# National Insurace Co. Ltd v. Om Prakash Pandey & Ors

- **Citation:** (2020) 1 ILRA 268
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-10-22
- **Case number:** First Appeal From Order No. 344 of 2012
- **Bench:** Pradeep Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/national-insurace-co-ltd-v-om-prakash-pandey-ors-45042
- **Pages:** 5

## Headnote

A. Motor Accident Act, 1988 - Section 165
- Claim petition - Locus of brother of
deceased - If there is no other legal heir
of the deceased, the brother is a legal
representative
and
is
competent
to
maintain claim petition - Person who is to
get the property of deceased will be a
legal representative - Tribunal found the
name of the claimant has been mutated
in revenue records after the death of
deceased and both brothers were living in
a joint family - Tribunal rightly concluded
the claimants to be legal representative
of the deceased - Argument that the
claimants are brother and bhabhi is only
relevant for the purpose of determining
dependency which is significant for the
purpose of ascertaining the quantum of
compensation. (Para 11)

B.
Motor
Accident
Act,
1988
-
Compensation - Calculation - Age of
deceased was found between 30 to 35
years, therefore, applied the multiplier of
15
-
The
amount
of
compensation
determined by the tribunal is in lower side
and need not to be disturbed. (Para 12)

First Appeal From Order dismissed. (E-1)

List of cases cited :-

## Text

268 INDIAN LAW REPORTS ALLAHABAD SERIES
for allowing the appellant's application and
held that no interest was payable. This
well
reasoned
arbitral
award
was
interfered by the court on the ground that
the finding is bad though he referred to
several judgments he himself embarked on
fact finding mission and appreciated on the
basis that the arbitrator had committed an
error and relying on AIR 1955 SC 468 in
the case of Thawer Das Vs. Union of
India and misread the award as if there
was an error apparent on the face of
record. The modified clause 9 did not
permit any interest and the advance was to
be given without any interest. The arbitral
award also was based on the decision of
the Apex Court in 1989 (2) SCC 721,
Raipur Development Authority and other
Vs. Chokhamal and others. The reasons
were well assigned by the arbitrator, thus,
the judgment of the District Court
reversing the arbitral award is bad in the
eye of law and contrary to the contours of
arbitral award being set aside by courts.

21. This appeal is allowed. The
appellants are entitled to the refund of the
interest deducted. The security could be
encashed. The judgment of district Court
is quashed and is set aside.

22. Record and proceedings be sent
back to the Trial Court. The award of the
Tribunal shall be made rule of the court
under the Arbitration Act, 1940.

23. This Court is thankful to Sri
Khanna for ably assisting the Court in
getting this matter of 1991 disposed of.
----------
(2020)1ILR 268

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.10.2019

BEFORE
THE HON'BLE PRADEEP KUMAR
SRIVASTAVA, J.

First Appeal From Order No. 344 of 2012

National Insurace Co. Ltd. ...Appellant
Versus
Om Prakash Pandey & Ors. ...Respondents

Counsel for the Appellant:
Sri Amit Manohar

Counsel for the Respondents:
Sri Akhilesh Ch. Srivastava, Sri Ramesh Ch. Pathak

A. Motor Accident Act, 1988 - Section 165
- Claim petition - Locus of brother of
deceased - If there is no other legal heir
of the deceased, the brother is a legal
representative
and
is
competent
to
maintain claim petition - Person who is to
get the property of deceased will be a
legal representative - Tribunal found the
name of the claimant has been mutated
in revenue records after the death of
deceased and both brothers were living in
a joint family - Tribunal rightly concluded
the claimants to be legal representative
of the deceased - Argument that the
claimants are brother and bhabhi is only
relevant for the purpose of determining
dependency which is significant for the
purpose of ascertaining the quantum of
compensation. (Para 11)

B.
Motor
Accident
Act,
1988
-
Compensation - Calculation - Age of
deceased was found between 30 to 35
years, therefore, applied the multiplier of
15
-
The
amount
of
compensation
determined by the tribunal is in lower side
and need not to be disturbed. (Para 12)

First Appeal From Order dismissed. (E-1)

List of cases cited :-

1. Sarla Verma Vs. Delhi Transport Corporation
Ltd.,
AIR
2009
SC
3104
1 All. National Insurance Co. Ltd. Vs. Om Prakash Pandey & Ors.
269
(Delivered by Hon'ble Pradeep Kumar
Srivastava, J.)

