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Himachal Pradesh High Court · body

2014 DIGILAW 983 (HP)

Shanti Devi v. National Insurance Company

2014-07-25

MANSOOR AHMAD MIR

body2014
JUDGMENT : - Mansoor Ahmad Mir, Chief Justice. All these eight appeals are outcome of a motor vehicular accident, which was allegedly caused by driver-cum-owner, namely Shri Manoj Kumar, while driving the offending vehicle-Tata 207, bearing registration No. HP-63-1429, rashly and negligently, on 31st May, 2006, at about 4.45 P.M. near Rawla Kiar. Thus, I deem it proper to dispose of all these appeals by a common judgment. 2. These appeals have been preferred against various awards made by the Motor Accident Claims Tribunal, Shimla, H.P. (hereinafter referred to as “the Tribunal”) whereby compensation has been awarded in favour of the claimants and insurer has been saddled with liability except in M.A.C. Petition No. 54-S/2 of 2006, titled as Smt. Fulma & others versus Shri Krishan Lal deceased through LR Smt. Shanti Devi & another (hereinafter referred to as “the impugned awards”) on the grounds taken in the respective memo of appeals. 3. In FAOs No. 554, 555 and 556 of 2009, the insurer- National Insurance Company Limited has called in question the impugned awards, dated 4th July, 2009, made by the Tribunal in different claim petitions arising out of the same accident whereby the insurer-National Insurance Company Limited has been saddled with liability to satisfy the award; FAOs No. 114, 115 & 116 of 2010 and 144 of 2011 have been preferred by the claimants for enhancement of the compensation granted to them vide the impugned awards and FAO No. 169 of 2011 has been preferred by the owner-insured of the offending vehicle against the impugned award, dated 5th January, 2011, whereby the owner-insured has been saddled with liability. 4. 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: 5. The claimants in all the claim petitions, except in M.A.C. Petition No. 54-S/2 of 2006, have specifically averred that the deceased were travelling in the offending vehicle-Tata 207, bearing registration No. HP-63-1429, as owners of the vegetables, which they had brought to Sabzi Mandi, Dhalli for sale purposes and on return journey from Dhalli to Bhaghal, the offending vehicle met with an accident because of rash and negligent driving of the owner-cum-driver, namely Shri Manoj Kumar, lost their lives including the driver. Their dependents filed claim petitions and sought compensation as per the break-ups given in the respective claim petitions. 6. In M.A.C. No. 54-S/2 of 2006, the claimants have not specifically averred that the deceased was travelling in the offending vehicle alongwith the vegetables, but it has been specifically averred that the deceased was out with vegetables and was a grocer. It appears that the claimants in the said claim petition have amended the claim petition and have filed amended claim petition. 7. The insurer-National Insurance Company Ltd. and the owner of the offending vehicle resisted the claim petitions on the grounds taken in the respective memo of objections. 8. On the pleadings of the parties, the issues were framed in the respective claim petitions. The following issues were framed in M.A.C. Petition No. 54-S/2 of 2006 (subject matter of FAOs No. 144 & 169 of 2011): “1. Whether Rajinder died by use of vehicle No. HP-63-1429? OPP 2. What amount the petitioners are entitled for by way of compensation, if so, from whom? OPP 3. Whether the petition is not maintainable as alleged in the preliminary objections of reply filed by respondent No. 1? OPR 4. Whether the driver of the vehicle in dispute was not having valid and effective driving licence? OPR 5. Whether the vehicle was being driven in violation of terms and conditions of the policy? OPR 6. Whether there did not exist any valid RC, fitness certificate etc.? OPR 7. Relief.” 