Sinha Counsel for Respondent :- Brijesh Chandra Naik,Archana Singh With Case :- FIRST APPEAL FROM ORDER No. - 3994 of 2018 Appellant :- The New India Assurance Co. Ltd. Respondent :- Smt. Prabha Sharma And 3 Ors Counsel for Appellant :- Jyotsna Srivastava Counsel for Respondent :- Amit Kumar Sinha,Deepali Srivastava Sinha Hon'ble Dr. Kaushal Jayendra Thaker,J. Hon'ble Subhash Chand,J. 1. Heard Sri Amit Kumar Sinha, learned counsel for the appellant and Sri B.C. Naik, Advocate and Sri Ajay Singh, learned counsel for the Insurance Company and perused the judgment and order impugned. 2. First Appeal From Order No. 3602 of 2018 (Smt. Prabha Sharma and another Vs. The New India Assurance Company Limited) is at the behest of appellants-claimants against the judgment and award dated 11.07.2018 passed by Motor Accident Claims Tribunal/Additional District Judge, Room No.8, Aligarh (hereinafter referred to as 'Tribunal') in M.A.C.P. No. 77 of 2016 the same is for enhancement of compensation awarded by the Tribunal. 3. First Appeal From Order No. 3994 of 2018 (The New India Assurance Company Limited Vs. Smt. Prabha Sharma and others) against the judgment and award dated 11.07.2018 passed by Motor Accident Claims Tribunal/Additional District Judge, Court No.8, Aligarh (hereinafter referred to as 'Tribunal') in M.A.C.P. No. 77 of 2016 on the ground of non involvement of vehicle in the impugned accident and for exonerating the Insurance Company from the liability to pay compensation to third party. 4. The brief facts culled out from the materials on record are that on 25.11.2015 Rajendra Prasad Sharma (deceased) and appellant no.1 had gone to Village Mukundpur for some personal work and while coming back at 9 O’ clock they were standing on the road side to board a Bus at that time, a car bearing registration No. UP 81 AU 2270 driven by its driver rashly and negligently came at high speed and dashed with both of them namely deceased and his wife PW-1, as a result of which both sustained injuries. Rajendra Prasad Sharma was admitted in Russa Hospital thereafter shifted to Central Hospital situated at Masoodabad and during treatment on 29.11.2015 Rajendra Prasad Sharma died. The deceased was 55 years old on the date of accident and after his death he was survived by his widow and son Bharat Sharma. The deceased was practising Advocate at District Court, Aligarh. The FIR of the accident was registered as case crime no. 234 of 2018 under Sections 279, 338, 304A IPC at Police Station Madrak, District Aligarh. The offending vehicle was insured by New India Insurance Company Limited, therefore, compensation of Rs. 79,25,000/- is claimed along with interest thereon. 5. On behalf of New India Insurance Company-opposite party no.3 filed written statement contending that alleged accident did not take place and the vehicle insured was not involved and was planted. The claim petition had been filed in collusion with owner and the Insurance Company had right to contest the claim petition on all the grounds, available to the Insurance Company in view of Section 170 of Motor Vehicle Act, 1988. It was contended that the Insurance Company cannot be fastened with any liability to pay compensation because the owner has committed breach of terms and conditions of the insurance policy. On behalf of opposite party nos. 1 and 2 owner and driver of the offending vehicle who filed written statement and stated that on the date of accident, the driver of the offending vehicle was having a valid and effective driving license. The 2 of 9 offending vehicle was insured with New India Insurance Company Limited. No terms and conditions of the insurance policy was breached on behalf of the respondents responding opposite parties and if any liability to pay the compensation is arise for the same, the Insurance Company is liable to pay. The learned Tribunal after taking evidence on record and herein the passed the award vide judgment and order dated 11.07.2018 awarding compensation of Rs. 16,91,400/- along with 7% interest thereupon and opposite party New India Insurance Company was directed to pay the compensation. 6. First Appeal From Order No. 3994 of 2018 is at the behest of New India Insurance Company, in which the Insurance Company has challenged the impugned award on the ground that the offending vehicle has been falsely implicated in the said accident. It is contended that the vehicle was planted. The accident did not occur because of involvement of the said vehicle. It is further submitted that the evidence on record also does not inspire truth. PW-1 and PW-2 were giving the two different versions. The presence of PW-2 on the spot is very doubtful, in the G.D. entry, neither his name nor his statement was recorded during the investigation. It is submitted that it is admitted position of fact that the death being because of this accident could not be ascertained as no post mortem report was produced on the record. No alleged accident took place by the offending vehicle. The owner of the vehicle and claimants are in collusion. It is submitted that the FIR of accident was lodged belated by 21 days as the accident took place on 25.11.2015 and the FIR of the same was lodged on 16.12.2015. No post mortem of deceased was conducted so as to ascertain the cause of death on account of accident. 7. Per contra, learned counsel for the respondent-claimants contended that the alleged accident is admitted by the opposite party nos. 1 and 2 of the claim petition, who are the owner of the vehicle and driver of the offending vehicle. They have filed written statement but none of them stepped into the witness box for oral examination before the Tribunal. 