# Reliance General Insurance Co. Ltd. M.G. Road, Agra v. Smt. Kamla Devi & Ors

- **Citation:** (2022) 12 ILRA 229
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-11-01
- **Case number:** First Appeal From Order No. 2299 of 2015
- **Bench:** Ajay Bhanot
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/reliance-general-insurance-co-ltd-m-g-road-agra-v-smt-kamla-devi-ors-48005
- **Pages:** 5

## Headnote

230 INDIAN LAW REPORTS ALLAHABAD SERIES
Sri
Shrish
Chandra
Kesarwani,
Sri
Pradyumn Kumar

Civil Law - Motor Accident - Motor
Vehicles Act, 1988 - Section 2(21) - "light
motor vehicle" means a transport vehicle
or omnibus the gross vehicle weight of
either of which or a motor car or tractor or
road-roller the unladen weight of any of
which, does not exceed 7,500 kilograms -
Insurance
laid
challenge
against the
impugned award on the ground that the
driving license was not valid and effective
at the time of the accident - appellant
insurance company contented that the
driving license was valid only for light
motor vehicle but the offending was a
truck and hence a heavy motor vehicle -
Held - appellant-insurance company failed
to discharge its burden to establish before
the learned Tribunal that the unladen
weight of the offending vehicle exceeded
7500 Kgs and that the vehicle was not a
"light motor vehicle" as defined in the
Motor Vehicles Act, 1988 - Mere fact that
the offending vehicle is referenced as a
truck is of no avail to the appellant -
weight of the vehicle is the sole and
decisive factor to determine the category
of vehicle under the Motor Vehicles Act,
1988 - Popular name or nomenclature
used to describe a vehicle is not relevant
in deciding its category as per the Motor
Vehicles Act, 1988 - Challenge to the
validity of the driving licence cannot be
sustained - No infirmity in the finding of
the learned Tribunal (Para 12)

B. Civil Law - Motor Accident - Motor
Vehicles Act , 1988 - Joinder of necessary
party - Insurance laid challenge against
the impugned award on another ground
that the driver was a necessary party but
was not impleaded - Held - owner
appeared before the learned Tribunal and
contested the matter on merits - Owner
admitted to the involvement of the vehicle
as well as his driver in the mishap -
burden to prove collusion between the
owner and the claimant or the driver, was
on the insurance company to prove the
same - Insurance company failed to
discharge its burden - Insurance company
did not get the driver summoned as a
witness - Aforesaid deficiency does not go
to the root - Challenge fails (18,19)

Dismissed. (E-5)

List of Cases cited:

National Insurance Co. Ltd. Vs Pranay Sethi &
ors. 2017 (16) SCC 680.

## Text

12 All. Reliance General Insurance Co. Ltd. M.G. Road, Agra Vs. Smt. Kamla Devi & Ors.
229
from the same as to what was the actual
salary received by the deceased per month
whereas
claimants
had
filed
salary
certificate dated 02.07.2010 issued by
Divisional
Additional
Director
&
Superintendent in Chief, P.L. Sharma
District Hospital, Meerut showing the last
drawn salary of the deceased Rs.95,901/-
which was duly proved by the P.W.4 and no
evidence was filed in rebuttal to the same
by the insurance company, therefore, in the
opinion of the Court, the Tribunal has
rightly taken the income shown in the
salary certificate dated 02.07.2010 for the
purposes of computation of compensation.

34. Thus, this Court is of the view that
the submission of learned counsel for the
insurance company in the facts of the
present case that income tax return should
have been taken as the basis for computing
the compensation is misconceived and is
rejected.

35. Now, so far as the contention of
learned counsel for the claimants that
claimants are entitled to 15% towards
future prospect in view of the judgement of
Apex Court in the case of Pranay Sethi
(supra) and further Tribunal should have
applied the multiplier of 9 instead of 8 and
should have deducted 1/4th instead of 1/3rd
towards personal expenses of the deceased
has
substance.
Thus,
following
the
aforesaid judgement of Apex Court in the
case
of
Pranay
Sethi
(supra),
claimants/respondents are entitled to 15%
towards future prospect considering the age
of the deceased, and further non-pecuniary
damages awarded by the Tribunal is also
enhanced from Rs.9500/- to Rs.70,000/-.

