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2014 DIGILAW 364 (HP)

National Insurance Company Ltd. v. Sandhya Devi

2014-04-09

SANJAY KAROL

body2014
Judgment : Sanjay Karol, J (oral) CMP(M) No.12111 of 2013 For the reasons set out in the application, delay of 31 days in filing the appeal, which in my considered view has sufficiently been explained, is condoned. Application stands disposed of. Appeal be registered. FAOST/7265/2013 This is the insurer’s appeal filed under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as Act), assailing the award dated 23.07.2013 passed by Motor Accidents Claim Tribunal-II, Sirmaur, District at Nahan, H.P., in Claim Petition No.52-N/2 of 2009, titled as Sandhya Devi and others Versus M/s Surendra Mines and Minerals Sataun. The operative portion of the impugned award reads as under:- “28. In view of the aforesaid findings, the present petition is partly allowed and compensation of Rs.5,66,000/-(Rupees five lacs sixty six thousand only) is allowed in favour of the petitioners payable by the respondent No.3 i.e. National Insurance Co. Ltd. The interim compensation awarded on application under Section 140 of the Motor Vehicles Act, 1988 shall be reduced from this amount. This amount also carry interest at the rate of 7.5% per annum from the date of filing of the claim petition till the amount is recovered in full. The petitioners No.1 to 5 shall be entitled to the amount of compensation in the ratio of 45%:15%:15%:15%:10% respectively.” 2. The owner and the claimant have accepted the award. It is the insurer, upon whom liability stands fastened, who is aggrieved thereof. 3. Claimants are the wife, mother and minor children of deceased Nirmal Singh, who died in the road accident in question. 4. On 12.08.2008, Nirmal Singh aged 42 years was travelling as a pillion rider on a motorcycle bearing registration No.HP-17A-2251 driven by Sh. Anil Kumar. Truck bearing registration No.HP-17-7636, owned by M/s Surendra Mines and Minerals Sataun and driven by Balbir Singh hit the motorcycle. Accident occurred on account of rash and negligent act on the part of Balbir Singh, against whom FIR was registered. With these facts, claimants claimed compensation of Rs.10,00,000/-. 5. The petition was opposed by the owner, driver and the insurer and based on respective pleadings, Tribunal framed the following issues:- 1. Whether the accident took place due to the rash and negligent driving of respondent No.2 Balbir Singh while driving Truck No.HP-17-7636 and that due to the injuries sustained in the accident deceased Nirmal Singh died in the same. OPP. 2. Whether the accident took place due to the rash and negligent driving of respondent No.2 Balbir Singh while driving Truck No.HP-17-7636 and that due to the injuries sustained in the accident deceased Nirmal Singh died in the same. 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 present claim petition is not maintainable? OPR-1 to 3. 4. Whether the petitioners concealed the material facts from the Court? OPR-1 & 2. 5. Whether the driver of the truck No.HP-17-7636 did not possess a valid and effective driving licence at the relevant time? OPR-3 6. Whether the vehicle was being plied in violation of the terms of conditions of the Insurance Policy? OPR-3. 7. Whether the petition is bad for nonjoinder of necessary parties i.e. the owner and insurer of the Motor Cycle bearing No.HP-17A-2251? OPR-3 8. Relief. 6. Appreciating the testimony of the witnesses and material so placed on record, Tribunal awarded compensation as noticed herein earlier. Issues were adjudicated and decided in favour of the claimants. 7. The factum of occurrence of accident at the relevant time and place, in which vehicle bearing registration No.HP17-7636 was involved is not in dispute. That the vehicle was insured is also not in dispute. The fact that Nirmal Singh died is also not in dispute. 8. Negligence on the part of driver Balbir Singh stands established through the testimony of Head Constable Jeet Ram (PW.4), who proved FIR (Ex.PW.4/A) as also police official, Salim Qureshi (PW.8) who conducted the investigation and Manoj Mittal (PW.7). The driver is facing criminal prosecution in relation to the very same incident. That apart, Guman Singh (PW.6), spot witness, has proved the negligence of the driver. Thus, it stands established on record that at the time of occurrence of accident, it was Balbir Singh, who was negligent and the accident occurred solely on account of his fault. 9. The Apex Court in Dulcina Fernandes and others Versus Joaquim Xavier Cruz and another, (2013) 10 SCC 646 , has reiterated its earlier view that an award passed by the Tribunal cannot be seen as an adversarial adjudication between the litigating parties to a dispute. Compensation has to be determined after due enquiry, in accordance with the statute. 9. The Apex Court in Dulcina Fernandes and others Versus Joaquim Xavier Cruz and another, (2013) 10 SCC 646 , has reiterated its earlier view that an award passed by the Tribunal cannot be seen as an adversarial adjudication between the litigating parties to a dispute. Compensation has to be determined after due enquiry, in accordance with the statute. Negligence on the part of driver has to be determined on the touchstone of preponderance of probabilities and not on the basis of proof beyond reasonable doubt. 10. Noticeably owner and the driver have produced on record licence (Ex.RW-1/C). No evidence was led by the insurer to discharge the burden of violation of terms of Insurance Policy as is so required in view of the law laid down by the Apex Court in National Insurance Company Ltd. Versus Swaran Singh and other, 2004(3) SCC 297 . 11. The Apex Court in Reshma Kumari and others Versus Madan Mohan and another, (2013) 9 SCC 65 has reiterated different methods i.e. lump sum method and multiplier method adopted for determination and calculation of compensation in fatal accident actions. 12. The deceased at the time of occurrence of accident was 42 years of age. Though through claimant Smt. Sandhya Devi (PW.1) and Ramesh (PW-2) it stand proved and established that at the time of death, deceased was drawing salary of Rs.5250/- per month, (Certificate (Ex.PW.2/B) is on record), but however, noticing that deceased was working as a Carpenter on daily wage basis @ Rs.175/- per day, the Tribunal determined his monthly income to be Rs.4000/-, which for the purposes of dependency was taken to be Rs.3000/- per month. The Insurer cannot urge any error with such findings, considering that deceased was financially looking after his mother, wife and three minor children. Multiplier of 15 has rightly been applied. 13. Thus, it cannot be said that there is any illegality or error apparent on the face of record warranting interference by this Court, on the asking of the insurer. Findings of fact cannot be said to be perverse, based on no evidence or contrary to settled principles of law. 14. For all the aforesaid reasons, there is no merit in the present appeal and the same is dismissed accordingly.