Case: Oriental Fire and General Insurance Company Limited Vs. Rajrani W/O. Surendrakumar Sharma &amp; Another

The accident occurred in the morning at 0.30 hours of 22nd June, 1980. It seems that late at night on 21st June, 1980/22nd June, 1980 Surendrakumar Sharma was proceeding on his motor cycle along Bombay Agra Road within the Municipal limits of Nasik. Between Dwaraka Hotel and Inayat Cafe on the National Highway No. 3 by which Surendrakumar was proceeding on his motor bike, there was a stationery tanker bearing No. MHL 4179 which was kept on the road unattended. There were no tail lamps on this vehicle which was kept on a jack. Surendrakumar dashed against this tanker and was killed on the spot. The petitioners filed Motor Accident Claims Petition No. 12 of 1981 before the Motor Accident Claims Tribunal at Nasik. Opponents 1 and 2 were the drivers of the tanker, opponent No. 3 was the owner of the Vehicle while opponent No. 4 was the Insurance Company. Opponents Nos. 1 to 3 did not remain present at the time of the be hearing of the petition. The petition against them therefore proceeded ex parte. The Claims Tribunal upheld the claim of the petitioners and awarded a total sum of Rs. 74,800/in favour of the petitioners and against Opponents Nos. 1 to 4. In the award there is also a direction regarding the manner in which this amount is to be distributed amongst the claimants.2. The Insurance Company, the original Opponent No. 4 has filed the present appeal from the award of the said Tribunal. In this appeal the Insurance Company has challenged the award on merit. It has challenged the finding of the Tribunal that there was negligence both on the part of the opponent Nos. 1 to 3 as well as Surendrakumar. The tribunal has apportioned the negligence as 75% on the part of the owner of the tanker and the drivers and 25% on the part of Surendakumar. This apportionment of contributory negligence is also challenged in this appeal. The Insurance Company has challenged the quantum of compensation as well.

Reasoning:
This decision of the Gauhati High Court, with respect, does not appeal to us.8. Under sectionthere is nothing which indicates that the Insurance Company gets more rights in appeal than the rights which it originally possessed. An appeal, after all, is aof the original plaint or suit. In appeal the appellant cannot raise defences which were not available to the appellant at the trial stage. The fact that an insurance company is a person aggrieved who can file an appeal does not give to the Insurance company more rights in appeal than it originally possessed. The judgment of the Gauhati High Court is contrary to the decision of the Supreme Court and the decisions of a number of High Courts in different parts of the country. It is true that the Supreme Court in Itbar Shinghs case was not dealing with the right to the Insurance Company to raise contentions in an appeal. But sectiondoes not enlarge in any manner the right to defend given to an Insurance Company under section 96(2). As the Supreme Court has observed, but for the provisions of the statute, an Insurance company would not have had any right to appear and be heard at the trial of the accident claim. The rights of the Insurance company are governed by statute. Sectiondoes not in any manner enlarge the right of the Insurance company which is confined within its bounds by section 96(2).9. In the present case however, the owner of the vehicle and the two drivers, being opponent 1 to 3 did not appear or defend the action. The case against Opponent Nos. 1 to 3 proceeded exby virtue of the provisions of sectiononce the insurer is apursuant to a notice of the Court or otherwise, and the person against whom the claim is made, does not, inter alia, contest the claim, the insurer gets a right to contest this claim on all grounds available to the person against whom the claim is made. By virtue of sectiontherefore, in the present case the insurer is entitled to contest the claim made by the claimants on all grounds available to the person or persons against whom the claim is made. In other words since the claim has proceeded ex parte against Opponent Nos. 1 to 3 the Insurance Company is entitled to challenge the award on all grounds available to opponents Nos. 1 to 3 in the present appeal.10. On merits the Appellant Insurance Company has challenged the apportionment of negligence between the Opponent Nos. 1 to 3 and the deceased Surendrakumar. From the evidence on record it seems that the tanker was parked on the main road itself and not on the Kachha side or untarred portion of the road. The evidence shows that although the tanker was on the correct side of the road it was parked in such a way that there was to its left towards Kachha side of the road more thanft. of tarred road. In other words, the tanker was not parked on the extreme left of the road but it was in the line of traffic. The taillamps were also not switched on. The tanker was on a jack and was unattended. In these circumstances the tribunal has rightly held Opponents Nos. 1 to 3 guilty of contributory negligence for leaving the tanker on the road unattended without any warning lights atthe present case the vehicle was not parked in any duly appointed parking place or on the left hand side portion of the road where a vehicle can parked. Nor was it parked in a manner so as not to cause danger or inconvenience to other users of the road. It was, therefore, necessary for the vehicle to display light. It did not display any light12. The tribunal has also held that after dashing against the tanker the motor cycle on which the deceased were travelling, travelled about 130 ft. before stopping, which indicated that it was going at some considerable speed. The tribunal has taken into account the fact that it was a dark night. Nevertheless from the light of theSurendrakumar could have seen the vehicle in front of him at some distance, However, he was not able to stop thein time. Therefore the tribunal has held Surendrakumar guilty of contributory negligence. Looking to the fact that a person driving awithin the municipal limits of Nasik would not expect a tanker to be parked in the middle of the left lane without any lights on the tribunal has rightly apportioned negligence in the ratio of 75% on the owner and drivers and 25% on theour view the reasoning of the tribunal appears to be justified. Looking to the conduct of opponents Nos. 1 to 3 we therefore do not see any reason to intervene in this connection.14. The appellant has also challenged the quantum of compensation which has been awarded. The tribunal has relied upon the income tax assessment of the deceased which is at Exhibit 41. This is the Income tax Assessment order for the yearThis shows the annual income of the deceased at Rs.The deceased was running a motor garage cum workshop known as "Sharma Auto Engineering Works". On the basis of the Assessment order, the monthly income of Sharma has been assessed at Rs. 1000/per month. Looking to the fact that the deceased had to support a family of wife and 7 children the tribunal has held that Surendrakumars own share in this income would be Rs. 200/per month while Rs 800/per month was his contribution for his dependents. This appears to be a reasonable estimate. Surendrakumar was 48 years old at the time of his death. The learned Judge has taken his working age up to the age of 60. Hence he has used the multiplier of 12 to arrive at the compensation. This multiplier of 12 also appears to be reasonable; because looking to the fact that the deceased was carrying on business, there is no reason to expect that he would stop earning any income after the age of 60. There was no question of any age of retirement in his case. The life expectancy at 12 years therefore appears to be very reasonable.