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Himachal Pradesh High Court · body

2014 DIGILAW 979 (HP)

United India Insurance Company Ltd. v. Kanta Shandil

2014-07-25

MANSOOR AHMAD MIR

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JUDGMENT Mansoor Ahmad Mir, Chief Justice. All these three appeals are outcome of a motor vehicular accident, which was allegedly caused by Shri Sunil Shandil, driver of offending vehicle-Toyota Qualis, bearing registration No.HP-01 A-3419, which was driven by him rashly and negligently on 29th April, 2007, at Jubbar near Naldehra on Shimla-Tatapani road at about 5.00 P.M. Thus, I deem it proper to dispose of all these appeals by a common judgment. 2. The appellant-insurer, by the medium of FAO No. 338 of 2009, has called in question the award, dated 12th May, 2009, passed by the Motor Accident Claims Tribunal, Fast Track Court, Shimla, H.P. (hereinafter referred to as “the Tribunal”) in M.A.C. No. 27-S/2 of 2007, titled as Kanta Shandil and another versus Rita Shandil and others, whereby compensation to the tune of Rs. 17,51,000/- with interest @ 9% per annum from the date of filing of the petition till its realization alongwith costs assessed at Rs. 1,000/- came to be awarded in favour of the claimants- dependents of deceased Dhian Chand and the insurer was saddled with liability to satisfy the award (hereinafter referred to as “the impugned award”) on the grounds taken in the memo of appeal. 3. In FAO No. 281 of 2009, the claimant-injured has questioned the award, dated 4th March, 2009, passed by the Motor Accident Claims Tribunal-I, Solan, H.P. (hereinafter referred to as “the Tribunal”) in M.A.C. Petition No. 41-S/2 of 2007, titled as Smt. Kaushlya Bhardwaj versus Sumit Shandil alias Sonu and others, whereby compensation to the tune of Rs. 3,45,366/- with interest @ 7.5% per annum from the date of the petition till deposition of the amount alongwith costs assessed at Rs. 500/- came to be awarded in favour of the claimant-injured and the insurer was saddled with liability to satisfy the award (hereinafter referred to as “the impugned award”) on the grounds taken in the memo of appeal. 4. By the medium of FAO No. 282 of 2009, the claimant- injured has questioned the award, dated 4th March, 2009, passed by the Motor Accident Claims Tribunal-I, Solan, H.P. (hereinafter referred to as “the Tribunal”) in M.A.C. Petition No. 48-S/2 of 2007, titled as Smt. Nirmala Bhardwaj versus Sumit Shandil alias Sonu and others, whereby compensation to the tune of Rs. 91,600/- with interest @ 7.5% per annum from the date of the petition till deposition of the amount alongwith costs assessed at Rs. 500/- came to be awarded in favour of the claimant-injured and the insurer was saddled with liability to satisfy the award (hereinafter referred to as “the impugned award”) on the grounds taken in the memo of appeal. 5. In order to determine the issues and return findings in all these appeals, viz-a-viz, the questions in dispute, it is profitable to give a brief resume of the facts of the case. Brief facts: 6. It is averred that on 29th April, 2007, the offending vehicle-Toyota Qualis, bearing registration No. HP-01 A-3419, was being driven by its driver, namely Shri Sunil Shandil, rashly and negligently, at about 5.00 P.M., while going from Basantpur to Shogi, met with accident at Jubbar, near Naldehra at Shimla-Tatapani road, rolled down the road, Shri Dhian Chand sustained injuries and succumbed to the injuries on 3rd May, 2007. Other two persons, namely Smt. Kaushlya Bhardwaj and Smt. Nirmala Bhardwaj, sustained injuries. The claimants have filed respective claim petitions for grant of compensation, as per the break-ups given in the respective claim petitions. 7. The owner-insured and the driver have not filed objections in M.A.C. No. 27-S/2 of 2007, subject matter of FAO No. 338 of 2009, but have filed objections in other two claim petitions. The insurer-United India Insurance Company has resisted all the three claim petitions on the grounds taken in the respective memo of objections. 