Research › Search › Judgment

Himachal Pradesh High Court · body

2009 DIGILAW 801 (HP)

ORIENTAL INSURANCE COMPANY LTD v. HET RAM

2009-09-17

V.K.AHUJA

body2009
JUDGMENT V.K. Ahuja, J:-This is an appeal filed by the appellant under Section 173 of the Motor Vehicles Act, 1988, against the award dated 8.7.2005 passed by the learned Motor Accident Claims Tribunal-I, Sirmaur District at Nahan, allowing the claim petition filed by respondents No. 1 and 2 and granting compensation to the extent of Rs.3,80 ,000/- alongwith interest. 2. Briefly stated, the facts of the case are that respondents No. 1 and 2 as claimants filed a claim petition as against respondent No. 3 who was impleaded as owner of the vehicle and as against the appellant who was impleaded as respondent No. 2 being the insurer of the vehicle. The claim petition was filed by the claimants in regard to the death of their son Virender Dutt. It was alleged that on 30.7.2004, around 3.00 PM., deceased along with his other companions Subhash Chauhan, Yogesh Chauhan etc. was standing on the road side near a place known as Dom Bagh (Baryalta), with potatoes bags waiting for a truck to transport the potatoes to Delhi for sale. A truck No. HR-58-3353 came suddenly, which was being driven rashly and negligently by its driver and struck against the deceased and others who rolled down into a steep Dhank resulting in the death of the deceased and his companions. The driver of the truck also died in the said accident. The claim petition was filed by the claimants being the parents of the deceased and dependent upon him. 3. In reply filed by original respondent No. 1/owner, it was pleaded that the accident took place due to locking of the steering and, therefore, the driver could not control the truck in question. In reply by original respondent No. 2/Insurance Company, they pleaded that there was violation of terms and conditions of the insurance policy and the driver was not having valid and effective driving licence. A plea was also taken that the deceased was travelling in the truck in question as an unauthorized passenger. 4. The claimants claimed compensation to the extent of Rupees Seven Lacs. 5. The learned Tribunal tried the petition and on conclusion of the trial held that the claimants were entitled to the amount of compensation and the petition was allowed as against both the respondents jointly and severally. 6. 4. The claimants claimed compensation to the extent of Rupees Seven Lacs. 5. The learned Tribunal tried the petition and on conclusion of the trial held that the claimants were entitled to the amount of compensation and the petition was allowed as against both the respondents jointly and severally. 6. I have heard the learned counsel for the parties and have gone through the record of the case. 7. The appeal has been filed by the appellant/Insurance Company mainly on two points, firstly that the learned Tribunal had come to a wrong conclusion that the deceased was standing on the road side, though the evidence established that he was an unauthorized passenger traveling in the truck. The second point taken was in regard to the quantum. 8. Coming to the first point, the learned counsel for the appellant has submitted that in the FIR it has been specifically alleged that there were passengers travelling in the truck and as such, the FIR which has already been relied upon by the claimants could not have been ignored by the learned Tribunal. Thus, it was submitted that keeping in view the FIR lodged in the case and other evidence produced by the respondents, it has to be held that the deceased was an unauthorized passenger and as such, the appellant was not liable to pay the compensation. 9. Coming to the evidence in this regard, there is statement of PW-1 Het Ram, petitioner, who had learnt that the deceased was standing on the road side when the truck struck against him and other persons, who were also standing on the road side. He admitted that he was not present on the spot at that time. The petitioner had also examined PW-2 Satyapal, who has stated that he was also standing on the road side along with bags of potatoes. He also stated that the deceased and other persons were standing with him when the truck came and struck with the deceased and others, who fell down in the Dhank and died. He admitted that he was living at a distance of only 2-3 K.M. from the place of occurrence and, therefore, he may have been present on the spot. His statement was not shattered in the cross-examination to hold that he was not present there or that he has deposed falsely. 10. He admitted that he was living at a distance of only 2-3 K.M. from the place of occurrence and, therefore, he may have been present on the spot. His statement was not shattered in the cross-examination to hold that he was not present there or that he has deposed falsely. 