# The Oriental Insurance Co. Ltd v. Smt. Munni Devi & Ors

- **Citation:** (2019) 4 ILRA 524
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-10-15
- **Case number:** FAFO No. 761 of 2015
- **Bench:** Pradeep Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/the-oriental-insurance-co-ltd-v-smt-munni-devi-ors-45010
- **Pages:** 5

## Headnote

Act (59 of 1988) - Section 166 - U.P.
Motor Vehicle Rules, 2011- Amended
Rule 204 - Claim petition - Driver is a
necessary party to the application for
compensation
filed
u/s
166
w.e.f.
 26.9.2019 - However, prior to 26.9.2019
driver was only a proper party but was
not necessary party (Para 13)

B. Motor Vehicles Act (59 of 1988) -
Sections 166 & 168 - Compensation -
Selection of Multiplier - Deceased aged
about 52 years - Operative multiplier is 11
for the age group of 51 to 55 years (Para 14)

First Appeal from Order disposed off. (E-5)

List of cases cited: -

## Text

524 INDIAN LAW REPORTS ALLAHABAD SERIES
respect of minor children shall be
deposited
in
an
interest
bearing
instrument (FDR) into a nationalised bank
for the duration of such minority under
guardianship of their mother.

30. With the aforesaid, and subject
to
the
above
determination
of
compensation
the
award
dated
05.03.2011, shall stand modified. The
FAFO no. 604 of 2011 stands partially
allowed.
The
record
of
Tribunal
concerned shall be remitted to Tribunal
within a period of two weeks. Any
amount deposited before this Court by
insurance company shall also be remitted
to the Tribunal to be released in favour of
claimants in light of observations made in
the judgment. There shall be no order to
costs. The aforesaid two FAFO stand
decided accordingly.
----------
(2019)12 ILR A524

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.10.2019

BEFORE
THE HON'BLE PRADEEP KUMAR
SRIVASTAVA, J.

FAFO No. 761 of 2015

The Oriental Insurance Co. Ltd.
 ...Appellant
Versus
Smt. Munni Devi & Ors. ...Respondents

Counsel for the Appellant:
Sri Kuldip Shanker Amist

Counsel for the Respondents:
Sri Sudhir Kumar Singh Parmar, Sri Vijay
Kant Dwivedi, Sri Virendra Singh Parmar

A. Motor Accident claim - Motor Vehicles
Act (59 of 1988) - Section 166 - U.P.
Motor Vehicle Rules, 2011- Amended
Rule 204 - Claim petition - Driver is a
necessary party to the application for
compensation
filed
u/s
166
w.e.f.
 26.9.2019 - However, prior to 26.9.2019
driver was only a proper party but was
not necessary party (Para 13)

B. Motor Vehicles Act (59 of 1988) -
Sections 166 & 168 - Compensation -
Selection of Multiplier - Deceased aged
about 52 years - Operative multiplier is 11
for the age group of 51 to 55 years (Para 14)

First Appeal from Order disposed off. (E-5)

List of cases cited: -

1. Oriental Insurance Co. Ltd. Vs Meena
Variyal AIR 2007 SC 1609

2. Machindranath Kernath Kasar Vs D. S.
Mylarappa AIR 2008 SC 2545

3. Sarla Verma Vs Delhi Transport Corporation
Ltd., AIR 2009 SC 3104

(Delivered by Hon'ble Pradeep Kumar
Srivastava, J.)

1. Heard Shri Kuldip Shanker
Amist, learned counsel for the appellant
and Shri Sudhir Kumar Singh Parmar,
learned counsel for the respondents.

2. This appeal has been filed by the
Oriental Insurance Co. Ltd. against the
award
dated
20.12.2014
passed
by
Additional District Judge, Court No.
10/Motor Accident Claims Tribunal,
Kanpur Nagar in MACP No. 819 of 2011
allowing total amount of compensation as
Rs. 21,91,664/- along with interest at the
rate of 6% per annum from the date of
filing of the claim petition.

