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Himachal Pradesh High Court · body

2014 DIGILAW 850 (HP)

National Insurance Company v. Kesari

2014-07-07

TARLOK SINGH CHAUHAN

body2014
JUDGMENT Tarlok Singh Chauhan, Judge The appellant, who was respondent No.7, before the learned Motor Accident Claims Tribunal, Fast Track Court, Chamba (for short ‘Tribunal) has preferred the present appeal. The facts, in brief, may be noticed. 2. The claimant filed a claim petition before the learned Tribunal claiming therein ` 8 lacs on account of death of Shri Ganesh Kumar, who is alleged to have died in a vehicular accident which took place on 04.09.1997 near Manji Sahib Gurdwara on Delhi-Pathankot road at Ambala City, Haryana. It was claimed that it was on account of rash and negligent driving of the driver of vehicle No. HR-38-2841, which resulted in the death of Ganesh Kumar, who was travelling in truck No. PAR-8317. The deceased was stated to be 24 years of age and earning about `5,000/- per month. 3. The owner of the truck No.HR-38-2841 was arrayed as respondent No.1, who filed his reply wherein preliminary objections regarding maintainability was taken. On merits, the averments made in the claim petition were denied. However, the ownership of the vehicle No. HR-38-2841 was admitted. It was claimed that the accident in question had occurred due to the rash and negligent driving of the driver of vehicle No.PAR-8317. Lastly, it was averred that the vehicle No.HR-38-2841 was comprehensively insured with the respondent No.7 (appellant herein). The other respondents No. 2 to 5 in the claim petition did not contest the petition and were proceeded against ex parte. 4. Respondent No.6 was the Oriental Insurance Company which filed its reply by taking preliminary objections inter alia that the claimant had not submitted the copy of insurance policy to the Company, therefore, they were not liable to pay the compensation and that the deceased was unauthorized occupant of the vehicle and was not covered under the policy and, therefore, the petition is not maintainable as earlier similar petition filed by the petitioner had been dismissed in default. It was averred that the owner of the vehicle No. PAR-8317 had not produced the registration certificate of his vehicle and as such it has no liability to pay the compensation and that the petitioner be asked to produce police report, valid driving licence of driver, route permit and fitness certificate etc. and the manner in which the accident had taken place and as also the involvement of the deceased in the accident were denied. and the manner in which the accident had taken place and as also the involvement of the deceased in the accident were denied. On merits, it was denied that the deceased was earning `5,000/- per month and the averments regarding the deceased travelling in vehicle No. PAR-8317 from Delhi which met with an accident near Manji Sahib Gurdwara, Ambala City, were denied. Respondent No.6 denied that the petitioner was dependent upon the deceased and that the accident had taken place due to rash and negligent driving on the part of driver of vehicle No.PAR-8317. 5. Respondent No.7 i.e. the appellant herein filed its reply by taking preliminary objections inter alia that the petition is not maintainable as earlier similar petition was dismissed in default and that without submission of policy documents, FIR , licence, route permit of the vehicle in question, the Company is not liable to pay the compensation and that the petitioner be directed to produce driving licence of drivers of vehicle Nos. HR-38-2841 and PAR-8317 as also their route permits because the same were commercial vehicles and that the claimant be asked to file affidavit mentioning therein that no such petition was filed anywhere to avoid double payment in one accident. On merits, the contents of the petition were denied and it was averred that there was no negligence on the part of driver of truck No.HR-38-2841. Besides this, an additional plea was taken that the driver of vehicle No. PAR-8317 was not holding a valid driving licence and that the vehicle was not being plied in accordance with the provisions contained in the Motor Vehicles Act as well as the terms and conditions of the Insurance policy. 