10. The petitioners had also proved the copy of FIR Ext.PW3/A. A perusal of the same shows that this report was lodged by one Tanuj Jaswal, who has stated that on the day of accident, he was going in his vehicle Mahindra. He learnt there that one truck which was going from Andheri to Haripurdhar at a fast speed, could not be controlled by the driver and it went down in the Dhank 500/600 Mtrs. below the road. In this FIR, it was mentioned that there was several persons sitting in the truck. It has not been specifically mentioned by the informant that in his presence the truck had gone and fallen in the Dhank. The learned counsel for the appellant had relied upon the assertions made in the report that there were several persons sitting in the truck. A perusal of the FIR does not show as to how he learnt that several persons were sitting in the truck. 11. The said Tanuj Jaswal who lodged the FIR has been examined as RW-2, who stated that in his presence the truck fell down in the Dhank and he lodged FIR Ext. PW3/A. He stated that in his presence no pedestrian suffered injuries, though it was not so alleged in the FIR. He admitted in cross-examination that his vehicle and the ill fated truck were going in different directions. He had not gone to the spot where the truck had fallen. He clearly stated that he had not seen any person sitting in the truck, though learnt subsequently that six persons had died. He stated that he had no personal knowledge. His statement was not sufficient to prove that he had seen the accident or had seen the persons sitting in the truck and, therefore, his version was not sufficient to contradict the statement of claimant and his witnesses that the deceased and other persons were standing on the road side. 12. He stated that he had no personal knowledge. His statement was not sufficient to prove that he had seen the accident or had seen the persons sitting in the truck and, therefore, his version was not sufficient to contradict the statement of claimant and his witnesses that the deceased and other persons were standing on the road side. 12. Apart from the above, the respondent/Insurance Company had relied upon the testimony of RW-3 ASI Madan Lal, who investigated the case and gave a untraced report and the case was subsequently cancelled. He clearly stated that he was not a witness of the spot, had no knowledge and had based his report mainly on the statement of the claimant/informant of the FIR RW-2 Tanuj Jaswal. To my mind, this statement is not sufficient to hold that the version of the claimant cannot be relied upon. 13. In regard to the plea that once the claimant has relied upon the FIR, it cannot be ignored, the learned counsel for the appellant had relied upon the decision in National Insurance Company Limited Vs. Rattani and others, (2009) 2 Supreme Court Cases 75. A perusal of the same shows that their Lordships of the Apex Court had held that ordinarily allegations made in FIR are not admissible in evidence per se but as the allegation made in FIR had been made a part of the claim petition, therefore, the appellate Courts are entitled to look into the same. The observations were made on the context of the facts of the case and in the present case, this fact cannot be lost sight of that this FIR was lodged by an independent person and not by any of the occupants of the vehicle or other persons related to the claimant or eye witnesses present at the spot. The FIR had been lodged by a third person and the facts lodged therein cannot be used as against the claimant and the informant had clearly admitted that he had no personal knowledge and had not seen any person sitting in the vehicle. 14. The FIR had been lodged by a third person and the facts lodged therein cannot be used as against the claimant and the informant had clearly admitted that he had no personal knowledge and had not seen any person sitting in the vehicle. 14. From the above discussion, it is clear that keeping in view the evidence, the learned Tribunal came to a right conclusion that the allegations made by the claimants are to be relied upon that the claimant and other persons were standing on the road side when the truck struck and then fell in the Dhank and the deceased died. The findings of the learned Tribunal in this regard call for no interference by this Court. 