3. The said award has been
challenged by the appellant on the ground
that the claimant did not implead the
driver who was necessary party in the
4 All. The Oriential Insurance Co. Ltd. Vs. Smt. Munni Devi & Ors.
525
case and a finding was given that the
driver was driving the offending vehicle
in rash and negligent way and because of
that the accident occurred. The amount of
compensation is very high and the
Tribunal
has
committed
error
in
calculating and not applying the principle
of law while determining the quantum of
compensation. The Tribunal has applied
high multiplier of 11 while calculating the
amount of award, which is not correct.
The deceased was 53 years at the time of
accident and his service remains only
about 7 years and thereafter he was to
retire, and therefore, a multiplier of 11 is
not applied and a proportional deduction
could have been made. Therefore, the
amount awarded is illegal and arbitrary
and is not sustainable under law and no
compensation could be awarded to the
claimant.

4. The factual matrix of the case is
that an accident took place on 12.12.2010
on 07:30 p.m. by a bus U.P.14-B.T. 7092
which was coming from the side of Dadri
and it was alleged that the driver of the
bus was driving the bus rashly and
negligently and coming from behind, he
dashed constable Suresh Singh Yadav,
who sustained injuries and died out of
accident. The F.I.R. was lodged and the
matter was investigated by police and
thereafter a charge-sheet was submitted
against the driver of the offending
vehicle.

5. The appellant being Insurance
Company contested the petition on all
grounds such as on rash and negligent
driving, the driver was not having a valid
driving license at the time of incident nor
there was valid registration certificate,
permit and fitness of the offending
vehicle. Moreover it was alleged that
there was violation of the condition of
insurance policy.

6. Following issues were framed by
the Tribunal.

1-
क्या याचिका के
कथनानुसार दुघघटना
चदनाांक
12.12.2010 को समय
7:30
बजे शाम स्थान सेक्टर
37 के
पास स्स्थत पेटरोलपम्प
अन्तगघत थाना नोयडा
सेक्टर
39, चजला गौतम बुद्ध
नगर में उस समय घचटत हुई
जबचक मृतक काां
0 सुरेन्द्र
चसांह यादव सरकारी कायघ से
जा रहा था तभी बस सां
0 यूपी
14
बीटी
-7092 के िालक ने अपने
वाहन को तेजी
, लापरवाही एवां
चबना हानघ बिाए गलत साइड
में लाकर सुरेन्द्र चसांह
को पीछे से टक्कर मार दी
चजससे इलाज हेतु ले जाते
समय रास्ते में उसकी
मृत्यु हो गयी
?

2- क्या दुघघटना में
आचलप्त वाहन बस सां
0 यूपी
14
बीटी
- 7092 चवपक्षी सां
0 2 चद
ओररयन्टल इन्श्योरेंस
कां
0चल0 से बीचमत था
, यचद हााँ
तो प्रभाव
?

3- क्या दुघघटना के
चदनाांक को उक्त बस के िालक
के पास वैध व प्रभावी
डराइचवांग लाइसेन्स था
तथा वाहन के अन्य प्रपत्र
वैध व प्रभावी थे
?

4- क्या याचिनी कोई
प्रचतकर राचश प्राप्त
करने की अचधकारी है यचद हााँ
तो चकतनी और चकस चवपक्षी
से
?

7. Documentary evidence was given
from the side of claimant and PW-1 Smt.
Munni Devi (claimant), PW-2 Satish
Kumar, (eye witness), PW-3 Mohd. Abid
526 INDIAN LAW REPORTS ALLAHABAD SERIES
(eye witness) and PW-4 Virendra Kumar
Sharma were examined, the defendant did
not examined any witnesses.

8. After perusing the evidence on
record the learned tribunal passed the
impugned judgment which is under
challenge.

9. So far as issue nos. 2 and 3 are
concerned, they relates to the insurance of
the offending vehicle and with regard to
driver having a valid license or not and on
the basis of the documentary evidence on
record these two issued have been
concluded in favour of claimant and
against the defendant. From the perusal of
the finding of the learned tribunal, it
appears that the offending vehicle was
ensured with the appellant and the driver
who was driving the said offending
vehicle was having a valid driving license
and the driving license was filed by the
appellant himself.

