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2014 DIGILAW 1363 (HP)

Sudesh Kumari v. Ramesh Kumar

2014-09-26

MANSOOR AHMAD MIR

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JUDGMENT Mansoor Ahmad Mir, J. 1. Ms. Sudesh Kumari, Licence Clerk, Registering and Licensing Authority, Amb, District Una, H.P. present in Court. She has also produced the original record, which do disclose that the verification report is correctly issued. After perusing the record, the same was returned to the Officer in the open Court. 2. Heard. This appeal is directed against the award dated 30th September, 2005, passed by the Motor Accident Claims Tribunal, Una, H.P (for short, the Tribunal) in MAC Petititon No. 53 of 2002, titled Sudesh Kumari & others vs. Ramesh Kumar & others, whereby and whereunder a sum of Rs. 2,78,972/- alongwith interest at the rate of 7.5% per annum came to be awarded as compensation in favour of the claimants and against the owner and the insurer was to satisfy the award amount with right of recovery from the owner (for short the impugned award). 3. The owner has also filed cross objections and questioned the impugned award on the ground that the Tribunal has wrongly granted the right of recovery. The insurer, insured and the claimants have not questioned issues No. 1, 3, 4, 6 and 7 on any count. Thus, the findings returned on the same by the Tribunal are upheld. 4. The only dispute relates to issues No. 2 and 5. In order to determine issues No. 2 and 5, it is necessary to give brief facts of the case, the womb which has given birth to this appeal. 5. Surinder Singh deceased became the victim of vehicular accident on 14.10.2002, which was caused by the driver, namely, Moti Lal, who had driven the offending vehicle i.e. bus bearing registration No. HP-19-2112 rashly and negligently near Shiv Mandir in Deoli village. The deceased sustained injuries and succumbed to the same. The claimants being the widow, sons and daughters have claimed the compensation to the tune of Rs. 10 lacs as per the break-ups given in the claim petition. 6. Precisely, the case of the claimants was that the deceased was the only bread earner, was earning Rs. 9,117/- per month as an employee, being Gram Panchayat Vikas Adhikari in Block Development Office, Gagret and he was also earning Rs. 2,000/- from agriculture vocation and thus, the claimants have lost source of dependency. 7. The driver, owner and the insurer resisted the claim petition. 8. 9,117/- per month as an employee, being Gram Panchayat Vikas Adhikari in Block Development Office, Gagret and he was also earning Rs. 2,000/- from agriculture vocation and thus, the claimants have lost source of dependency. 7. The driver, owner and the insurer resisted the claim petition. 8. The following issues came to be framed in the claim petition:- "1. Whether the respondent No.2 was driving bus H.P. 19-2112 on 14.10.2002 near Shiv Mandir, Deoli, in a rash and negligent manner resulting in the death of Surinder Singh as alleged. OPP. 2. If issue No.1 is proved, whether the petitioners are entitled for compensation, if so, as to what amount and from whom. OPP. 3. Whether the petition is bad for misjoinder and non-joinder of necessary parties as respondent No.1 has sold bus No. H.P. 19-2112 to one Rana Singh son of Banta Singh as alleged OPR. 4. Whether the petition is bad for misjoinder and non-joinder of necessary parties as respondent No.1 has sold bus No. H.P. 19-2112 to one Rana Singh son of Banta Singh as alleged. OPR. 5. Whether the respondent No.2 was not holding a valid and effective driving licence to drive the vehicle which was being driven in violation of the terms and conditions of the Insurance policy as well as provisions of the Motor Vehicle Act. OPR. 6. Whether bus No. H.P. 19-2112 was being plied without any valid R.C. route permit and fitness certificate as alleged. OPR. 7. Whether the petition has been filed by the petitioner in collusion with respondent Nos. 1 and 2 as alleged. OPR. 8. Relief." 9. The parties have led evidence. The claimants have examined Sudesh Kumari, Agya Ram, Dr S.K. Bansal, Vijay Kumar and Arun Kumar. The respondents i.e. driver, owner and the insurer have not led any evidence. However, they have placed on record the insurance policy Ext. RX. The claimants have also placed on record copies of FIR (Ext.PW-2/A), post mortem report (Ext PW-3/A) and salary statement (Ext.PW-4/A). 