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Himachal Pradesh High Court · body

2013 DIGILAW 707 (HP)

KALA DEVI v. BHAGWAN DASS CHAUHAN

2013-07-31

SURINDER SINGH

body2013
JUDGMENT : Surinder Singh, J. The Insurance Company as well as the claimants, both felt dis-satisfied by the impugned award, as such, laid challenge by filing above titled separate appeals. 2. In short, the facts giving rise to the present appeals can be stated thus. On 15.12.2003, Shri Roshan Chauhan (deceased), husband of appellant Kala Devi, was traveling in vehicle No. HP-09A-0897 (207 TATA vehicle), which was being driven by respondent No. 3 Keshav Ram. When it reached near Naral, Tehsil Theog, District Shimla, it got stuck on a snowy surfaced road. The deceased and few others alighted from the vehicle and started pushing the same, but suddenly, vehicle slipped, hit the deceased and went off the road causing death of Roshan Chauhan and serious injuries to two others who later also succumbed to their injuries. Accordingly, his wife Kala Devi, for herself and her minor children and Smt. Savitri Devi, mother of the deceased, filed claim petition seeking compensation to the tune of Rs. 12,96,000/- on the ground that the deceased (25) was matriculate and was driver by vocation in another vehicle, earning Rs. 9,000/- per month. He had bright chance to get a Government job, but he died at the prime of his age leaving behind his legal heirs and dependants. 3. Respondent No. 1 Bhagwan Dass, owner of the alleged offending vehicle and respondent No. 3 Keshav Ram, driver, admitted the death of Roshan Lal, but attributed the accident to the skidding of the vehicle on snow while being pushed. The negligence on the part of the driver was denied. It was also their case that the vehicle was insured with the second respondent i.e. the Insurance Company, who is to indemnify the owner. 4. The respondent-Insurance Company disputed the validity of the driving licence of respondent No. 3 Keshav Ram and further alleged that the vehicle in question was being driven in contravention with the terms and conditions of the Insurance Policy. 5. On the pleading of the parties, the learned Tribunal had framed the issue qua the rash and negligent act of driving by driver Keshav Ram, the onus of which was placed on the claimants, whereas the onus of violation of the terms and conditions of the insurance policy regarding driving licence and the issue of collusion was on the Insurance Company. 6. 6. In support of the petition, the claimants examined PW-1 Smt. Kala Devi, wife of the deceased, PW-2 Shri Tilak Ram, HHC, Police Station Theog qua FIR Ext. PW-2/A with respect to the accident, PW-3 Jagdish Sharma, resident of Panchkula, the owner of vehicle No. HR-68-3774 with whom deceased Roshan Lal was employed as a driver at a monthly salary of Rs. 9,000/-. He produced certificate Ext. PW-3/A and driving licence of deceased Ext. P.W. 3/B. 7. Respondent Bhagwan Dass was examined as RW-1. According to him, while employing Keshav Ram in the alleged offending vehicle, he had checked up his driving licence, which was found valid. On the day of incident, the vehicle got stranded in snow, therefore, three persons including the deceased to take it out pushed it, but the vehicle got slipped, as a result of which Roshan Chauhan died and two others sustained injuries. He also testified that his vehicle was insured with the second respondent i.e. the Insurance Company. He denied that five persons including the deceased were sitting in the vehicle and also that the third respondent Keshav Ram was not having a valid and effective driving licence. He attributed the accident to the snow-fall on the road and denied the negligence on the part of the driver. 8. RW-2 Keshav Ram, driver of the alleged offending vehicle, admitted that when his truck got stuck up in snow-fall, the deceased was pushing the same with the assistance of 2-3 others, but it slipped. He tried to apply brakes, but it did not stop and went off the road into a Nullah as there was about half an inch snow on the road and it was also snowing; but denied his negligence. 9. The Insurance Company also got investigated the case through RW-3 Kamal Narain, retired Dy.S.P. His report is Ext. RW-3/A. He also affirmed the fact that the deceased alongwith 2-3 other persons had been pushing the truck, it got skidded off the snowy road under which the deceased was crushed. 10. RW-4 Shashi Saini, Administrative Officer of the Insurance Company, stated that the alleged offending vehicle was a 'Goods Carrying Vehicle'. The sitting capacity of the said vehicle was 3 including the driver. In other words, he had tried to say that the deceased was a gratuitous passenger and the Insurance Company was not liable to indemnify the insured. 11. 10. RW-4 Shashi Saini, Administrative Officer of the Insurance Company, stated that the alleged offending vehicle was a 'Goods Carrying Vehicle'. The sitting capacity of the said vehicle was 3 including the driver. In other words, he had tried to say that the deceased was a gratuitous passenger and the Insurance Company was not liable to indemnify the insured. 