# National Insurance Company Ltd v. Smt. Kamlawati & Ors

- **Citation:** (2020) 1 ILRA 1493
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-12-06
- **Case number:** FAFO No. 1579 of 2016
- **Bench:** Arvind Kumar Mishra-I
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/national-insurance-company-ltd-v-smt-kamlawati-ors-45244
- **Pages:** 5

## Headnote

A. Motor Accident Act, 1988 - Section
168-A - Claim Petition - Negligence -
Assessment of compensation - Point of
negligence
need
not
be
specifically
established to the ambit claimed by the
insurance company- Finding of Tribunal
on issue no. 1 is just and consistent and
the same need no interference by this
Court - Tribunal has rightly applied
multiplier
of
15
and
assessed
the
compensation - Compensation for loss of
estate; for loss of love and affection; for
funeral expenses and under head of loss
of company of the husband was awarded
- Held, it cannot be said to be either
unreasonable or excessive. (Para 16 & 18)

First Appeal From Order dismissed. (E-1)

## Text

1494 INDIAN LAW REPORTS ALLAHABAD SERIES
Court is lesser than the compensation
awarded by the Tribunal, the High Court
will dismiss any appeal by the claimants
for enhancement, but allow any appeal by
the owner/insurer for reduction. The High
Court cannot obviously increase the
compensation in an appeal
by the
owner/insurer
for
reducing
the
compensation, nor can it reduce the
compensation in an appeal by the
claimants
seeking
enhancement
of
compensation." (emphasis supplied)

25. In the case at hand, the present
appeal has been filed by Smt. Ranjana
Rawat, the claimant-appellant alone. Neither
any appeal has been filed by Kamlau
(respondent no. 3, the father of the deceased)
nor any cross objection has been preferred
by him in the present appeal and, as such, in
view of the law laid down by the Apex
Court in the case of Ranjana Prakash
(supra) the compensation awarded to
Kamlau, respondent no. 3 cannot be
enhanced in this appeal which has been filed
only by widow of the deceased.

26. As already mentioned above, the
Tribunal has apportioned the compensation
between the appellant and respondent no. 3 in
the ratio of 70:30. Thus, the appellant would
be entitled to 70% of Rs 10,78,000/- along
with interest as mentioned above, whereas the
respondent no. 3 would be entitled to 30% of
Rs 4,32,000/- along with interest as awarded
by the Tribunal.

27. In view of the above, the appeal
is allowed. The impugned judgment and
award stands modified to the extent
indicated above.

28. The parties shall bear their
respective costs.
----------
(2020)1ILR 1493

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.12.2019

BEFORE
THE HON'BLE ARVIND KUMAR MISHRA-I, J.

FAFO No. 1579 of 2016

National Insurance Company Ltd.
 ...Appellant
Versus
Smt. Kamlawati & Ors. ...Respondents

Counsel for the Appellant:
Sri Sushil Kumar Mehrotra

Counsel for the Respondents:
Sri Chandra Bhushan Prasad, Sri Lokesh
Kumar, Sri Rajat Agarwal

A. Motor Accident Act, 1988 - Section
168-A - Claim Petition - Negligence -
Assessment of compensation - Point of
negligence
need
not
be
specifically
established to the ambit claimed by the
insurance company- Finding of Tribunal
on issue no. 1 is just and consistent and
the same need no interference by this
Court - Tribunal has rightly applied
multiplier
of
15
and
assessed
the
compensation - Compensation for loss of
estate; for loss of love and affection; for
funeral expenses and under head of loss
of company of the husband was awarded
- Held, it cannot be said to be either
unreasonable or excessive. (Para 16 & 18)

First Appeal From Order dismissed. (E-1)

(Delivered by Hon'ble Arvind Kumar
Mishra-I, J.)