38. The submission of learned counsel
for the claimants/respondents with regard
to wrong application of multiplier and
deduction of
1/4th
towards
personal
expenses of the deceased in place of 1/3rd
in view of the judgement of Apex Court in
the case of Sarla Verma (supra) has got
substance.
Thus,
it
is
provided
compensation should be computed by
applying the multiplier of 9 instead of 8
and further, 1/4th should be deducted
towards personal expenses of the deceased
instead of 1/3rd from the income of the
deceased for the purposes of computation
of compensation.

39. It is also provided that enhanced
amount of compensation shall carry 6%
simple interest from the date of institution
of claim petition till its payment.

38. Thus, for the reasons given above,
the F.A.F.O. No.1177 of 2022 preferred by
the Reliance General Insurance Company
lacks merit and is dismissed. The F.A.F.O.
No.3233 of 2019 preferred by the claimants
is partly allowed and the award of the
Tribunal is modified to the extent indicated
above. There shall be no order as to costs.
----------
(2022) 12 ILRA 229
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.11.2022

BEFORE

THE HON'BLE AJAY BHANOT, J.

First Appeal From Order No. 2299 of 2015

Reliance General Insurance Co. Ltd. M.G.
Road, Agra ...Appellant
Versus
Smt. Kamla Devi & Ors. ...Respondents

Counsel for the Appellant:
Sri S.K. Mehrotra

Counsel for the Respondents:
230 INDIAN LAW REPORTS ALLAHABAD SERIES
Sri
Shrish
Chandra
Kesarwani,
Sri
Pradyumn Kumar

Civil Law - Motor Accident - Motor
Vehicles Act, 1988 - Section 2(21) - "light
motor vehicle" means a transport vehicle
or omnibus the gross vehicle weight of
either of which or a motor car or tractor or
road-roller the unladen weight of any of
which, does not exceed 7,500 kilograms -
Insurance
laid
challenge
against the
impugned award on the ground that the
driving license was not valid and effective
at the time of the accident - appellant
insurance company contented that the
driving license was valid only for light
motor vehicle but the offending was a
truck and hence a heavy motor vehicle -
Held - appellant-insurance company failed
to discharge its burden to establish before
the learned Tribunal that the unladen
weight of the offending vehicle exceeded
7500 Kgs and that the vehicle was not a
"light motor vehicle" as defined in the
Motor Vehicles Act, 1988 - Mere fact that
the offending vehicle is referenced as a
truck is of no avail to the appellant -
weight of the vehicle is the sole and
decisive factor to determine the category
of vehicle under the Motor Vehicles Act,
1988 - Popular name or nomenclature
used to describe a vehicle is not relevant
in deciding its category as per the Motor
Vehicles Act, 1988 - Challenge to the
validity of the driving licence cannot be
sustained - No infirmity in the finding of
the learned Tribunal (Para 12)

B. Civil Law - Motor Accident - Motor
Vehicles Act , 1988 - Joinder of necessary
party - Insurance laid challenge against
the impugned award on another ground
that the driver was a necessary party but
was not impleaded - Held - owner
appeared before the learned Tribunal and
contested the matter on merits - Owner
admitted to the involvement of the vehicle
as well as his driver in the mishap -
burden to prove collusion between the
owner and the claimant or the driver, was
on the insurance company to prove the
same - Insurance company failed to
discharge its burden - Insurance company
did not get the driver summoned as a
witness - Aforesaid deficiency does not go
to the root - Challenge fails (18,19)

Dismissed. (E-5)

List of Cases cited:

National Insurance Co. Ltd. Vs Pranay Sethi &
ors. 2017 (16) SCC 680.

(Delivered by Hon'ble Ajay Bhanot, J.)

1. Heard Shri S.K.Mehrotra, learned
counsel for the appellant, Shri Shrish
Chandra Kesarwani, learned counsel for the
claimants-respondents and Shri Pradyumn
Kumar, learned counsel for the respondent
No.7.

2. This first appeal from order arises
out of the award dated 29.05.2015 handed
down by the Motor Accident Claims
Tribunal/District Judge, Etah in M.A.C.P.
No.169/2011 (Smt. Kamla Devi and others
v. Jagjeet Singh and another) awarding the
compensation of Rs.10,76,000/- with a
simple interest at the rate of 9% per-annum
from the date of filing of the petition till
actual payment.

