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Himachal Pradesh High Court · body

2009 DIGILAW 1184 (HP)

RAKESH KUMAR v. NEW INDIA ASSURANCE COMPANY LTD.

2009-12-03

V.K.AHUJA

body2009
JUDGMENT V.K. Ahuja, J.-This is an appeal filed by the appellants/claimants under Section 173 of the Motor Vehicles Act against the award of the Court of learned Motor Accident Claims Tribunal, Hamirpur, dated 21.6.2005, for enhancement of the amount. This judgment shall also dispose of another appeal No. 442 of 2005 filed by the appellant/Insurance Company praying that the amount of compensation granted is not in accordance with the evidence and settled principles of law and the Insurance Company be held not liable to pay the amount in question. 2. Briefly stated, the facts of the case are that a petition under Section 166 of the Motor Vehicles Act was filed by the appellant hereinafter referred to as the claimants Rakesh Kumar and Prashant, for grant of compensation. It was alleged by the claimants that Smt. Sunita Devi (now deceased) wife of appellant/claimant Rakesh Kumar and mother of claimant Prashant, was going in a Jeep No. HP-55-2244 from Piplu and at near High School Kot, respondent No. 1 i.e. driver of the vehicle, namely, Ajit Singh, reversed the jeep in a rash and negligent manner, as a result of which jeep turned out and the deceased came under the jeep and died. It was alleged that the accident had taken place due to rash and negligent driver of respondent Ajit Singh, driver of the vehicle. The age of the deceased was alleged as 27 years. The occupation of the deceased as alleged was tuition work and household work. The monthly income of the deceased was alleged at Rs.15,000/- P.M. and the claimants claimed a sum of Rupees Fifteen Lacs as compensation. 3. In reply by respondent No. 1 i.e. driver/owner of the vehicle, he denied all the allegations made in the petition. In the reply filed by the Insurance Company, they took up all the objections that the driver was not having valid and effective driving licence and that there was no valid registration and the deceased was an unauthorized passenger traveling in the goods vehicle and as such, the Insurance Company is not liable. 4. The petition was tried by the learned Tribunal and on conclusion of the trial, the claimants were held entitled to a sum of Rs.1,75,000/-. 5. I have heard learned counsel for the claimants as well as the learned counsel for the appellant/Insurance and have gone through the record of the case. 6. 4. The petition was tried by the learned Tribunal and on conclusion of the trial, the claimants were held entitled to a sum of Rs.1,75,000/-. 5. I have heard learned counsel for the claimants as well as the learned counsel for the appellant/Insurance and have gone through the record of the case. 6. The main plea raised by the learned counsel for the claimants was that the learned trial Court has not assessed the income of the deceased properly and by approximation only and without applying any multiplier, keeping in view the age of the deceased, the compensation has been awarded, which is on the lower side and as such, it deserves to be increased considerably. 7. According to the allegations made in the petition, the deceased was post graduate, was doing tuition work and household work and her monthly income was alleged at Rs.15,000/- P.M. One of the claimants Rakesh Kumar stepped into the witness box and he supported the assertions made in the petition in this regard. A perusal of the impugned award passed by the learned Tribunal shows that it had observed that since no evidence had been led by examining the students to whom the deceased was giving tuition it was concluded that since the persons normally lay very tall claim of the income to claim higher compensation, the allegations made in the petition were not relied upon by the learned Tribunal. It was simply held that the petitioners have failed to prove that the income of thee deceased was Rs.15,000/- P.M. However, no assessment was made in regard to the income of the deceased, even though she was a house wife and was doing additionally the work of tuition as alleged by the claimants. The learned Tribunal also did not mention as to what multiplier should be adopted keeping in view the age of the deceased keeping in view the decisions of the Apex Court. Therefore, in my view, the approach of the learned Tribunal was not correct. The learned Tribunal did not assume the income of the deceased nor applied any multiplier, but by its own assessment had considered a sum of Rs.1,75,000/- as just and reasonable compensation, which was awarded in favour of the claimants. 8. Therefore, in my view, the approach of the learned Tribunal was not correct. The learned Tribunal did not assume the income of the deceased nor applied any multiplier, but by its own assessment had considered a sum of Rs.1,75,000/- as just and reasonable compensation, which was awarded in favour of the claimants. 