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2005 DIGILAW 302 (HP)

MAYA LAMINI v. NAWAL THAKUR

2005-08-22

DEEPAK GUPTA

body2005
JUDGMENT Deepak Gupta, J.—By this judgment two appeals being FAO Nos. 232 & 235 of 2000 are being disposed of as they arise out of the same accident and similar awards. 2. The facts necessary for disposal of the present case are that Maya Lamini and others claiming themselves to be the widow and children of deceased Sonam Lama filed a petition under Section 166 of the Motor Vehicles Act, 1988. In this petition it was alleged that deceased Sonam Lama had hired a tractor No. HP-43-0888 for carriage of stones from Thirot to Udaypur. It was further alleged that about 8.30 a.m. when the tractor reached Bhimu bridge the deceased got down from the tractor to answer the call of nature. In the meantime the driver of the tractor started the tractor in an excessive speed and the truck overturned on the deceased and one other person and the tractor as well as these two persons fell into the river Chanderbhaga. Similarly in the other case Parmol, widow and the children of deceased Vijay Ram filed a claim petition wherein similar facts were stated. In both the cases it was alleged that the deceased were working as stone masons. 3. The owner filed similar replies in both the cases. The accident was not denied. The defence taken was that the accident had taken placed due to the sudden mechanical defect i.e. steering of the tractor got jammed and in order to avoid the accident the driver applied the brakes but the brakes failed and as such the accident could not be avoided. It was stated that two persons who were walking on the road came below the tractor and fell into the river alongwith the tractor. 4. The Insurance Company took up the plea that since the deceased was travelling in the tractor in question there was violation of the terms of the Insurance as such the Insurance Company is not liable. Various other defences were also raised. 5. The first common issue to be decided in both the cases is with regard to the negligence. The accident is not denied. The defence taken by the owner and driver is that the accident occurred due to the mechanical defect. They have not led any evidence with regard to the tractor having developed any mechanical defect. 5. The first common issue to be decided in both the cases is with regard to the negligence. The accident is not denied. The defence taken by the owner and driver is that the accident occurred due to the mechanical defect. They have not led any evidence with regard to the tractor having developed any mechanical defect. In fact the tractor got washed away, so obviously it could not be subjected to any mechanical inspection. It is well settled law that when any party raises a defence that an accident occurred due to sudden mechanical defect then the party must not only prove that the accident had occurred due to mechanical defect but must also prove that such defect was a latent defect and could not be discovered despite due diligence. No evidence has been led by the owner or driver to show whether the tractor was being maintained properly. There is nothing on record to show that the accident occurred due to a latent defect which could not be discovered despite proper maintenance. On the other hand the claimants have examined Kishan Kumar who is an eye-witness. According to him both the deceased i.e. Sonam Lama and Vijay Ram were walking on the side of the road. The Tractor No. HP-43-0888 driven by respondent Daljit Singh came from behind at a high speed. It over-turned on both the deceased as a result of which deceased as well as tractor fell into the river Chanderbhaga. This witness has also clearly stated that the claimants are the legal representatives of the deceased. He has not been cross-examined with regard to the manner of the accident or with regard to the relationship of the claimants with the deceased. Thus, from the above evidence it can reasonable be held that the deceased died due to the rash and negligent driving of the driver of the tractor. 6. The second common issue which arises in both the appeals is whether the Insurance Company can be held liable to pay the compensation assessed or not. 7. Mr. Anoop Rattan, learned counsel for the Insurance Company contends that in the claim petitions in both the cases it had been stated that deceased Sonam Lama had hired the tractor and both Sonam Lama and Vijay Kumar were travelling in the tractor. 