1. Heard Shri Amit Manohar, learned
counsel for the appellant and Shri R.C.
Pathak, learned counsel for the claimants.

2. This appeal has been filed against
the judgement and award dated 16.08.2011
of Motor Accident Claims Tribunal
/Additional District Judge, Court no. 5,
Basti in MACP No. 99 of 2008 in which
the learned tribunal has granted Rs.
1,50,00/- as compensation along with 6%
simple interest per annum from the date of
institution of the claim petition.

3. The factual matrix of the case is
that an accident took place on 22.05.2006.
Deceased driver Prem Prakash along with
owner of the Jeep and other persons
returning from Tilak ceremony of nephew
of Narsingh Pandey resident of Ladewa to
Basti. At night about 10:30 PM near
village Bankata when Jeep reached from
Manauri Chauraha to railway crossing, a
tractor trolly coming in front of the jeep,
whose driver driving the tractor trolly very
rashly and negligently and dashed the Jeep
No. U.P.-51H/1300 and Jeep overturned in
a pit and Krishna Kumar Srivastava,
Dharmendra, Hanshlal and Bhaagwat
Dubey who were sitting in the Jeep died
on the spot and others sustained injures
including driver and owner of the Jeep.
Driver of the tractor trolly along with
tractor trolly escaped from the spot. Due to
injury, driver of Jeep Prem Prakash got
unconscious and during treatment he died.
Owner of the Jeep Umashanker Mishra
and other injured had seen the accident.
The Information of accident was given by
the owner of the Jeep to shift his
responsibility on the tractor trolly stating
the tractor trolly is responsible for the
accident and on the basis of the written
report, Case Crime No. 806 / 06 under
sections 279, 337, 338, 304A IPC was
registered for the accident and case was
investigated. Since owner of the Jeep and
other injured are unable to inform about
the registration no. of tractor trolly, driver
and owner of the tractor trolly, the
Investigating
Officer
submitted
Final
Report. Driver Prem Prakash was seriously
injured in the accident and was admitted in
District hospital, Basti from where after
first aid he was referred to Medical
College. Thereafter, injured Prem Prakash
was admitted in Avatar Hospital, Lucknow
for treatment where he died due to injuries
sustained in the accident on 23.05.2006 at
10:00 PM. Post-mortem of the dead body
was not conducted as the owner of the
Jeep said that he along with Insurance
Company will provide compensation. At
the time of accident deceased Prem
Prakash was 32 years of age and by
profession he was driver and was healthy
and unmarried person. He was getting Rs.
3000/- per month as salary and Rs. 300/-
as monthly food allowance from the owner
of the vehicle. Deceased Prem Prakash
was residing with the claimant and giving
his whole salary to them. Since, owner of
the Jeep was the employer of deceased,
therefore, he is responsible for the
compensation. The Jeep was insured with
National Insurance Company and the
driver Hari Prakash @ Prem Prakash was
having a valid license. Therefore this
claim petition was filed by the brother and
sister-in-law of the deceased.

4. The National Insurance Company
filed a written statement and has denied
the facts alleged in the claim petition and
has specifically alleged that in absence of
cause of contest, the claim petition is not
maintainable and may be set aside. At the
270 INDIAN LAW REPORTS ALLAHABAD SERIES
time of accident age of Prem Prakash was
more than 32 years, he was not working as
driver and he was also not getting the
monthly income of Rs. 3000/- and
claimants are not the heirs of the deceased.
Claimant no. 1 is the brother of the
deceased and claimant no. 2 is the sisterin-law (bhabhi) and claimant no. 2 is
dependent of claimant no. 1 and claimant
no. 1 is self independent. Therefore,
claimants
are
not
entitled
to
get
compensation. It has been alleged that in
view of FIR the accident took place
because of rashness and negligence by
tractor trolly and therefore, claim is not
maintainable
against
the
insurance
company. The owner of the tractor trolly
and driver are not made party. On the date
of accident the Jeep was not insured and
the driver was not having valid license and
the Jeep was being driven in violation of
the Insurance policy. The offending
vehicle was used as a taxi and on the date
of accident it was over loaded and
therefore, insurance company is not
responsible to pay compensation to the
claimant.