3. The instant appeal has been filed
by the insurance company assailing the
award.

4. Briefly the case of the claimants
before the learned tribunal was that the
deceased died of injuries sustained in an
accident which occurred on 26.03.2011 and
was caused by the rash and negligent
driving of the driver of Truck No. HR-55/J8295. The claimants were dependent on the
deceased. The insurance company resisted
the claim by filing a written statement.
Both parties adduced evidence in the trial.
12 All. Reliance General Insurance Co. Ltd. M.G. Road, Agra Vs. Smt. Kamla Devi & Ors.
231

5. In the proceedings before the
learned Tribunal, the application of the
insurance company under Section 170 of
the Motor Vehicles Act was allowed. Thus
the insurance company was permitted to
contest the proceedings on behalf of the
owner. The burden of proving the validity
or otherwise of the driving licence shifted
on the insurance company.

6. The owner had also entered
appearance before the Tribunal and had
admitted to the ownership of the offending
vehicle, and confirmed the identity of the
driver of the said vehicle. The claimants
had filed the driving licence of the driver of
the offending vehicle before the court
below. The owner of the vehicle had
affirmed the validity of the aforesaid
driving license.

7. In the instant appeal three grounds
of challenge have been laid against the
impugned award by Shri S.K.Mehrotra,
learned counsel for the appellant.

8. Firstly, the driving license was not
valid and effective at the time of the
accident. Secondly, the compensation was
granted, inasmuch as, excessive amounts
were provided under the conventional
heads and interest rate of 9% was not
permissible in law. Thirdly, the driver was a
necessary party but was not impleaded.

9. The learned Tribunal found against
the insurance company and upheld the
validity and effectiveness of the driving
licence by finding as under:

"Further, it is found the truck in
question was being plied by the owner
through driver Desh Raj Singh having a
driving license which was valid from
14.06.2005 to 13.06.2025. It is also found
that said driving license was initially issued
only to drive LMV (NT) which was later on
endorsed with an entry of driving Transport
vehicle from 21.10.2013 to 20.10.2016
though the photocopy made available on
record of same D.L. Number paper
No.7C1/13 bears an endorsement for
transport vehicle w.e.f. 07.09.2006 also, on
the basis of which the owner had given
appointment to Desh Raj Singh as a driver
on the offending vehicle. Owner of the
offending truck, Jagjeet Singh as O.P.W.2
has also deposed the fact before the tribunal
that he had seen the driving license of
driver Desh Raj Singh which was valid for
driving a transport vehicle."

10. It is contended on behalf of the
appellant insurance company that the
driving license was valid only for light
motor vehicle but the offending was a truck
and hence a heavy motor vehicle.

11. The definition of light motor
vehicle provided under Section 2(21) of the
Motor Vehicles Act, 1988 is extracted
below:-

"Section 2(21). "light motor
vehicle" means a transport vehicle or
omnibus the gross vehicle weight of either
of which or a motor car or tractor or roadroller the unladen weight of any of which,
does not exceed [7,500] kilograms."

12. The appellant-insurance company
failed to discharge its burden to establish
before the learned Tribunal that the unladen
weight of the offending vehicle exceeded
7500 Kgs and that the vehicle was not a
"light motor vehicle" as defined in the
Motor Vehicles Act, 1988. Even before this
Court no evidence in the record was
pointed out from the record that the weight
of the offending unladen vehicle (truck)
232 INDIAN LAW REPORTS ALLAHABAD SERIES
exceeded 7500 Kgs. The mere fact that the
offending vehicle is referenced as a truck in
the proceedings before the learned tribunal
is of no avail to the appellant. The weight
of the vehicle is the sole and decisive factor
to determine the category of vehicle under
the Motor Vehicles Act, 1988. Popular
name or nomenclature used to describe a
vehicle is not relevant in deciding its
category as per the Motor Vehicles Act,
1988.

13. In this wake, the challenge to the
validity of the driving licence cannot be
sustained. There is no infirmity in the
finding of the learned Tribunal.

14. To ensure the uniformity in
determination
of
compensation
under
conventional heads. The Supreme Court in
National Insurance Company Limited v.
Pranay Sethi and others, reported at
(2017) 16 SCC 680 held as under:

"59.8. Reasonable figures on
conventional heads, namely, loss of estate,
loss of consortium and funeral expenses
should
be Rs.15,000,
Rs.40,000
and
Rs.15,000
respectively.
The
aforesaid
amounts should be enhanced at the rate of
10% in every three years."