6. On 04.06.2009, the learned Tribunal framed the following issues:- 1. Whether Ganesh Kumar died in a motor vehicle accident which took place on 4.9.97 at about 5 AM near Manji Sahib Gurdwara within the jurisdiction of P.S.Ambala due to the rash and negligent driving of driver of truck No. HP-38-2841, who dashed it against vehicle bearing No.PAR-8317? OPP. 2. If issue No.1 is proved in affirmative, whether the petitioner being dependent of deceased is entitled for the grant of compensation, if so, to what amount and which of the respondent? OPP 3. Whether the petition is not maintainable on the grounds as mentioned in preliminary objection No.1? OPR-7 4. OPP. 2. If issue No.1 is proved in affirmative, whether the petitioner being dependent of deceased is entitled for the grant of compensation, if so, to what amount and which of the respondent? OPP 3. Whether the petition is not maintainable on the grounds as mentioned in preliminary objection No.1? OPR-7 4. Whether the drivers of vehicle No.HP-38-2841 and vehicle No.PAR-8317 were not holding a valid and effective driving licences at the time of accident? OPR-7 5. Whether the vehicle bearing No.PAR-8317 was not having valid registration certificate and permit of the vehicle at the time of accident, if so, its effect? OPR-7 6. Relief. 7. After recording the evidence, the learned Tribunal allowed the claim petition and awarded a sum of `3,44,000/-with interest at the rate of 7.5% per annum in favour of mother i.e. respondent No.5 and petitioner-father of the deceased. It was held that since the offending vehicle was insured with the respondent No.7, the appellant herein, the owner would be indemnified and amount would be paid by the appellant. 8. The appellant has filed the appeal mainly on the ground that the claimants have failed to discharge the onus with regard to the negligence of the driver of the vehicle, the deceased’s name and the death certificate Ex.PA and post mortem report Ex.PB do not tally with that of the son of claimant and, therefore, the petitioner was not entitled to any compensation. It was further alleged that the dependency in this case could not be more than 1/3rd since the deceased was a bachelor and his marriage was fixed after three months. Lastly, it was claimed that the multiplier applied by the learned Tribunal is on higher side. 9. I have heard the arguments of learned counsel for the parties and gone through the records of the case carefully and meticulously. 10. The negligence on the part of the driver of vehicle No. HR-38-2841 is writ-large because it has come on record that FIR qua the accident had already been registered against the driver who is facing trial. Not only this, PW-3, who was the Investigator of the appellant-Company has proved on record his report Ex.PW-3/A wherein the accident has been found to be the result of rash and negligent driving of the vehicle No.HR-38-2841. Not only this, PW-3, who was the Investigator of the appellant-Company has proved on record his report Ex.PW-3/A wherein the accident has been found to be the result of rash and negligent driving of the vehicle No.HR-38-2841. Insofar as the driver of the vehicle is concerned, he has not contested the petition nor appeared in the witness box and, therefore, an adverse inference is required to be drawn against him. 11. Insofar as the next question regarding name and particulars mentioned in Ex.PA and Ex.PB not tallying with the details of the deceased is concerned, suffice it to say, that the documents Ex.PA and Ex.PB are the documents which have admittedly not been prepared by the petitioner or at the instance of the petitioner. Once the petitioner has stated in the claim petition and reiterated while appearing as PW-1 that Ganesh was his son, who had expired in a vehicular accident and elaborated by giving the details, then only very strong evidence was required to be led to dispute such findings. There is ample amount of evidence available on record to show that Ganesh was the son of the deceased and reference can conveniently be made to copy of the ‘Pariwar’ register Ex. PX, wherein Ganesh is shown to be the son of the petitioner. There is no other contrary evidence available on record to rebut such plea. 12. Now comes the question as to what would be the just compensation to which the petitioner was entitled? No doubt, the learned Tribunal below has committed illegality by applying the multiplier on the age of the deceased, who was 24 years of age at that time. Infact, the learned Tribunal was required to apply the multiplier on the age of the claimants because the choice of multiplier is determined by the age of the deceased or that of the claimants, whichever is higher as was held by the Hon’ble Supreme Court in New India Assurance Company ltd. vrs. Charlie and another, reported in (2005) 10 SCC 720 . To quote paragraph 14: “14. The multiplier method involves the ascertainment of the loss of dependency or the multiplicand having regard to