Research › Search › Judgment

Himachal Pradesh High Court · body

2015 DIGILAW 1330 (HP)

Oriental Insurance Co. Ltd. v. Thano Devi

2015-09-18

MANSOOR AHMAD MIR

body2015
JUDGMENT : Mansoor Ahmad Mir, Chief Justice (oral) The awards, impugned in these appeals, passed by Motor Accident Claims Tribunal, Chamba, (for short, the Tribunal), are the outcome of one accident caused by driver Gendu, while driving Maxi Cab bearing No.HP-01-2708 rashly and negligently, on 2ndAugust, 2006. Therefore, both the appeals are being disposed of by this common judgment. 2. Facts of the case, in brief, are that on 2nd August, 2006, the deceased (Manoj Kumar and Changa Ram) were traveling in the offending vehicle and when the said vehicle reached Jhulki Ghar near Sunku-Di- Tappari, the vehicle met with an accident, as a result of which the deceased sustained multiple injuries and died on the spot. 3. The claimants/legal representatives of deceased Manoj Kumar, who was 21 years of age at the relevant time, filed Claim Petition No.40 of 2006, titled Thano Devi and another vs. Darshna Thakur and another, (subject matter of FAO No.332 of 2008), claiming-compensation to the tune of Rs.13.00 lacs. 4. The claimants/legal representatives of deceased Changa Ram invoked the jurisdiction of the Tribunal by filing Claim Petition No.39 of 2006, titled Kesro Devi and another vs. Darshna Thakur and another, whereby compensation to the tune of Rs.12.00lacs was claimed. The deceased Changa Ram was 23 years of age at the time of his death. 5. The Tribunal, after appreciating the pleadings of the parties and the evidence adduced, awarded a sum of Rs.4,70,000/-, with interest at the rate of 9% per annum, in favour of the claimants in each claim petition and the insurer was saddled with the liability. 6. The Claimants and the owner have not questioned the impugned awards on any count, thus, the same have attained finality so far as these relate to them. 7. Feeling aggrieved, the insurer has filed the instant appeals challenging the impugned awards on the grounds, namely – i) the amount awarded by the Tribunal, in both the cases, is excessive; and ii) the owner/insured has committed willful breach. 8. Before the first ground is dealt with, I deem it proper to take up the second ground at the first instance. 9. 8. Before the first ground is dealt with, I deem it proper to take up the second ground at the first instance. 9. The learned Senior Advocate appearing for the appellant-insurer argued that the insured has committed breach of the terms and conditions contained in the insurance policy inasmuch as the sitting capacity of the offending vehicle was =9+1' and at the relevant point of time, the number of passengers traveling in the vehicle was more than the permitted limit. 10. The argument is devoid of any force for the reason that in terms of the Policy, the risk of =9+1' was covered, meaning thereby that the risk of driver and nine passengers/occupants was covered. Only two claim petitions are before us. Thus, the insurer has to satisfy the impugned awards. 11. While dealing with the identical issue, this Court relying upon the law expounded by the Apex Court, has taken a similar view in FAO No.224 of 2008, titled Hem Ram and another vs. Krishan Chand and another, decided on 29th May, 2015. 12. As far as second contention is concerned, the Tribunal has fallen in error in assessing the amount under the head loss of source of dependency. A perusal of the impugned awards shows that the Tribunal has rightly assessed the monthly income of the deceased, in both the cases, as Rs.3,000/-. Admittedly, the deceased, in both the cases, were bachelor at the time of death. Therefore, the Tribunal has fallen in error in deducting1/3rd amount towards their personal expenses, whereas, as per the pronouncement 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 Reshma Kumari and others vs. Madan Mohan and another, 2013 AIR (SCW) 3120, 50% was to be deducted from the monthly income of the deceased towards-personal expenses. 13. Thus, applying the dictum of the apex Court, it is held that the claimants, in each case, lost source of dependency to the tune of Rs.1,500/- per month. 14. Now, coming to the multiplier, the age of the deceased was 21 years (in FAONo.332 of 2008) and 23 years (in FAO No.333 of 2008). The Tribunal has again fallen in error in applying the multiplier of 17. 14. Now, coming to the multiplier, the age of the deceased was 21 years (in FAONo.332 of 2008) and 23 years (in FAO No.333 of 2008). The Tribunal has again fallen in error in applying the multiplier of 17. As per the dictum of the Apex Court in Sarla Verma's case (supra), read with the 2nd Schedule attached to the Motor Vehicles, Act, 1988,multiplier of 15 is appropriate in these cases. 15. In view of the above discussion, the claimants in each case are held entitled to Rs.1,500 x 12 x 15 = Rs.2,70,000/-, under the head =loss of dependency'. The amount awarded by the Tribunal under the other heads, i.e. Rs.50,000/ under the head =loss of a living being of the family, Rs.10,000/- under the head =funeral expenses', and Rs.2,000/-under the head litigation cost, in both the cases, is maintained. Thus, the claimants are held entitled to Rs.2,70,000/- + Rs.50,000/- + Rs.10,000/- + Rs.2,000/- = Rs.3,32,000/-, in each case, alongwith interest as awarded by the Tribunal. 16. Accordingly, the appeals are allowed and the impugned awards are modified to the extent as indicated above. 17. The Registry is directed to release the amount in favour of the claimants strictly in terms of the impugned awards, and the excess amount, if any, alongwith up-todate interest, be refunded in favour of the insurer through payee's account cheque.