15. The petitioners accordingly
entitled to Rs.15,000, 40,000/- and 15,000/-
towards loss of estate, loss of consortium
and funeral expenses respectfully. The
impugned award, in so far as it is
inconsistent with Pranay Sethi (supra), is
set aside.

16. Secondly, there is merit in the
contention that the interest rate of 9% is
high. The interest payable is reduced to 7%.

17.

The
award
is
modified
accordingly.

18. The last issue regarding the
joinder of the necessary party as driver will
now be considered. The owner had
appeared before the learned Tribunal and
contested the matter on merits. The owner
admitted to the involvement of the vehicle
as well as his driver in the mishap.

19. The burden to prove collusion
between the owner and the claimant or the
driver, was on the insurance company to
prove the same. The insurance company
failed
to discharge
its
burden. The
insurance company did not get the driver
summoned as a witness. Moreover, in the
facts of the case, the aforesaid deficiency
does not go to the root. The challenge fails.

20. It is contended that the entire
awarded amount has been deposited by the
insurance company.

21. The learned Tribunal is directed to
calculate
the
compensation
amount
consistent with the observations made in
this judgment and release the remaining
amount in favour of the claimant The
excess amount shall be refunded to the
insurance company.

22. The matter is remanded to the
Tribunal. The Tribunal shall determine the
compensation payable to the claimants
afresh in the light of the observation made
above.

23. The entire exercise shall be
completed within a period of three months
from the date of receipt of copy of this
order.
12 All. National Insurance Co. Ltd. Division Office, Ghaziabad Vs. Smt. Mahendri & Anr.
233

24. The first appeal is partly allowed
to the above extent.
----------
(2022) 12 ILRA 233
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.09.2022

BEFORE

THE HON'BLE SARAL SRIVASTAVA, J.

First Appeal From Order No. 2995 of 2009

National
Insurance
Co.
Ltd.
Division
Office, Ghaziabad ...Appellant
Versus
Smt. Mahendri & Anr. ...Respondents

Counsel for the Appellant:
Sri Anupam Shukla, Sri Ankur Mehrotra, Sri
Radhey Shyam

Counsel for the Respondents:
Sri Chandrajeet, Sri Rakesh Tripathi, Sri
Atul Kumar Sinha

Civil Law - Workmen's Compensation Act
1923 - Section 2(1) (d) (iii) (d) - claim
petition on behalf of married sister -
Dependant - Married Sister - definition of
"Dependant" covers only minor brother or
unmarried sister or widowed sister if
minor - Married sister is not covered under
the definition as defined in Section
Section 2 (1) (d) (iii) (d) of the Workmen's
Compensation Act - claim petition not
maintainable on behalf of the married
sister
of
the
deceased
-
Tribunal
committed
jurisdictional
error
in
entertaining the claim petition on behalf
of the married sister of the deceased -
Award set aside (Para 11)

Allowed. (E-5)

(Delivered by Hon'ble Saral Srivastava, J.)

1. Learned counsel for the respondent is
not present even in the revised call.

2. Heard learned counsel for the
appellant.

3. The present appeal is directed against
the
judgement/award
dated
06.08.2009
passed
by
Workmen
Compensation
Commissioner, Ghaziabad in WCA Case
No.07 of 2008, by which the Commissioner
has awarded Rs.4,48,000/- as compensation
to the claimant/respondent for the death of
one Gange.

4. The case of the claimant/ respondent
is that she is married sister of the deceased,
namely, Gange who was employed as Driver
of Tata 709 HR69/4021, who died in an
accident on 05.009.2007.

5. In the said case, in para-16 of the
written statement, the appellant Insurance
Company has stated that the claimant/
respondent being married sister of the
deceased is not covered within the meaning
of the word "Dependant"as defined in Section
2 (1) (d) (iii) (d) of the Workmen
Compensation Act. The Commissioner did
not frame any issue despite specific plea
raised by the Insurance Company as to the
maintainability of the claim petition filed by
the claimant/respondent.

6. The appeal was entertained on the
following substantial question of law:-

"Whether the claimant-respondent
No.1 being married sister of the deceased
Gange was covered within the meaning of
word "Dependant" as defined in Section 2(1)
(d) of the Workmen's Compensation Act, 1923
and was entitled to claim compensation on
account of the death of the said Gange?"

7. I have heard learned counsel for the
appellant and perused the record.