1. Heard learned counsel for the
parties.

2. This first appeal from order has
been preferred against the judgment and
award dated 29.2.2016 passed in Motor
1 All. National Insurance Company Ltd.Vs. Smt. Kamlawati & Ors.
1495
Accident
Claims
Tribunal/Additional
District Judge (Court No.7) Muzaffar
Nagar in M.A.C.P. No. 308 of 2014-Smt.
Kamlawati and others Versus Versus
Narbir Singh and another whereby the
concerned tribunal awarded compensation
amount to the tune of Rs. 4,34,000/-
carrying on 7% interest to the claimant
respondents under various heads.

3. The facts relevant for adjudication of
this appeal discernible from the record appear
to be that in this case allegations are that some
accident took place on 30.12.2013 at 7.30 p.m.
on distillery crossing by the side of G.T. Road
in district Muzaffarnagar when a motorcycle
Splendor Plus No . U.P. 15-A.B.3978 on
which two persons were riding was about to
stop then it was hit by some bus coming from
Muzaffar Nagar side due to which the motor
cycle went out of control and it collided with
Virendra Kumar, who was standing by the side
of the road due to which Virendra Kumar
sustained several injuries on his person, he was
taken to Muzaffar Nagar medical college
where he was hospitalized on 30.12.2013
around 9 a.m. where he succumbed to his
injuries on 31.12.2013 at 7.40 a.m. Post
mortem examination on the dead body of the
deceased was conducted.

4. In view of the aforesaid accidental
death, claim was preferred by the present
claimant-respondents before the aforesaid
claim tribunal wherein the insurer of the
aforesaid offending motorcycle U.P. 15A.B. 3978 was also impleaded as opposite
party no. 2 along-with owner of the
vehicle as opposite party no. 1. The case
was contested between the parties and
written statement was filed whereupon the
tribunal framed as many as five issues.

5. Issue no. 1 related to fact whether
the accident in question was caused on
30.12.2013 at 7.30 a.m. and at that point of
time aforesaid Virendra Kumar along-with
Sudheer was standing hundred meters
away from the distillery crossing at G.T.
Road within police station Mansurpur,
waiting for his son when a bus coming
from Muzaffar Nagar side collided with
one motorcycle No. U.P. 15-A.B. 3978 on
which two persons were riding, when the
motorcycle was about to stop and at that
point of time the bus hit it due to which the
motorcycle went out of control resultantly
collided with Virendra Kumar due to
which Virendra Kumar sustained injuries
and died during the course of treatment. If
yes, its effect ?

6. Issue no. 2 related to the fact
whether the road accident was caused by
the driver of the motorcycle No. U.P. 15A.B. 3978 and the accident was the
outcome of contributory negligence of the
deceased Virendra Kumar, if yes its effect
?

7. Issue no. 3 related to the fact
whether on the aforesaid date and time the
driver of the aforesaid motorcycle No.
U.P. 15-A.B. 3978 was possessing a valid
and effective driving licence ?

8. Issue no. 4 related to the fact
whether the aforesaid vehicle was insured
with the present appellant on the date and
time of the accident and the same was
being given in accordance with the terms
and conditions of the insurance policy?

9. Issue no. 5 related to the fact of quantum
of compensation, as to what compensation and
from whom and to what proportion the claimants
are entitled to receive?

10. Both the sidesfiled their papers,
which have been taken on record and
1496 INDIAN LAW REPORTS ALLAHABAD SERIES
described in the body of the award of the
tribunal, the same need not be repeated for
the sake of convenience. However, in case
as and when the context arises, the same
will be referred.

11. The claimant got examined three
witnesses P.W. 1 Kamlawati, P.W. 2 Jai
Prakash and P.W. 3 Sudhir and the
opposite party/owner got examined D.W.
1 Pawan Kumar. The tribunal after
considering the merit of the case and after
hearing the arguments allowed the claim
petition
to
the
aforesaid
extent,
consequently, this appeal.

12. Sri Sushil Kumar Mehrotra,
learned counsel for the National Insurance
Company Ltd. has vehemently contended
that it is a case of blind accident, in fact,
no one saw the accident having been
caused
by
the
involvement
of
the
motorcycle in question. The story of
accident was cooked up by the claimant in
order to obtain compensation from a
vehicle which was insured with some
company and in their bid they somehow
involved the present motorcycle, which
was insured with the appellant company.