8. It has been held by the Courts that even in the case of a house wife her monthly income has to be assumed keeping in view the services being rendered by her to the family i.e. the children and husband. Reliance has been placed upon a decision of this Court given by the then Hon’ble Chief Justice in Master Shushank and others Vs. Ram Karan and others, Latest HLJ 2004 (HP) 1169. The facts of that case are quite similar to the present facts and this decision applies on all force to the present facts. In that case similar allegations were made that the deceased was allegedly giving tuition and was post graduate, but the evidence in regard to the giving of tuition was not relied upon. In that case also, the age of the deceased was 30 years and in the present case, the age of the deceased proved is alleged to be 28/29 years, though the learned Tribunal did not specifically hold as to the age proved on record of the case. Therefore, it is being assumed that the age of the deceased was about 29 years, though it was alleged to be 27 years in the petition. 9. In the above case, the learned Judge has considered the decision of the Apex Court in Lata Wadhwa & Ors. Vs. State of Bihar & Ors., 2001 ACJ 1735 (SC) and had concluded that taking into consideration the multifarious services rendered by the housewife for managing the entire family, even on a modest estimation should be Rs.3000/-per month and Rs.36,000/- per annum. Accordingly, I am of the opinion that in the present case also, the monthly income of the deceased should be assumed at Rs.3000/- and Rs.36,000/-per annum. 10. Coming to the multiplier to be applied, which was not applied by the learned Tribunal in the present case, the learned Judge in the above case had considered the multiplier of 15 to be appropriate keeping in view the age of the deceased proved as 29 years. 10. Coming to the multiplier to be applied, which was not applied by the learned Tribunal in the present case, the learned Judge in the above case had considered the multiplier of 15 to be appropriate keeping in view the age of the deceased proved as 29 years. Thus according to the said decision, the claimants were entitled to compensation applying the multiplier of at least 15. However, I may also make a reference to the latest decision of the Apex Court in Sarla Verma & Ors. Vs. Delhi Transport Corporation and Anr., III (2009) ACC 708 (SC), wherein their Lordships had made a reference to earlier decision i.e. General Manager Kerala State Road Transport Corporation Vs. Susamma Thomas and others, 1994 A.C.J. 1 (S.C.) and another case of the Apex Court in U.P. State Road Transport Corporation Vs. Trilok Chandra, 1 (1996) ACC 592 (SC), and had laid down as to what multiplier should be applied keeping in view the age of the deceased. According to the said decision, in case the age of the deceased was in between 26 to 30 years as in the present case, the appropriate multiplier to be applied is 17. Accordingly, in view of the decision of the Apex Court, I am of the opinion that the appropriate multiplier should be applied as 17 to the annual income of Rs.36,000/-. 11. Apart from the above, it was also submitted that the learned Tribunal has not granted any compensation on account of love and affection and the observation made is that petitioner No.1 may marry in near future. The said observation was irrelevant and keeping in view the decision in Apex Court in Master Shushank’s case of this High Court, I am of the opinion that this amount for loss of love and affection should have been payable at least Rs.50,000/- as granted in that case. No decision to the contrary was cited and I, accordingly, hold that the petitioners are also entitled to a sum of Rs.50,000/- for loss of love and affection. 12. No decision to the contrary was cited and I, accordingly, hold that the petitioners are also entitled to a sum of Rs.50,000/- for loss of love and affection. 12. Coming to the plea raised by the learned counsel for the appellant/Insurance Company that the Insurance Company was not liable, the learned counsel for the appellant/Insurance Company had submitted that there were no specific assertions made in the petition that the petitioners were traveling in the vehicle as owner of the goods being carried in the goods vehicle and as such, the evidence cannot be considered. It was submitted that therefore, the Insurance Company is not liable. 13. To substantiate his submissions, learned counsel for the appellant/Insurance Company had relied upon a decision of this Court in Oriental Insurance Co. Ltd. Vs. Maya and others, 2009 ACJ 2419, wherein it was observed that there were no pleadings of the claimants that the deceased was traveling in the vehicle as owner of the goods or as his representative. It was held that the Tribunal was not justified in fastening liability on the Insurance Company. 14. On the other hand, the learned counsel for the claimants submitted that there is evidence to this effect that the deceased had boarded the jeep alongwith goods and no copy of the Insurance Policy has been proved on record to show as to how many passengers were entitled to travel in the vehicle and no terms ad conditions of the Insurance Policy having been proved on record, the Insurance Company was liable to pay the amount in question. It was also submitted that the application filed by the appellant/Insurance Company for permission, the same was not granted under Section 170 of the Motor Vehicles Act and as such, they are precluded from challenging the compensation awarded. 