9. The Tribunal framed following issues M.A.C. Petition No. 67-S/2 of 2006, which is subject matter of FAOs No. 555 of 2009 and 114 of 2010: “1. Whether Bobby died in the accident in question due to rash and negligent driving of Tata 207 No. HP-63-1429 by Manoj Kumar? OPP 2. If issue No. 1 is proved, whether the petitioners are entitled to compensation, if so, to what amount and from which of the respondents? OPP 3. Whether the petition is neither competent nor maintainable, as alleged? OPR-2 4. Whether the vehicle in question was being driven at the time of accident in violation of terms and conditions of the insurance policy, as alleged, if so, its effect? OPR-2 5. Whether the driver of the vehicle was not possessing a valid and effective driving licence at the time of accident, if so, its effect? OPR-2 4. Whether the vehicle in question was being driven at the time of accident in violation of terms and conditions of the insurance policy, as alleged, if so, its effect? OPR-2 5. Whether the driver of the vehicle was not possessing a valid and effective driving licence at the time of accident, if so, its effect? OPR-2 6-A. Whether the deceased was travelling in the vehicle in question at the time of accident as gratuitous passenger, if so, its effect? OPR-2 7. Relief.” 10. The following issues came to be framed by the Tribunal in M.A.C. Petition No. 68-S/2 of 2006 (subject matter of FAOs No. 556 of 2009 and 116 of 2010): “1. Whether Sohan Lal died in the accident in question due to rash and negligent driving of Tata 207 No. HP-63-1429 by Manoj Kumar? OPP 2. If issue No. 1 is proved, whether the petitioners are entitled to compensation, if so, to what amount and from which of the respondents? OPP 3. Whether the petition is neither competent nor maintainable, as alleged? OPR-2 4. Whether the vehicle in question was being driven at the time of accident in violation of terms and conditions of the insurance policy, as alleged, if so, its effect? OPR-2 5. Whether the driver of the vehicle was not possessing a valid and effective driving licence at the time of accident, if so, its effect? OPR-2 6-A. Whether the deceased was travelling in the vehicle in question at the time of accident as gratuitous passenger, if so, its effect? OPR-2 7. Relief.” 11. The following issues were framed in M.A.C. Petition No. 69-S/2 of 2006 (subject matter of FAOs No. 554 of 2009 & 115 of 2010): “1. Whether Shishu Pal died in the accident in question due to rash and negligent driving of Tata 207 No. HP-63-1429 by Manoj Kumar? OPP 2. If issue No. 1 is proved, whether the petitioner is entitled to compensation, if so, to what amount and from which of the respondents? OPP 3. Whether the petition is neither competent nor maintainable, as alleged? OPR-2 4. Whether the vehicle in question was being driven at the time of accident in violation of terms and conditions of the insurance policy, as alleged, if so, its effect? OPR-2 5. OPP 3. Whether the petition is neither competent nor maintainable, as alleged? OPR-2 4. Whether the vehicle in question was being driven at the time of accident in violation of terms and conditions of the insurance policy, as alleged, if so, its effect? OPR-2 5. Whether the driver of the vehicle was not possessing a valid and effective driving licence at the time of accident, if so, its effect? OPR-2 6-A. Whether the deceased was travelling in the vehicle in question at the time of accident as gratuitous passenger, if so, its effect? OPR-2 7. Relief.” 12. The parties have led the evidence in support of their cases. The Tribunal, after scanning the evidence, oral as well as documentary, held the claimants entitled to compensation and saddled the insurer with liability in all the claim petitions except in M.A.C. Petition No. 54-S/2 of 2006, wherein the owner- insured was saddled with liability to pay the compensation. FAOs No. 554, 555 & 556 of 2009: 13. The insurer-National Insurance Company Ltd. has not led any evidence to prove that the deceased were travelling in the said offending vehicle as owners of vegetables and has also failed to prove that they were travelling as gratuitous passengers in the said vehicle. The Tribunal, after scanning the evidence, held in all the claim petitions, except in M.A.C. Petition No. 54-S/2 of 2006, that the deceased were travelling in the offending vehicle as owners of the vegetables, were covered in terms of the insurance policy and saddled the insurer-National Insurance Company Ltd. with liability. 14. Learned counsel for the insurer-National Insurance Company Limited was not in a position to demonstrate as to how the impugned awards are bad. Rather, there is not even a single iota of evidence on the files to the effect that the deceased were travelling in the offending vehicle as gratuitous passengers. The insurance policy also covers the risk of owners of the goods, which are being carried in the vehicle. 