13. The learned counsel added that
the entirety of the case, the evidence on
record and the allegations if properly
scrutinized give impression that it is purely
a case of hit and run thus confined to the
provisions of section 161 of the Motor
Vehicles Act. Therefore, the compensation
amount to the tune of over Rs. 4 lakhs is
not justified and the amount which is
admissible and permissible for cases
confined to 'hit and run' alone should have
been
awarded,
which
the
insurance
company is ready, if so directed, though
there is no responsibility on the insurance
company because it was the unknown
offending vehicle/bus which caused the
accident. The investigation was done and
final report was submitted. This aspect
exposes the claim of the claimantrespondent. The testimony of P.W. 3
Sudhir does not inspire confidence.
Further, the eye witness account of P.W. 3
Sudhir should have been interpreted and
appreciated with utmost caution in view of
the prevailing facts and circumstances of
the case and the sanctity which is normally
attached to the testimony of witnesses in
the cases like the present one should not be
presumed to be so and presumption of
truthfulness
of
the
testimony
was
erroneously taken to be the guiding factor
while determining the point of the
accident. The learned counsel concluded
by claiming that assuming it to be that any
such accident took place and it really hit
the motor cycle as claimed then the things
are obvious and the principal of 'Res ipsa
loquitur' 'the thing cannot tell a lie, the
person can' will apply. The very manner
of committing the accident presupposes
negligence of the bus driver itself and
thatis super added by the negligence of the
motorcyclist. Someone claims that it was
about to stop then the precautionary brakes
as was expected to be applied to the
motorcycle was not applied properly and
in case it was parked, then it was not
properly parked and the accident took
place because of wrong parking. Viewing
from any angle, the only outcome would
be reflection of negligence of both the
drivers of the offending vehicles involved
in the accident then in this situation
proportional damage should have been
fixed on each of the two involved vehicles,
which has not been done properly by the
tribunal and the insurance company of the
motorcycle
cannot
be
solely
made
responsible to pay the compensation
amount, as such. It is not a case of joint
1 All. National Insurance Company Ltd.Vs. Smt. Kamlawati & Ors.
1497
trotfeasors but there are separate and
different
trotfeasors
for
which
the
responsibility of each trotfeasor is to be
assessed on the basis of the respective
claim. The deceased himself did not take
precaution and exposed himself to the risk
by standing nearer to the road, that way he
also contributed towards the accident.

14. While replying to the aforesaid
argument learned counsel for the claimantrespondent vehemently claimed that the
case of the claimant-respondent has been
proved satisfactorily beyond all doubt by
production of eye witness account as
P.W.3. P.W. 3 was cross examined
extensively by the insurance company but
nothing adverse emerged which may lead
to accept the aforesaid contention raised
by the insurance company that the accident
was the outcome of the rash and negligent
driving of the bus by the bus driver and no
such accident ever took place and the
driver of the insured vehicle was negligent
and the deceased himself was negligent.
On all these points there is no material
emerging from the cross examination of
P.W. 3 which can be considered to be
favourable to the insurance company. May
be
that
the
circumstances
are
not
consistent and there is some inherent
improbability
but
that
improbability
cannot be stretched to a situation claiming
that the deceased died in different manner
rather than the one claimed by the
claimant respondents. Had there been no
accident, and had there been no situation
as claimed by the claimant-respondents
then the insurance company would have
been competent enough and would have
come out specifically with the testimony
disclaiming the incident in question.
Merely filing of the final report by police,
would not be suffice to throw away the
claim of the claimant-respondents. In such
cases of motor accidentlodging of FIR and
other police formalities are not necessary.
The sanctity of the witnesses is given
highest place and the witness produced by
the claimant respondent side out and out
proved the factum of the incident and the
tribunal has rightly observed that the
deceased did not contribute to the incident
and the driver of the offending motor cycle
also did not contribute to the accident.

