Research › Search › Judgment

Himachal Pradesh High Court · body

2015 DIGILAW 1602 (HP)

Meera Balnota v. New India Assurance Company

2015-10-30

MANSOOR AHMAD MIR

body2015
JUDGMENT : MANSOOR AHMAD MIR, J. 1. All these appeals are directed against a common award dated 27.8.2014, made by the Motor Accident Claims Tribunal, Shimla (HP) Circuit Court Theog in two separate claim petitions, i.e., MAC Petition No. 87-T-2 of 2013/09 titled Bishan Singh and another versus Smt. Meera Balnota and others and MAC Petition No. 86-T-2 of 2013/09 titled Sita Ram and another versus Smt. Meera Balnota and others, for short “the Tribunal”, whereby compensation to the tune of Rs.11,30,000/- with 5000/- costs and interest @7.5% per annum came to be awarded in favour of the claimants in each of the claim petitions and insurer was directed to satisfy the award with right of recovery from the insured, hereinafter referred to as “the impugned award”, for short. 2. Insurer, driver Rakesh Kumar and claimant Bishan Singh in MAC Petition No. 87-T-of 2013-09 have not questioned the impugned award on any ground, thus it has attained finality so far it relates to them. 3. The insured/owner Meera Balnota has questioned the impugned award by the medium of FAO No. 47 of 2015 and FAO No. 50 of 2015, on the ground that the Tribunal has fallen in an error in granting the right of recovery to the insurer. 4. One of the claimants Ramla Devi in MAC Petition No. 86-T-2 of 2013-09 titled Sita Ram and another versus Smt. Meera Balnota and others has questioned the impugned award on the ground of adequacy of compensation. 5. In order to determine these appeals, it is necessary to give brief resume of the relevant facts herein. 6. In both the claim petitions, parents of the deceased namely, Satish Kumar and Neeraj Parkash had invoked the jurisdiction of the Motor Accidents Tribunal for the grant of compensation to the tune of Rs.20 lacs, as per the break-ups given in the claim petition on the grounds taken in the memo of claim petitions. 7. Precisely, the case putforth by the claimants was that driver Rakesh Kumar had driven the vehicle bearing registration No. HP63-1417 Mahindra Bolero Camper, rashly and negligently on 26.7.2006 at about 10 30. p.m. at Kailash “Dhank P.O. Kuthar, Tehsil Theog District Shimla, H.P. The deceased were on their way from Deha to Kathori alongwith grocery articles loaded in the said vehicle, went off the road and rolled down into deep gorge. p.m. at Kailash “Dhank P.O. Kuthar, Tehsil Theog District Shimla, H.P. The deceased were on their way from Deha to Kathori alongwith grocery articles loaded in the said vehicle, went off the road and rolled down into deep gorge. The deceased suffered multiple injuries and succumbed to the same. 8. The respondents resisted and contested the claim petitions and the Tribunal framed the issues in both the claim petitions. It is apt to reproduce issues framed by the Tribunal in one of the claim petitions herein: (i) Whether deceased Sh. Satish Kumar died because of rash and negligent driving of vehicle in question by respondent No. 2 as alleged? OPP. (ii) If issue No. 1 is proved ion the affirmative, whether the petitioners are entitled to compensation, if so, how much and from whom? OPP. (iii) Whether the petition is not maintainable as alleged? OPR. (iv) Whether the petitioners are estopped from filing of present petition due to their act and conduct OPR-1. (v) Whether the petition is bad for mis-joinder and non-joinder of necessary parties as alleged? OPR-1. (vi) Whether the vehicle in question was being driven at the relevant time against the terms and conditions of insurance policy as alleged, if so, its effect? OPR-3. (vii) Whether the vehicle in question was being driven by its driver at the relevant time without any valid and effective driving licence, if so, its effect? OPR-3. (viii) Whether the deceased was traveling in the vehicle in question at the relevant time as a gratuitous passenger? OPR-3. (ix) Relief. 9. Parties have led evidence. 10. The claimants have examined HC Dev Raj as PW1, Asha Kimta as PW3, Dhayan Singh as PW5 Dr. Iqbal Singh as PW6 and claimants Ramla Devi and Prabha Devi themselves appeared in the witnesses-box as PW2 and PW4 respectively. 11. The insurer has examined one witness, namely, Shyam Singh. 12. The Tribunal, after scanning the evidence held that the claimants have proved that the driver, namely, Rakesh Kumar has driven the vehicle rashly and negligently and caused the accident in which Satish Kumar and Neeraj Prakash sustained injuries and succumbed to the injuries. The said findings are not in dispute, accordingly, upheld. 13. Before I deal with issue No. 2, I deem it proper to deal with issues No. 3 to 5 at the first instance. The said findings are not in dispute, accordingly, upheld. 13. Before I deal with issue No. 2, I deem it proper to deal with issues No. 3 to 5 at the first instance. It was for the insurer to lead evidence and prove the same, has not led any evidence. Accordingly, the findings returned by the Tribunal on these issues are upheld. 14. Issues No. 6 and 7. The insurer had to discharge the onus, has examined Shyam Lal, who has deposed that the driver was having licence to drive the LMV (NT), has proved the certificate Ext. RW1/A. The vehicle in question is a “light motor vehicle” and the driver was competent to drive the said vehicle. 