Research › Search › Judgment

Himachal Pradesh High Court · body

2005 DIGILAW 11 (HP)

NATIONAL INSURANCE COMPANY LTD. v. SAVERI DEVI

2005-01-07

V.K.GUPTA

body2005
JUDGMENT V.K. Gupta, C.J.—By this common judgment RA.O. No. 504 of 2002 and FA.O. No. 452 of 2003, treating the same as on days list with the consent of learned Counsel for the parties, are being disposed of together. 2. In RA.O. No. 504 of 2002 the appellant National Insurance Company has challenged the award dated 5th August, 2002 passed in M.A.C.T. Petition No. 28-B/2000 by the learned Motor Accident Claims Tribunal (3), Kangra at Dharamskala on various grounds. In RA.O. No. 452 of 2003 the claimants have come up in appeal against the aforesaid award only to the extent that the compensation amount awarded is on the lower side and that it deserves to be enhanced appropriately. 3. In so far as RA.O. No. 504 of 2002 is concerned, after hearing the learned Counsel for the parties I find that none of the defences available to an Insurer in terms of Section 149(2) of the Motor Vehicles Act, 1988 arise or come up for consideration or adjudication in this appeal because the impugned award has been assailed by the appellant-insurer in the appeal and during the course of hearing today also Mrs. Sharma focused her ground of challenge only on the issue relating to the factum of accident, viz. whether the accident occurred because of any rashness or negligence on the part of the driver of truck No. HP-39-3152 and on the issue whether the Tribunal erred in granting higher or excessive amount of compensation. It is well settled law by now that these grounds of challenge in an appeal are not available to an Insurer as these are not available to an Insurer by way of defence also in the Claims Tribunal. On this being pointed out. Mrs. Sharma drew my attention to the application filed by the appellant-Insurer in the Tribunal under Section 170 of the Motor Vehicles Act seeking Tribunals permission to defend the claim petition on all grounds available to the owner and driver, in addition to the defences available to the Insurer under Section 149 (2) of the Act. Mrs. Sharma submits that the Tribunal did not pass any order on this application. I have seen the file of the Tribunal as also the order sheet maintained by the Tribunal and do agree with Mrs. Sharmas submission that indeed the Tribunal did not pass any order disposing of the aforesaid application of the appellant-Insurer. Mrs. Sharma submits that the Tribunal did not pass any order on this application. I have seen the file of the Tribunal as also the order sheet maintained by the Tribunal and do agree with Mrs. Sharmas submission that indeed the Tribunal did not pass any order disposing of the aforesaid application of the appellant-Insurer. It is expected that whenever an application, is filed by a party, interlocutory in nature or otherwise, during the pendency of the proceedings in a matter, the Tribunal/Court must ensure that such an application is disposed of. My attention has been drawn to interlocutory order dated 23rd August, 2001 passed by the learned Tribunal in which it held the application as pre-mature as at that stage and deferred the passing of the order thereupon until after the conclusion of the evidence. I am at a total loss to appreciate as to how could the application be considered or held as pre-mature in view of the clear stand taken in the application that the owner and driver had colluded with the claimants and/or they had failed to contest the claim petition. Whether the aforesaid allegation of the appellant-Insurer in the aforesaid application was correct or it was not correct alone was a matter which warranted a decision by the trial Court. If, based on the Tribunals record and whatever material it had before itself the Tribunal came to the conclusion that there was no collusion between the claimants and owner-driver and that owner-driver had not failed to contest the claim petition, the application filed under Section 170 of the Act straightway deserved dismissal. There was no question of the application ever being held or found to be pre-mature and similarly there was no question of such an application having been kept pending with a view to defer decision thereupon at a later stage. Even if initially the learned Tribunal would find that there was no collusion between the petitioner-claimants and owner-driver or that owner-driver were in fact contesting the claim petition, a situation could arise in future, at another point of time when the circumstances might dramatically alter and the altered circumstances might point out that owner-driver had at a subsequent stage of the proceedings colluded with the claimants or they had stopped contesting the claim petition. Such an altered situation always entitled the Insurer to file a second/subsequent application which had to be entertained, considered and disposed of on the basis of situation/circumstance as would be prevalent at such a subsequent stage. Holding the application thus to be premature or deferring its decision to a future date, were both uncalled for since under the Scheme of Section 170 of the Act such a contingency was not catered for by the legislature and the Tribunal should not have taken such a stand. The application thus remained undisposed of which it should not have. The Tribunal committed a material irregularity in not disposing of the Application. 