the circumstances of the case and capitalising the multiplicand by an appropriate multiplier. vrs. Charlie and another, reported in (2005) 10 SCC 720 . To quote paragraph 14: “14. The multiplier method involves the ascertainment of the loss of dependency or the multiplicand having regard to the circumstances of the case and capitalising the multiplicand by an appropriate multiplier. The choice of the multiplier is determined by the age of the deceased (or that of the claimants, whichever is higher) and by the calculation as to what capital sum, if invested at a rate of interest appropriate to a stable economy, would yield the multiplicand by way of annual interest. In ascertaining this, regard should also be had to the fact that ultimately the capital sum should also be consumed up over the period for which the dependency is expected to last.” 13. Ms. Sunita Sharma, learned counsel for the appellant has strenuously argued that the petitioner was 70 years of age and, therefore, the multiplier of 18 could not have been applied. 14. On the other hand, Shri Naveen K.Bhardwaj, Advocate, contended that the petitioner was 70 years of age on the date of his examination before the Tribunal in the year 2009 while the accident is of the year 1997 and, therefore, his age at the time of accident would be around 58 years. He further contended that if the copy of pariwar registers Ext. PC and PX are taken into consideration than the age of the petitioner as also the other claimant-respondent No. 5, is far less and in case average of the two is then taken into consideration, the approximate age of the claimants would be about 55 years and, therefore, the Tribunal below has rightly applied the multiplier of 18 in the given facts and circumstances of the case. I am afraid, such submission of the claimant cannot be accepted particularly when it is proved on record that the age of the petitioner was about 58 years at the time of the accident while that of the other claimant (respondent No. 5) was about 55 years and, therefore, the multiplier of 18 in such circumstances should not have been applied. 15. 15. The matter does not rest here because as per the award only a total sum of `10,000/- has been awarded in favour of the petitioner and respondent No.5 on account of loss of love and affection and further an amount of `10,000/- has been awarded on account of funeral expenses. This amount, to my mind, is too meager and is not in accordance with the Motor Vehicles Act and the same is also not in consonance with the recent trend of the Hon’ble Supreme Court. Reference can conveniently be made to the judgment in Rajesh and others vs. Rajbir Singh and others, reported in (2013) 9 SCC 54 , wherein the Hon’ble Supreme Court awarded a sum of rupees one lac towards the loss of consortium, further sum of rupees one lac towards loss of care and guidance for minor children and a sum of rupees twenty five thousand towards funeral expenses. The reason for awarding higher amounts that what has been set out in the Motor Vehicles Act is obvious. Similarly, in Vimal Kanwar and others vs. Kishore Dan and others, reported in (2013)7SCC476, the Hon’ble Supreme Court awarded a sum of rupees one lac for loss of consortium, rupees two lac for loss of love and affection for the daughter, rupees one lac towards loss of love and affection for the widow, rupees one lac for the loss of the mother and a sum of rupees twenty five thousand towards funeral expenses. 16. Thus, it is the duty of the Tribunal to build on the report and award just, equitable, fair and reasonable compensation with reference to the settled principles on assessment of damages. The Court cannot be oblivious to the price-index which infact has gone up manifold. It would be apt here to quote the observations made by the Hon’ble Supreme Court in Rajesh’s case (supra) to the following effect: “16. In a report on accident, there is no question of any reference to any claim for damages, different heads of damages or such other details. It is the duty of the Tribunal to build on that report and award just, equitable, fair and reasonable compensation with reference to the settled principles on assessment of damages. In a report on accident, there is no question of any reference to any claim for damages, different heads of damages or such other details. It is the duty of the Tribunal to build on that report and award just, equitable, fair and reasonable compensation with reference to the settled principles on assessment of damages. Thus, on that ground also we hold that the Tribunal/Court has a duly, irrespective of the claims made in the Application, if any, to properly award a just, equitable, fair and reasonable compensation, if necessary, ignoring the claim made in the application for compensation. 