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2014 DIGILAW 1199 (HP)

National Insurance Co. Ltd. v. Sushma Devi

2014-09-05

MANSOOR AHMAD MIR

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JUDGMENT : - Mansoor Ahmad Mir, Chief Justice (oral) These appeals are outcome of award dated 3rd January, 2007, made by the Motor Accident Claims Tribunal, Bilaspur (for short “the Tribunal”) in MAC Case No.80 of 2005, titled Sushma Devi & others vs. Surender Kaur & others, whereby compensation to the tune of Rs.6.71,100/- alongwith interest at the rate of 7.5% per annum came to be awarded in favour of the claimants from the date of filing of the claim petition till its realization (for short the “impugned award”). 2. The appellant by the medium of FAO No.65 of 2007 has questioned the impugned award on the ground that the Tribunal has fallen in error in saddling the insurer with liability. 3. The claimants have filed FAO No.91 of 2007 and sought enhancement of compensation. Brief facts 4. The claimants have invoked the jurisdiction of the Tribunal in terms of Section 166 of the Motor Vehicles Act, 1988 (for short “the M.V. Act”) for grant of compensation to the tune of Rs.15,00,000/- on the grounds taken in the memo of claim petition. 5. Precisely, the case of the claimants was that their bread earner, namely, Dinesh Kumar while coming back from Bilaspur to his house after performing his duty in D.C. Office, Bilaspur on his motor cycle, which was hit by a tanker bearing registration No.HR-37-0205 on National Highway No.21 at Raghunathpura, was being driven by driver, namely, Tarsem Kumar rashly and negligently. The deceased sustained injuries and was taken to the Zonal Hospital, Bilaspur for treatment from where he was referred to PGI Chandigarh, died on the way. The claimants further pleaded in the clam petition that the salary of the deceased was Rs.6,078/- per month and was also earning Rs.1,000/- per month from agriculture vocation. 6. The insurer, owner and the driver resisted the claim petition on various grounds. 7. The following issues came to be framed in the claim petition:- “1. Whether the deceased Dinesh Kumar had died due to rash and negligent driving of respondent No.2 Tarsem Kumar, driver of tanker No.HR-37-A-0205 as alleged? OPP. 2. If issue No.1 supra is proved, to what amount of compensation, the petitioners are entitled to and from which of the respondents? OPP 3. Whether the petition is bad for non-joinder of necessary parties? OPR-3 4. OPP. 2. If issue No.1 supra is proved, to what amount of compensation, the petitioners are entitled to and from which of the respondents? OPP 3. Whether the petition is bad for non-joinder of necessary parties? OPR-3 4. Whether the driver of tanker No.HR-37-A-0205 did not have valid and effective driving license at the time of the accident, if so, its effect? OPR-3 5. Whether the vehicle in question was plying on the road in contrary to the provisions of M.V. Act, as alleged? OPR-3. 6. Whether the accident is result of contributory negligence of respondent No.2 and the deceased Dinesh Kumar, motorcyclist, if so its effect? OPR-3 7. Relief.” 8. The claimants have led evidence and examined witnesses. The owner, insurer and the driver have not led any evidence, thus, the evidence led by the claimants remained unrebutted. The claimants also placed on record copies of driving lincence (Ext.PW-1/A), matriculation certificate of the deceased (Ext.PW-1/B), pariwar register (Ext.PW-1/D), death certificate (Ext.PW-1/E), legal heir certificate (Ext.PW-1/F), registration certificate of motorcycle (Ext.PW-1/G), salary certificate (Ext.PW-2/A) and FIR (Ext.PW-3/A). The respondents have placed on record copies of insurance (Ext.R-1), fitness certificate (Ext.R-3), route permit (Ext.R-4), driving lincence (Ext.R-5) and insurance policy (Ext. R-A). 9. The Tribunal, after scanning the evidence, held that the claimants have proved that due to the rash and negligent driving of the driver the deceased Dinesh Kumar had lost his life, which is not in dispute. Thus, the findings returned on issue No.1 are upheld. 10. Respondent No.3-National Insurance Co. Ltd. has failed to lead any evidence in order to discharge onus on issues No.3, 4 and 6. Accordingly, the findings returned by the Tribunal on the said issues are also upheld. 11. Learned counsel for the insurer has argued that the offending vehicle was being driven in breach of route permit and the fitness certificate. He argued that the route permit was not for driving the vehicle within the territorial jurisdiction of State of Himachal Pradesh. Thus, the owner of the offending vehicle has committed breach. 12. Copy of fitness certificate (Ext.R-3) is renewed and was valid upto 16th February 2007, whereas the accident took place on 16th July, 2005. Thus, the fitness certificate was in force on the said date. 13. Thus, the owner of the offending vehicle has committed breach. 12. Copy of fitness certificate (Ext.R-3) is renewed and was valid upto 16th February 2007, whereas the accident took place on 16th July, 2005. Thus, the fitness certificate was in force on the said date. 13. The route permit (Ext.R-4) was initially issued for the States of Punjab, Rajasthan and Madhya Pradesh, but it was also granted for Himachal Pradesh in terms of endorsement made on 29th November, 2006. Thus, the arguments advanced by the learned counsel for the insurer are devoid of any force. 14. Having said so, the insurer has failed to prove that the owner has committed any breach, not to speak of willful breach. Accordingly, the findings returned on issue No.2 are upheld and the appeal being FAO No.65 of 2007 filed by the insurer, merits to be dismissed. 15. In FAO No.91 of 2007, the claimants have sought enhancement of compensation on the ground that the Tribunal has not taken into consideration the income of deceased from agriculture vocation in addition to his monthly salary, as given in salary certificate (Ext PW-2/A). The Tribunal has discussed the said issue in paras 16 to 20 & 22. Admittedly, the deceased was a Government employee and getting gross salary to the tune of Rs.6,078/- per month. After making deduction, the Tribunal rightly held that the claimants have lost source of dependency to the tune of Rs.3,300/- per month and applied the multiplier of ‘16’ correctly, in view of the judgments made by the Apex Court in cases tilted as Sarla Verma (Smt.) and others versus Delhi Transport Corporation and another, reported in AIR 2009 SC 3104 and Reshma Kumari & others versus Madan Mohan and another, reported in 2013 AIR (SCW) 3120. Thus, the claimants have failed to carve out a case for enhancement of compensation. 16. Having glance of the above discussions, the impugned award is upheld and both the appeals are dismissed. The Registry is directed to release the award amount in favour of the claimants, strictly as per the terms and conditions contained in the impugned award, through payee’s account cheque, after proper identification. 17. Send down the records after placing copy of the judgment on record.