11. After analyzing the evidence of the parties, the learned Tribunal decided the issue of negligence against respondents No.1 and 3, but however, denied the income of the deceased at the rate of Rs. 9,000/- per month on the basis of the certificate aforesaid, but assessed his income at Rs. 3,000/- per month, also after taking note of his education and driving licence and after deducing 1/3rd of his own maintenance, the dependency towards the dependants was assessed at Rs. 2,000/- per month and came to the conclusion that the annual contribution was Rs. 24,000/-. Keeping in view the age of the deceased, the multiplier of 17 was applied, as such, the total compensation was assessed at Rs. 4,08,000/-. In addition, for loss of love and affection, and for loss of consortium to the petitioner-wife, the amount of Rs. 32,000/- was held to be sufficient, as such, awarded the compensation to the tune of Rs. 4,40,000/- with interest at the rate of 7.5% per annum and the Insurance Company was held liable to indemnify the insured, as the learned Tribunal did not find any breach of terms and conditions of the policy, further the driving licence of Keshav Ram was held to be valid and effective. 12. The Insurance Company in their appeal, challenged their liability on the ground that negligence of the driver is not proved. The deceased was son of Bhagwan Dass, the owner of the alleged offending vehicle and he was gratuitous passenger and further, the amount awarded was on the higher side. 13. On the other hand, the claimants in their appeal, challenged the inadequacy of the award as the learned Tribunal did not assess the amount of earning of the deceased and dependency of the claimants correctly. It also ignored the future prospects of the deceased and there was wrong choice of the multiplier. 14. I have heard the learned Counsel for the parties on the points raised and carefully reappraised the evidence on record. 15. It also ignored the future prospects of the deceased and there was wrong choice of the multiplier. 14. I have heard the learned Counsel for the parties on the points raised and carefully reappraised the evidence on record. 15. I will take up first the point whether there has been any neglicence on the part of respondent No. 3 Keshav Ram in driving the vehicle in question at the relevant time. Admittedly, it was snowing and the snow had accumulated on the road to the extent of half an inch. It is evident that the alleged offending vehicle got stuck up in snow and started skidding. The deceased alongwith 3-4 other persons after alighting from the vehicle had tried to push it off and respondent No. 3 Keshav Ram was on the steering wheel. It was 'Tata 207', a goods carrying vehicle. It was not possible for 3-4 persons to push the truck unless the engine was on then just to aid its acceleration and get it out of the slippery road, it was being pushed but it got slipped, which means that driver Keshav Ram had still opted to drive the vehicle on a bad road and took out it from difficult situation with the aid of aforesaid persons, which resulted into the accident causing death of Roshan Lal, is itself an act of rash and negligent driving which is attributable to driver respondent No. 3. Further, I also find a reference qua rash and negligent driving by respondent No. 3 in FIR Ext. PW-2/A proved by PW-2 Tilak Ram, HHC of Police Station Theog, which has not been disputed in his cross-examination. Respondent No. 3 Keshav Ram had also faced trial, but was ultimately, acquitted. The learned Tribunal rightly held that his acquittal will not relegate him from tortuous liability where the standard of proof in criminal charge is beyond reasonable doubt. As such, I find no error in these findings, thus the issue of negligence was rightly decided against respondent No. 3 Keshav Ram. 15-A. The learned Counsel for the Insurance Company also argued that the deceased was gratuitous passenger in the vehicle in question and it was 'Goods Carrier Vehicle'. As such, I find no error in these findings, thus the issue of negligence was rightly decided against respondent No. 3 Keshav Ram. 15-A. The learned Counsel for the Insurance Company also argued that the deceased was gratuitous passenger in the vehicle in question and it was 'Goods Carrier Vehicle'. Therefore, there has been a violation of the terms and conditions of the policy and further that the deceased being the son of the owner of the said truck, liability of the Insurance Company cannot be fastened and the petition is collusive. 16. To appreciate the above arguments, it shall be relevant to refer to the cross-examination of the petitioner conducted by the Insurance Company. Only one question was asked as to whether the deceased was traveling as a gratuitous passenger, which fact has been denied by her. She categorically stated that the vehicle in question was hired to bring Ration items, which was being driven by respondent No. 3 and met with the accident as aforesaid, which fact has also been admitted by respondent No. 1 in his statement as well as by Keshav Ram who appeared as RW 2. 17. The main stress of the arguments advanced by Shri Ashwani K. Sharma, learned Counsel for the Insurance Company has been that the deceased was an occupant of the 'goods vehicle', thus a gratuitous passenger. But the evidence aforesaid discloses that he had alighted from the vehicle and died because of the accident caused in the manner aforesaid. The moment he got down to push it, he ceased to be a gratuitous passenger much less the passenger, therefore, in no way, there has been infraction of the terms and conditions of the policy and further the Insurance Company has failed to prove that the licence of driver respondent No. 3 was not valid and effective at the relevant time, therefore, this issue was rightly decided against the Insurance Company. In this behalf, reliance can also be put to a case decided by this Court in Mohar Singh v. Devi Ram and others, Latest HLJ 2009 (HP) 1067. 