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2015 DIGILAW 980 (HP)

United India Insurance Company Ltd. v. Rama Nand

2015-07-31

MANSOOR AHMAD MIR

body2015
JUDGMENT Mansoor Ahmad Mir, J. Challenge in this appeal is to the judgment and award, dated 01.05.2008, made by the Motor Accident Claims Tribunal, Kinnaur at Rampur Bushahr, H.P. (for short "the Tribunal") in M.A.C. Petition No. 100 of 2004, titled as Rama Nand and another versus Sh. Gulam Mohammad Lagoo and others, whereby compensation to the tune of Rs. 3,18,000/- with interest @ 7.5% per annum from the date of the petition till its realization was awarded in favour of the claimants and the insurer came to be saddled with liability (for short "the impugned award"). 2. The claimants, the owners, the drivers and one of the insurer have not questioned the impugned award on any count, thus, has attained finality so far it relates to them. 3. The appellant-insurer of the offending vehicle, i.e. truck, bearing registration No. JK-01C-5356, has questioned the impugned award on the grounds taken in the memo of appeal. 4. In order to determine the dispute involved in this appeal, it is necessary to give a flashback of the facts of the case, the womb of which has given birth to the appeal in hand. 5. The claimants, i.e. the father and brother of deceased - Nihal Chand, filed claim petition before the Tribunal for grant of compensation to the tune of Rs. 10,00,000/-, as per the break-ups given in the claim petition, on the ground that they have lost their bread earner in a vehicular accident, which was caused by the driver, namely Shri Ali Mohammad, while driving truck, bearing registration No. JK-01C-5356, rashly and negligently, on 30.09.2004, at about 12.30 A.M. at Araipura Chowk on G.T. Road, Gharaunda in District Karnal, Haryana. Deceased-Nihal Chand was a bachelor leaving behind unfortunate father and brother. 6. The claim petition was resisted by the respondents in the claim petition on the grounds taken in the respective memo of objections. 7. Following issues came to be framed by the Tribunal: "1. Whether the accident has taken place due to rash and negligent driving of truck No. JK-01C-5356? OPP 2. If issue No. 1 is proved, whether the petitioner is entitled to the compensation, if so to what amount and at what rate of interest? OPP 3. Whether the petition is not maintainable in the present form? OPR-3 & 6 4. Whether the petitioner has no locus-standi to file this petition? OPR-6 5. OPP 2. If issue No. 1 is proved, whether the petitioner is entitled to the compensation, if so to what amount and at what rate of interest? OPP 3. Whether the petition is not maintainable in the present form? OPR-3 & 6 4. Whether the petitioner has no locus-standi to file this petition? OPR-6 5. Whether this petition is bad for non-joinder of necessary parties, as the owner-cum-driver of vehicle No. HR-55A-0601 as alleged? OPR-6 6. Whether there is violation of the mandatory terms and conditions of insurance policy i.e. permit as alleged, if so its effect? OPR-3 & 6 7. Whether the vehicle in question was not possessing valid and effective registration and fitness certificate, if so, its effect? OPR-3 & 6 8. Whether the vehicle in question was not possessing a valid and effective driving licence at the time of accident within the knowledge of insured, as alleged, if so its effect? OPR-3 & 6 9. Whether the deceased Nihal Chand was travelling in the vehicle in question as unauthorized/gratuitous passenger at the time of accident? OPR-3 & 6 10. Relief." 8. Claimants led evidence in support of their claim. The respondents in the claim petition have not led any evidence. Thus, the evidence led by the claimants has remained unrebutted. Issue No. 1: 9. The Tribunal after scanning the evidence, oral as well as documentary, held that the accident was outcome of rash and negligent driving of the offending vehicle by its driver and accordingly decided issue No. 1 in favour of the claimants. The findings returned by the Tribunal on issue No. 1 has not been questioned by the appellant-insurer in the memo of appeal. Accordingly, the findings returned by the Tribunal on issue No. 1 is upheld. 