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Himachal Pradesh High Court · body

2015 DIGILAW 998 (HP)

National Insurance Company Limited v. Shashiwala

2015-07-31

MANSOOR AHMAD MIR

body2015
JUDGMENT : MANSOOR AHMAD MIR, J. 1. Subject matter of this appeal is the award, dated 17th May, 2008, passed by the Motor Accident Claims Tribunal, Hamirpur, (for short, the Tribunal), in Claim Petition No.46 of 2006, titled Shashiwala and others vs. Parveen Kumar and others, whereby a lump sum compensation to the tune of Rs.12,40,000/-, with interest at the rate of 7.5% from the date of filing of the Claim Petition till realization, was awarded in favour of the claimants, and the insurer-appellant was saddled with the liability, (for short, the impugned award). 2. The claimants, the owner and the driver have not questioned the impugned award, thus, the same has attained finality so far as it relates to them. 3. Feeling aggrieved, the insurer has challenged the impugned award by the medium of present appeal. 4. Facts of the case, in brief, are that on 25th April, 2006, at about 1.35 p.m., deceased Anil Kumar, aged 20 years, who was a student of engineering in National Institute of Technology at Hamirpur, while coming from Bhatta to NIT, Hamirpur on motorcycle No.HP-22A-1132, was hit by a bus bearing registration No.HP-39A-4715 at a place known as Bhumpal, as a result of which the deceased suffered multiple injuries and died on the spot. Thus, the claimants, being parents of the deceased, invoked the jurisdiction of the Tribunal on 16th May, 2006 and claimed compensation to the tune of Rs.10.00 lacs or more, as per the break-ups given in the Claim Petition. 5. The Claim Petition was resisted by the respondents by filing replies. 6. On the pleadings of the parties, the following issues were settled by the Tribunal: “1. Whether Anil Kumar died due to rash and negligent driving of Bus No.HP- 39A-4715 by respondent No.2? OPP 2. If issue No.1 is proved in affirmative, to what amount of compensation, the petitioners are entitled to and from whom? OPP 3. Whether Bus No.HP-39A-4715 was insured with respondent No.37? OPR 1 & 2. 4. Whether respondent No.2 was not holding valid and effective driving licence to drive the bus in question? OPR-3. 5. Whether the bus in question was being driven in contravention of the terms and conditions of insurance Policy? OPR-3. 6. Relief.” 7. In order to prove their claim, as set out in the Claim Petition, the claimants led their evidence. 4. Whether respondent No.2 was not holding valid and effective driving licence to drive the bus in question? OPR-3. 5. Whether the bus in question was being driven in contravention of the terms and conditions of insurance Policy? OPR-3. 6. Relief.” 7. In order to prove their claim, as set out in the Claim Petition, the claimants led their evidence. However, the respondents have chosen not to lead any evidence. Therefore, the evidence led by the claimants remained unrebutted. 8. On the last date of hearing, the learned counsel for the appellant was asked to seek instruction to settle the claim at Rs.12.00 lacs in lump sum, for which the matter was adjourned. Today, Mr.Goel, learned counsel for the appellant, stated that he is under instructions to make a statement that the appellant is not ready to settle the claim at Rs.12.00 lacs. His statement is taken on record. 9. I have gone through the impugned award. The Tribunal has fallen in error in awarding lump sum compensation under the head “loss of source of dependency” without giving details. 10. In the given circumstances, I deem it proper to determine the Claim Petition as follows. Issue No.1 11. There is no dispute about this issue. However, I have gone through the record. The claimants have proved by leading evidence that the driver of the offending bus was driving the bus rashly and negligently and caused the accident. Accordingly, the findings recorded by the Tribunal under this issue are upheld. 12. Before issue No.2 is dealt with, I deem it proper to deal with Issues No.3, 4 and 5. Issues No.3, 4 and 5: 13. Onus to prove these issues was upon the insured/owner, the driver and the insurer. They have not led any evidence to prove these issues, thus, have failed to discharge the onus. The driver and the owner have not questioned the impugned award. Even the insurer-appellant has not questioned the findings recorded by the Tribunal on issue No.3. Thus, the said issue rightly came to be decided in favour of the claimants and accordingly, the findings recorded by the Tribunal on this issue are upheld. 14. Onus to prove issues No.4 and 5 was on the insurer. Even the insurer-appellant has not questioned the findings recorded by the Tribunal on issue No.3. Thus, the said issue rightly came to be decided in favour of the claimants and accordingly, the findings recorded by the Tribunal on this issue are upheld. 14. Onus to prove issues No.4 and 5 was on the insurer. The insurer has not led any evidence to prove that the driver of the offending vehicle was not having a valid and effective driving licence or that the offending bus was being driven in contravention to the terms and conditions contained in the insurance policy. The learned counsel for the appellant has also not been able to show how the findings recorded under these issues are illegal. Therefore, the said findings are upheld. Issue No.2: 15. Admittedly, the deceased was pursuing engineering from National Institute of Technology, Hamirpur, was having a bright career ahead, may have become a gazetted officer after passing out engineering and would have earned not less than Rs.35,000/- per month, which a gazetted officer normally earns. 16. However, by exercising guess work, I deem it proper to take monthly income of the deceased at Rs.10,000/- per month. 17. Applying the ratio of the decision 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% has to be deducted towards personal expenses of the deceased. Accordingly, it is held that the claimants have lost source of dependency to the tune of Rs.5,000/- per month. 18. Coming to the multiplier, admittedly, the deceased was 20 years of age at the time of accident. Therefore, keeping in view the age of the deceased and the dictum of the Apex Court in its latest decision in Munna Lal Jain and another vs. Vipin Kumar Sharma and others, JT 2015 (5) SC 1, multiplier 15 is appropriate. 19. In view of the above, the claimants are held entitled to Rs.9,00,000/- (Rs.5,000/- x 12 x 15) under the head loss of source of dependency. 19. In view of the above, the claimants are held entitled to Rs.9,00,000/- (Rs.5,000/- x 12 x 15) under the head loss of source of dependency. In addition, the claimants are also held entitled to Rs.10,000/- each under the heads “loss of estate, loss of consortium, loss of love and affection and funeral expenses.” Thus, the claimants are held entitled to Rs.9,40,000/- (Rs.9,00,000 + 40,000), as total compensation. The above amount shall carry interest at the rate of 7.5% per annum from the date of the claim petition till realization. 20. It is beaten law of the land that the compensation is to the awarded in favour of the claimants as early as possible. The claimants in the instant case approached the Tribunal in the year 2006 and by now, around 9 years have passed, however, the claimants were not able to reap the fruits of the welfare legislation and the impugned award. This is how the aim and object of granting compensation in vehicular accident cases stands defeated. The insurer has tried to evade its liability for such a long period. Therefore, the insurer-appellant is saddled with Rs.50,000/- as costs payable to the claimants. 21. The Registry is directed to release the award amount, after making calculations and proper identification, in favour of the claimants, and the excess amount, if any, be released in favour of the insurer through account payee's cheque. 22. The appeal stands disposed of accordingly.