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Himachal Pradesh High Court · body

2015 DIGILAW 1540 (HP)

United India Insurance co. Ltd. v. Bimla Devi

2015-10-16

MANSOOR AHMAD MIR

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JUDGMENT : Mansoor Ahmad Mir, J. Challenge in this appeal is to the judgment and award dated 24.3.2009, made by the Motor Accident Claims Tribunal Solan, in Petition No. 34-S/2 of 2007/06, titled Bimla Devi and others versus Charan Singh and others, for short “the Tribunal”, whereby compensation to the tune of Rs.13,96,119.00/- alongwith interest @ 12% per annum came to be awarded in favour of the claimants and insurer was saddled with the liability, hereinafter referred to as “the impugned award”, for short. 2. The claimant, insured and driver have not questioned the impugned award on any ground, thus it has attained finality so far it relates to them. 3. The claimants being the victims of a vehicular accident filed claim petition before the Tribunal, for the grant of compensation, to the tune of Rs.40 lacs, as per the break-ups given in the claim petitions, on the ground that Madan Lal husband of Bimla Devi and father of claimants No. 2 and 3 who was bread earner of the family became victim of a vehicular accident, caused by driver, namely Rakesh Kumar while driving truck No.HR-47-4890 rashly and negligently during the intervening night of 17/18 June, 2005. 4. The claim petition was resisted by all the respondents, and following issues came to be framed. (i) Whether the deceased Madan Lal died due to rash and negligent driving of the respondent No. 2 while driving truck bearing No.HR-43-4898 on 18.6.2005 at about 2.00 P.M. near Panipat? OPP. (ii) If issue No. 1 is proved in affirmative, as to what amount of compensation, the petitioners are entitled to and from whom? OPP. (iii) Whether the respondent was not having valid and effective driving licence at the time of accident. If so its effect thereto? OPR-3. (iv) Whether the truck bearing No. HR-47-4890 did not have valid registration certificate, route permit and fitness certificate and was being driven in breach of the standard policy conditions. If so, its effect thereto? OPR-3. (v) Relief. 5. Claimants have examined two witnesses, and in addition Bimla Devi claimant No. 1 also stepped into the witness box as PW2. The insured and insurer have not led any evidence. Only Rakesh Kumar driver has stepped into the witness box as RW-1. Thus, the evidence led by the claimants have remained unrebuted. 6. OPR-3. (v) Relief. 5. Claimants have examined two witnesses, and in addition Bimla Devi claimant No. 1 also stepped into the witness box as PW2. The insured and insurer have not led any evidence. Only Rakesh Kumar driver has stepped into the witness box as RW-1. Thus, the evidence led by the claimants have remained unrebuted. 6. The claimants have pleaded in the claim petition that driver Rakesh Kumar had parked the truck in breach of the Motor Vehicles Act, for short “the Act in middle of the road. Though it is not specifically denied by the owner and driver of the offending vehicle or the insurer but there is evasive denial. The claimants have examined Mohamad Salim as PW3 who has stated that truck was parked in the middle of the road without taking due care and caution, as required, and dashed with the parked truck of Madan Lal, who sustained injuries, was taken to Hospital and succumbed to the injuries. The Tribunal has discussed his statement in para 8 and has also discussed the statement of respondent No. 3, i.e. driver in para 9 of the impugned award. I am of the considered view that the Tribunal has rightly made the discussion in para 8 of the impugned award. Even otherwise, respondents have not led any evidence to prove that the accident was outcome of rash and negligent driving of Madan Lal. Thus, the findings returned by the Tribunal on issue No. 1 are upheld. 7. Before I deal with issue No. 2, I deem it proper to deal with issues No. 3 and 4. It was for the insurer to prove both these issues, has not led any evidence, thus has failed to discharge the onus. Accordingly, both the issues are decided in favour of the claimants and against the insurer. Thus, the findings on these issues are upheld. 8. Issue No. 1. Admittedly, claimants have proved that the age of the deceased was more than 40 years. His date of birth was 3.6.1965 as per the driving licence Ext. PW2/B and the accident has taken place on 18.6.2005. Thus, he was more than 40 years of age at the time of the accident. 8. Issue No. 1. Admittedly, claimants have proved that the age of the deceased was more than 40 years. His date of birth was 3.6.1965 as per the driving licence Ext. PW2/B and the accident has taken place on 18.6.2005. Thus, he was more than 40 years of age at the time of the accident. The Tribunal has also held that he was 40 years of age but has fallen in an error in applying the multiplier of “16” whereas multiplier of “13” was applicable in view of the 2nd Schedule of the Motor Vehicles Act read with Sarla Verma and others versus Delhi Transport Corporation and another reported in AIR 2009 SC 3104 and upheld in Reshma Kumari and others versus Madan Mohan and another, reported in 2013 AIR SCW 3120. 9. The Tribunal, after examining the pleadings, evidence and other documents held in para 10 of the impugned award that the minimum income of the deceased was not less than 15,000/- per month. I am of the considered view that the Tribunal has rightly made the discussion and held that the minimum income of the deceased was Rs.10,000/- per month and after deducting 1/3rd he has lost source of dependency to the tune of Rs.6670/-. Thus, the source of dependency can be rounded as Rs.6700/- per month and multiplier applicable is “13” and not “16”. Thus, the claimants are held entitled to Rs.6700x12x13= Total Rs.10,45,200/-. 10. The Tribunal has rightly awarded compensation under the head “loss of Consortium” Rs.50,000/-, “love and affection” Rs.50,000/- and “transportation and medicines” Rs.15119/-. The same are upheld. 11. Having said so, the claimants are entitled to Rs.10,45,200/-+Rs.50,000+Rs.50,000/-+Rs.15119/-. Total Rs. 11,60,319/-. 12. The Tribunal has also fallen in an error in awarding interest @ 12% per annum whereas interest @ 7.5% per annum was required to be awarded. Thus, the claimants are held to entitled to Rs.11,60,319 with interest @ 7.5% per annum from the date of claim petition till its realization. 13. Viewed thus, the impugned award merits to be modified and is accordingly modified, as indicated hereinabove. 14. The Registry is directed to release the amount in favour of the claimants, strictly, in terms of the conditions contained in the impugned award, through payee’s cheque account and excess amount if any, shall be refunded to the insurer, through payee’s account cheque. 15. The appeal stands disposed of accordingly. 16. 14. The Registry is directed to release the amount in favour of the claimants, strictly, in terms of the conditions contained in the impugned award, through payee’s cheque account and excess amount if any, shall be refunded to the insurer, through payee’s account cheque. 15. The appeal stands disposed of accordingly. 16. Send down the record, forthwith, after placing a copy of this judgment.