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2014 DIGILAW 1952 (HP)

Oriental Insurance Company v. Tanu Chauhan

2014-12-19

MANSOOR AHMAD MIR

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JUDGMENT : Mansoor Ahmad Mir, J. Challenge in this appeal is to the award, dated 1st March, 2011, passed by the Motor Accident Claims Tribunal, (1), Mandi, H.P. (hereinafter referred to as “the Tribunal”) in Claim Petition No. 91 of 2007, whereby compensation to the tune of Rs. 4,39,000/- with interest at the rate of 9% per annum from the date of filing of the claim petition till its realization, came to be awarded in favour of the claimants-respondents 1 to 3 herein and against the owner-insured, the driver and the insurer-appellant herein, (for short, the “impugned award”). Brief Facts: 2. The claimants, being the widow, son and mother of deceased Anil Kumar, filed claim petition before the Tribunal, for grant of compensation, as per the break-ups given in the claim petition, on the ground that driver Ishwar Chand, was driving bus bearing registration No. HP-68-0203, rashly and negligently, on 04.11.2006, at about 1.00 a.m., at Nabai Nag near Baijnath, District Kangra, H.P., caused the accident; one Anil Kumar, who was travelling in the said bus, sustained injuries and succumbed to the injuries and FIR No. 177/2006 was registered in Police Station, Baijnath, District Kangra. 3. The respondents, i.e. the insured-owner, the driver and the insurer-Insurance Company contested the claim petition on the grounds taken in their memo of objections. Following issues came to be framed by the Tribunal on 17.02.2009:- “1. Whether the bus No. HP-68-0203 was involved in the accident resulting into death of Anil Kumar? ...OPP 2. If issue No. 1 is proved, to what amount of compensation the petitioners are entitled to and from whom? ...OPP 3. Whether the driver of bus No. HP-68-0203 was not holding valid and effective driving licence to drive the bus at the time of accident? ...OPR 4. Whether the driver was driving the bus No. HP-68-0203 without registration cum fitness certificate and route permit in violation of the terms and conditions of the insurance policy? ....OPR 5. Relief.” 4. Claimants have examined Shri Guldev Singh (PW-2) and claimant Smt. Tanu Chauhan also appeared in the witness box as PW-1. The respondents examined Hakam Singh (RW-1) and the insured-owner Anupam Pal also appeared in the witness box as RW-2. 5. ....OPR 5. Relief.” 4. Claimants have examined Shri Guldev Singh (PW-2) and claimant Smt. Tanu Chauhan also appeared in the witness box as PW-1. The respondents examined Hakam Singh (RW-1) and the insured-owner Anupam Pal also appeared in the witness box as RW-2. 5. The claimants have filed the claim petition in terms of the mandate of Section 163-A of the Motor Vehicles Act, 1988, hereinafter referred to as “the Act”, thus the question of driving the offending vehicle, rashly and negligently, cannot be gone through. Issue No. 1. 6. The claimants have specifically pleaded in para-23 of the claim petition that deceased Anil Kumar was conductor by profession; was travelling in the said vehicle, which was being driven by driver Ishwar Chand, rashly and negligently; met with an accident and Anil Kumar sustained injuries and succumbed to the injuries. 7. The claimants have placed on record copies of FIR (Ex. PA), postmortem report (Ext. PB), birth certificates (Ext. PC & Ext. PD), marriage certificate (Ext. PE), abstract of family register (Mark-A) and experience certificate (Mark-B). 8. Claimant Tanu Chauhan and Guldev Singh, have stated that the deceased died in the road accident, on the fateful day, while travelling in the offending vehicle, which was being driven by driver Ishwar Chand, rashly and negligently. 9. The respondents have not led any evidence in rebuttal, but have stated that the deceased had stolen the offending vehicle and caused the accident. 10. It is an admitted case of the parties that the deceased had lost his life in the traffic accident by the use of the offending vehicle. Accordingly, the findings returned by the Tribunal on this issue are upheld. 11. Before I deal with issue No. 2, I deem it proper to deal with issues No. 3 & 4. Issue No. 3 & 4: 12. The onus to prove these issues was upon the insurer. It has not led any evidence to the effect that driver of the offending bus was not having valid and effective driving licence to drive it, at the relevant time; the offending vehicle was being driven without registration-cum-fitness certificate and route permit and in violation of the terms and conditions of the Insurance Policy read with the mandate of Section 149 of the Act. Thus, the Insurance Company has failed to discharge the onus. Thus, the Insurance Company has failed to discharge the onus. Accordingly, the Tribunal has rightly decided these issues against the insurer and in favour of the claimants. Issue No. 2. 13. The Tribunal, after taking note of the pleadings, the evidence, particularly the statement of PW-2 Guldev Singh and the documents available on the record, held that the deceased was earning Rs.3,000/- per month and the loss of dependency towards the claimants was not less than Rs.2,000/- per month or Rs.24,000/- per annum. 14. The claimants have pleaded in the claim petition that the age of the deceased, at the time of accident, was 25 years. As per the matriculation certificate, Ext. PC, the date of birth of the deceased is 20.09.1981. The accident occurred on 04.11.2006. Thus, the deceased was 25 years of age at the relevant time and the Tribunal has rightly determined the age of the deceased and applied the multiplier of 18’, while assessing the compensation. 15. Having said so, I am of the considered opinion, that the Tribunal has rightly awarded compensation to the tune of Rs.4,32,000/- under the head “loss of dependency”, Rs.5,000/- under the head “loss of consortium” and Rs.2,000/- under the head “last rites”, to the claimants. 16. In the given circumstances, the amount awarded is not excessive, in any way. However, the Tribunal has fallen in error in granting interest at the rate of 9% per annum instead of 7.5% per annum. Accordingly, the rate of interest is reduced to 7.5% per annum. 17. Having said so, the claimants are entitled to compensation to the tune of Rs.4,39,000/- with interest at the rate of 7.5% per annum from the date of the claim petition. 18. The Registry is directed to release the awarded amount in favour of the claimants, strictly in terms of the conditions contained in the impugned award, through payees account cheque. The excess amount be refunded to the insurer. 19. Accordingly, the impugned award is modified and the appeal is disposed of. 20. Send down the records after placing copy of the judgment on record.