10. So far as the issue with regard to
rash and negligent driving is concerned,
the learned counsel for the appellant has
admitted that four witnesses have been
examined from the side of the claimant
and they all have supported the version of
claim petition and have stated that
because of the rash and negligent driving
by the driver of the offending vehicle, the
accident took place and in the accident,
the husband of the petitioner-claimant
suffered serious injuries and died. The
statement of the witnesses is further
supported by the police papers such as
FIR,
charge-sheet,
site-map
and
postmortem report.

11. The learned counsel for the
appellant has restricted his argument to
two points, firstly, that the multiplier
applied in this case was not correct as the
age of the deceased at the time of incident
was 53 years and he was likely to retire
on attaining the age of 60 years this is
within
7
years
and
therefore,
the
multiplier of 11 was not permissible.
Secondly, he has submitted that the driver
of the offending bus was a necessary
party who was not impleaded by the
claimant and therefore, the driver could
not be examined who could explain how
the accident took place.

12. So for as the impleadment of
driver is concerned, no such plea was
taken by the Insurance Company nor any
issue appears to have been pressed before
the
learned
Tribunal.
In
Oriental
Insurance Co. Ltd. v. Meena Variyal
AIR 2007 SC 1609, the Supreme Court
expressed the view that when a car
belonging to an owner is insured with the
insurance company and it is being driven
by a driver employed by the insured,
when it meets with an accident, the
primary liability under law for payment of
compensation is that of the driver. Once
the driver is liable, the owner of the
vehicle becomes vicariously liable for
payment of compensation. It is this
vicarious liability of the owner that is
indemnified by the insurance company. A
third party for whose benefit the insurance
is taken, is therefore entitled to show,
when he moves under Section 166 of the
Motor Vehicles Act, that the driver was
negligent in driving the vehicle resulting
in the accident; that the owner was
vicariously liable and that the insurance
company was bound to indemnify the
owner and consequently, satisfy the award
made.
Therefore,
under
general
principles, one would expect the driver to
be impleaded before an adjudication is
claimed under Section 166 of the Act as
to whether a claimant before the Tribunal
4 All. The Oriential Insurance Co. Ltd. Vs. Smt. Munni Devi & Ors.
527
is entitled to compensation for an accident
that
has
occurred
due
to
alleged
negligence of the driver.

13. In Machindranath Kernath
Kasar v. D. S. Mylarappa AIR 2008 SC
2545, the Supreme Court, however, took
the view that the driver of vehicle should
be impleaded as party in proceeding
though he may not be necessary party.
The driver, therefore, may be a proper but
not a necessary party though in case of
several tortfeasors, all the tortfeasors are
not to be impleaded and impleadment of
one set of tortfeasors is sufficient. In
motor accident cases, the concept of joint
tortfeasors applies only in case of
composite negligence of drivers of two
vehicles colliding with each other on any
side, and according to the settled
principles under law of torts it is
sufficient if only one set of such
tortfeasors is impleaded and proceeded
against. Amended Rule 204 of U.P.
Motor Vehicle Rules, 2011, however at
present, provides that in the application
for compensation filed u/s 166 driver is a
necessary party. It is pertinent to mention
that the amended Rules, 2011 has been
published in official gazette on 26.9.2019,
whereas, the claim petition has been filed
on 5.8.2011, much before when the
amended Rules came into force. As such,
this argument has got no force as no such
objection or issue was raised before the
Tribunal and moreover, it has not caused
any prejudice to the appellant.