15. Having said so, the appeals filed by the insurer- National Insurance Company Ltd., being FAOs No. 554, 555 and 556 of 2009, merit to be dismissed and are dismissed as such. FAO No. 169 of 2011: 16. The insurance policy also covers the risk of owners of the goods, which are being carried in the vehicle. 15. Having said so, the appeals filed by the insurer- National Insurance Company Ltd., being FAOs No. 554, 555 and 556 of 2009, merit to be dismissed and are dismissed as such. FAO No. 169 of 2011: 16. Now coming to FAO No. 169 of 2011, which is preferred by the owner of the offending vehicle on the ground that the deceased-Rajinder was also travelling in the offending vehicle as owner of the vegetables; all the deceased were travelling in the said vehicle in the same capacity; the Tribunal, in the claim petitions filed by their dependents, has determined the issue and held that those were travelling in the offending vehicle as third parties-owners of the vegetables, but in the instant case, in terms of the impugned award, has held that deceased-Rajinder was a gratuitous passenger. 17. Though, the claimants in M.A.C. Petition No. 54-S/2 of 2006 have not specifically averred that deceased-Rajinder was owner of the goods, but there is evidence on the file led by the claimants that deceased-Rajinder was travelling in the said vehicle as owner of the vegetables. One of the claimants, namely Smt. Fulma Devi, widow of deceased-Rajinder, while appearing as PW-4 before the Tribunal, has categorically stated in her examination-in- chief that on the date of accident her husband had gone to Dhalli Shimla alongwith peas and while returning, met with the accident. There is no evidence on the file that deceased-Rajinder was travelling in the offending vehicle as a gratuitous passenger. 18. It was for the insurer-National Insurance Company Limited to prove that deceased-Rajinder was travelling in the offending vehicle as a gratuitous passenger, which it has failed to do so. 19. The Tribunal, on its own guess work, has held that deceased-Rajinder was travelling in the offending vehicle as a gratuitous passenger because the claimants have not specifically averred in the claim petition that the deceased was travelling in the offending vehicle as owner of goods. 20. The findings returned by the Tribunal (in M.A.C. Petition No. 54-S/2 of 2006) are bad for the reason that claiming compensation is not an adversarial litigation. The claimants can claim compensation on a simple application. 20. The findings returned by the Tribunal (in M.A.C. Petition No. 54-S/2 of 2006) are bad for the reason that claiming compensation is not an adversarial litigation. The claimants can claim compensation on a simple application. In terms of the provisions contained in Section 158 (6) of the MV Act, the police is under obligation to submit copy of the FIR to the Claims Tribunal and the Claims Tribunal can treat that report as claim petition in terms of Section 166 (4) of the MV Act. 21. Having said so, the procedural wrangles and tangles and the niceties of law cannot defeat the claim petitions. The purpose of granting compensation is just to save the claimants from social evils and to prevent them from destitution. 22. I wonder, how the Tribunal, in the other cases arising out of the same accident, has held that the deceased were travelling in the offending vehicle as owners of the goods and in this case (M.A.C. Petition No. 54-S/2 of 2006), has held that the deceased was a gratuitous passenger without any pleadings and evidence. 23. Hence, the impugned award passed by the Tribunal in M.A.C. Petition No. 54-S/2 of 2006 merits to be set aside so far it relates to exonerating the insurer-National Insurance Company Ltd. from liability. Accordingly, the impugned award is set aside and the insurer is saddled with liability in this case also. FAO No. 114 of 2010: 24. In the claim petition filed by the claimants on behalf of the deceased-Bobby, who was bachelor at the relevant point of time, the Tribunal has assessed his income at Rs. 4500/- per month and after deducting 2/3rd, held the claimants entitled to loss of dependency to the tune of Rs. 1500/- per month, i.e. Rs. 18,000/- per annum. 