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2014 DIGILAW 1827 (HP)

National Insurance Company Ltd. v. Nirmala Devi

2014-12-05

MANSOOR AHMAD MIR

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JUDGMENT : Mansoor Ahmad Mir, J. Challenge in this appeal is to the award, dated 18th August, 2007, passed by the Motor Accident Claims Tribunal, Fast Track Court, Kangra at Dharamshala, H.P. (for short, the Tribunal), in MAC Petition No.80-J/II/05/01, titled Nirmala Devi and and others vs. Suresh Kumar and others, whereby compensation to the tune of Rs.4,73,000/- alongwith interest at the rate of 9.5% per annum from the date of filing of the petition till its realization, stands awarded in favour of claimant No.1 and against the insurer, (for short, the impugned award). 2. On the last date of hearing, the parties were directed to seek instructions for settling the matter. The learned counsel for the appellant-insurer, on instructions, stated that the insurer is ready to settle the matter in case the claimants are ready to accept Rs.4.00 lacs, in lump sum, as compensation. The learned counsel for the claimant stated that he is under instruction to contest the appeal. 3. Heard learned counsel for the parties. Brief facts: 4. Claimants have sought compensation to the tune of Rs.6.00 lacs, as per the break-ups given in the Claim Petition, on the grounds which may be enumerated as under. 5. On 12th October, 2000, driver, namely, Sanjay Kumar, had driven Maruti Van bearing registration No.HP-54-3663 rashly and negligently and caused the accident at Dina Nagar (Parmanand), District Gurdaspur, Punjab, as a result of which deceased Ghungar Ram, who was traveling in the said Van, sustained injuries, was taken to Hospital and succumbed to the injuries. The claimants have claimed that the deceased was 50 years of age at the time of accident and was earning Rs.5,000/- by working as mason and Rs.1,000/- from agriculture vocation, hence the Claim Petition. 6. Respondents resisted the claim petition and filed replies. It was pleaded that the age of the deceased was 65 years at the time of accident. 7 On the pleadings of the parties, the following issues were framed by the Tribunal: 1. Whether the deceased Ghungar Ram died in an accident which took place on 12.10.2000 at about 1.15 P.M. near Parmanand Distt. Gurdaspur (Punjab) while he was traveling in Maruti Van No.HP-54-3663 from Amritsar to his village Kardyal as a member of the marriage party which was owned by respondent No.1 and driven in rash and negligent manner by respondent No.2, as alleged? OPP. 2. Gurdaspur (Punjab) while he was traveling in Maruti Van No.HP-54-3663 from Amritsar to his village Kardyal as a member of the marriage party which was owned by respondent No.1 and driven in rash and negligent manner by respondent No.2, as alleged? OPP. 2. If issue No.1 is proved in the affirmative, whether the petitioners being the L.Rs. of the deceased are entitled to claim compensation, if so, to what extent and from whom? OPP. 3. Whether the petition is bad for non-joinder of necessary parties, as alleged? OPR-1. 4. Whether the petition is not maintainable against the respondent? OPR-1. 5. Whether the respondent No.2 was not driving a Maruti Van involved in the accident, as alleged? OPR-2. 6. Whether the respondent No.2 was not holding a valid and effective driving licence and the vehicle was driven in violation of the terms and condition of the insurance policy? OPR-1. 7. Whether the petitioners are not the L.Rs. of deceased? OPR. 8. Relief. 8. Parties led their evidence in support of their respective claim. 9. The Claimants have proved by leading evidence that the driver, namely, Sanjay Kumar had driven the offending Van rashly and negligently on the fateful day and has caused the accident, in which the deceased sustained injuries and later on succumbed to the same. Therefore, the findings on issue No.1, recorded by the Tribunal, are upheld, which otherwise also are not disputed. 10. Before I deal with issue No.2, I deem it proper to deal with issues No.3 to 7. 11. Respondents have not led any evidence to prove issues No.3, 4 and 7. Accordingly, the findings returned on these issues are upheld. Moreover, the learned counsel for the appellant has also not questioned the findings recorded on the said issues. 