8. On the pleadings of the parties, the following issues were framed in M.A.C. No. 27-S/2 of 2007, which is subject matter of FAO No. 338 of 2009 : “1. Whether Sh. Dhian Chand died due to the rash and negligent driving of vehicle No. HP-01A-3419 by the respondent No. 2 as alleged? OPP 2. If issue No. 1 is proved in the affirmative, whether the petitioners are entitled to the compensation as claimed. If so, its quantum and from whom? OP Parties 3. Whether the petition is bad for non-joinder of the necessary parties? OPR 4. Whether the petition is collusive as alleged. If so, its effect? OPR 5. Whether Sh. Sunil Shandil was not holding and possessing a valid and effective driving licence to drive the vehicle as alleged? If so, its quantum and from whom? OP Parties 3. Whether the petition is bad for non-joinder of the necessary parties? OPR 4. Whether the petition is collusive as alleged. If so, its effect? OPR 5. Whether Sh. Sunil Shandil was not holding and possessing a valid and effective driving licence to drive the vehicle as alleged? OPR 6.Whether the vehicle was being run in violation of the terms and conditions of the insurance policy? OPR 7. Relief.” 9. The following issues came to be framed in M.A.C. Petition No. 41-S/2 of 2007 (subject matter of FAO No. 281 of 2009) and M.A.C. Petition No. 48-S/2 of 2007 (subject matter of FAO No. 282 of 2009) : “1. Whether the petitioner has suffered injuries on account of rash/negligent driving of the vehicle by the respondent No. 1? OPP 2. If issue No. 1 is proved in the affirmative, to what amount of compensation the petitioner is entitled to and from whom? OPP 3. Whether the respondent No. 1 did not possess a valid and effective driving licence? OPR 4. Whether the vehicle did not have valid registration certificate, fitness certificate and route permit? OPR 5. Relief.” 10. The owner-insured and the driver were proceeded ex- parte in M.A.C. No. 27-S/2 of 2007. The claimants and the insurer- United India Insurance Company have led evidence. The Tribunal, after scanning the evidence, oral as well as documentary, awarded Rs. 17,51,000/- with interest @ 9% per annum and saddled the insurer-United India Insurance Company with liability, which is subject matter of FAO No. 338 of 2009. 11. In M.A.C. Petitions No. 41-S/2 of 2007 (subject matter of FAO No. 281 of 2009) and 48-S/2 of 2007 (subject matter of FAO No. 282 of 2009), the parties have led evidence and after scanning the evidence, the Tribunal has awarded Rs. 3,45,366/- and Rs. 91,600/- with interest @ 7.5% per annum to the claimant(s)- injured in both the claim petitions, respectively. 12. The insurer-United India Insurance Company has not questioned the impugned awards made in two claim petitions, which are subject matter of FAOs No. 281 and 282 of 2009, thus, is precluded from questioning the impugned award, which is subject matter of FAO No. 338 of 2009. 13. 12. The insurer-United India Insurance Company has not questioned the impugned awards made in two claim petitions, which are subject matter of FAOs No. 281 and 282 of 2009, thus, is precluded from questioning the impugned award, which is subject matter of FAO No. 338 of 2009. 13. Learned counsel for the insurer-United India Insurance Company admitted that it has satisfied the awards in the two claim petitions, which are the subject matter of FAOs No. 281 and 282 of 2009, but has only questioned the impugned award, which is subject matter of FAO No. 338 of 2009, on the ground that the deceased, Shri Dhian Chand, was father of the owner-insured of the offending vehicle; the driver is the brother of the owner-insured and son of the deceased-Dhian Chand; hence, the claim petition itself is not maintainable. 14. Admittedly, the deceased, namely Shri Dhian Chand, was neither the owner nor the driver of the offending vehicle. His dependents have lost their source of dependency and if the owner in the capacity of third party as dependent files a claim petition, it cannot be said that the claim petition is not maintainable. 15. In the instant case, the insured-owner, though the daughter of the deceased, has not filed claim petition. The driver of the offending vehicle, though the son of the deceased, has also not filed the claim petition because he was driving the offending vehicle as a driver at the relevant point of time. The widow of deceased- Dhian Chand and his another son have filed the claim petition being the dependents on the ground that they have lost their source of dependency, are hapless and helpless and can maintain the claim petition. 