NIRMA UNIVERSITY, INSTITUTE OF LAW

LAW OF TORTS INCLUDING CONSUMER PROTECTION AND M.V. ACT

CE ASSIGNMENT (CASE REVIEW)

SUBMITTED BY: GUIDED BY:

RAHUL AGRAWAL ABHAS SRIVASTAVA

ROLL NO. 22BBL166

 Allahabad High Court
Smt. Vimla Devi and 4 Ors. Vs United India Insurance Co. Ltd. … on 25 February, 2022
Bench: Kaushal Jayendra Thaker, Vivek Varma
 
Learned Counsel for Claimants: Shri Aditiya Singh Parihar, 
Learned Counsel for the Insurance Company: Shri S. K. Mehrotra. 
 
Facts:  

On the evening of October 29, 2011, Pankaj Kumar Sharma, Vijay Gautam, and Haridas Gautam were
driving their Maruti WagonR with the registration number U.P-51/N-6061 back to their home in
Lucknow. According to the petitioner, respondent number three, Shiv Shankar @ Pappu, was the
driver of the vehicle (a Mitsubishi WagonR). Shiv Shankar @ Pappu was operating the car recklessly
and carelessly on May 30, 2011, at 4:00 a.m., when they arrived in front of the gas station of the
village of Rithiya on the Lucknow Main Road. Shankar @ Pappu moved his car to the extreme left of
his side when he saw a car coming from the opposite direction, causing the car to crash into the railing
of the roadside culvert. Haridas Gautam and Vijay Gautam were taken to the District Hospital for
treatment where Haridas Gautam passed away from his injuries and Vijay Gautam was treated for his
injuries. Pankaj Kumar Sharma and driver Shiv Shankar @ Pappu also suffered minor injuries as a
result of the collision. The deceased, who was 53 years old at the time of the accident, was the chief
pharmacist at the District Women Hospital in Basti. His wife, two younger sons, and two older
daughters all survived him. The Tribunal established the decedent's annual income at Rs. 26,900,
subtracted Rs. 1,00,000 for personal expenses, multiplied by 9, awarded Rs. 10,000 in compensation
for estate loss, Rs. 10,000 in compensation for loss of consortium, and Rs. 10,000 in compensation for
funeral expenses, bringing the total compensation to Rs. 22,98,900.

 
Arguments: 
 
Arguments by Shri Aditya Singh Parihar (Learned council for claimants):   
a) The tribunal has deducted 20% by way of income tax and other emoluments which is
inconsistent with the judgement in Vimal Kanwar and Others v. Kishore Dan and Others
(2013) 7 SCC 476; 
b) As per the judgement of Sarla Verma Vs. D.T.C, AIR 2009 SC 3104 the tribunal should have
granted a multiplier of 11 instead of 9; 
c) No amount under loss of future prospect is granted relying on decision of Sarla Verma (supra)
as deceased was above 50 years of age. 
 
Arguments/Issues raised by the Insurance Company: 
a) It was Vijay Gautam who was driving the vehicle and not Shiv Shankar @ Pappu and thus the
award and decree is bad; 
b) There was a delay of 26 months in lodging the F.I.R. and a delay of about two and half years
in filing the claim petition; 
c) There is not concluding evidence that the accident in question occurred due to rash and
negligent driving of the driver of Maruti Car and who is liable to pay the claimants; 
d) The compensation awarded towards consortium and other heads is on the higher side; 
e) The quantum of compensation is not correct. 
 JUDGEMENT & ANALYSIS

Issue (a) and (c) On facts it is admitted that the driver was Shiv Shankar @ Pappu to whom the owner
entrusted the vehicle but the evidence on record shows that the charge sheet was framed against Vijay.
Gautam who was also injured in the accident. This is also corroborated by the oral evidence of the
driver D.W.-1- Shiv Shanker, because from the point of view of the case, the allegation that the
vehicle was driven by Shiv Shankar @ Pappu could not be allowed to stand. The said statement is in
fact contrary to the driver's statement and the statement that he was not driving the vehicle at the time
of the accident could not be believed simply because he was licensed. The fact that Shiv Shankar @
Pappu was in the vehicle does not make him liable for driving the vehicle without any other evidence.
In this view, we find that the vehicle was driven by Vijay Gautam. The factum of knowledge that
vehicle was driven by Vijay Gautam and not by Shiv Shankar @ Pappu and to take benefit of this
fact, we would have to peruse Section 147 and Section 149 of the M.V. Act, 1988. According to
Sections 147 and 149 of the M.V. Act, the insurance company has not established that the owner gave
Vijay Gautam control of the vehicle or that the owner knew Vijay Gautam would be driving it. The
factual information makes it clear that the owner had given the car to a person who met the
requirements to operate the vehicle. It is unknown if she was questioned about the car that Shri
Gautam was operating, and due to the insurance company's failure to demonstrate that Vijay Gautam
lacked a valid driver's licence, and because the owner knew that Vijay Gautam was operating the
vehicle, this Court, in light of the Apex Court's ruling, grants recovery rights with the stipulation that
the insurance provider must demonstrate that Vijay Gautam, who was operating the vehicle, lacked a
valid driver's licence. The owner and P.W.-1 testified that Shiv Shankar @ Pappu was the driver of
the vehicle and that he had a valid driver's license, contradicting the insurance company's claim that
this was the case. Issue (b) The finding not being perverse is not disturbed as there is no period for
filing claim petition and the claimants being in shock F.I.R. was filed belatedly. Issue (d)
Compensation to be awarded and as raised by claimants that compensation granted is inadequate and
requires enhancement. The New Compensation after the enhancement: Rs. 39,21,600/- and, as far as
issue of rate of interest is concerned the court ruled that it should be 7.5%.

The court allowed both the appeals, compensation was recalculated Award and decree passed by the
Tribunal shall stood modified to the aforesaid extent, and the respondents were told to pay the amount
to claimants jointly and severally. It also held that that the Insurance Company can recover the
amount from the owner and driver if it is proved that the owner was aware and had given the vehicle
to Shri Haridas Gautam to drive and that Haridas Gautam had no license to drive the vehicle the
recovery rights are given, are these facts being proved by Insurance Company, Within a period of 12
weeks from today(the date of judgement, i.e. 25 Feb, 2022) the respondent-Insurance Company must
deposit the additional sum after recalculating it, along with interest at a rate of 7.5% per year from the
date the claim petition was filed until the sum was deposited and said to be sure to subtract the amount
already deposited from the amount still owing. The registry of Tribunal was directed to allow the
claimants to withdraw the amount without producing the certificate from the concerned Income-Tax
Authority.
 OPINION

In my opinion the judgement of the case was correct, as it will help the family of deceased in many
ways, and it also provides justice to the deserving parties. In the facts of the case one question arises
that during the incidence who was driving the Car, the petitioner side was standing on the point that
Shiv Shankar @ Pappu was the driver, but the respondent side was arguing that Shri Haridas Gautam
was the driver during the night of the accident, this might be an small question if we look from the
above part of the case but if we read deep into the case we will find out that it was an important face
as it helps in deciding the liability and it leads the insurance to collect the compensation amount. The
Court increased the amount of compensation from Rs. 22,98,900/- to Rs. 39,21,600/- and entitled the
multiplier of 11 instead of 9 as per the judgment of National Insurance Company Ltd. Vs. Pranya
Sethi 2017 (the rate of interest stood the same 7.5%). The best part was that the court allowed both the
appeals and both parties were provided justice in one way or another.