18. In this behalf, reliance can also be put to a case decided by this Court in Mohar Singh v. Devi Ram and others, Latest HLJ 2009 (HP) 1067. 18. In so far as the allegation of collusion is concerned, though, the father of the respondent is stated to have been the owner of the vehicle, but in the aforesaid circumstances, when the deceased is held to have died because of the rash and negligent driving of its driver-respondent No. 3, there is no question of collusive petition at all. The dependants can maintain the present petition. 19. Now, coming to the point of compensation, at the very outset, I would like to say that the choice of multiplier by the learned Tribunal, based upon the age of the deceased, is incorrect. As per the matriculation certificate Ext. P.W. 1/A, the date of birth of the deceased is 29.1.1978. Therefore, he was aged about 25 years at the time of accident. Applying the ratio of the judgment passed by the Supreme Court in Sarla Verma v. Delhi Transport Corporation, (2009) 6 SCC 121 , the multiplier of 18 irrespective of the age of the claimants, is required to be applied instead of 17. Further, reliance can also be put to the judgment passed by this Court in Smt. Santosh Devi v. HRTC & others (FAO (MVA) No. 138/2012) alongwith other connected matters, decided on 3rd April, 2013. 20. Now, the next question arises qua the adequacy of dependency. PW-1 Smt. Kala Devi, wife of the deceased, stated that the deceased used to contribute Rs. 6,000/- to Rs. 7,000/- per month to meet the house-hold expenditure. She asserted his earning Rs. 9,000/- per month, whereas PW-3 Jagdish Sharma with whom he was alleged to be the driver, stated that he was paying Rs. 9,000/- per month to the deceased. But, he stated that the certificate of salary was prepared and written by the Counsel for the petitioner. He also failed to produce any supporting document/evidence to show that in fact he was employed as a driver with him on monthly salary, as alleged. Admittedly, the deceased was having valid and effective driving licence endorsed to drive 'heavy transport vehicle'. Certainly, the deceased was a skilled man. Even if, the petitioner failed to prove his earning Rs. He also failed to produce any supporting document/evidence to show that in fact he was employed as a driver with him on monthly salary, as alleged. Admittedly, the deceased was having valid and effective driving licence endorsed to drive 'heavy transport vehicle'. Certainly, the deceased was a skilled man. Even if, the petitioner failed to prove his earning Rs. 9,000/- per month by leading cogent and convincing evidence, he had a good future because of his qualification and driving licence. No evidence has been adduced that the deceased had any other income from agriculture or landed property. Even, no statutory notification of the Govt. Labour Department had been produced as to what were the wages of skilled labour in the year 2003, when he lost his life. 21. Thus, considering the entire facts, the guess work in assessing his income would come in place, but there is nothing to dislodge the assessment done by the learned Tribunal, which in my opinion, was rightly assessed @ Rs. 3,000/- per month. But however, the aforesaid assessment of the income cannot be applied for whole of the years, had the deceased survived. Therefore, keeping in view the potentiality, benefit of 40% increase is required to be given. Hence, his income can reasonably be assessed at Rs. 4,200/- per month and after deducting the 1/3rd amount for his maintenance, the dependency comes to Rs. 2800/- per month. Thus, the annual dependency comes to Rs. 33,600/-. This multiplicand is required to be multiplied by the multiplicand of 18, which comes to Rs. 6,04,800/- as against Rs. 4,40,000/-. Further, the petitioner-wife is held entitled for consortium to the tune of Rs. 30,000/- and minors for love and affection to the tune of Rs. 40,000/- (Rs. 20,000/- to each minor-claimant) instead of Rs. 32,000/, in lump sum, as assessed by the learned Tribunal, plus the petitioners-claimants are also held entitled for Rs.25,000/- as conventional charges. Therefore, the total amount of compensation payable to the claimants comes to Rs.6,99,800/-, (Rs.6,04,800/- Rs.30,000/- Rs.40,000/- Rs.25,000/- which shall carry interest at the rate of 9% per annum instead of 7.5 % per annum as awarded by the learned Tribunal, from the date of filing the claim petition till its deposit, with costs quantified at Rs. 5,000/-. The interim amount, if any, paid, on no fault basis, shall be deducted. 5,000/-. The interim amount, if any, paid, on no fault basis, shall be deducted. The aforesaid amount shall be apportioned amongst the claimants with proportionate interest as follows : (i) Petitioner No. 1 (Smt. Kala Devi) Rs. 3,04,800/- (minus amount paid on no fault basis) (ii) Petitioner No. 4 (Smt. Savitri Devi) Rs. 1,45,000/- (iii) The balance amount in equal share shall be apportioned amongst the minor claimants which shall remain deposited in any nationalised bank in the shape of FDRs for a period of five years and thereafter co-terminus with their attaining the age of majority. 22. 50% of the amount falling in the share of other claimants (wife and mother) shall be released to them, if not already released and the balance amount shall remain deposited in any nationalised bank for a period of one year. 23. The appeal filed by the Insurance Company is accordingly dismissed and the appeal filed by the claimants is allowed to the above extent. 24. Both the appeals are accordingly stand disposed of.