15. Learned counsel for the claimantrespondents, however claimed that the amount
of compensation awarded was reduced by the
tribunal which is not justified. However, it
should be just and proper as claimed by the
claimant- respondent.

16. I have considered the respective
submissions of the learned counsel and also
perused the record and particularly the award
in question. Learned counsel for the insurance
company has also engaged the attention of
this Court to the testimony of D.W. 1, and has
claimed that this testimony of the driver of the
motorcycle in question is relevant for defining
the correct position. The correct position is
that the motorcycle had been parked and on
that point of time when the alleged incident
took place, the driver of the motorcycle had in
the meanwhile gone for toilet, therefore, the
claim that the motorcycle was about to stop or
it was parked stands refuted. On this point
learned counsel for the claimant respondent
engaged attention of this Court to the
testimony of P.W. 3. Testimony of P.W. 3 is
reflectory of fact that the incident in question
was primarily originated by the bus, which
was unknown, however, it hit the motorcycle
from behind which in consequence dashed
with the deceased Virendra Kumar, due to
which he sustained injuries and died during
course of treatment. On this point the cross
examination done has not come out with any
perceptible flaw or error to be construed in favour
1498 INDIAN LAW REPORTS ALLAHABAD SERIES
of the appellant that the testimony is nottruthful
on the point of accident. In view of the consistent
testimony of P.W. 3 obviously, it cannot be said
that the deceased ever contributed towards the
accident. Further, it is a claim petition under
section 163-A of the Motor Vehicle Act wherein
the point of negligence need not be specifically
established to the ambit claimed by the insurance
company. Therefore, the finding in so far as on
issue no. 1 is concerned as recorded by the
tribunal is on the face just and consistent and the
same need no interference by this Court.

17. In so far as the entire quantam of
compensation is concerned, then the
tribunal
has
rightly
assessed
the
compensation and has under various heads
assessed the monthly income to Rs.3,000/-
which amount was reduced by 1/3 margin
while assessing the annual income, thus,
annual income was calculated to Rs.
24000/- and after adding 30% as future
prospect say Rs.7200/- in the annual
income, it was assessed to Rs. 31,200/-.

18. Thereafter, applying the multiplier of
15 the compensation amount was assessed to Rs.
4,14,000/- then Rs. 5,000/- was awarded for loss
of estate, Rs.5,000/- for loss of love and affection
and Rs. 5,000/- for funeral expenses and under
head of loss of company of the husband Rs.
5000/- was awarded, thus aggregating to Rs.
4,34,000/-. This amount along-with 7% interest
was awarded as over all compensation and under
circumstances in cannot be said to be either
unreasonable or excessive and the finding
recorded by the tribunal on all the issues are liable
to be confirmed. Consequently, the appeal being
without any force is liable to be dismissed and the
judgment and award dated 29.2.2016 passed in
M.A.C.P. No. 308 of 2014 is hereby confirmed.

19.

The
entire
amount
of
compensation shall be paid to the claimant
respondent in the proportion as directed by
the
tribunal.
At
this
stage,
money
deposited by the insurance company at the
time of presentation of this appeal i.e. Rs.
25,000/- shall be remitted to the trial court
if it has not been done so far and the
insurance company is directed to deposit
the remaining entire amount outstanding
with the tribunal concerned within a period
of 30 days from today by adjusting the
amount, if any, already deposited and paid.

20. However, the learned counsel for the
insurance
company
claimed
that
for
completing official formalities, some more
time is needed for ensuring the compliance for
which he prays for two and half months period
at least. The plea is sustained.

21. The amount of compensation
may be deposited in two and half months
from today.

22. Consequently, this appeal is dismissed.

23. Costs easy.
----------
(2020)1 ILR 1497

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 16.12.2019

BEFORE
THE HON'BLE DEVENDRA KUMAR
UPADHYAYA, J.
THE HON'BLE RAJAN ROY, J.
THE HON'BLE RAJESH SINGH CHAUHAN, J.

Misc. Bench No. 4529 of 2018

Mahindra & Mahindra Financial Services
Ltd. ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Amol Kumar