25. The Tribunal has lost sight of the fact that the deceased was the budding son of his mother, one of the claimants, and the brother of the another claimant, who is disabled and unemployed, who have been deprived of the source of income, hope and help. 26. It is apt to reproduce para 32 of the judgment rendered by the Apex Court in Sarla Verma (Smt) and others versus Delhi Transport Corporation and another, reported in (2009) 6 Supreme Court Cases 121, herein: “32. 26. It is apt to reproduce para 32 of the judgment rendered by the Apex Court in Sarla Verma (Smt) and others versus Delhi Transport Corporation and another, reported in (2009) 6 Supreme Court Cases 121, herein: “32. Thus even if the deceased is survived by parents and siblings, only the mother would be considered to be a dependant, and 50% would be treated as the personal and living expenses of the bachelor and 50% as the contribution to the family. However, where family of the bachelor is large and dependant on the income of the deceased, as in a case where he has a widowed mother and large number of younger non-earning sisters or brothers, his personal and living expenses may be restricted to one-third and contribution to the family will be taken as twothird.” 27. In terms of the ratio laid down by the Apex Court in Sarla Verma's case (supra), which was upheld by a larger Bench of the Apex Court in Reshma Kumari & Ors. versus Madan Mohan & Anr., reported in 2013 AIR SCW 3120, 50% was to be deducted instead of 2/3rd. Thus, the claimants are held entitled to loss of dependency to the tune of Rs. 2250/- per month. The multiplier of 17' applied by the Tribunal is proper multiplier and needs no interference. Accordingly, the claimants are held entitled to Rs. 2250/- x 12 = Rs. 27,000/- x 17 = Rs. 4,59,000/- under the head 'loss of dependency'. 28. Admittedly, the Tribunal has not awarded any compensation under the heads 'funeral expenses' and 'loss of estate'. In terms of the mandate of the Second Schedule appended with the MV Act, Rs. 2,000/-, and Rs. 2,500/- have to be awarded under the heads 'funeral expenses' and 'loss of estate' respectively. The said amount was fixed in the year 1994 and much water has flown down, I deem it proper to award Rs. 10,000/- each under the heads 'funeral expenses' and 'loss of estate'. The rate of interest awarded by the Tribunal seems to be reasonable and is upheld. 29. Thus, the claimants are held entitled for compensation to the tune of Rs. 4,59,000/- + Rs. 10,000/- + Rs. 10,000/- = Rs. 4,79,000/- with interest @ 9% per annum from the date of filing of the claim petition till its realization. FAO No. 115 of 2010: 30. 29. Thus, the claimants are held entitled for compensation to the tune of Rs. 4,59,000/- + Rs. 10,000/- + Rs. 10,000/- = Rs. 4,79,000/- with interest @ 9% per annum from the date of filing of the claim petition till its realization. FAO No. 115 of 2010: 30. In the claim petition filed by the claimant on behalf of deceased-Shishu Pal, who was bachelor at the relevant point of time, the Tribunal has assessed his income at Rs. 3600/- per month and after deducting 2/3rd, held the claimant entitled to loss of dependency to the tune of Rs. 1200/- per month, i.e. Rs. 14,400/- per annum. 31. The Tribunal has lost sight of the fact that the deceased was the budding son of his mother, who has been deprived of the source of her old age, hope and help. 32. In terms of the ratio laid down by the Apex Court in Sarla Verma's case (supra), which was upheld by a larger Bench of the Apex Court in Reshma Kumari's case (supra), 50% was to be deducted instead of 2/3rd. Thus, the claimant is held entitled to loss of dependency to the tune of Rs. 1800/- per month. The multiplier of 18' applied by the Tribunal is proper multiplier and needs no interference. Accordingly, the claimant is held entitled to Rs. 1800/- x 12 = Rs. 21,600/- x 18 = Rs. 3,88,800/- under the head 'loss of dependency'. 33. Admittedly, the Tribunal has not awarded any compensation under the heads 'funeral expenses' and 'loss of estate'. I deem it proper to award Rs. 10,000/- each under the heads 'funeral expenses' and 'loss of estate'. 