12 Coming to issue No.5, the learned counsel for the appellant argued that the driver was not having a valid and effective driving licence to drive the offending vehicle. Thus, it was submitted that the Tribunal has committed an error in saddling the insurer with the liability. The vehicle was driven by Sanjay Kumar, as per the record and the evidence led by the parties. Respondent No.2 i.e. the driver of the offending vehicle, namely, Sanjay Kumar, has failed to prove that he was not driving the vehicle at the relevant point of time. The vehicle was driven by Sanjay Kumar, as per the record and the evidence led by the parties. Respondent No.2 i.e. the driver of the offending vehicle, namely, Sanjay Kumar, has failed to prove that he was not driving the vehicle at the relevant point of time. The Tribunal, after discussing all the evidence, held that respondent No.2 Sanjay Kumar had driven the offending vehicle at the time of accident and caused the accident. Thus, findings returned on issue No.5 are also upheld. 13 As far as issue No.6 is concerned, it was for the insurer to plead and prove that the driver was not having the valid and effecting driving licence, has not led any evidence to that effect. Ext.R-1, copy of the driving licence, is on the record, which does disclose that the driver was having licence to drive the vehicle. Onus to prove this issue was on the insurer, which has not been discharged by it. The Tribunal has rightly come to the conclusion that respondent No.2, driver, was having the licence and thus, the owner/insured has not committed any breach. Therefore, the findings returned on this issue are liable to be upheld and are upheld accordingly. Issue No.2: 14. The claimants pleaded that the income of the deceased was Rs.6,000/- per month and was 50 years of age at the time of accident. The learned counsel for the claimants argued that the age of the deceased was less than 50 years, while the learned counsel for the insurer argued that there is material on the record to show that the age of the deceased was 65 years at the time of accident. Even if, I take the age of the deceased as 50 years, as given in the Claim Petition, the multiplier applicable was 9 and the Tribunal has fallen in error in applying the multiplier of 11, while keeping in view Schedule 2 appended with the Motor Vehicles Act read with the ratio laid down by the Apex Court in Sarla Verma (Smt.) and others vs. Delhi Transport Corporation and another, (2009) 6 SCC 121 , which decision was also upheld by the larger Bench of the Apex Court in Reshma Kumari and others vs. Madan Mohan and another, 2013 AIR (SCW) 3120. Therefore, it is held that multiplier of 9 is applicable in the present case. 15. Therefore, it is held that multiplier of 9 is applicable in the present case. 15. The claimants before the Tribunal were four in number, but the Tribunal after scanning the evidence held that only Claimant No.1 i.e. the widow of the deceased was the dependant and held entitled her to compensation. The compensation was not awarded in favour of the daughters and son. The daughters and the son, i.e. Claimants No.2 to 4 have not questioned the impugned award by the medium of any appeal or cross objections. 16. Thus, the only question is what is the loss of dependency to the widow. The Tribunal has wrongly assessed the income of the deceased as Rs.5,000/- per month. The claimants have specifically pleaded in the Claim Petition that the deceased was earning Rs.6,000/- per month by working as mason and from agriculture vocation and has also led evidence to that effect. Applying the ratio laid down in Sarla Verma's case supra, it can safely be held that the deceased would have spent at least 1/3rd towards his personal expenses, meaning thereby that the claimant has lost source of dependency to the tune of Rs.4,000/- per month. Thus, the claimant is entitled to Rs.4,000 x 12 x 9 = Rs.4,32,000/-. 17. The rate of interest awarded by the Tribunal is 9.5% per annum, which is on the higher side. Therefore, the same is reduced to 7.5% per annum. 18. Having said so, compensation to the tune of Rs.4,32,000/- alongwith interest at the rate of 7.5% per annum from the date of filing of the claim petition till realization stands awarded in favour of the widow i.e. Claimant No.1 Nirmala Devi. 19 The impugned award stands modified, as indicated above. The Registry is directed to release the compensation amount in favour of the claimant, strictly in terms of the conditions contained in the impugned award and the excess amount, if any, alongwith up-to-date interest, be released in favour of the insurer through payees account cheque.