7. Mr. Anoop Rattan, learned counsel for the Insurance Company contends that in the claim petitions in both the cases it had been stated that deceased Sonam Lama had hired the tractor and both Sonam Lama and Vijay Kumar were travelling in the tractor. He states that there is violation of the terms and conditions of the insurance policy as such the Insurance Company is not liable. 8. The claim petitions in fact show that according to the claimants prior to the accident both the deceased had got down from the tractor and they were walking on the road. Therefore, even in the pleadings there was nothing to suggest that the deceased were travelling in the tractor at the time when the accident occurred. Kishan Chand was examined in both the cases. He clearly stated that the deceased were walking on the side of the road and the tractor overturned. No suggestion has been put to him by the Insurance Company that in fact the deceased were travelling in the tractor at the relevant time. From this it is clear that the deceased were not travelling in the tractor at the time of the accident. Whether they were travelling in the tractor prior to the accident is not relevant for deciding this issue. The breach of policy, if any, has to be established at the time when the accident occurred. Furthermore, in the present case, in my opinion the Insurance Company in fact cannot even be allowed to raise this issue. The Tribunal in its award has recorded that the counsel for the Insurance Company did not press the issues the onus of which was on it to prove the same. Once the Insurance Company did not press these issues it cannot now be heard on these issues. 9. In view of the above discussion, I am of the opinion that both the deceased were walking on the road and the tractor hit both of them while being driven by the respondent Daljit Singh in a rash and negligent manner. Hence the Insurance Company is liable to pay the compensation. 10. Now both the cases are being taken up separately for assessing the quantum of compensation. FAO No. 232/2000 : 11. In this case the deceased Sonam Lama was a Nepali. He used to work as stone mason. According to his widow he was earning Rs. 5,000/- per month. Hence the Insurance Company is liable to pay the compensation. 10. Now both the cases are being taken up separately for assessing the quantum of compensation. FAO No. 232/2000 : 11. In this case the deceased Sonam Lama was a Nepali. He used to work as stone mason. According to his widow he was earning Rs. 5,000/- per month. As per memo of parties, he has left behind three minor sons i.e. Pema Lama, aged 7 years, Neema Lama, aged 4 years and Mingmar Lama aged 1 year respectively. According to widow the deceased was aged about 24 years at the time of the accident. The statement of the widow cannot be believed in toto. There is no evidence with regard to the income of the deceased except for the statement of witness Kishan Chand and the widow. Admittedly the widow and children were living in Nepal. However, keeping in view the fact that the deceased was working in a tribal area where daily-wages were on the higher side it would not be unreasonable to assess the monthly income of the deceased at Rs. 2,000 per month. It is true that stone masons at that time may have been earning Rs. 100 per day but this work is not regular in nature and there are periods when such a person may not got employment for long stretches of time. It is on this basis that monthly income has been assessed at Rs. 2,000/ - per month. The deceased was living away from his family. Therefore^ it would be reasonable to assess his personal expenses atleast Rs. 1,000/- and he could spare only Rs. 1,000/- for his family. The widow states that the deceased was only 24 years of age at the time of the accident. This appears to be incorrect keeping in view the fact that the eldest son was 7 years when the deceased died. The deceased would be between 25-30 years of age. Therefore, in my view a multiplier of 16 would be just and reasonable. Applying the same the compensation works out to Rs. 1,92,000/-. The widow is also entitled to Rs. 10,000/- on account of loss of consortium. The claimants are also entitled to Rs. 8,000 for conventional damages. Thus, the total compensation comes out to Rs. 2,10,000/- which is apportioned as follows : 1. Smt. Maya Lamini, widow Rs. 60,000/- 2. Applying the same the compensation works out to Rs. 1,92,000/-. The widow is also entitled to Rs. 10,000/- on account of loss of consortium. The claimants are also entitled to Rs. 8,000 for conventional damages. Thus, the total compensation comes out to Rs. 2,10,000/- which is apportioned as follows : 1. Smt. Maya Lamini, widow Rs. 60,000/- 2. Kancha Lama, father -Nil- 3. Pema Lama, son Rs. 50,000/- 4. Neema Lama, son Rs. 50,000/- 5. Mingmar Lama, son Rs. 50,000/- 12. The claimants are also entitled