3 of 9 Even on behalf of Insurance Company no witness was examined to rebut the evidence adduced on behalf of the petitioner. On behalf of claimants, certified copy of the FIR, charge-sheet, site plan have been filed on record. Oral testimony of the two eye witnesses of the accident were adduced. The doctor was also examined, who gave treatment to the deceased prior to his death as he was admitted in injured condition. On the oral and documentary evidence, the involvement of the offending vehicle and also the negligence of the driver of the offending vehicle is very well proved. The post mortem was not conducted is a fact, and the FIR was lodged belated because of this it cannot be accepted that the vehicle was falsely involved. In support of his contention learned counsel for the claimants relied on following authoritative pronouncements:- Ravi Vs. Badrinarayan and others 2011 (1) T.A.C. 867 (S.C.), Sumitra Kaur and another Vs. New India Assurance Company Limited through Divisional Manager 2012 (4) T.A.C. 799 (All.) and Sunita and others Vs. Rajasthan State Road Transport Corporation and another 2019 (1) T.A.C. 710 (S.C.) 8. To prove the involvement of the offending vehicle and negligence of the driver of the vehicle on behalf of claimants documentary evidence have been filed. The certified copy of FIR, certified copy of site plan and charge-sheet and death certificate of deceased Rajendra Prasad Sharma was filed which prima facie prove involvement of the vehicle in accident. 9. PW-1 namely Prabha Sharma has examined herself on oath she was the eye witness at the time of occurrence as she had accompanied the deceased who was her husband. PW-2 Parag Gupta is also portrayed as eye witness of the accident. These witnesses have stated that the offending car came at high speed driven by its driver rashly and negligently and dashed Rajendra Prasad Sharma and his wife, who were waiting on the road side to board a Bus. The respondent has not led any evidence in rebuttal and no contrary conclusion could be drawn from the cross examination of these witnesses on behalf of Insurance Company or the 4 of 9 owner. Moreover, PW-3 Dr. Gyanendra Prasad was also examined, who has stated that he had treated Rajendra Prashad Sharma, who was admitted in his hospital being injured and died in the hospital during treatment. He had informed the police for post mortem of deceased, but police refused to conduct the post mortem. This witness has also proved by cogent evidence the documents produced about the admission of deceased and treatment papers of deceased and death certificate. 10. On behalf of Insurance Company or the owner no evidence oral or either documentary was produced on this issue. The Apex Court in case of Sunita and others Vs. Rajasthan State Road Transport Corporation and another (supra) has held in para 25 “The Tribunal’s reliance upon FIR 247/2011 (Exh.1) and charge-sheet (Exh.2) also cannot be faulted as these documents indicate the complicity of respondent No.2. The FIR and charge-sheet, coupled with the other evidence on record, inarguably establishes the occurrence of the fatal accident and also point towards the negligence of the respondent No.2 in causing the said accident. Even if the final outcome of the criminal proceedings against respondent No.2 is unknown, the same would make no difference at least for the purposes of deciding the claim petition under the Act. This Court in Mangla Ram Vs. Oriental Insurance Company Limited (2018) 5 SCC 656: 2018 (2) T.A.C. 337, noted that the nature of proof required to establish culpability under criminal law is far higher than the standard required under the law of torts to create liability.” The FIR and the charge-sheet coupled with the other evidence on record establishes the occurrence of fatal accident, caused by the negligence of respondent no.2 in causing the said accident. The Apex Court in Mangla Ram (supra) noted that another proof required to establish the culpability under criminal law is higher than the standard required under law of breach of liability. 11. The Apex Court in Ravi Vs. Badri (supra) held where the owner of the vehicle categorically admitted that the vehicle was involved and that the accident occurred which is clear admission of involvement of offending 5 of 9 vehicle in a road accident. The delay in lodging the FIR is explained and hence same is not fatal to the claim petition filed on behalf of claimants. 12. In case on hand the accident has been proved by eye witnesses PW-1 Prabha Sharma and PW-2 Parag Sharma. PW-3 Dr. Gyanendra proves that deceased was admitted in his hospital in injured condition and was given treatment by him. He has proved from the documentary evidence that the deceased has sustained injuries in motor accident. Moreover, the FIR though was lodged belatedly explanation of the same is given on behalf of PW-1 Prabha Sharma that the injured was admitted to the hospital and she remained busy in treatment and after that she lodged the FIR. The charge-sheet has also been filed and as such non conducting the post mortem cannot be fatal to the case of claimants. More so, the accident which was proved by oral and documentary evidence as such the claimants are entitled to the benefit of aforesaid case law cited in support of contentions and involvement of the offending vehicle cannot be accepted to be planted. The Tribunal has not misdirected itself in accepting the factual data in favour of claimants. The judgment of Jai Prakash Vs. National Insurance Company Ltd., (2010) 2 SCC 607 where the detail guidelines are given to the Tribunal. The police was under obligation to report and note down in the diary and therefore, we conclude that the offending vehicle was involved in the accident. The charge-sheet was laid against the driver of the said vehicle. The owner received the vehicle from the court, which also proves its involvement. The death certificate shows that the injuries were because of accident. 