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Himachal Pradesh High Court · body

2015 DIGILAW 810 (HP)

Pushpa Devi v. National Insurance Co.

2015-07-03

MANSOOR AHMAD MIR

body2015
Judgment : Mansoor Ahmad Mir, Chief Justice,(Oral) These two appeals are outcome of a common judgment and award dated 3.3.2008, passed by the Motor Accident Claims Tribunal (III), Shimla, H.P., hereinafter referred to as “the Tribunal” in MACT No.43-S/2 of 2006/05, whereby compensation to the tune of Rs.5,30,000/- alongwith 7.5% interest per annum came to be awarded in favour of the claimants and against the Himachal Pradesh Forest Corporation-owner of the vehicle with command to the insurer to satisfy the award at the first instance with right of recovery from the Forest Corporation-owner, for short “the impugned award”. 2. Both these appeals are being taken up together for disposal in the given circumstances. 3. The insurer has not questioned the impugned award on any aground, thus, it has attained finality so far as it relates to it. 4. The claimants, by the medium of FAO No. 427of 2008 have questioned the impugned award on the ground that the amount awarded is inadequate. 5. The H.P. Forest Corporation-owner, by the medium of FAO No. 435 of 2008, has questioned the impugned award on the ground that the Tribunal has fallen in an error in granting the right of recovery to the insurer. 6. In order to determine both these questions, it is necessary to give a flash-back of the relevant facts, the womb of which has given birth to both these appeals. 7. Claimant Pushpa Devi being the victim of a vehicular accident invoked the jurisdiction of the Tribunal, by the medium of claim petition, on the ground that their bread-earner Bhim Singh has lost life being the victim of an accident which was caused by the driver, who has driven the vehicle bearing registration No. HP-18-4802 owned by respondent No.1-Forest Corporation rashly and negligently on 29.11.2004, who sustained the injuries and succumbed to the injuries. It is further averred that the deceased was a conductor by profession and his gross salary was Rs.7000/- per month. The claimants have claimed compensation to the tune of Rs.10 lacs, as per the break-ups given in the claim petition. 8. It is further averred that the deceased was a conductor by profession and his gross salary was Rs.7000/- per month. The claimants have claimed compensation to the tune of Rs.10 lacs, as per the break-ups given in the claim petition. 8. The respondents in the claim petition have resisted and contested the averments contained in the claim petition by filing replies and following issues came to be framed: (i) Whether Bhim Singh died in the accident of truck bearing No.HP-18-4802, which took place on 29.11.2004 because it was being driven in a rash and negligent manner by its driver? OPP. (ii) Whether the vehicle in question was being driven in violation of the terms and conditions of the Insurance Policy and the vehicle was not having a valid route permit? OPR-2. (iii) Whether this petition has been filed by the petitioner in collusion with respondent No.1 ?OPR. (iv) If the above issues are proved in affirmative, to what amount of compensation and from whom the petitioners are entitled to receive? OPP. (v) Relief. 9. Claimants examined as many as five witnesses, namely, Smt. Pushpa Devi, claimant No.1 (PW1), Sh. Deepak Sood, (PW2), Sh.Ramesh Chand (PW3), H.C. Laiq Ram (PW4) and Sh. Davinder Singh (PW5). 10. The respondents have examined two witnesses, namely, Sh. Ramesh Chand and Sh. S.S. Jasrotia. 11. The claimants have also placed on record copies of postmortem report Ext. PW1/A, FIR Ext. PW1/B, Pariwar Register Ext. PW1/C, death certificate Ext. PW1/D, and salary certificate Ext. PW3/A, respectively. 12. Respondents have also placed on record copies of RC Ext. RW1/A, Insurance policy Ext. RW1/B, route permit Ext. RW1/C, permission for renewal of route permit Ext. RW1/D, order Ext. RW1/E, driving license Ext.RW1/F, terms and conditions of insurance policy Ext. RW2/A and repudiation letter Ext. RW2/B. 13. The Tribunal, after scanning the evidence, held that the claimants have proved that the offending vehicle was being driven rashly and negligently on the said date in which the deceased sustained injuries and succumbed to the injuries. There is no dispute on the said findings returned by the Tribunal on issue No.1, thus are accordingly upheld. 14. Issues No. 2 and 4 are interlinked, thus I deem it proper to deal with issue No. 3 at the first instance. There is no dispute on the said findings returned by the Tribunal on issue No.1, thus are accordingly upheld. 14. Issues No. 2 and 4 are interlinked, thus I deem it proper to deal with issue No. 3 at the first instance. It was for the owner to discharge the onus on this issue, has not led any evidence as to how there is collusion between respondent No. 1 and the claimants. Thus, the findings returned on this issue are upheld. 