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Himachal Pradesh High Court · body

2014 DIGILAW 883 (HP)

Oriental Insurance Company Ltd. v. Meena

2014-07-11

MANSOOR AHMAD MIR

body2014
JUDGMENT Mansoor Ahmad Mir, C.J. (Oral) Challenge in this appeal is to the award, dated 1st December, 2006, passed by the Motor Accident Claims Tribunal, Mandi, H.P., (for short, the Tribunal), in Claim Petition No.19 of 2004, whereby compensation to the tune of Rs.4,90,000/- was awarded in favour of the claimants, (respondents No.1 and 2 herein), and against the insurer (appellant herein), with interest at the rate of 7.5% per annum from the date of the claim petition, (for short, the ‘impugned award’). Brief facts : 2. Claimants-respondent No.1 and 2, being the victims of vehicular accident, filed a Claim Petition before the Tribunal for grant of compensation to the tune of Rs.10.00 lacs, as per the break-ups given in the Claim Petition, on the ground that on 9th February, 2004, at about 5.00 p.m., Surinder Singh, son of the claimants, while going from Bhojpur Bazaar to Lalit Chowk, Sundernagar on National Highway 21, on a scooter, bearing registration No.HP-31-2619, was hit by the offending vehicle Tata 207 bearing registration No.HP 65 0388, which was being driven by its driver, namely, Mohinder Singh (respondent No.4 herein), rashly and negligently and the said Surinder Singh sustained injuries, was taken to Civil Hospital, Sundernagar , where he succumbed to the injuries. It was averted that at the time of death, the deceased was 21 years of age and was employed as Sepoy in the J&K Riffles and his monthly salary was Rs.8,000/- per month. 3. The owner, driver and the insurer contested the Claim Petition by filing objections. 4. I wonder, how the Tribunal has dealt with the case, speaks volumes and even eye opener for the Presiding Officers manning the Tribunals that they should not scuttle away the cases enroute the way the Tribunal has done in the present case. It is known to everyone that granting of compensation is just to ameliorate the sufferings of the victims and is to be taken to its logical end without succumbing to the niceties of law, hyper-technicalities and procedural wrangles and tangles. Not only this, the Tribunal has to decide the cases summarily as far as possible without insisting for strict proof, as required in other civil cases. Because of this reason, Section 169 of the Motor Vehicles Act (hereinafter referred to as the Act) provides that Claim Petitions have to be decided summarily only. Not only this, the Tribunal has to decide the cases summarily as far as possible without insisting for strict proof, as required in other civil cases. Because of this reason, Section 169 of the Motor Vehicles Act (hereinafter referred to as the Act) provides that Claim Petitions have to be decided summarily only. Rules and strength of proof are not required and amount of compensation is to be awarded by doing the guess work. 5. While going through the averments made in the Claim Petition, it is clear that it was a case under Section 166 of the Motor Vehicles Act and I deem it proper to treat the Claim Petition under Section 166 of the Act. 6. At this stage, the learned counsel for the insurer has submitted that the Tribunal had no power to adjudicate the petition under Section 163-A of the Act and also to convert the same to Section 166 of the Act. This argument of the learned counsel is baseless for the reason that the Motor Vehicles Act has gone a sea change and sub section (6) to Section 158 and sub section (4) to Section 166 have been added, which are reproduced below: “158(6) As soon as any information regarding any accident involving death or bodily injury to any person is recorded or report under this section is completed by a police officer, the officer incharge of the police station shall forward a copy of the same within thirty days from the date of recording of information or, as the case may be, on completion of such report to the Claims Tribunal having jurisdiction and a copy thereof to the concerned insurer, and where a copy is made available to the owner, he shall also within thirty days of receipt of such report, forward the same to such Claims Tribunal and Insurer.” “166(4) The Claims Tribunal shall treat any report of accidents forwarded to it under sub-section (6) of Section 158 as an application for compensation under this Act.” 7. Thus, from a bare reading of the above provisions of law, it is clear that a Claims Tribunal can treat any report of accident forwarded to it under Section 158 (6) of the Act as an application for compensation. Thus, from a bare reading of the above provisions of law, it is clear that a Claims Tribunal can treat any report of accident forwarded to it under Section 158 (6) of the Act as an application for compensation. Therefore, it does not lie in the mouth of the insurer to plead that the impugned award is bad in the eyes of law for the reason that initially, the Claim Petition was filed under Section 166 of the Act and subsequently, the impugned award was passed under Section 163-A of the Act. The aim and object of the provisions enumerated above is to provide compensation to the claimants of vehicular