13. In view of the above analysis of evidence on record, First Appeal From Order 3994 of 2018 preferred by the Insurance Company deserves to be dismissed and is dismissed. 14. So far as First Appeal From Order No. 3602 of 2018 on behalf of the claimants for enhancement of compensation is concerned the claimants has challenged the impugned award on the ground that income of the deceased was not assessed as per income tax return. On behalf of the 6 of 9 claimants the income tax returns of the deceased were filed by the claimants for the assessment year 2012-13, 2013-14, 2014-15 and in the year 2014-15 annual income of deceased is Rs. 2,24,568/- and the net tax payable to be Rs. 468 but the Tribunal had assessed the annual income of deceased to be Rs. 2,00,000/- while it should have been assessed as Rs. 2,24,100/- (round figure) after deduction of income tax. As far as the future prospects is concerned, which was awarded at 10% of the income is not in dispute. The deductions for personal expenses of 1/3 of income is not disputed, multiplier of 11 granted is not disputed. The amount under non pecuniary damages awarded being Rs. 70,000/- is not disputed. 15. The Insurance Company vehemently opposed the contention of learned counsel for the appellant and contended that Tribunal has rightly assessed the income of deceased at Rs. 2,00,000/- per annum in view of previous assessment year 2012-13, 2013-14, 2014-15. From the income tax return of the assessment year 2014-15 it transpires that gross income of deceased of Rs. 2,24,568/- and income tax net tax payable income is shown Rs. 468/- The total tax and interest shown is Rs. 5000/- as such the income of deceased of the year 2014-15 in which the alleged accident took place should have been assessed by the Tribunal Rs. 2,24,000/- in view of ITR of the assessment year 2014-15. 16. So far as the medical expenses is concerned since deceased was admitted to the hospital in injured condition and he underwent treatment for some days therefore, on this head lump sum expenses of Rs. 50,000/- is deemed just and proper to be awarded though there are no receipts/bills of the medicine yet the prescription discharge slip admission card etc. when the deceased was underwent to the treatment. 17. The award passed by the Tribunal would stand modified and the total compensation payable to the appellants would be:- i. Annual Income :- 2,24,000/- 7 of 9 ii. Percentage towards future prospects : 10% (Rs. 22,456/-) =(Rs. 2,47,024/-) iii. Income after deduction of 1/3rd towards personal expenses : Rs. 1,64,683/- iv. Multiplier applicable : 11 v. Loss of dependency: Rs.1,64,683 x 11 = Rs. 18,11,513/- vii. Amount under non pecuniary heads : Rs. 70,000 + Rs. 30,000 (10% per year due to pendency of appeal) vii. Total compensation : Rs. 19,11,513/- + Rs. 50,000/- = Rs. 19,61,513/- 18. In view of the above, the appeal preferred by the claimants is partly allowed. Award and decree passed by the Tribunal shall stand modified to the aforesaid extent. The amount be deposited by the respondent- Insurance Company within a period of 12 weeks from today with interest at 7.5%. The amount already deposited be deducted from the amount to be deposited. 19. In view of the ratio laid down by Hon’ble Gujarat High Court in case of Smt. Hansagori P. Ladhani Vs. The Oriental Insurance Company Ltd., reported in 2007 (2) GLH 291, the total amount of interest, accrued on the principle amount of compensation is to be apportioned on financial year to financial year basis and if the interest payable to claimant for any financial year exceeds Rs. 50,000/-, Insurance Company/owner is/ are entitled to deduct appropriate amount under the head of ‘Tax Deducted at Source’ as provided u/s 194A(3)(ix) of the Income Tax At, 1961 and if the amount of interest does not exceeds Rs. 50,000/- in any financial year, registry of the Tribunal is directed to allow the claimant to withdraw the amount without producing the certificate from the concerned Income-Tax Authority. The aforesaid view has been reiterated by this High Court in Review Application No.1 of 2020 in First Appeal From Order No. 23 of 2001 (Smt. Sudesna and others Vs. Hari Singh and another) and in First Appeal From Order No. 2871 of 2016 (Tej Kumari Sharma Vs. Chola Mandlam M.S. General Insurance Co. Ltd.) decided on 19.03.2021 while disbursing the amount. 8 of 9 20. On depositing the amount in the Registry of Tribunal, Registry is directed to first deduct the amount of deficit court fees, if any. Considering the ratio laid down by the Hon’ble Apex Court in the case of A.V. Padma Vs. Venugopal reported in 2012 (1) GLH (SC) 442, the order of investment is not passed because respondents are neither illiterate nor rustic villagers. 21. We are thankful for both the counsels for getting the appeal decided without record and ably assisting the Court. Order Date :- 24.09.2021 AK Pandey 9 of 9 "