15. Now coming to issue No.4. The learned counsel for the Forest Corporation has argued that the route permit was renewed after cancellation, after the date of accident. There is nothing on the record to show that the route permit was renewed or it was issued fresh, after it was cancelled. The cancellation order was made on and w.e.f. 4.4.2007. Thus, on the date of accident, the Forest Corporation had allowed the vehicle to ply without route permit. Plying the vehicle without route permit is breach in terms of Sections 147 and 149 of the Motor Vehicles Act read with the terms and conditions contained in the insurance policy Ext. RW1/B. 16. Having said so, the Tribunal has rightly held that the owner has committed willful breach and exonerated the insurer from its liability. Accordingly, findings returned on this issue are upheld. 17. The next question is whether the amount awarded is adequate or otherwise? On the face of it, the Tribunal has fallen in an error in deducting 1/3rd from the income of the deceased. As per salary certificate Ext. PW3/A, last pay drawn was Rs.4829/-. Keeping in view the ratio laid down in 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,. 1/4th was to be deducted and not 1/3rd. 18. Thus, the claimants have lost source of dependency to the tune of Rs.3600/- per month. The age of the deceased was 39 years at the time of accident and the Tribunal has wrongly applied the multiplier of 13. The just and appropriate multiplier to be applied was “14” in view of Sarla Verma, supra read with Munna Lal Jain and another versus Vipin Kumar Sharma and others reported in JT 2015 (5) SC 1. The age of the deceased was 39 years at the time of accident and the Tribunal has wrongly applied the multiplier of 13. The just and appropriate multiplier to be applied was “14” in view of Sarla Verma, supra read with Munna Lal Jain and another versus Vipin Kumar Sharma and others reported in JT 2015 (5) SC 1. It is apt to reproduce paras 12 and 14 of the said judgment herein: “12. The remaining question is only on multiplier. The High Court following Santosh Devi (supra), has taken 13 as the multiplier. Whether the multiplier should depend on the age of the dependants or that of the deceased, has been hanging fire for sometime; but that has been given a quietus by another three-Judge Bench decision in Reshma Kumari (supra). It was held that the multiplier is to be used with reference to the age of the deceased. One reason appears to be that there is certainty with regard to the age of the deceased but as far as that of dependants is concerned, there will always be room for dispute as to whether the age of the eldest or youngest or even the average, etc., is to be taken. To quote: “36. In Sarla Verma, this Court has endeavoured to simplify the otherwise complex exercise of assessment of loss of dependency and determination of compensation in a claim made under Section 166. It has been rightly stated in Sarla Verma that the claimants in case of death claim for the purposes of compensation must establish (a) age of the deceased; (b) income of the deceased; and (c) the number of dependants. To arrive at the loss of dependency, the Tribunal must consider (i) additions/deductions to be made for arriving at the income; (ii) the deductions to be made towards the personal living expenses of the deceased; and (iii) the multiplier to be applied with reference to the age of the deceased. We do not think it is necessary for us to revisit the law on the point as we are in full agreement with the view in Sarla Verma.” 13. xxxxxxx xxxxxxxx xxxxxxxxxx 14. The multiplier, in the case of the age of the deceased between 26 to 30 years is 17. There is no dispute or grievance on fixation of monthly income as Rs.12,000.00 by the High Court.” 19. xxxxxxx xxxxxxxx xxxxxxxxxx 14. The multiplier, in the case of the age of the deceased between 26 to 30 years is 17. There is no dispute or grievance on fixation of monthly income as Rs.12,000.00 by the High Court.” 19. Thus, the claimants are held entitled to Rs.3600x12=Rs.43200/-x14=Rs.6,04,800/-. 20. The Tribunal has also not granted compensation under the four heads. I hold the claimants entitled to compensation under the four heads as under: (i) loss of love and affection: Rs.10,000/- (ii) Loss of estate : Rs.10,000/- (iii) Funeral expenses : Rs.10,000/- (iv) Loss of future expenses : Rs.10,000/- Total Rs.40,000/- 21. Accordingly, the amount awarded is enhanced to Rs.6,04,800/-+Rs.40,000/- =Rs.6,44,800/-. The rate of interest awarded by the Tribunal is upheld. 22. Having said so, the impugned award is modified as indicated hereinabove. The H.P. Forest Corporation is directed to deposit the enhanced amount within eight weeks from today. The Registry is directed to release the amount already deposited in favour of the claimants, strictly in terms of the conditions contained in the impugned award, through payees’ cheque account and enhanced amount on its deposition. 23. Accordingly, the appeal filed by the H.P. Forest Corporation is dismissed and the appeal filed the claimants is allowed as indicated hereinabove. 24. Send down the record forthwith, after placing a copy of this judgment.