accidents as early as possible so that they do not suffer unnecessarily and become prey to social evils. It is also well settled law that the claim petitions, arising out of vehicular accidents, should not be thrown out and the poor claimants should not be shown the door on hyper-technicalities and a duty has been cast upon the Tribunals/Courts to see that justice is done. Similar view has been expressed by the Apex Court in its various pronouncements. Thus, the argument canvassed by the learned counsel for the insurer is devoid of any merit. Having said so, the order passed by the Tribunal, for treating the Claim Petition under Section 163-A of the Act, was unknown to law. 8. On the pleadings of the parties, the following issues were settled by the Tribunal : “1. Whether the deceased Surender Kumar died on 9.2.2004 at 5 p.m. at place Salah, Sundernagar in motor vehicle accident arising out of use of Tata 207 No.HP-65-0388 driven by respondent No.2 as alleged? OPP 2. If issue No.1 is proved, whether the petitioner is entitled to compensation? If so, as to what amount? OPP 3. Whether deceased Surender Kumar was solely rash and negligent while driving scooter bearing No.HP-31-2619 on 9.2.2004 as alleged? If so, its effect? OPR 4. Whether the petition is bad for non joinder of necessary parties? OPR 5. Whether the respondent No.2 was not holding valid and effective driving licence at the time of the accident and the vehicle was being driven in violation of the terms and conditions of the insurance policy as alleged? OPR 6. Relief.” 9. The claimants led evidence and examined Dr.R.K. Gupta, HHC Malik Chand, Roshan Lal (claimant) and Hari Chand as PW-1 to PW-4, respectively. OPR 6. Relief.” 9. The claimants led evidence and examined Dr.R.K. Gupta, HHC Malik Chand, Roshan Lal (claimant) and Hari Chand as PW-1 to PW-4, respectively. Neither the insurer nor the driver and the owner led any evidence. Thus, the evidence led by the claimants remained unrebutted. 10. PW-4 Hari Chand, who was the pillion rider on the scooter which was being driven by the deceased on the fateful day, has clearly stated that the accident was the outcome of rash and negligent driving of the offending vehicle Tata 207 bearing registration No.HP-65-0388. There is no rebuttal to it. Thus, it is held that the claimants have proved by leading evidence that the accident was the outcome of rash and negligent driving of its driver Mohinder Singh. Accordingly, issue No.1 is decided in favour of the claimants and against the owner/insured and the insurer. 11. Before returning findings on issue No.2, I deem it proper to deal with issues No.3 to 5 at the first instance. 12. As far as issue No.3 is concerned, this issue is covered by the findings returned against issue No.1 and stands accordingly decided. 13. Onus to prove issue No.4 was on the respondents. However, since the respondents have failed to lead any evidence, therefore, the findings returned on this issue by the Tribunal are upheld. 14. As far as issue No.5 is concerned, it was for the appellant-insurer to prove that the driver of the offending vehicle was not having the valid driving licence. Neither any evidence was led to that effect nor the insurer has placed anything on the record to prove that the insured/owner had committed any willful breach and the insurer is not liable. Thus, the findings returned on this issue are upheld. 15. Now, coming to issue No.2, the Tribunal has clearly fallen in error by taking the annual income of the deceased at Rs.40,000/- in terms of the mandate of Section 163-A of the Act, which is a serious lapse on the part of the Tribunal, but I do not intend to enhance the amount of compensation in the present appeal. 16. The claimants have specifically pleaded in the Claim Petition that the deceased was 21 years of age at the time of death and his salary was Rs.8,000/- per month. 16. The claimants have specifically pleaded in the Claim Petition that the deceased was 21 years of age at the time of death and his salary was Rs.8,000/- per month. They have proved the said fact by placing on record the salary certificate of the deceased as Ext.PE and the last pay drawn, as per Ext.PE, is Rs.5,168/-. The Tribunal, without applying the multiplier and without discussing the other aspects, held the claimants entitled to Rs.4,90,000/-. 17. In terms of the Schedule appended with the Motor Vehicles Act, multiplier ‘17’ is prescribed, but keeping in view dictum of 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 Ramesh Kumari and others vs. Madan Mohan and another, 2013 AIR (SCW) 3120, multiplier ‘15’ was applicable. After deducting 1/3rd from the total income, the loss of dependency to the claimants comes to Rs.3,440/-. Thus, the claimants were entitled to the tune of Rs.3,440 x 12 x 15 = Rs.6,19,200/- and also entitled for compensation under the heads ‘loss of love and affection’, ‘loss of estate’ and ‘funeral charges’. But the Tribunal has awarded, in lump sump, a sum of Rs.4,90,000/- as compensation. However, since no appeal or cross objections have been filed by the claimants, therefore, the impugned award is reluctantly upheld. 18. In view of the above discussion, the appeal is dismissed and the impugned award is upheld.