34. Thus, the claimant is held entitled for compensation to the tune of Rs. 3,88,800/- + Rs. 10,000/- + Rs. 10,000/- = Rs. 4,08,800/- with interest @ 9% per annum from the date of filing of the claim petition till its realization. FAO No. 116 of 2010: 35. The claimants are the wife and minor children of deceased-Sohan Lal. The claimants have specifically averred in the claim petition that the deceased was earning Rs. 15,000/- being an agriculturist and horticulturist and Rs. 2,000/- from other business at the relevant point of time. They have also led evidence, however, the Tribunal has held that the deceased was earning Rs. 3600/- per month. 36. The said amount, on the face of it, appears to be meager. 15,000/- being an agriculturist and horticulturist and Rs. 2,000/- from other business at the relevant point of time. They have also led evidence, however, the Tribunal has held that the deceased was earning Rs. 3600/- per month. 36. The said amount, on the face of it, appears to be meager. The claimants are the widow and two minor children. They have lost their source of dependency. In the year 2006 also, even a labourer was not earning less than Rs. 4500/- per month. However, there is evidence on the file led by the claimants that the deceased was earning Rs. 17,000/- per month, was not believed by the Tribunal on the ground that the claimants have not given the source of business, but has not scanned the evidence led by the claimants. 37. Therefore, while exercising guess work, it can be safely held that the deceased was earning not less than Rs. 4500/- per month, would have been spending 1/3rd, i.e. Rs. 1500/- towards his personal expenses. Thus, the claimants have lost source of dependency to the tune of Rs. 3,000/- per month instead of Rs. 2400/- as assessed by the Tribunal. 38. Keeping in view the age of the deceased, i.e. 40 years, multiplier of 12' applied by the Tribunal is on the lower side. In terms of the Schedule appended with the MV Act, multiplier of 15' is applicable to the age group of 40 years to 45 years, but applying the test laid down by the Apex Court in Sarla Verma's case (supra) and upheld by a larger Bench of the Apex Court in Reshma Kumari's case (supra), multiplier of 13' was applicable. 39. Thus, the claimants are held entitled for compensation to the tune of Rs. 3,000/- x 12 = Rs. 36,000/- x 13 = Rs. 4,68,000/-. The Tribunal has also fallen in error in not awarding compensation under the heads 'funeral expenses', 'loss of consortium' and 'loss of estate'. In terms of the Second Schedule appended with the MV Act, Rs. 2,000/-, Rs. 5,000/-, and Rs. 2,500/- are to be awarded. But, the said amount has been fixed in the year 1994 and much water has flown down. Therefore, I deem it proper to award Rs. 10,000/- each. Thus, the claimants are held entitled for compensation to the tune of Rs. 4,68,000/- + Rs. 10,000/- + Rs. 10,000/- + Rs. 10,000/- = Rs. 5,000/-, and Rs. 2,500/- are to be awarded. But, the said amount has been fixed in the year 1994 and much water has flown down. Therefore, I deem it proper to award Rs. 10,000/- each. Thus, the claimants are held entitled for compensation to the tune of Rs. 4,68,000/- + Rs. 10,000/- + Rs. 10,000/- + Rs. 10,000/- = Rs. 4,98,000/- with interest @ 9% per annum. FAO No. 144 of 2011: 40. I have gone through the impugned award passed by the Tribunal in M.A.C. Petition No. 54-S/2 of 2006. 41. Keeping in view the facts of the present case read with the findings recorded by the Tribunal, I am of the considered view that the Tribunal has rightly awarded compensation to the tune of Rs. 4,30,000/- while taking loss of dependency to the tune of Rs. 2250/- per month, which cannot be said to be inadequate. 42. Accordingly, the appeal is dismissed and the impugned award is upheld. 43. The insurer is directed to deposit the enhanced awarded amount in FAOs No. 114, 115 and 116 of 2010 before the Registry within two months. The insurer is also directed to deposit the awarded amount in FAO No. 169 of 2011, i.e. in M.A.C. Petition No. 54-S/2 of 2006 within the same period. 44. Registry is directed to release the awarded amount in favour of the claimants strictly as per the terms and conditions contained in the impugned awards. The amount deposited by the owner-insured in FAO No. 169 of 2011 be released to the owner- insured after the insurer deposits the amount and the same is distributed to the claimants. 45. All the appeals are disposed of, as indicated hereinabove, alongwith all pending applications. 46. Send down the records after placing copy of the judgment on each of the files.