to interest @ 9% p.a. w.e.f. 1.10.1997 till deposit of the amount. The amount falling to the share of respondents 3 to 5 shall be kept in a fixed deposit for a period co-terminus with their attaining majority. FAO No. 235/2000 : 13. This case relates to the deceased Vijay Ram. He was also stone mason and on similar reasoning as in FAO No. 232/2000 his income is also assessed at Rs. 2,000/- per month. The claimants are his widow and two sons. One son is major and one son was aged about 16 years. In this case the deceased belonged to the area where the accident took place and his family was residing with him. Therefore keeping in view all these facts it would be reasonable to assess the dependency of the family at Rs. 1,500/- per month or Rs. 18,000/- per year. The reasonable multiplier in this case would be 12 and the compensation payable comes to Rs. 2,16,000/-. The widow is also held entitled to Rs. 10,000/- on account of loss of consortium. The claimants are also entitled to another some of Rs. 9,000/- on account of conventional damages and funeral etc. The total compensation thus comes to Rs. 2,35,000/- which is apportioned as follows : 1. Smt. Parmol Rs. 1,35,000/- 2. Kesham Chand Rs. 50,000/- 3. Prithi Chand Rs. 50,000/- 14. The claimants are also entitled to interest @ 9% p.a. w.e.f. 1.10.1997 till deposit of the amount. 15. Before parting with the case must observe that the Tribunal has dealt with the matter in a very hyper-technical manner. The claim petitions have been rejected on the ground that the claimants have not placed on record the documents to show that they were related to the deceased. In one case the widow herself appeared in the witness box. In the other case the son appeared in the witness box. The claim petitions have been rejected on the ground that the claimants have not placed on record the documents to show that they were related to the deceased. In one case the widow herself appeared in the witness box. In the other case the son appeared in the witness box. PW Kishan Chand had clearly made a statement with regard to the relationship of the claimants with the deceased. He was not subjected to any cross-examination. In fact no suggestion was put to the claimants who appeared in the witness box that they were not legal heirs of the deceased. Therefore, the Tribunal has totally mis-directed himself in holding that the claimants are not the legal heirs of the deceased. Further find that though both the cases were disposed of on the same date, in both the cases one of the reasons given by the Tribunal for dismissing the claim petitions is that two persons were involved in the accident and explanation with regard to the death of one person has been given and nothing has been stated as what happened to the other person. It appears that the Tribunal totally lost sight of the fact that it was dealing with the two claim petitions relating to both the deceased. The petitions had not been consolidated but have been heard together right from the very beginning. The statement of the witnesses except for the claimants are identical in both the cases and it appears that one statement has been recorded and copied from another. This observation of the Tribunal is also therefore without any basis. 16. The Tribunal has also lost sight of the basic fact that once the accident was admitted by the owner and driver and the only defence was that it had occurred due to mechanical defect then the onus shifted upon the owner and driver to prove that the accident occurred due to mechanical defect and the same was a latent defect which could not be discovered despite proper maintenance and diligence. 17. In view of the above discussion both the appeals are allowed and in FAO No. 232/2000 an amount of Rs. 2,10,000/- is awarded and in FAO No. 235/2000 an amount of Rs. 2,35,000/- is awarded. The claimants are also held entitled to interest on the award amount @ 9% p.a. from 1.10.1997 till the deposit of the amount. 17. In view of the above discussion both the appeals are allowed and in FAO No. 232/2000 an amount of Rs. 2,10,000/- is awarded and in FAO No. 235/2000 an amount of Rs. 2,35,000/- is awarded. The claimants are also held entitled to interest on the award amount @ 9% p.a. from 1.10.1997 till the deposit of the amount. All the respondents are held jointly and severally liable to pay the amount. However, the vehicle was admittedly insured with the Insurance Company which is liable to indemnify the owner. Therefore, the respondent No. 3-Oriental Insurance Company is directed to deposit the awarded amount within 12 weeks from today failing which it shall be liable to pay interest @ 12% p.a. w.e.f. today.