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2016 DIGILAW 1608 (HP)

Oriental Insurance Company v. Sarla Devi

2016-08-05

MANSOOR AHMAD MIR

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JUDGMENT : Mansoor Ahmad Mir, J. This appeal is directed against the award, dated 31st March, 2011, passed by the Motor Accident Claims Tribunal, Fast Track Court, Chamba, District Chamba, H.P., (for short, “the Tribunal”) in Claim Petition No.10 of 2010, titled Sarla Devi and others vs. Oriental Insurance Company Limited, whereby the claim petition was allowed and compensation to the tune of Rs.13,73,744/-, with interest at the rate of 7.5% per annum, came to be awarded in favour of the claimants and the insurer was saddled with the liability, (for short the “impugned award”). 2. The claimants, the owner and the proforma respondent Bishani Devi have not questioned the impugned award, on any count, thus, has attained finality so far as it relates to them. 3. The insurer has questioned the impugned award on two counts – (i) The claimants have failed to prove rash and negligence on the part of the driver of the offending vehicle and (ii) The amount of compensation awarded by the Tribunal is excessive. 4. The Tribunal, after examining the pleadings of the parties, framed the following issues:- “1. Whether death of the deceased Karnail Singh had taken place on 7-11-2009 due to rash and negligent driving of the driver of the vehicle No.HP-02D-0031 at Machheter Thokar as alleged? OPP 2. If issue No.1 answered in affirmative, whether the petitioners and profroma respondent being dependants are entitled to the compensation. If so, to what amount and from which of the respondents? OPP 3. Whether the petition is not maintainable? OPR-1&2. 4. Whether the petitioners have no cause of action? OPR-2 5. Whether driver was not holding valid and effective driving licence for driving the offending vehicle? OPR 6. Whether the offending vehicle was not having valid registration certificate, valid route permit and valid fitness certificate as alleged? OPR 7. Whether the deceased had been traveling as a gratuitous passenger as alleged? OPR 8. Whether the vehicle was not being driven in accordance with the provisions of Motor Vehicle Act? OPR 9. Relief.” 5. In order to prove their case, parties have led evidence. The claimants examined PW-1 Dr. Umesh Chadha, PW-2 Des Raj, PW-3 Sarla Devi (claimant) and PW-4 Suresh Kumar. OPR 8. Whether the vehicle was not being driven in accordance with the provisions of Motor Vehicle Act? OPR 9. Relief.” 5. In order to prove their case, parties have led evidence. The claimants examined PW-1 Dr. Umesh Chadha, PW-2 Des Raj, PW-3 Sarla Devi (claimant) and PW-4 Suresh Kumar. On the other hand, respondent No.2, owner of the offending vehicle, examined an official from the office of Registering and Licencing Authority, Bharmour, District Chamba, in order to prove the licence of the driver of the offending vehicle. No other evidence was led by the respondents. 6. Coming to the first point urged by the learned Senior Advocate appearing for the insurer/appellant, the Tribunal, while holding that the accident was the outcome of rash and negligent driving of the driver of the offending truck, has made detailed discussion in paragraphs 7 and 8 of the impugned award. I have gone through the said findings recorded by the Tribunal, copy of the FIR Ext.PW-2/A and the evidence led by the parties and am of the considered view that the Tribunal has rightly held that the accident was the outcome of rash and negligent driving of the driver of the offending vehicle. The insurer has not led any evidence to the contrary to dislodge the case set up and proved by the claimants. Therefore, the findings returned by the Tribunal on issue No.1 are liable to be upheld and the same are upheld. First point urged by the learned Senior Advocate for the appellant is answered accordingly. 7. The second point argued by the learned Senior Advocate was that the compensation awarded by the Tribunal is on the higher side. Thus, the controversy revolves around part of issue No.2. 8. Before dealing with issue No.2, I deem it proper to deal with issues No.3 to 8. 9. Onus to prove these issues was on the respondents. Respondent No.2, in order to prove that the driver of the offending vehicle was having a valid and effective driving licence, at the time of accident, has examined RW-1 Chaman Singh. Copy of the driving licence has been proved on record as RW-1/A, a perusal of which shows that the driver was having a valid and effective driving licence to drive the offending vehicle at the time of accident. Copy of the driving licence has been proved on record as RW-1/A, a perusal of which shows that the driver was having a valid and effective driving licence to drive the offending vehicle at the time of accident. The insurer has not led any evidence to prove that the driver was not having a valid and effective driving licence at the relevant point of time, or the licence Ext.RW-1/A was fake and so on and so forth. Therefore, it can safely be held that the Tribunal has rightly concluded that the driver of the offending vehicle was having a valid and effective driving licence at the time of accident. Accordingly, the findings returned by the Tribunal on issue No.5 are upheld. 10. In regard to issues No.3, 4 and 6 to 8, it may be stated that the onus to prove these issues was on the respondents, have not led any evidence and, therefore, have failed to discharge the onus. Accordingly, the findings returned by the Tribunal on these issues are upheld. 11. Coming to issue No.2, admittedly, the deceased was working as a Beldar in Forest Department. It was pleaded that the monthly salary of the deceased was Rs.15,000/- at the time of his death and in addition, he was also earning Rs.5,000/- per month from agriculture. 12. The claimants examined Suresh Kumar, Forest Guard, as PW-4 who has proved on record the salary certificate of the deceased i.e. Ext.PW-4/A, which shows that the gross monthly income of the deceased, at the time of death, was Rs.8,775/-. Accordingly, it is held that, at the time of his death, the monthly income of the deceased was Rs.8,775/-, or say Rs.9,000/- (rounded off). 13. The Tribunal has fallen into an error in deducting 1/4th amount from the monthly income of the deceased towards his personal expenses. Since the number of claimants, before the Tribunal, was three, therefore, in view 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, 1/3rd amount was to be deducted from the monthly income of the deceased towards his personal expenses. Accordingly, after deducting 1/3rd amount, it is held that the claimants lost source of dependency to the tune of Rs.6,000/- per month. 14. The claimants, in the claim petition, pleaded that at the time of death, the deceased was 26 years of age. However, admittedly, it has been proved on record that the deceased was 35 years of age and the Tribunal has rightly applied the multiplier of 16 in view of the mandate of the Apex Court in the case of Sarla Verma (supra) read with 2nd Schedule attached to the Motor Vehicles Act, 1988. 15. In view of the above, the claimants are held entitled to Rs.6000 x 12 x 16 = Rs.11,52,000/-. In addition, the claimants are also held entitled to Rs.10,000/- each, (i.e. Rs.40,000/-), under the heads ‘loss of love and affection’, ‘loss of consortium’, ‘loss of estate’ and ‘funeral charges’. 16. Having glance of the above discussion, the claimants are held entitled to Rs.11,52,000/- + Rs.40,000/- = Rs.11,92,000/-, alongwith interest as awarded by the Tribunal. 17. The Registry is directed to release the amount in favour of the claimants and the mother of the deceased, strictly in terms of the impugned award. The excess amount, if any, be refunded in favour of the appellant/insurer through payee’s account cheque. 18. The impugned award is modified, as indicated above and the appeal is allowed.