14. The next argument is with
regards to application of multiplier. From
the perusal of the finding on this aspect, it
is clear that the learned tribunal has
concluded that at the time of incident the
deceased was just above 52 years and the
multiplier in this age which has been
provided in the Schedule of the Motor
Vehicle Act. Moreover, in Sarla Verma
Vs. Delhi Transport Corporation Ltd.,
AIR 2009 SC 3104 is from the age of 50
to 55 is 11 years. The Supreme Court has
laid down as below:

"We therefore hold that the
multiplier to be used should be as mentioned
in column (4) of the Table above (prepared by
applying Susamma Thomas, Trilok Chandra
and Charlie), which starts with an operative
multiplier of 18 (for the age groups of 15 to 20
and 21 to 25 years), reduced by one unit for
every five years, that is M-17 for 26 to 30
years, M-16 for 31 to 35 years, M-15 for 36 to
40 years, M-14 for 41 to 45 years, and M-13
for 46 to 50 years, then reduced by two units
for every five years, that is, M-11 for 51 to 55
years, M-9 for 56 to 60 years, M-7 for 61 to
65 years and M-5 for 66 to 70 years."

15. Therefore, in view of the
multiplier
system
affirmed
by
the
Supreme Court, it cannot be said that
there is any illegality in applying the
multiplier of 11 years. It is pertinent to
mention that multiplier system has been
provided under law law to maintain
uniformity in determining quantum of
compensation in order to avoid variation.
It is also pertinent to mention that the
admitted fact is that the deceased was
employed
in
police
department
as
constable and it appears from the
impugned judgment that on the basis of
his salary, the compensation has been
calculated. The learned tribunal has also
correctly reduced the compensation by
1/3 as permissible under Rules against the
personal expenses of the deceased.

16. In Sarla Verma (supra), it has
been held by the Supreme Court that a
proceeding before the Tribunal is in the
528 INDIAN LAW REPORTS ALLAHABAD SERIES
nature of inquiry in which a very few
thing is required to be established. The
Court observed:

"Basically only three facts need
to be established by the claimants for
assessing compensation in the case of
death: (a) age of the deceased; (b) income
of the deceased; and the (c) the number of
dependents. The issues to be determined
by the Tribunal to arrive at the loss of
dependency are (i) additions/deductions
to be made for arriving at the income; (ii)
the deduction to be made towards the
personal living expenses of the deceased;
and (iii) the multiplier to be applied with
reference of the age of the deceased."

17. From the perusal of the
impugned judgment, it is clear that the
learned Tribunal has considered all the
aspects as laid down by Sarla Verma
(supra) and has given finding based on
the evidence on record. I do not find any
perversity
or any illegality in the
impugned judgment.

18. In view of the above discussions,
I find no force in this appeal and the
appeal is liable to be dismissed.

18. The appeal is dismissed.

19. The office is directed to send a
copy of this judgment to the Court
concerned for information and necessary
compliance.
----------
(2019)12 ILR A528

APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 04.12.2019

BEFORE
THE HON'BLE VED PRAKASH VAISH, J.
FAFO No. 802 of 2018

Awdhesh Kumar ...Appellant
Versus
Rajendra Kumar ...Respondent

Counsel for the Appellant:
Sri Adnan Ahmad

Counsel for the Respondent:
Sri Alok Srivastava

Civil Law - Code of Civil Procedure -
Section 107 read with Order 41 Rule 24 -
Remand - First appellate court has power
to remand if the trial court has disposed of
a suit on a preliminary issue without
recording evidence but where evidence on
record is sufficient, Appellate court may
itself determine the case finally.

Held - In the instant case, the respondent/
plaintiff filed a suit for cancellation of sale
deed, written statement was filed by the
appellant/defendant, issues were framed and
the evidence was adduced by both the parties.
It is not a case where the trial court has
disposed of the suit on a preliminary issue
without recording evidence and giving its
decision on the rest of the issues. The first
appellate court could have decided the matter
on the basis of the evidence on record (Para
21 & 22)

First Appeal from Order allowed. (E-5)

List of cases cited: -

1. Santosh Hazari Vs Purushottam Tiwari
(Deceased) by LRs (2001) 3 SCC 179

2. Madhukar & Others Vs Sangram & Others
(2001) 4 SCC 756

3.
B.V.
Nagesh
and
another Vs
H.V.
Sreenivasa Murthy (2010) 13 SCC 530

4. State Bank of India & Anr Vs Emmsons
International Ltd.& Anr (2011) 12 SCC 174

5. P. Purushottam Reddy And Anr. v Pratap
Steels
Ltd
(2002)
2
SCC
686