15. To buttress his submissions, learned counsel for the appellants/claimants had relied upon the decision in Gurdial Singh Vs. H.R.T.C. (M.D.) & Ors., IV (2005) ACC 474, wherein the observations made in Para17 are relevant and are being reproduced below:- “A perusal of the provisions of the Act thus clearly shows that it is not even necessary that a claim petition should be filed before the Court. It is the duty of the police officer or the officer-in-charge of the Police Station to forward a report regarding the accident to the Claims Tribunal concerned. It is the duty of the police officer or the officer-in-charge of the Police Station to forward a report regarding the accident to the Claims Tribunal concerned. Prior to its amendment in 1994, the Claims Tribunal, where it thought it necessary, could treat such a report as an application for a grant of compensation. After the amendment of 1994 it is mandatory for the Claims Tribunal to treat this report as an application for grant of compensation. This clearly shows that the intention of the Legislature was that the claimants are not bound by the strict rules of pleadings. Even otherwise the Tribunal has to conduct an inquiry which should not be put in the straightjacket which binds the Civil Courts. It is true that under the H.P. Motor Vehicles Rules, 1999, a form of claim petition has been prescribed. Thus, when a claimant himself files a claim petition before the Tribunal, it is expected that his claim petition should be in accordance with these rules. However, the pleadings in such matters are to be considered liberally and not strictly.” 16. It is, therefore, clear from the above discussion that the learned Single Judge in Gurdial Singh’s case had already observed that the claimants are not bound by the strict rules of pleadings and an inquiry has to be conducted by the Tribunal but not as required to be held by the Civil Courts. It was also held that the pleadings in such matters are to be considered liberally and not strictly. This decision applies to the present facts and since the view has already been taken by the learned Single Judge of this Court after the amendment of the Act that the strict rules of C.P.C. do not apply to the present facts and, therefore, decision in this case is applicable to the present facts in preference to the decision relied upon by the appellant/Insurance Company as mentioned above in Oriental Insurance Co. Ltd. Vs. Maya and others, 2009 ACJ 2419. Moreover the present case is distinguishable from the decision cited by the learned counsel for the appellant/Insurance Company, since in the present case, no copy of the Insurance Policy has been proved on record containing the terms and conditions and the application filed by the appellant for permission to contest the case under Section 170 of the Motor Vehicles Act was also not granted. The claimants established that the deceased had boarded the jeep alongwith goods and there was rebuttal evidence on behalf of the Insurance Company. For all these reasons, the decision in Gurdial Singh’s case is being relied upon. 17. Coming to the evidence, there may not be any specific assertions in the petition that the deceased was going in the vehicle as owner of the goods in the goods vehicle. There is evidence of PW-2 Rakesh Kumar, petitioner, in this regard that they were carrying the goods and had paid the money also to the driver of the vehicle. The appellant/Insurance Company had only taken the plea that the petitioner was an unauthorized passenger in the goods vehicle and there were no specific allegations that they were gratuitous passengers and were not carrying any goods of their own. The appellant/Insurance Company has also tendered in evidence the Cover Note Ext. RA in evidence, but they did not place on record the Insurance Policy containing the terms and conditions of the policy. They also did not examine any official from their company to prove the Insurance Policy and the terms and conditions and the violation of the terms and conditions of the Insurance Policy, if any. The strict rule of C.P.C. do not apply to such petition and the evidence cannot be considered since it was not specifically alleged that the deceased was traveling as owner of the goods and keeping in view the fact that the appellant/Insurance Company had failed to prove the policy or the terms ad conditions, I am inclined to hold that the Insurance Company with whom the vehicle was insured as a goods vehicle was liable to pay the compensation and those findings of the learned Tribunal in this regard to this extent are liable to be affirmed. The evidence of the claimants proves that they were traveling in the vehicle as owners of the goods and there is no rebuttal evidence to this effect and it cannot be said that the deceased was a gratuitous passenger or that she was not covered under the policy of the Insurance in the absence of Insurance Policy and as such, there is no merit in the appeal filed by the appellant/Insurance Company, which is liable to be dismissed. 18. 18. In view of the above discussion, the appeal filed by the claimants is allowed partly and they are held entitled to compensation to the extent of Rs.36,000/-x 15 = Rs.5,40,000/-alongwith interest at the rate of 9% from the date of filing of the petition till today. In case, the amount is not deposited within sixty days from today, the Insurance Company shall be liable to future interest also at the rate of 9% from today till the date of deposit. The appeal filed by the claimants is partly allowed and the appeal filed by the Insurance Company is dismissed. There is no order as to costs.