17. The ratio of a decision of this Court, on a legal issue is a precedent. But an observation made by this Court, mainly to achieve uniformity and consistency on a socio-economic issue, as contrasted from a legal principle, though a precedent, can be, and in fact ought to be periodically revisited, as observed in Santhosh Devi (supra). We may therefore, revisit the practice of awarding compensation under conventional heads: loss of consortium to the spouse, loss of love, care and guidance to children and funeral expenses. It may be noted that the sum of Rs. 2,500/- to Rs. 10,000/- in those heads was fixed several decades ago and having regard to inflation factor, the same needs to be increased, In Sarla Verma's case (supra), it was held that compensation for loss of consortium should be in the range of Rs. 5,000/- to Rs. 10,000/-. In legal parlance, "consortium' is the right of the spouse to the company, care, help, comfort, guidance, society, solace, affection and sexual relations with his or her mate. That non-pecuniary head of damages has not been properly understood by our Courts. The loss of companionship, love, care and protection, etc., the spouse is entitled to get, has to be compensated appropriately. The concept of non-pecuniary damage for loss of consortium is one of the major heads of award of compensation in other parts of the world more particularly in the United States of America. Australia, etc. English Courts have also recognized the right of a spouse to get compensation even during the period of temporary disablement. By loss of consortium, the courts have made an attempt to compensate the loss of spouse's affection, comfort, solace, companionship, society, assistance, protection, care and sexual relations during the future years. Australia, etc. English Courts have also recognized the right of a spouse to get compensation even during the period of temporary disablement. By loss of consortium, the courts have made an attempt to compensate the loss of spouse's affection, comfort, solace, companionship, society, assistance, protection, care and sexual relations during the future years. Unlike the compensation awarded in other countries and other jurisdictions, since the legal heirs are otherwise adequately compensated for the pecuniary loss, it would not be proper to award a major amount under this head. Hence, we are of the view that it would only be just and reasonable that the courts award at least rupees one lakh for loss of consortium. 18. We may also take judicial notice of the fact that the Tribunals have been quite frugal with regard to award of compensation under the head 'Funeral Expenses'. The 'Price Index', it is a fact has gone up in that regard also. The head 'Funeral Expenses' does not mean the fee paid in the crematorium or fee paid for the use of space in the cemetery. There are many other expenses in connection with funeral and, if the deceased is follower of any particular religion, there are several religious practices and conventions pursuant to death in a family. All those are quite expensive. Therefore, we are of the view that it will be just, fair and equitable, under the head of 'Funeral Expenses', in the absence of evidence to the contrary for higher expenses, to award at least an amount of Rs. 25,000/-.” 17. Another fact, which cannot be lost sight of is that no amount, whatsoever, has been awarded towards expected career progression and obviously what the deceased was earning at the time of his death would not have remained static life long. Therefore, necessary additions were required to be made to the income of the deceased towards his future prospects, which admittedly have not been taken into consideration in the present case. 18. Thus, taking into consideration all the facts and circumstances of the case, though it cannot be held that the multiplier of 18, as applied by the learned Tribunal was justified, however, at the same time, it cannot be argued that the award of Rs. 3,44,000/- is in any manner excessive. 19. 18. Thus, taking into consideration all the facts and circumstances of the case, though it cannot be held that the multiplier of 18, as applied by the learned Tribunal was justified, however, at the same time, it cannot be argued that the award of Rs. 3,44,000/- is in any manner excessive. 19. Accordingly, I find no merit in the appeal and the same is dismissed, so also the pending application, if any, leaving the parties to bear their own costs.