16. This question was also raised by Mr. Ashwani K. Sharma, learned counsel for the insurer, in FAO No. 226 of 2006, titled as United India Insurance Company Ltd. versus Smt. Kulwant Kaur & another, which was determined and findings were returned against the insurer vide judgment, dated 28th March, 2014. It is apt to reproduce paras 18 to 21 of the judgment herein : “18. The core question is – whether the claim petition is maintainable? 19. It is apt to reproduce paras 18 to 21 of the judgment herein : “18. The core question is – whether the claim petition is maintainable? 19. The argument advanced by the learned counsel for the appellant on this point is devoid of any force for the simple reason that the purpose of granting compensation is just to help the claimants who have lost their kith and kins and the source of their dependency. 20. The registered owner of the offending vehicle was the husband of the claimant, who too lost his life. So, the claimant was neither in a position to array him as a party because of his death nor could she array herself as a party-respondent as the legal representative of the owner of the offending vehicle because she is the claimant. 21. The claimant, who is otherwise entitled to compensation, cannot be deprived of the compensation on the ground that the owner is not a party. As per the Motor Vehicles Rules, the registration certificate remains valid in the name of deceased owner for a period of three months.” 17. Keeping in view the fact that the insurer-United India Insurance Company has not questioned the awards made by the Tribunal in M.A.C. Petitions No. 41-S/2 of 2007 and 48-S/2 of 2007, the appeal filed by the insurer-United India Insurance Company is not maintainable. Hence, FAO No. 338 of 2009 is to be dismissed being not maintainable. 18. Now, coming to the appeals filed by the claimants- injured, who have sought enhancement of the compensation, I have gone through the impugned awards, more particularly, the assessment made by the Tribunal. 19. In M.A.C. Petition No. 41-S/2 of 2007, which is subject matter of FAO No. 281 of 2009, the Tribunal has awarded Rs. 10,000/- for pain and sufferings, Rs. 1,05,766/- for expenditure incurred on the treatment and attendant, Rs. 18,000/- for loss of earning during hospitalization & remaining under treatment, Rs. 10,000/- for loss of amenities of life and Rs. 2,01,600/- for loss of future earnings, total compensation amounting to Rs. 3,45,366/-. 20. In M.A.C. Petition No. 48-S/2 of 2007 (subject matter of FAO No. 282 of 2009), the Tribunal has awarded Rs. 4,000/- for pain and sufferings, Rs. 2,000/- for attendant charges, Rs. 6,000/- for loss of earning during hospitalization & remaining under treatment, Rs. 75,600/- for loss of future earnings and Rs. 3,45,366/-. 20. In M.A.C. Petition No. 48-S/2 of 2007 (subject matter of FAO No. 282 of 2009), the Tribunal has awarded Rs. 4,000/- for pain and sufferings, Rs. 2,000/- for attendant charges, Rs. 6,000/- for loss of earning during hospitalization & remaining under treatment, Rs. 75,600/- for loss of future earnings and Rs. 4,000/- for loss of amenities of life, total compensation amounting to Rs. 91,600/-. 21. Keeping in view the facts of the cases, the amount awarded cannot be said to be inadequate. Mr. V.S. Chauhan, learned counsel for the claimants-injured has also not been able to carve out a case that the compensation is inadequate. 22. Accordingly, FAOs No. 281 & 282 of 2009 merit to be dismissed and the impugned awards are to be upheld. 23. All the three appeals are dismissed, as indicated hereinabove, alongwith all pending applications. 24. The awarded amount be deposited before the Registry within eight weeks, if not already deposited. The Registry to release the awarded amount in favour of the claimants strictly as per the terms and conditions contained in the respective impugned awards. 25. Send down the records after placing copy of the judgment on each of the files.