4. In the aforesaid background, I have no hesitation in allowing Mrs. Sharmas prayer that in this appeal I should take up the aforesaid application myself for its consideration and disposal on its merits. I have perused the entire record of Tribunal very carefully and find that in answer to the claim petition filed by the claimants both the sets of the respondents, namely, owner-driver of the jeep as well as owner-driver of the truck had filed their respective written statements. Both the sets of defendants had also all along been contesting the claim petition on merits. At no stage of the proceedings in the claim petition before the Tribunal does one find any remote suggestion that these defendants either did not contest the claim petition or that there was any collusion between them or one of them and the claimants. The allegations in the application, therefore, are not at all borne out from the record of the Tribunal nor Mrs. Sharma could point out any fact or circumstance which could support the appellants contention that either there was a collusion or any failure or neglect on the part of the respondents to contest the claim petition. 5. Permission to contest the claim petition on all or any of the grounds which are available to the person against whom the claim has been made in terms of Section 170 of the Act can be granted only if either there is a collusion between the persons making the claim and the person against whom the claim is made, or the person against whom the claim is made has failed to contest the claim. Since none of the aforesaid is present or has been made out in this case. Since none of the aforesaid is present or has been made out in this case. I have no hesitation in holding that the appellants application filed under Section 170 of the Act was totally devoid of any merit. It is accordingly dismissed. The consequence and the result is that the appellant is relegated to the position where it could defend the claim petition or it could assail the award in this appeal only on the ground mentioned in sub-section (2) of Section 149 of the Act. Admittedly, neither any such ground finds mention in this appeal nor any such ground has been urged today in the course of hearing of this appeal, the appeal of the appellant-Insurer is totally devoid of any merit and accordingly deserves to be dismissed. 6. Coming to the appeal filed by the claimants for enhancement. I find that the Tribunal assessed the monthly income of deceased at Rs. 1500. As per the Tribunal, out of this amount of Rs. 1500/- the deceased was contributing Rs. 500/- every month towards his family. The deceased was unmarried and was aged 23 years at the time of accident. The Tribunal has applied the multiplier of 9 to the multiplicand. In my considered opinion, the multiplicand as well as the multiplier both deserve to be suitably enhanced/ modified. 7. Since the deceased was a bachelor, the Tribunal has wrongly held that he should have been contributing l/3rd of his income towards the maintenance of his parents. Normally it is 2/3rd, but taking a conservative view, it will be safe if this contribution is limited to 1/2 of the income of the deceased. Thus, holding that the deceased was contributing Rs. 750 per month to maintain his parents, the annual loss of dependency is worked out at Rs. 9000/-. Keeping in view the age of the deceased (23 years) and the ages of his parents, in the facts and circumstances of this case the multiplier of 14 should be more appropriate. Applying the multiplier of 14 to the aforesaid multiplicand of Rs. 9000/-, the compensation amount is capitalized at Rs. 1,26,000/-, instead of Rs. 54,000/- as has been done by the Tribural. The amount of Rs. 1,26,162/- awarded in para 13 of the Judgment/Award shall remain un-altered. The total amount of compensation shall stand enhanced/increased accordingly, taking into account the enhancement from Rs. 54,000/- to Rs. 9000/-, the compensation amount is capitalized at Rs. 1,26,000/-, instead of Rs. 54,000/- as has been done by the Tribural. The amount of Rs. 1,26,162/- awarded in para 13 of the Judgment/Award shall remain un-altered. The total amount of compensation shall stand enhanced/increased accordingly, taking into account the enhancement from Rs. 54,000/- to Rs. 1,26,000/- as was awarded in para 12 of the Judgment/Award. 8. The award accordingly stands modified to the aforesaid extent. 9. Both the appeals are disposed of. 10. Whatever amount is lying deposited in this Court shall be disbursed to claimants-applicants with interest accrued till date. CMP No. 908 of 2004 in FAO No. 504 of 2002. 11. In view of the disposal of the main petition, this application is also disposed of. -