5. The owner of the offending
vehicle filed written statement and denied
that Prem Prakash @ Hari Prakash was not
working as a driver of offending Jeep and
he was only driving the Jeep in absence of
the owner's driver. On the date of incident
deceased Hari Prakash @ Prem Prakash
was driving the offending Jeep. Ahead him
Government vehicle of Nalkoop Vibhag
was going on, in which, the Executive
Engineer Shri Sohan Ram and certain
employees of the department were also
sitting. The Government vehicle got
trapped in the tractor trolly and overturned
on the road side and since the offending
vehicle was behind the Government
vehicle also overturned because of dazzle
of headlight of tractor and in which owner
and driver sustained injury. Owner of the
offending vehicle has bear all the expenses
of funeral and Braham Bhoj. He has not
lodged the Case Crime No. 806 /06, he
also sustained injuries and got fainted and
was admitted to District Hospital. The
Executive Engineer put pressure on
Kotwali police for lodging the F.I.R. He
bear all the medical expenses of deceased.
Claimants are not the heirs of deceased.
Claim petition was not filed in a
systematic way.

6. Following issues were framed-

1. Whether Premprakash Pandey
died on 22.5.2006 at 10.30 PM when the
driver of Jeep UP- 51H/1300 and the
driver of the tractor trolly driving rashly
and negligently dashed and the Jeep
overturned?

2. Whether there was any
contributory negligence on the part of
deceased in the accident?

3. Whether the petition is not
maintainable under section 163-A of the
MV Act?

4.
Whether
the
petition
is
defective due to non joinder of the driver
and owner of the tractor trolly?

5. Whether the deceased was
having valid and effective driving license
at the time of accident?

6. Whether the offending Jeep
was not insured at the time of accident?

7. Whether the claimants are
entitled for compensation, if yes, how
much and from whom?

7. Evidence was given from both
sides and after hearing both sides, the
learned Tribunal passed the impugned
award aggrieved by the same this appeal
has been filed.
1 All. National Insurance Co. Ltd. Vs. Om Prakash Pandey & Ors.
271

8. The appellant has challenged the
impugned award on the ground that there
was no evidence regarding involvement of
the said Jeep in accident, no FIR has been
lodged against the Jeep but has been
lodged against the driver of tractor trolly
and they were not made parties, the
deceased
was
not
in
permanent
employment of the owner, the liability
under section 163-A has been wrongly
fixed, the income was wrongly assessed
and deduction of 50% was not maid as the
deceased was unmarried and claimants
being elder brother and sister in law were
not legally entitled for any compensation.

9. The learned Tribunal on evidence
and
settled
legal
principles
rightly
concluded that the petition under section
163-A was maintainable as the deceased
was driving the Jeep when the accident
took place. It was also rightly decided that
there was no possibility of impleading the
tractor owner and driver as they were not
traceable and moreover when the petition
has been filed under section 163-A. It was
established on record that the deceased
was having valid and effective driving
license at the time of incident and the Jeep
he was driving was insured. The learned
Tribunal also rightly concluded that in a
petition under section 163-A, the issue of
negligence or contributory negligence is
not significant. Thus, the decision on Issue
no 1 to 6 is legally valid and justified and
there appears to be no perversity in the
finding of the Tribunal.