15. Coming to the question of quantum, the learned counsel for the appellant had submitted that the deceased was 19½ years of age, was not having any fixed income and since the claim petition has been filed by the parents of the deceased, the multiplier of 18 applied in this case can be said to be excessive. In support, reliance was placed upon a decision in United India Insurance Company Limited Vs. Bindu and others, (2009) 3 Supreme Court Cases 705, wherein after making a reference to the decision of the Apex court in Kerala SRTC Vs. Susamma Thomas, (1994) 2 SCC 176 and U.P. SRTC Vs. Trilok Chandra, (1996) 4 SCC 362, respectively, their Lordships observed that a reference can be made to the second schedule of the Act but it suffers from many defects. It was held that the same is to serve as a guide but not a ready reckoner. It was held that maximum multiplier was to be 18 which should be applied for the persons in the age group of 21 years to 25 years. However, in the facts of the case multiplier applied in that case was 13 since the age of the deceased was 32 years. 16. Reliance was also placed upon the decision in Donat Louis Machado and others Vs. L. Ravindra and others, (1998) 8 Supreme Court Cases 633. The age of the deceased in that case was 31 years and the claimants were parents and sister of the deceased, dependant upon him. 16. Reliance was also placed upon the decision in Donat Louis Machado and others Vs. L. Ravindra and others, (1998) 8 Supreme Court Cases 633. The age of the deceased in that case was 31 years and the claimants were parents and sister of the deceased, dependant upon him. The compensation was enhanced in that case from Rs.1,27,000/-by another Rs.73,000/- taking the income as Rs.3750/- P.M. but there was no specific observation a to the multiplier which should be applied, though it had been applied as 15. But there were no specific observations made that keeping in view the fact that the decision was unmarried, age of the parents had also to be considered. 17. Reliance was also placed upon the decision of this Court in Oriental Insurance Company Ltd. Vs. M.A.C.T. Kangra & others, Latest HLJ 2007(HP) 1311, wherein the deceased was unmarried son of the claimant/mother and the multiplier which was applied was 17 and it was reduced to 14. 18. The income of the deceased was alleged as Rs.6,000/- P.M. being a student, doing the business of purchasing and selling potaroes and tomatoes and cash crops. The learned Tribunal on the basis of the evidence assessed the income at Rs.2,500/- P.M. and accordingly, held that the annual income comes to Rs.30,000/- after deducting 1/3rd amount, which the deceased would have spent upon himself, the loss to the family was assessed at Rs.20,000/-per annum. Insofar as the income is concerned, the findings of the learned Tribunal were no specifically challenged except on multiplier and keeping in view the evidence and conclusion, I am of the opinion that those findings in regard to the income and loss to the family are liable to be affirmed. Taking annual loss of Rs.20,000/- per annum, the next question is in regard to the multiplier. 19. The learned Tribunal has applied the multiplier of 18 keeping in view the age of the deceased as 19½ years. However, this fact cannot be lost sight that the deceased was presently unmarried and the petition has been filed by the parents only whose age as proved on record is 46 years of petitioner No. 1 as per his own statement as PW-1 and that of his wife as 45 years. However, this fact cannot be lost sight that the deceased was presently unmarried and the petition has been filed by the parents only whose age as proved on record is 46 years of petitioner No. 1 as per his own statement as PW-1 and that of his wife as 45 years. It cannot be disputed that in the case of married person of this age, the multiplier of 17 could have been easily applied as held in the above cases, but in the present case, since the deceased was an unmarried person, lesser multiplier has to be applied keeping in view the age of the parents also. In case Joginder Nath Maini and others Vs. Manawar Khan and others, 1992 ACJ 561, the age of the deceased was 29 years and age of the parents proved was 56 and 50 years and it was held that the multiplier of 15 was appropriate. Keeping in view the multiplier given under Schedule under Section 163-A, in case the age is less than 20, multiplier of 16 was held to be the most appropriate. Keeping in view the various decisions and the decision of this Court referred to above and keeping in view the age of the parents also, I am of the opinion that the multiplier of 16 can be said to be most appropriate in the facts and circumstances of the case. The appeal filed by the appellant is liable to be allowed to this extent that the multiplier of 16 shall be applied and the compensation comes to Rs.20,000/-x 16 = Rs.3,20,000/-. To this amount of compensation, a sum of Rs.10,000/- shall be added as awarded by the learned Tribunal as conventional amount and therefore, the total compensation liable to pay is Rs.3,30,000/-. 20. In view of the above discussion, the appeal is partly allowed to this extent that the compensation is liable to pay Rs.3,30,000/-. There is no order as to costs.