15. This Court in FAO No. 125 of 2008 titled Oriental Insurance Co. Ltd. Versus Smt. Amara Devi and others decided on 17.4.2015 and FAO No. 219 of 2008 titled United India Insurance Co. Ltd. Versus Smt. Juma Devi and others decided on 14th August, 2015, has already held that the said vehicle falls within the definition of “light motor Vehicle” and the driver who is having driving licence to drive light motor vehicle, requires no endorsement to drive passenger vehicle. So the driver was having a valid driving licence. 16. The learned counsel for the claimants has also relied upon a recent judgment of the Supreme Court in case titled Kulwant Singh and others versus Oriental Insurance Company Ltd. reported in (2015) 2 SCC 186 , wherein same principles of law have been laid down. It is apt to reproduce para 9 of the said judgment herein: “9. In S. Iyyapan, the question was whether the driver who had a licence to drive 'light motor vehicle' could drive 'light motor vehicle' used as a commercial vehicle, without obtaining endorsement to drive a commercial vehicle. It was held that in such a case, the Insurance Company could not disown its liability. It was observed: "18. In the instant case, admittedly the driver was holding a valid driving licence to drive light motor vehicle. There is no dispute that the motor vehicle in question, by which accident took place, was Mahindra Maxi Cab. It was held that in such a case, the Insurance Company could not disown its liability. It was observed: "18. In the instant case, admittedly the driver was holding a valid driving licence to drive light motor vehicle. There is no dispute that the motor vehicle in question, by which accident took place, was Mahindra Maxi Cab. Merely because the driver did not get any endorsement in the driving licence to drive Mahindra Maxi Cab, which is a light motor vehicle, the High Court has committed grave error of law in holding that the insurer is not liable to pay compensation because the driver was not holding the licence to drive the commercial vehicle. The impugned judgment (Civil Misc. Appeal No.1016 of 2002, order dated 31.10.2008 (Mad) is, therefore, liable to be set aside." 17. Having said so, the findings returned on issues No. 6 and 7 are set aside and it is held that the driver was competent to drive the offending vehicle and insured has not committed any willful breach. Accordingly, issues No. 6 and 7 are decided against the insurer. 18. Issue No.8. It was for the insurer to prove that the deceased were traveling in the offending vehicle as gratuitous passengers, has not led evidence and issues have been decided in favour of the claimants and against the insurer in both the claim petitions. The insurer has not questioned the said findings thus, the findings returned on issue No. 8 have attained finality and are accordingly upheld. 19. Issue No.2. The Tribunal has discussed all aspects of the case in paras 35 to 40 of the impugned award and came to the conclusion that the claimants are entitled to compensation to the tune of Rs.11,30,000/- in each claim petitions. 20. The adequacy of compensation is not in dispute in claim petition No. 87-T-2 of 2013/09 for the reasons that claimants have not questioned the same. Thus, it is held that the Tribunal has rightly awarded the compensation to the tune of Rs.11,30,000/- with costs, as stated supra. 21. In Claim Petition No. 86-T-2 of 2013/09, the claimants have questioned the impugned award on the ground of adequacy of compensation. Thus, it is held that the Tribunal has rightly awarded the compensation to the tune of Rs.11,30,000/- with costs, as stated supra. 21. In Claim Petition No. 86-T-2 of 2013/09, the claimants have questioned the impugned award on the ground of adequacy of compensation. The claimants in both the claim petitions have claimed Rs.20 lacs each, as per the break-ups given in the claim petitions and pleaded how they are entitled to the same, but has not been able to prove before the Tribunal. 22. The Tribunal in para 38 of the impugned award specifically held that Satish Kumar was 21 years of age and Neeraj Parkash was 23 years of age. Claim Petition No. 86- T-2 of 2013/09 relates to Neeraj Parkash. The Tribunal, after making guess work, held that deceased was earning Rs.10,000/- per month and after making one half deduction, in view the fact that the deceased was a bachelor read with the 2nd Schedule of the Motor Vehicles Act, for short “the Act, and 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 and held that the parents have lost source of dependency to the tune of Rs.5000/- per month. The Tribunal has also applied the multiplier of “18” which came to be rightly awarded in terms of the Sarla Verma’s and Reshma Kumar’s cases supra. Having said so, the compensation awarded is adequate and cannot be said to be meager in any way. 23. Having glance of the above discussion, the Tribunal has fallen in an error in granting right of recovery to the insurer. 24. Viewed thus, the appeals being FAOs No. 47 and 50 of 2015 filed by the insured are allowed and insurer is held liable to pay the amount and FAO No. 407 of 2015 flied by the claimants for enhancement is dismissed. 25. The Registry/ Tribunal is directed to release the amount in favour of the claimants within one week from today, strictly, in terms of the conditions contained in the impugned award, through payee's cheque account and report compliance. 26. Send down the record, forthwith, after placing a copy of this judgment.