10. The learned counsel for the
appellant has submitted that the claimants
being elder brother and bhabhi (sister in
law),
are
not
entitled
for
any
compensation. Section 165 of the M V Act
provides for Claims Tribunal and the
Explanation provides that claims for
compensation includes a claim under
section 140 and 163-A. Section 166 of the
M V Act provides that in case of injury
claim petition can be filed by the injured
person himself and in case of death, by all
or any of the legal representative of the
deceased. Thus, sub-section (1) of section
166 provides:

"An
application
for
compensation arising out of an accident of
the nature specified in sub-section (1) of
section 165 may be made;

a, by the person who has
sustained the injury; or

b. by the owner of the property;
or

c. where death has resulted from
the accident, by all or any of the legal
representatives of the deceased; or

d. by any agent duly authorized
by the person injured or all or any of the
legal representatives of the deceased, as
the case may be;

Provided that where all the legal
representatives of the deceased have not
jointed in any such application for
compensation, the application shall be
made on behalf of or for the benefit of all
the legal representatives of the deceased
and the legal representatives who have not
so
joined,
shall
be
impleaded
as
respondents to the application."

11. It is pertinent to mention that the
above provision of the M V Act speaks in
terms of legal representative. If there is no
other legal heir of the deceased, the
brother is a legal representative and is
competent to maintain claim petition. It
has been nowhere shown that except
brother there was anyone who can
represent the estate of deceased. Any
person who is to get the property of
deceased will be a legal representative. In
272 INDIAN LAW REPORTS ALLAHABAD SERIES
the instant case the learned Tribunal has
found that the name of the claimant has
been mutated in revenue records after the
death of deceased and both brothers were
living in a joint family and their parents
have already died. Therefore the learned
Tribunal rightly concluded the claimants
to be legal representative of the deceased.
As such the argument of the learned
counsel to appellant that the claimants are
brother and bhabhi is only relevant for the
purpose of determining dependency which
is
significant
for
the
purpose
of
ascertaining the quantum of compensation.

12. The learned Tribunal on the basis of
evidence determined the age of the deceased
in between 30 to 35 and, therefore, applied
the multiplier of 15. In Sarla Verma v Delhi
Transport Corporation Ltd., AIR 2009 SC
3104, a multiplier of 16 could have been
taken. Therefore the appellant should not be
aggrieved by the use of the multiplier of 15.
The learned Tribunal finding the deceased to
be driver and concluding that he might not
have regular assignment, hypothetically,
determined the income to be Rs. 2500/-
monthly and thus Rs. 30000/- in an year. It
cannot be said to be in higher side. The
learned Tribunal did not stop here and took
the view that after being married, the
deceased could spare money out of his
income to the extent of only 1/3rd for the
claimants and thus made a deduction of 2/3rd
and determined the amount of compensation
to be only 150000/- which is again in a very
lower side. The appellant has submitted for
only 50% deduction and therefore, there is no
reason for he becoming aggrieved. I find the
amount of compensation is in lower side and
need not to be disturbed.

13. On the basis of the above
discussion, I find no force in appeal and
the appeal is liable to be dismissed.

14. Appeal is dismissed accordingly.

15. The amount of Rs. 25000/-
deposited by appellant at the time of filing
the appeal shall be remitted back to the
learned Tribunal to be paid to the claimant.
----------
(2020)1ILR 272

APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 24.01.2020

BEFORE
THE HON'BLE RAJNISH KUMAR, J.

First Appeal From Order No. 581 of 2001

Smt. Manokamini Devi ...Appellant
Versus
Ashok Kumar ...Respondent

Counsel for the Appellant:
N.N. Jaiswal

Counsel for the Respondent:
D.P.S. Chauhan, Ran Vijai Singh

A. Code of Civil Procedure 1908 - Order
XLI Rule 25 - Power of appellate Court -
Powers of the appellate court and those
of trial court are co-extensive - Learned
appellate court had power to get the
survey map prepared - Once the appellate
court has power to get the survey map
prepared the remand only for the purpose
of getting the survey map prepared may
not be a good ground - Moreover, Order
XLI Rule 25 provides that to determine
any question of fact, the appellate court
may, if necessary, frame issues and refer
the same to the trial court - In such case
the appellate court shall direct such trial
court to take an additional evidence
required and shall return the evidence to
the appellate court together with its
findings thereon - Appellate Court erred
in disposing of the appeal - Held, order of
appellate court liable to be modified with
necessary direction. (Para 13, 16, 17 & 18)