10. Before I deal with quantum of compensation, I deem it proper to determine issues No. 3 to 9. Issues No. 3 to 9: 11. It was for respondents No. 3 and 6-insurers of both the vehicles involved in the accident to prove issues No. 3 to 9, have not led any evidence, thus, have failed to discharge the onus. Thus, the Tribunal has rightly decided the said issues in favour of the claimants and against respondents No. 3 and 6 in the claim petition. 12. Thus, the Tribunal has rightly decided the said issues in favour of the claimants and against respondents No. 3 and 6 in the claim petition. 12. It is apt to record herein that during the pendency of the appeal, the appellant-insurer has moved an application, being CMP No. 692 of 2008, in terms of Order 41 Rule 27 read with Section 151 of the Code of Civil Procedure (for short "CPC") before this Court seeking permission to place on record certain documents by way of additional evidence in order to prove that the owner-insured has committed breach of the terms and conditions of the insurance policy as the offending vehicle was being plied without valid route permit at the time of the accident. 13. The appellant-insurer has not led any evidence before the Tribunal, now, cannot be allowed to defeat the purpose of granting compensation, that too, at belated stage, by moving an application for leading additional evidence. Even otherwise, the application is not maintainable for the simple reason that the appellant-applicant has annexed certificate issued by Regional Transport Officer, Srinagar, Kashmir, issued on 10.01.2008, which discloses that the route permit of the offending vehicle was valid upto 17.06.2008. No such proof has been placed on record indicating that the route permit of the offending vehicle issued in the year 2004, i.e. at the relevant point of time, was for the said route. Thus, virtually, the application is misconceived. Hence, CMP No. 692 of 2008 is dismissed. 14. Having said so, I am of the considered view that the Tribunal has rightly saddled the appellant-insurer with liability. Accordingly, the findings returned by the Tribunal on issues No. 3 to 9 are upheld. Issue No. 2: 15. The claimants have proved that the deceased was earning Rs. 3,500/- per month and the Tribunal has accordingly upheld the same. The claimants have not questioned the same and have also not made a murmur about the same. Accordingly, it is held that the deceased was earning Rs. 3,500/- per month. Issue No. 2: 15. The claimants have proved that the deceased was earning Rs. 3,500/- per month and the Tribunal has accordingly upheld the same. The claimants have not questioned the same and have also not made a murmur about the same. Accordingly, it is held that the deceased was earning Rs. 3,500/- per month. 50% was to be deducted towards personal expenses of the deceased, being bachelor, in view of the ratio laid down the Apex Court in Sarla Verma (Smt.) and others versus Delhi Transport Corporation and another, reported in AIR 2009 SC 3104 and upheld by a larger Bench of the Apex Court in the case titled as Reshma Kumari & others versus Madan Mohan and another, reported in 2013 AIR SCW 3120. Thus, it can be safely said that the claimants have lost source of income to the tune of Rs. 1750/- per month. 16. While going through the impugned award, it appears that the Tribunal has fallen in an error while applying multiplier of 11'. The deceased was 30 years of age at the time of the accident. In view of the latest decision of the Apex Court in a case titled as Munna Lal Jain and another versus Vipin Kumar Sharma and others, reported in JT 2015 (5) SC 1, multiplier of 14' is applicable. 17. Viewed thus, the claimants are held entitled to compensation to the tune of Rs. 1750 x 12 x 14 = Rs. 2,94,000/-. The amount awarded by the Tribunal under the head 'conventional charges' to the tune of Rs. 10,000/- is maintained. 18. Accordingly, total compensation to the tune of Rs. 2,94,000/-+ Rs. 10,000/-= Rs. 3,04,000/- is awarded in favour of the claimants. 19. Registry is directed to release the awarded amount in favour of the claimants strictly as per the terms and conditions contained in the impugned award after proper identification with a further direction to release the excess amount in favour of the appellant-insurer through payee's account cheque. 20. Send down the record after placing copy of the judgment on Tribunal's file.