10. The Tribunal after scanning the evidence, oral as well as documentary, held that the driver has driven the offending vehicle rashly and negligently and caused the accident, is not in dispute. However, I have gone through the impugned award and am of the considered view that the claimants have proved the said issue. Accordingly the findings returned on issue No. 1 are upheld. However, I have gone through the impugned award and am of the considered view that the claimants have proved the said issue. Accordingly the findings returned on issue No. 1 are upheld. Issues No. 3, 4, 6 and 7 11. It was for the owner, insurer and the driver to lead evidence and discharge the onus. They have not led any evidence and failed to discharge the onus. Thus, the findings returned on the said issues are also upheld. Issues No. 2 and 5 12. The Tribunal after scanning the evidence held that the driver of the offending vehicle was not having valid licence to drive the offending vehicle involved in the accident. During the pendency of the appeal Mr. Ajay Sharma, Advocate, has furnished copy of the verification report, which was obtained by him from the Registering and Licensing Authority, Amb, District Una to the effect that the driver was having valid driving licence to drive LMV (Cab) & HTV vehicles. 13. Mr. J.S. Bagga, learned counsel for the insurer was asked to seek instructions, which he obtained but was not in a position to make any statement, was directed to cause appearance of respondent No. 3, failed to do so, however, he stated that he could not inform respondent No. 3 due to the ailment of his mother. His statement is taken on record. 14. The Licence Clerk of the Registering and Licensing Authority, Amb, District Una has admitted that the report was issued by the Registering and Licensing Authority, Amb, District Una. After perusal of the record, it can safely be held that the driver of the offending vehicle was having valid driving licence to drive LMV (Cab) & HTV vehicles. 15. Viewed thus, it is held that the driver of the offending vehicle was competent to drive the vehicle and the insured has not committed any willful breach. Therefore, the findings returned on issue No. 5 are set aside and the same is decided in favour of the insured and against the insurer. 16. The Tribunal has fallen in error in deducting GPF subscription of Rs. 4,000/-, HRA of Rs. 200/-, FTA of Rs. 75/- and GIS of Rs. 30/- while assessing the loss of income. In terms of salary statement Ext. PW-4/A, the gross salary of the deceased was Rs. 16. The Tribunal has fallen in error in deducting GPF subscription of Rs. 4,000/-, HRA of Rs. 200/-, FTA of Rs. 75/- and GIS of Rs. 30/- while assessing the loss of income. In terms of salary statement Ext. PW-4/A, the gross salary of the deceased was Rs. 9,117/- after deducting 1/3rd towards personal expenses, the claimants have lost source of dependency to the tune of Rs. 6,000/- 17. The Tribunal has also fallen in error in applying the multiplier of ‘7’ in view of the age of the deceased. The age of the deceased was 51 years at the time of the accident and the multiplier applicable was ‘9’ in view of Schedule II appended to the Motor Vehicles Act, 1988 read with the judgments made by the Apex Court in cases tilted as Sarla Verma (Smt.) and others vs. Delhi Transport Corporation and another, reported in AIR 2009 SC 3104 and Reshma Kumari & others vs. Madan Mohan and another, reported in 2013 AIR (SCW) 3120. 18. The claimants are entitled to compensation to the tune of Rs. 6000X12X9 = 6,48,000 plus Rs. 2,000/- under the head of ‘expenses on the obsequies, Rs. 2,500/- under the head of loss of estate and Rs. 5,000/- under the head of loss of consortium, as awarded. 19. Viewed thus, the claimants are held entitled to compensation to the tune of Rs. 6,57,500/- alongwith interest at the rate of 7.5% from the date of presentation of the claim petition till its final realization. 20. Respondent No. 3 is directed to deposit the enhanced amount in the Registry of this Court within six weeks from today. On deposition of the same, it shall be released in favour of the claimants strictly as per the terms and conditions contained in the impugned award. 21. The impugned award is modified, as indicated above. The appeal stands disposed of alongwith all miscellaneous applications accordingly.